The Crystal Ball

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Originally Posted by jhall1468

Awww, it's Fair Use :D.

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Actually, it's not ... according to US federal copyright law and more specifically, the 1998 Digital Millenium Copyright Act (DMCA), as well as potentially the 1997 No Electronic Theft Act (NET), photographic images are by default copyrighted works.

"Fair use" would not apply (failing on both items 2 and 4).

( In another life, I spent more time testifying in copyright suits than I would have liked. ;) )

Not to mention that Tom is a super nice guy that worked hard to produce those stunning animals and take those amazing shots and should be given all the credit in the world for them. :sweeet:

-adam

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Originally Posted by Kizerk

the plattyxlesser and lesserxlesser produce BEL, and now mojavexmojave

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Super lessers and super mojaves may both be technically considered blue eye'd lucies, but the super mojave doesn't hold a candle to the super lesser ... people that have seen both in person know. ;)

-adam

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Originally Posted by Adam_Wysocki

Super lessers and super mojaves may both be technically considered blue eye'd lucies, but the super mojave doesn't hold a candle to the super lesser ... people that have seen both in person know. ;)

-adam

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Oh yeah. your right...I forgot about that...

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Originally Posted by Adam_Wysocki

Actually, it's not ... according to US federal copyright law and more specifically, the 1998 Digital Millenium Copyright Act (DMCA), as well as potentially the 1997 No Electronic Theft Act (NET), photographic images are by default copyrighted works.

"Fair use" would not apply (failing on both items 2 and 4).

( In another life, I spent more time testifying in copyright suits than I would have liked. ;) )

Not to mention that Tom is a super nice guy that worked hard to produce those stunning animals and take those amazing shots and should be given all the credit in the world for them. :sweeet:

-adam

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:eek: BAM!! Thanks for the info Adam...seems you know more than just ball pythons!! But you know ,you are a profesional so I should expect it.;)

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Originally Posted by Adam_Wysocki

Actually, it's not ... according to US federal copyright law and more specifically, the 1998 Digital Millenium Copyright Act (DMCA), as well as potentially the 1997 No Electronic Theft Act (NET), photographic images are by default copyrighted works.

"Fair use" would not apply (failing on both items 2 and 4).

( In another life, I spent more time testifying in copyright suits than I would have liked. ;) )

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Ok... now I'm going to call you out Adam but I may regret it ;).

Now, I agree with you about defaulting copyright works (in fact, all original works are by default copyrighted, so it follows that digitized photos are). Where I disagree is that fair use wouldn't apply.

Item 2: The nature of the copyrighted work

Basically if the work is either unpublished or fictional, you will have a weaker case for a fair use defense, then if the alternative is true. Since the work is published and it's factual (I would hope ;)), Item 2 would not apply.

Item 4: The Effect of the Use Upon the Potential Market

Since posting the photos on a public forum did not deprave the owner of the works of income, the 4th Item would not apply either.

An interesting case on fair use was Kelly v. Aribba Soft Corporation. The claim being that Aribba Soft's use of Kelly's photos (but only displaying them as thumbnails) was a violation of copyright. Kelly got a default judgement, however, the ruling was overturned by the 9th District Court of Appeals, as they said the use qualified as fair use.

Now, that case revolved around thumbnails, and to date no case has been brought against any company for copyright infringement for full size photos, when the defense of fair use was used. So really, this is all conjecture since it hasn't been tested in the courts (and the judicial allowances for most fair use cases are aplenty).

Copyright infringement is a tough nut to crack when there is no perceived income for the defendant, and there is no perceived loss in income for the plaintiff.

I guess this is what 4 years as an undergrad with no degree gets you... I know a little about a lot and a lot about nothing ;).

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Not to mention that Tom is a super nice guy that worked hard to produce those stunning animals and take those amazing shots and should be given all the credit in the world for them. :sweeet:

-adam

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No arguement there, and I appreciate you catching that so readily :).

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Originally Posted by jhall1468

Ok... now I'm going to call you out Adam but I may regret it ;).

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OK, I’ll play.

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Originally Posted by jhall1468

Item 2: The nature of the copyrighted work

Basically if the work is either unpublished or fictional, you will have a weaker case for a fair use defense, then if the alternative is true. Since the work is published and it's factual (I would hope ;)), Item 2 would not apply.

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Got me there … I got item 1 and item 2 reversed … (It’s been a while since I’ve played the copyright game for real) … The purpose and character of the use did not transform or add anything to the original work and would not favor fair use …and while some Circuits are backing away from the commercial vs. non-profit side of purpose and character, a measurable argument could still be made because of the commercial aspects of this website and the fact that you didn't even add any text to the image (providing no educational benefit).

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Originally Posted by jhall1468

Item 4: The Effect of the Use Upon the Potential Market

Since posting the photos on a public forum did not deprave the owner of the works of income, the 4th Item would not apply either.

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In my opinion, item 4 would absolutely apply … The Crystal Ball python is the heart and soul of Tom Bakers business (Python Dreams) and the catalyst for his competitive edge needed to gain business and generate revenue in the highly competitive industry of ball python mutations. The fact that there is another breeder with a much more established business and more well know reputation that is also producing crystals would help the plaintiff.

I think the rulings in Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997) and Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc. , 672 F.2d 1095, 1100 (2d Cir. 1982) … and of course … Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985), Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) all show how this idea would fall in favor of the plaintiff.

