Copyright Infringement?

[GHBWNY]

Wondered if anyone can shed some light on this or has ever encountered the same thing...

When I make my bottle labels, I often use a photo from the internet that appropriately represents the beer. The name of my latest -- a stylistically cloudy Apricot Witbier -- is "DimWit". So, on the label I used a picture of The Three Stooges. And yesterday, as always, I sent the completed label to Office Depot to make copies.

Today I got a call from the store supervisor who said they couldn't print the labels because, "the photo is copyrighted". I tried explaining that being one of thousands of similar photos of The Three Stooges on the internet, proving its copyright status would be difficult if not impossible. And besides, being 80 years old, isn't it in the Public Domain? Her reply was, "Sorry, we're not taking any chances", and refused to print them.

So, back to the drawing board I went and came up with a new label with the face of once again (the internet is full of dimwits), a well-known personality. This time, I cropped the photo below the eyes and blurred around the edges so the only things visible on the label were the nose and mouth. Period. She called, and with an unrestrained chuckle said the copies would be ready to be picked up if I came right over. When I arrived at the store, she hadn't made the copies yet, and before she did, I had to sign an affidavit that released the store from any copyright infringement liability. I said, "What? Why? It's a nose and a mouth!" Her answer was, "I know who that's a picture of."

Guess it's time to get my own laser printer and eliminate the middle man. Or woman.

 

[Devon]

If you're not selling the beer, does it make any difference?

 

[ChasinABuzz]

So here's how it all plays out, as long as you aren't selling or marketing the beer in anyway, you're good to print that. BUT, because Office Depot would be profiting off of the reproduction of said copyrighted photo by selling you the labels, they can only do so if you are the copyright owner of the property. It's definitely not public domain. You can find photos of mine of University of Hawaii sports among others all over the Internet but they are still copyrighted by me in the IPTC coding on the photo which is basically coded information hidden inside the image for my protection. Basically the way it works for situations like this is in order to protect themselves, if the image appears to be professional grade, they reserve the right to refuse it on speculation. It may seem a bit extreme, but if you sold a single bottle of that beer to someone, whoever currently owns the rights to the 3-stooges (o think MGM?) could and most likely would sue the crap out of not only you, but Office Depot. You could sell one beer for $5, they could sue you and Office Depot each for probably around a mil depending on their contract terms regarding the copyrights on the franchise. I've had printing companies make me prove that the photo was mine for other people and myself both.

Bottom line is neither of you've done anything wrong. You're not profiting so you're ok, but she would be so she's correct in not reproducing the image. But either way, public domain is a term tossed around in the social media age that truly doesn't exist for professional work bc we all copyright our stuff.

 

[ChasinABuzz]

NOW, that said, where it would be different was if you instead did 1 of 2 things, used an artists rendering of the image that was stylized to look like a drawing of some sort with some changes (which you'd have to have permission from the artist to give them at the store) OR if you purchased a stock photo from one of the many stock image databases online that had a similar image. Then you would be given a receipt to use it for commercial purposes and pay a certain fee.

All in all, if you're just doing it for fun, borrow a buddy's printer. It's easier that way. Just make sure if you ever decide to make it professionally you secure rights to the photo.

 

[slym2none]

Go to Kinko's & do it yourself. They can't say anything that way.

 

[ChasinABuzz]

Go to Kinko's & do it yourself. They can't say anything that way.

They can still stop you because you are paying them to copy the imagery. Most if the time the won't do that bc they hardly ever pay attention to people doing the self service thing unless they need help so that may be a good way to get around it but the whole idea of them profiting off of copying a copyrighted photo still holds true even if you do it yourself. You're still paying their company to copy a copyrighted image. That's the whole point of copyrights.

 

[ChasinABuzz]

GHB, one other thing I forgot to mention, there is one scenario in which you could be forced to stop using a copyrighted image on a beer label even if it's for fun, it hardly ever happens, it sucks, but it makes sense.

