Not Your Everyday Banana

by Bart Arondson

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I was taking some photos at a public market over the weekend. For my last photo, I stopped to make an image of a few vendors and the amazing neon light around their booths. One of the vendors was a photographer selling his photos. I was easily 20+ feet away and shooting a relatively wide angle and multiple exposures, as my goal was an HDR shot of the dynamic lighting. Anyway, on my last shutter click the photographer started shouting at me, “stop taking pictures of my photos!”, “that’s copyright infringement!”, “get the hell out of here!”, and finally my personal favorite, “I will have you thrown out of here!”.

Needless to say, everyone within earshot was shocked including me. I was so far away from this guy that his reaction made no sense. I can see his point if I was really close and focusing on one of his images, but I was after the overall scene… not trying to copy someone else's work. That’s just not me.

My questions is simple… at 20+ feet away, was I in the wrong? Is this copyright infringement?

I apologized to him three times while he kept going off on me. By the third apology my attitude was beginning to flip. I walked away without tossing gas onto the fire with a comment of my own.

update My location was the Pike Place Market in Seattle, WA. It's a famous landmark here in Seattle and there are probably more camera abound than actual shoppers.

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The photographer complained??? Very odd. Usually it is some dim security guard acting that way. –  Zak Jan 10 '12 at 1:45
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4 Answers 4

No, that is not copyright infringement. As long as you have the right to take photos (e.g. public property in the US), you cannot infringe anybody's copyright merely by pressing a shutter.

Even if you copied his photo exactly with your camera, that is not copyright infringement. You need to use the copied image in an inappropriate manner for copyright infringement to occur.

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Yes, nothing to do with taking of the image, it's the use that would matter. –  MikeW Jan 9 '12 at 23:56
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Is this applicable in the US, or some other locale? When it comes to legal advice, its important to always specify what locale your advice may apply in. Its also a good idea to disclaim any responsibility with how your advice is used, i.e. prefix with IANAL (I Am Not A Laywer.) –  jrista Jan 9 '12 at 23:56
    
I gave you a -1 vote because I believe (per USC17) that copyright violation occurs as soon as you make a copy (including taking a picture) of a copyrighted work, not when you "use" it. I'll happily change that to a +1 if you can cite something to the contrary. –  drewbenn Jan 10 '12 at 17:36
    
Don't know if this counts as a citation since it's wikipedia, but here's what that says (en.wikipedia.org/wiki/Copyright_infringement) "Copyright infringement is the unauthorized or prohibited use of works under copyright..." Note the word use. This is where fair use comes into play. If I wanted to review somebody's photo, I could reproduce it without permission for a review. If I want to parody a copyrighted work, I can also do so. It's all in the use. –  Eric Jan 10 '12 at 23:17
    
This is where trying to interpret legal code with common sense falls all apart. Your idea of what constitutes "use" may differ significantly with the legal meaning. ("Storing it in RAM" might be considered use, for example.) –  mattdm Jan 11 '12 at 20:37
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I'm not a lawyer, but there is some legal gray area here. When you take a photograph of someone else's photographic work, you are making a reproduction, and that reproduction is covered by copyright law. And, since the law is involved, the details become complicated. If the photographs involved comprise a significant part of your image, you may get into making a fair use argument. There's an excellent page on this from the Standford University Libraries on Copyright & Fair Use.

It is my guess that in your particular case, the "de minimus" defense applies: the copyrighted material is so small and so insignificant to your work that fair use doesn't even come into the picture. But, unfortunately, even that has no definitive rules.

I think, in my non-lawyer mind, that there's also a significant difference between taking the pictures and doing something with them (like, making prints of "Photographer at Pike Place Market" and selling them without permission).

I also think, that if this approach were legally effective at preventing public photography, we'd see big, obvious copyrighted posters splashed around every public venue (I mean, beyond the advertisements that are already ubiquitous), and people demanding their share of every photo that contained their "intellectual property".

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You don't say what part of the world you are in, but here in the UK if you are on public land then there is absolutely nothing anyone can do to stop you taking photos. Even the police have had their knuckles rapped over this, as section 44 of the Anti-terrorism act was deemed illegal by the EU.

If you are on private land however, this is another matter. The landowner may enact any rules regarding photography that they wish. Sometimes it's not easy to tell if you're on public or private land - an outdoor shopping complex for example would be private property even though its out in the open. So you have to stay aware of that.

So long as you were on public land, I'd say you're fine. I cannot speak for other parts of the world though...

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I'm not a lawyer, but here's my understanding, based on Title 17 of the United States Code, Chapter One:

Section 106 "Exclusive rights in copyrighted works"

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords

So, yes, taking a picture of someone else's picture is a copyright violation.

That is, of course, subject to ideas like fair use, but including a copyrighted work in a larger work isn't fair use just because you would want it to be, and is really a whole issue of its own (and I don't have a link handy that I can cite).

Whether or not your use was fair use or otherwise allowed is something I really can't judge; from what you said it sounds like it should be okay, but what I want copyright law to be is very different from how it's interpreted by the courts.

How to react in a situation like that is another matter entirely, of course; good work getting away without fanning the flames any further.

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+1; I was just saying something similar. :) –  mattdm Jan 10 '12 at 4:15
    
I just saw that, @mattdm, and I'm off reading your link now! –  drewbenn Jan 10 '12 at 4:19
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He was not reproducing the picture, but rather taking a picture of a public scene which included another picture (and presumably some other copyrighted material as well). –  Agos Jan 10 '12 at 11:31
    
@Agos but he did reproduce the picture, per the definition of "copies" in USC17 Chapter 1 Section 101: he reproduced it as an image stored on his memory card. Copyright violation happens whenever you make a copy of a copyrighted work. Just changing the size of the original doesn't matter, if you can still "perceive" the original. –  drewbenn Jan 10 '12 at 17:34
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