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FORUMS Photography Talk by Genre Performing Arts Talk
Thread started 28 Apr 2017 (Friday) 18:33
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Photo used without permission, but it's within the law

 
RDKirk
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Post has been edited 6 months ago by RDKirk.
May 13, 2017 20:38 |  #31

BJWOK wrote in post #18353961 (external link)
Thanks for your thoughts man.

And now... about the photo being used without my permission and it still being within the law? (Because everything you have written has taken us even further from the topic. Ironically, what you were initially upset about!)

That would be my posts #14 and #24.




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banquetbear
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May 13, 2017 21:48 |  #32

BJWOK wrote in post #18353961 (external link)
Thanks for your thoughts man.

And now... about the photo being used without my permission and it still being within the law? (Because everything you have written has taken us even further from the topic. Ironically, what you were initially upset about!)

...I'm not upset about anything. I'm especially not upset about this thread "drifting off topic": I don't have a clue how you came to that conclusion. Perhaps you should stop projecting.

I've given my comments on the video in the OP. My thoughts on the OP are that according to my usage calculators $200.00 AU is pretty close to market rate. My thoughts are that "If you've ever had a photo used without your permission, chances are that it is "against the law." You came up against a very specific set of circumstances here. Junkee was clearly in the wrong: even if copyright law was probably on their side (under these circumstances) that doesn't mean plucking images off the internet without permission, credit or payment is smart business practice and they know it. Media outlets like Junkee are not keen to test this application of the law and settling was in their best interests.

I don't think $200.00 is a bad outcome here.

Here is a local copyright case that shows some of the other issues at play in a complex copyright case.

http://www.nzherald.co​.nz ...?c_id=1&objectid=11​350036 (external link)

Copyright issues aren't "black and white." The law has a nuance to it that is hard for us laymen to understand. From the Australian short guide to copyright (Cited above)

"Whether an exercise of copyright rights amounts to a fair dealing is a matter to be determined on the facts
of each case. Many factors may be taken into account. In the case of reproduction for research or study
the factors include: the purpose and character of the use, the nature of the work or other subject-matter,
the amount and substantiality of the portion copied, the possibility of obtaining the work within a
reasonable time at an ordinary commercial price and the effect on the commercial value of the work or
other subject-matter"

Just because its "news" doesn't mean this usage is automatically "fair dealing." If you want legal advice: I would suggest not relying on the people that "stole your work." I'm thinking if you did take this to court you had a court chance of winning: but after legal expenses you would have been lucky to walk away with $200.00. So I would take this as a win.


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BJWOK
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May 14, 2017 02:23 |  #33

In regards to this specific case, the situation is black and white:

They used my image without permission.
They were within the law to do so as they are reporting the news.
They offered me a token sum as compensation (which they had no legal obligation to do). The end.

I shared this story here so others that face a similar predicament might have some knowledge on how this plays out.
I chose my YouTube platform as the means to share that information.
I linked the video here as I believe I covered everything the most succinct way I could: to camera as a vlog.

Thanks for watching.

And as a side note to the poster a while back who alleged I only did this for views on my channel: congrats, you are correct.

Of course I am looking for views. That was why I began my channel in the first place.

We are photographers. We share our views visually.

YouTube is how I do this.


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banquetbear
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May 14, 2017 03:47 |  #34

BJWOK wrote in post #18354227 (external link)
In regards to this specific case, the situation is black and white:

...are you a lawyer? Have you consulted one? The situation is not as black and white as you claim.

They used my image without permission.
They were within the law to do so as they are reporting the news.
They offered me a token sum as compensation (which they had no legal obligation to do). The end.

From the actual copyright act:

"Fair dealing for purpose of reporting news
(1) A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if:

(a) it is for the purpose of, or is associated with, the reporting of news in a newspaper, magazine or similar periodical and a sufficient acknowledgement of the work is made; or

(b) it is for the purpose of, or is associated with, the reporting of news by means of a communication or in a cinematograph film."

There wasn't sufficient acknowledgement of the work IMHO. So this was not fair dealing, in my opinion. But I am not a lawyer. And neither are you. You should stop claiming "they were within the law" when we really don't know that.

I shared this story here so others that face a similar predicament might have some knowledge on how this plays out.

Then it would have been more constructive to offer the opinion of a legal expert. How it "played out" in your case doesn't have to be the way it plays out for everyone.


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BJWOK
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May 14, 2017 19:07 |  #35

You're not including the part that relates to whether the usage is in print media or online.

Online use requires no acknowledgement: https://www.artslaw.co​m.au ...nt-im-reporting-the-news/ (external link)

In particular "What is sufficient acknowledgement?