Let's say the family of the dude who played Curly owns his estate. You use his image in a label, they somehow through 12degrees of separation find out. Then let's say he was a staunch anti-alcohol advocate in his days and he expressed in his will or estate papers that he wished for his public image to remain that way. If you're not selling the beer, all they can do is send you what is called a "Cease and Desist" letter. Basically they send you a letter stating that they know you're not profiting in the image but using it in that way is detrimental to Curly's image in the public eye. You'd have to stop using it but as long as you don't profit it's damn near impossible for them to sue you for damages. You'd essentially have to hand out bottles of beer on the street corner saying "Curly would've liked it you will to!" Hahaha

 

[MaxStout]

So here's how it all plays out, as long as you aren't selling or marketing the beer in anyway, you're good to print that. BUT, because Office Depot would be profiting off of the reproduction of said copyrighted photo by selling you the labels, they can only do so if you are the copyright owner of the property. It's definitely not public domain. You can find photos of mine of University of Hawaii sports among others all over the Internet but they are still copyrighted by me in the IPTC coding on the photo which is basically coded information hidden inside the image for my protection. Basically the way it works for situations like this is in order to protect themselves, if the image appears to be professional grade, they reserve the right to refuse it on speculation. It may seem a bit extreme, but if you sold a single bottle of that beer to someone, whoever currently owns the rights to the 3-stooges (o think MGM?) could and most likely would sue the crap out of not only you, but Office Depot. You could sell one beer for $5, they could sue you and Office Depot each for probably around a mil depending on their contract terms regarding the copyrights on the franchise. I've had printing companies make me prove that the photo was mine for other people and myself both.

Bottom line is neither of you've done anything wrong. You're not profiting so you're ok, but she would be so she's correct in not reproducing the image. But either way, public domain is a term tossed around in the social media age that truly doesn't exist for professional work bc we all copyright our stuff.

Nope.

While non-commercial use is one element considered in the "fair use" analysis; simply being non-commercial, in and of itself, does not get you off the hook. There are four factors used in determining whether or not a use of a copyrighted work falls under the fair use doctrine. Commercial/non-commercial use is one of them.

The copy shop has those polices to protect themselves, as they don't want to become embroiled in an action for contributory or vicarious infringement.

If you are caught, the copyright holder won't sue you "for around a mil." The civil penalties for each count of infringement are set between $750 and $30,000, and up to $150,000 in cases of willful infringement. These penalties have nothing to do with a print shop's franchise agreement, they are set by U.S. statute.

 

[Minky]

Here's an interesting article regarding the practical applications of the term "public domain". There are a lot of older works which are considered to be in the public domain including, apparently, 4 of the Stooges shorts. Theoretically, you should be allowed to reproduce stills from these 4 episodes, but the courts don't always rule that way. Even so, if you are challenged by a deep-pocket concern like Sony, it's a moot point.

At any rate, Office Depot is simply not going to take a chance on it.

https://188ip.wordpress.com/2011/02/21/public-domain-vs-copyright-and-the-seven-stooges-revisited/

 

[Dixon9717]

I've had Costco refuse to print a family photo we had professionally taken. They said it was a copyright infringement even though I paid for the original. The little trim around the edge had the studio name on it.

 

[unionrdr]

That's like what YouTube did to me with music I used in my newer videos from freemusicarchive.org. I set the parameters for non-commercial use, mixes allowed, etc. Since my videos are not " monetized" as YouTube puts it, I should've been ok. But they're being so automated, it seems to make for problems like this. I had to change, " The Drivers Eye" three times before having had enough of this & explaining what the song was, where I got it, & the parameters set in searching it out. They finally left me alone.Not so with my old channel intro. 532 views over a couple years, & NOW they complain! And that's after I changed the music to one they listed themselves as free to use! They need o fix these " public domain" issues. It's really getting contrary to what you read when you chose it, if your video, whatever is successful...if only in our/your community of users.

 

[ChasinABuzz]

I've had Costco refuse to print a family photo we had professionally taken. They said it was a copyright infringement even though I paid for the original. The little trim around the edge had the studio name on it.

