Blogs, Photo and Copyright:"Hey, I drove that Porsche Boxster for two days, but frankly, I didn´t want to use it, I just wanted to make advertisement for Porsche!"

[Update to this story: "THANK YOU SO MUCH FOR USING OUR PICTURES Part II"] as a reply to "Fair Use for photos on the web and in blogs: a modest proposal to avoid a major battle" by Jason Calacanis (see the comments)

Jason Calacanis, the former editor and founder of Silicon Alley Reporter magazine, has made up his mind after his last posting and resumes in "Blogs, Photo and Copyright: Winning the battle, but let’s not lose the war":

The launch of Autoblog.com was accompanied by a lot of excitement and, unfortunately, some legal headaches. Turns out someone didn’t like our use of their photos and it looked like the legal guns were about to be drawn. [...] I spoke with about 20 of the top bloggers out there, and some lawyers, and here are the basic points these people made, in no particular order:
Don’t bring this up—you’ll wake the sleeping giant! True enough, but the giant is tossing and turning already. I say let’s wake the giants up and make them a nice cup of coffee. [...] The Solution (not) OK, well, there is none. However, it seems there are things you can do to minimize the chances of getting a letter and being sued. Now, we all know that getting permission beforehand is out of the question because it takes too long and it’s too hard to get in touch with these people. Imagine calling a big media company and asking them for permission to use a photo. They would take weeks, if not months, to get back to you—if they ever did! [...] Even the lawyers can’t tell you for certain if you’re infringing. [...]

Again the answer of a "Phototalkist" (see link at top):

@Jason: Yes and No.
There are mainly three major sources for finding images (besides Google Image Search):
-amateur: he might be highly delighted finding his image with his name on a website/blog if someone tells him
-professionals: two possibilities. If he is represented by a photo agency (a), the answer is NO (see below). If he is working without an agency representing him, I guess at least 80% will say NO because otherwise they would lose the control where in the world millions of weblogs are showing their images. Losing control about what is happening with your work is like a future going-out-of-business.
-photo agencies and portals: they will, under no circumstances, allow you to show the images of their photographers or foreign partner agencies on your website/blog. Just keep in your mind that other customers might have payed for the usage of that specific image. Imagine that had been you. Imagine, you would have payed a high price for exclusive usage; now you find yourself in a situation where somebody else, just for the fun of it, shows that pix in the WWW... .
Sorry, otherwise it would be like talking to an employee at any car rental station with the announcement: hey, I drove that Porsche Boxster for two days, but frankly, I didn´t want to use it, I just wanted to make advertisement for Porsche. Don´t charge my Amex.
Sure, under special circumstances it can be advertisement for a professional photographer; but I guess at least 80% of the pros won´t see it this way.
Besides, no one else except the copyright holders can determine what is advertisement for their work or not (resizing etc.). Copyright infringement can be in the $150.000 (single photographer - $1.2 million area (look at Corbis).
This is just my short personal statement. I would however highly recommend to talk to a professional organisation like ASMP etc.
Not to be misunderstood: if a single blog is private and non-commercial, a professional photographer might say YES.

However Jason Calacanis is right: there must be some way for a fair use, a working solution for both sides (a reader responded to Jason: "Unfortunately, voluntary agreements won't stop infringement lawsuits - unless you only work with those who are part of the agreement").
But -- we are just wondering who might be the lawyers of Jason Calacanis.
Does no one remember the Leslie A. Kelly/Ditto.com-case anymore (partly mentionend here), starting in 1999/2000?

Artists have for a long time been concerned about putting their images on the internet. It is so easy to download images and difficult to track what use is being made of them.

In a recent decision, a U.S. Federal District Court in Santa Ana, California addressed the issue of whether a search engine, Ditto, (formerly Arriba Soft Corp.) violated copyright protections when it "scooped up" and copied some photographs used in a Web page advertisement. It also addressed whether Ditto violated the Digital Millennium Copyright Act.