For the acknowledgment to be regarded as 'sufficient acknowledgement' it will need to identify the author and the work by its title or other description[1]. If sufficient acknowledgement of the artist is not made (and the use of the material is in a newspaper, magazine or periodical), the journalist cannot rely on the exception."


My name is Benon (BJWOK are my initials) :)
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Benon Koebsch - Photographer (external link) (Facebook)
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banquetbear
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May 14, 2017 19:57 |  #36

BJWOK wrote in post #18354699 (external link)
You're not including the part that relates to whether the usage is in print media or online.

...I quoted the law as written. And the law as written makes no distinction.

Online use requires no acknowledgement: https://www.artslaw.co​m.au ...nt-im-reporting-the-news/ (external link)

In particular "What is sufficient acknowledgement?

For the acknowledgment to be regarded as 'sufficient acknowledgement' it will need to identify the author and the work by its title or other description[1]. If sufficient acknowledgement of the artist is not made (and the use of the material is in a newspaper, magazine or periodical), the journalist cannot rely on the exception."

...and this is why you shouldn't trust anyone offering a legal opinion on the internet. The bit you just quoted doesn't say what you claim it says. I think you intended to quote the bit above it as well.

"Under this exception, news can be reported in the following mediums:

in a newspaper, magazine or similar periodical provided that a sufficient acknowledge is made; or
by means of a communication or in a cinematograph film. A communication covers material made available online or electronically transmitted in some way."

Things aren't "black and white." Is an article written online a "similar periodical" to a newspaper or a magazine? IMHO yes it is. What you have cited is a general FAQ written by lawyers to give people in the arts industry a general understanding of the issues at play. You've merely cited an opinion: a very well written legal opinion, but not a comprehensive one.

Note the year the Copyright Act was drafted. 1968. Barring amendments (and having a quick look I don't see anything relevant) when this act was written being online wasn't even a thing. So the claim that "Online use requires no acknowledgement" is an extraordinary one and one that isn't explicit in the legislation, so if there is precedent I'd love you to cite it.


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BJWOK
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May 14, 2017 21:37 |  #37

There's absolutely a distinction between the two, but if you are that deadset keen to argue your point go ahead and continue.

For me, I'm stepping away.

Like I said earlier I'm content with the result I came to and my vlog is here to educate others that may be facing a similar situation.

Cheers for your input.


My name is Benon (BJWOK are my initials) :)
www.bjwok.com (external link) <<-- NEW LIGHTROOM CC & LIGHTROOM CC CLASSIC PRESETS FOR MUSIC PHOTOGRAPHERS
Benon Koebsch - Photographer (external link) (Facebook)
Gives A Minute (external link) (YouTube channel)

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banquetbear
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May 14, 2017 22:35 |  #38

BJWOK wrote in post #18354794 (external link)
There's absolutely a distinction between the two, but if you are that deadset keen to argue your point go ahead and continue.

For me, I'm stepping away.

Like I said earlier I'm content with the result I came to and my vlog is here to educate others that may be facing a similar situation.

Cheers for your input.

...you haven't shown there is a distinction. You've made a claim that there is a distinction: but the Act doesn't show this distinction. This is your thread, not mine. If you want to step away from it: don't blame me.

If the purpose of this thread is to "educate others" then making sure you are posting accurate information should be your goal. The claim "Online use requires no acknowledgement" does not appear to be accurate to me. But you also admit that you "only did this for views on (your) channel" and if what you said in post 33 is correct, then accuracy is obviously not important.


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KurtB
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Post has been edited 6 months ago by KurtB.
May 18, 2017 15:32 |  #39

banquetbear wrote in post #18353562 (external link)
...And it isn't until four minutes into the video that you begin discussing the subject of this thread. Discussing the length of the video is entirely appropriate. Even if you don't want to post a summary: you could edit the OP to say "discussion on this topic starts four minutes into the video. Then people can skip ahead and not have to watch something completely unrelated. But as it is: people will give up after about a minute.

Yep. Exactly what I did. I gave up about a minute after the person shooting the video started trespassing while rambling about a band and some video they made. At that point, I made the assumption that the video was going to end up being a 60 second discussion on copyright and a 14 minute discussion about who knows what (maybe more about the band?).

I guess it worked to get him one more click to his video, but it did not get him anymore clicks or a subscription from me.


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BJWOK
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May 18, 2017 19:17 |  #40

Sorry you guys didn't enjoy the vlog.

No harm tho, the vlogging concept is not for everyone :)


My name is Benon (BJWOK are my initials) :)
www.bjwok.com (external link) <<-- NEW LIGHTROOM CC & LIGHTROOM CC CLASSIC PRESETS FOR MUSIC PHOTOGRAPHERS
Benon Koebsch - Photographer (external link) (Facebook)
Gives A Minute (external link) (YouTube channel)

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Photo used without permission, but it's within the law
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