You can sometimes get the portrait studio to give you a copyright release to get that printed if you need. Its something I do for all my portrait clients bc I don't operate on print credits but some studios force you to print with them. I've never liked that part of the photography world. Always seemed sneaky to me.

 

[ChasinABuzz]

Nope.



While non-commercial use is one element considered in the "fair use" analysis; simply being non-commercial, in and of itself, does not get you off the hook. There are four factors used in determining whether or not a use of a copyrighted work falls under the fair use doctrine. Commercial/non-commercial use is one of them.



The copy shop has those polices to protect themselves, as they don't want to become embroiled in an action for contributory or vicarious infringement.



If you are caught, the copyright holder won't sue you "for around a mil." The civil penalties for each count of infringement are set between $750 and $30,000, and up to $150,000 in cases of willful infringement. These penalties have nothing to do with a print shop's franchise agreement, they are set by U.S. statute.

I don't exactly understand where "Nope" comes in to play based on the fact that I'm agreeing with everything you're saying?... You're dead on with the numbers, I didn't have the exact statute information in front of me. And I hardly ever have to deal with it so it's not committed to memory by any means. I also said nothing about the print shops franchise agreements. I was talking about the franchise of the 3 Stooges and how it shakes out with their rights to each type of intellectual property pertaining to the franchise. "About a mil" was tongue in cheek for a simple discussion.

The odds of anybody finding anything out about him using that image are slim to none I think we can both agree, but as far as why Office Depot won't touch it, you and I are in complete agreement.

 

[MaxStout]

I've had Costco refuse to print a family photo we had professionally taken. They said it was a copyright infringement even though I paid for the original. The little trim around the edge had the studio name on it.

Having a copy of the photo does not allow you to make copies, any more than buying a copy of a movie allows you to copy that. The photo studio owns the copyright to the image. The fact that your family is the subject of the photo is irrelevant; unless the studio executed a "work made for hire" agreement with you (they rarely do), the copyright remains with the author of the work (studio).

 

[ChasinABuzz]

Having a copy of the photo does not allow you to make copies, any more than buying a copy of a movie allows you to copy that. The photo studio owns the copyright to the image. The fact that your family is the subject of the photo is irrelevant; unless the studio executed a "work made for hire" agreement with you (they rarely do), the copyright remains with the author of the work (studio).

Exactly, it's always been one of my selling points to clients that I don't do print credits or anything like that. Gives them more value in their eyes and I don't have to deal with printing hahah. But for larger studios, especially those who print in house, doing it that way is how they make the majority of their money. It's always seemed sneaky and genius to me at the same time haha

 

[m00ps]

Doesnt it fall under parody law? (I think is the term)

Like knee Deeps Breaking Bud is clearly using the logo from breaking bad but I think its parody law that lets you do it

 

[ChasinABuzz]

Doesnt it fall under parody law? (I think is the term)

Like knee Deeps Breaking Bud is clearly using the logo from breaking bad but I think its parody law that lets you do it

Don't think it's the exact logo though it's an artists rendering of the logo right? I'm not sure about parody stuff, I only ever deal with it in respect to photojournalism mainly. MaxStout? Any idea on that?

My only understanding of parody law is that it can't be a direct manipulation of the franchise/persons property (like just taking a picture of the main character and Photoshopping a hop on his face) but you can use artistic depiction to reference the original, but you have to show that you're openly mocking it so there's no doubt it's not connected? That's just how it was explained to me a LONG time ago so I'm interested to see how it actually works.

 

[MaxStout]

I don't exactly understand where "Nope" comes in to play based on the fact that I'm agreeing with everything you're saying?... You're dead on with the numbers, I didn't have the exact statute information in front of me. And I hardly ever have to deal with it so it's not committed to memory by any means. I also said nothing about the print shops franchise agreements. I was talking about the franchise of the 3 Stooges and how it shakes out with their rights to each type of intellectual property pertaining to the franchise. "About a mil" was tongue in cheek for a simple discussion.