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Originally Posted by jhall1468

An interesting case on fair use was [color=black]Kelly v. Aribba Soft Corporation. The claim being that Aribba Soft's use of Kelly's photos (but only displaying them as thumbnails) was a violation of copyright. Kelly got a default judgment, however, the ruling was overturned by the 9th District Court of Appeals, as they said the use qualified as fair use.

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But the ninth circuit in that case ruled that the thumbnails were only fair use because they were linked to the website where the full sized images were available … and because a thumbnail was a sufficient alteration to the work (see item 1 above) … and the real DAGGER in your argument is that the ninth circuit in Kelly v. Arriba specifically stated in their summary that “The in-line links that displayed the full picture were not fair use, so were infringing the exclusive rights of Kelly” … granted, in 2003 they modified that aspect of their decision, but only because they felt the District Court ruled on something that it shouldn’t have, not because of anything to do with fair use … Had the case taken the long haul, it’s still unclear where it could have gone.

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Originally Posted by jhall1468

So really, this is all conjecture since it hasn't been tested in the courts (and the judicial allowances for most fair use cases are aplenty).

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Exactly, which is why in my opinion erring on the side of caution and throwing in a credit to the owner of the original work goes a long way towards avoiding potential problems.

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Originally Posted by jhall1468

Copyright infringement is a tough nut to crack when there is no perceived income for the defendant, and there is no perceived loss in income for the plaintiff.

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I like my odds on this one given the reasons above … I think experienced council schooled in ins and outs of the ball python business could make an extremely strong arguement for potential loss of income ... and with fair use being an affirmative defense, I wouldn't want to have to try and disprove something like that. ;)

That's what I have off the top of my head from a couple of good fights 8 or 9 years ago (and a little help from the Stanford Univerity Libraries to brush up on some case specifics) ... if I had an actual education in this stuff, I'm sure I could do much better. :carrot:

-adam

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Originally Posted by Adam_Wysocki

OK, I’ll play.

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I had no doubts :).

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Got me there … I got item 1 and item 2 reversed … (It’s been a while since I’ve played the copyright game for real) … The purpose and character of the use did not transform or add anything to the original work and would not favor fair use …and while some Circuits are backing away from the commercial vs. non-profit side of purpose and character, a measurable argument could still be made because of the commercial aspects of this website and the fact that you didn't even add any text to the image (providing no educational benefit).

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Wow, how could have I missed that! The first item in determining whether fair use applies and I totally bombed it. :D I suppose an experienced lawyer would argue that the text preceding it would be considered a modification of the original, and the photo itself acted as the educational benefit. However, I'm not a lawyer, let alone an experienced one :).

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In my opinion, item 4 would absolutely apply … The Crystal Ball python is the heart and soul of Tom Bakers business (Python Dreams) and the catalyst for his competitive edge needed to gain business and generate revenue in the highly competitive industry of ball python mutations. The fact that there is another breeder with a much more established business and more well know reputation that is also producing crystals would help the plaintiff.

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One problem with that, however, the forth item only applies to the works value. And when used for noncommercial purposes (which in this case it was), it is on the burden of the plaintiff to prove that my posting of the photo actually effected the photos value.

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But the ninth circuit in that case ruled that the thumbnails were only fair use because they were linked to the website where the full sized images were available … and because a thumbnail was a sufficient alteration to the work (see item 1 above) … and the real DAGGER in your argument is that the ninth circuit in Kelly v. Arriba specifically stated in their summary that “The in-line links that displayed the full picture were not fair use, so were infringing the exclusive rights of Kelly” … granted, in 2003 they modified that aspect of their decision, but only because they felt the District Court ruled on something that it shouldn’t have, not because of anything to do with fair use … Had the case taken the long haul, it’s still unclear where it could have gone.

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Agreed. I wish it had gone all the way, as we'd have actual precedent in the case.

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Exactly, which is why in my opinion erring on the side of caution and throwing in a credit to the owner of the original work goes a long way towards avoiding potential problems.

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That's definately true. However, (for the benefit of everyone reading this) giving credit does not qualify you to claim "fair use." It is a requirement to claim fair use, but it's not automatic.

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I like my odds on this one given the reasons above … I think experienced council schooled in ins and outs of the ball python business could make an extremely strong arguement for potential loss of income ... and with fair use being an affirmative defense, I wouldn't want to have to try and disprove something like that. ;)

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Me either. To be honest your point about erring on the side of caution is a good one. These "could go anyway" type of cases aren't fun for anyone, especially those named as defendants :).

Turned out to be an interesting thread regardless :). Not to mention the original point: That crystal is an amazing morph and all props go to Tom for making it real :D.

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Originally Posted by Adam_Wysocki

OK, I’ll play.

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rawr! ;) :P

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Originally Posted by Adam_Wysocki

if I had an actual education in this stuff, I'm sure I could do much better. :carrot:

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But you don't know 100...and stuff! :8:

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Originally Posted by cassandra

But you don't know 100...and stuff! :8:

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:carrot::carrot::8::8:

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Originally Posted by jhall1468

However, (for the benefit of everyone reading this) giving credit does not qualify you to claim "fair use."

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Absolutely correct! ... but, as a person that constantly spends pain staking hours trying to capture the perfect picture of a single animal that was produced after years of raising up the parents that were purchased with probably more money than I should have spent at the time and snapping and deleting and snapping and sizing and cropping and getting mad and deleting and then finally getting it, a little credit when someone resposts one of my pics goes a long way ... I'm sure that Tom would agree. ;)

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Originally Posted by jhall1468

That crystal is an amazing morph and all props go to Tom for making it real :D.

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Bravo! Case dismissed counsler! ;) :sweeet:

-adam