The plaintiff is Leslie A, Kelly, a photographer, who maintains two Web sites: one a "virtual tour" of the California's gold rush country and promotes a book Kelly wrote on the subject; the second Web site markets corporate retreats in California's gold rush country.

The defendant's visual search engine scanned Kelly's photographs without the copyright information attached, onto its indexed database of approximately two million images. The images were reproduced in a much smaller, "thumbnail" size. In January, 1999, around 35 of Kelly's images were indexed by the Ditto crawler.

Kelly argued that such use by Ditto violated Kelly's copyright protections under the federal law (17 U.S.C. 106). There was no dispute but that Kelly had copyrights on his photos nor that Ditto reproduced them without the copyright information attached. Ditto did not have Kelly's permission to reproduce the images.

Federal Judge Gary L. Taylor held that Ditto's use of the images was a copyright violation but that such use fell within the "fair use" exception. The "fair use" exception allows use of material without the permission of the owner if the purpose is for criticism, comment, news reporting, teaching, scholarship or research. In making this decision, Judge Taylor reviewed the 4 criteria set up in the federal law to be considered in a particular case of fair use. The criteria are as follows:
(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) The nature of the copyrighted work;
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) The effect of the use upon the potential market for or value of the copyrighted work.

Links to the quoted message and the Ditto.com-case:
"New Law Being Made on Use of Images on the Internet"
"Internet Newsletter for Lawyers, May/June 2002, by Delia Venables"
"Thumbnail copyright law could be clarified in US"
"PHOTOGRAPHER RESPONDS TO NINTH CIRCUIT COURT REGARDING DECISION SUPPORTING COPYRIGHT OWNERS OF INTELLECTUAL PROPERTY"

We had this all before. This might be a valuable starting point. Of course we are no lawyers and in that time since 2002 there is a chance that the law has changed. So finally all we need for the moment for accurate informations are specialized lawyers. There are some at ASMP and Editorialphoto. You will get an accurate answer in 20 seconds and we bet it will be nearly 100% the same as stated above: under no circumstances the legal copyright will be changed just for blogging. No organisation representing professional photographers will make any "voluntary agreements". However, Jason Calacanis has promised to talk to ASMP in a comment to his first posting (see link at top). So finally we are waiting for a real answer from Jason Calacanis to his first own posting. His answer now:

The Solution (not)
OK, well, there is none.

is not even a initial try to a solution. Sorry, very poor and disappointing result. That´s coffee table talk and it is greenly. It is the same kind of talking we heard from many journalists during the dotcom bubble time. We don´t care what "20 of the top bloggers" out there say or not. What Jason Calacanis is proposing is not even a workaround, it´s only "how not to get hit if you know you might be doing something wrong". This could not anymore be acting carelessly, this might be acting willfully. Obviously he doesn´t know if there are legal consequences or not, but who cares, let´s simply try and we´ll see. Why can a man in his position not get proper counsel before acting? Our POV: You can´t resize the copyright. Si tacuisses, ... mansisses.

BTW: there are lots of lawyers with blogs out there, even specialized ones for Copyright, Intellectual Ownership etc.

[Related: "How can I prevent my website images from being cataloged by the Google Image Search?"]

Comments

[OldGreekPhilosopher]

Calacanis is not too bright, is he? Clear sign of intended copyright infringement.

[Jason Calacanis]

I don't think it is copyright infringement. I think the law is clear there is fair use and I think the two parties involved are going to fight over where the line is. We certainly don't want to cross the line, and we don't want to give up our fair use rights.

I think there are publishers/bloggers who go overboard on fair use...

I also think there are copyright holders who are going overboard in terms of trying to limit fair use...

I think we are one of the responsible parties out there because we are researching the issue, talking to the people involved and making sure they are comfortable and even reaching out to people discussing the issue like you!

Good fair use only make the images more valuable because they get people to want the complete image.

best jason