The odds of anybody finding anything out about him using that image are slim to none I think we can both agree, but as far as why Office Depot won't touch it, you and I are in complete agreement.

I'm not trying to be contentious or trollish here, so please understand.

But let me highlight below what I drew from your earlier post. It's the part about "you're not selling, so you're good to print."

True, the chances of being caught are slim. Look at file sharing. Millions do it with impunity, and few are caught. That's a practical view, not a legal one. I'm pointing out the legal view. Copyright has nothing to do with contract terms. It is a creature of statutory and case law.

BTW, there are early works (pre-1923) that have fallen into the public domain. Some old films are in that category. But that's not the issue I was bringing up.

So here's how it all plays out, as long as you aren't selling or marketing the beer in anyway, you're good to print that. BUT, because Office Depot would be profiting off of the reproduction of said copyrighted photo by selling you the labels, they can only do so if you are the copyright owner of the property. It's definitely not public domain. You can find photos of mine of University of Hawaii sports among others all over the Internet but they are still copyrighted by me in the IPTC coding on the photo which is basically coded information hidden inside the image for my protection. Basically the way it works for situations like this is in order to protect themselves, if the image appears to be professional grade, they reserve the right to refuse it on speculation. It may seem a bit extreme, but if you sold a single bottle of that beer to someone, whoever currently owns the rights to the 3-stooges (o think MGM?) could and most likely would sue the crap out of not only you, but Office Depot. You could sell one beer for $5, they could sue you and Office Depot each for probably around a mil depending on their contract terms regarding the copyrights on the franchise. I've had printing companies make me prove that the photo was mine for other people and myself both.

Bottom line is neither of you've done anything wrong. You're not profiting so you're ok, but she would be so she's correct in not reproducing the image. But either way, public domain is a term tossed around in the social media age that truly doesn't exist for professional work bc we all copyright our stuff.

 

[ChasinABuzz]

No worries Max, I get that, I wasn't referencing those either. I've even heard that there are pushed in some areas of Europe to have some modern art revert just because the artist is no longer with us (which is terrifying to me) but yea I hear you on the domain issue.

My referencing the certain instances within the franchises property were mainly referencing that it would be different for example, to be caught using a cartoon drawn of the actors, than a B&W photo of them acting out a scene. Depending on who created it and what stake the actual franchise has on that prince of property.

I realized afterward I didn't say anything about cease and desists or how they could come after you eve if it wasn't for profit but the app wouldn't bet me edit the whole post so I added it later. Either way, we're both on the same page you just have a much better understanding of it than I hahaha.

 

[Twotaureanbrewing]

Kinkos doesnt monitor what you print at all, at least any of the times Ive been there.

 

[ChasinABuzz]

Kinkos doesnt monitor what you print at all, at least any of the times Ive been there.

I had them stop me from printing a copy of my own portfolio for an interview and ID me hahaha. I think it just depends on who's behind the counter that day atleast in my experience.

 

[MaxStout]

No worries Max, I get that, I wasn't referencing those either. I've even heard that there are pushed in some areas of Europe to have some modern art revert just because the artist is no longer with us (which is terrifying to me) but yea I hear you on the domain issue.

My referencing the certain instances within the franchises property were mainly referencing that it would be different for example, to be caught using a cartoon drawn of the actors, than a B&W photo of them acting out a scene. Depending on who created it and what stake the actual franchise has on that prince of property.

I realized afterward I didn't say anything about cease and desists or how they could come after you eve if it wasn't for profit but the app wouldn't bet me edit the whole post so I added it later. Either way, we're both on the same page you just have a much better understanding of it than I hahaha.

OK, I get it. You were referring to a film franchise and the like. I think of business franchises.

I've drafted some contract templates for a few commercial photographers, though it's been a few years since I've done any of those. I'm guessing as a photog you have good ones in place.

/CSB: Many years ago I had a client who was a free-lance photog, in a dispute with his other employer. IIRC, he was an IT worker there. Certainly not a photographer. The employer asked him to do a photo shoot of some products. He agreed to do it on a handshake, with no contract (bad move). Then the employer tried to claim that the copyright to photog's works were "works made for hire" as part of his employment. Which they are not unless 1) photography is a normal part of the employee's duties, or 2) the employee had previously signed an agreement assigning those intellectual property rights to the employer. Neither was the case, and we were able to resolve the matter easily with a few phone calls.

The point I'm making with this example is that if you have a side business, be careful what the terms of your day job's employment agreement say. Sometimes, employers try to overreach and claim ownership to any IP made by the employee. If they think they can make a buck off you, they will.

 

[slym2none]

I had them stop me from printing a copy of my own portfolio for an interview and ID me hahaha. I think it just depends on who's behind the counter that day atleast in my experience.

I have never had to interact with anyone behind the counter. They have never seen what I am copying, never cared. It's all self-service if you don't mess with the counter-workers - I walk in, go over to the laser-printer, plug in my USB stick or slap my printed copy on the machine, run my credit card, and away I go.

Maybe I have the most lax Kinko's employees ever? I don't mind, if that's the case.

 

[ChasinABuzz]

OK, I get it. You were referring to a film franchise and the like. I think of business franchises.



I've drafted some contract templates for a few commercial photographers, though it's been a few years since I've done any of those. I'm guessing as a photog you have good ones in place.



/CSB: Many years ago I had a client who was a free-lance photog, in a dispute with his other employer. IIRC, he was an IT worker there. Certainly not a photographer. The employer asked him to do a photo shoot of some products. He agreed to do it on a handshake, with no contract (bad move). Then the employer tried to claim that the copyright to photog's works were "works made for hire" as part of his employment. Which they are not unless 1) photography is a normal part of the employee's duties, or 2) the employee had previously signed an agreement assigning those intellectual property rights to the employer. Neither was the case, and we were able to resolve the matter easily with a few phone calls.



The point I'm making with this example is that if you have a side business, be careful what the terms of your day job's employment agreement say. Sometimes, employers try to overreach and claim ownership to any IP made by the employee. If they think they can make a buck off you, they will.

I hear that, I've done it for a few precious employers but they were all non-profits I didn't mind helping out and giving them the copyrights.

 

[ChasinABuzz]

I have never had to interact with anyone behind the counter. They have never seen what I am copying, never cared. It's all self-service if you don't mess with the counter-workers - I walk in, go over to the laser-printer, plug in my USB stick or slap my printed copy on the machine, run my credit card, and away I go.



Maybe I have the most lax Kinko's employees ever? I don't mind, if that's the case.

I probably just got a company guy hahaha. Either way I was in the right and so was he to question me bc it was professional work.

 

[MaxStout]

That could happen with places that make photo prints. You bring your USB drive into Walgreen's, plug it into the machine and make the prints. You could come in with a drive full of stuff you downloaded from the Internet and they'd be none the wiser. The kid working behind the counter doesn't know and probably wouldn't care anyway.

 

[GHBWNY]

"Curly would've liked it you will to!" Hahaha

I think I may have found a new signature! Only change I would make is instead of "hahaha" at the end, it would be... "nyuk, nyuk, nyuk". Except I would get sued.

Thanks BTW for your in-depth analysis/explanation.

 

[ChasinABuzz]

I think I may have found a new signature! Only change I would make is instead of "hahaha" at the end, it would be... "nyuk, nyuk, nyuk". Except I would get sued.



Thanks BTW for your in-depth analysis/explanation.

If MGM finds out I don't know you hahaha [emoji12]

 

[unionrdr]

...or sic Billy on that lion. Then we'll see how bad a$$ he's feelin'...

 

[arnobg]

I send mine to Fedex Kinko's via online ad have never had issues and someone has to manually print those for me to pick up. I've never used "famous" people or art on them though so who knows.

I tried using the printers you do by yourself one time and it sized them different and the color wasn't as good as the printers they use in the back.