It May be Copyright Infringement, But That Doesn’t Mean There Will be a Steep Price to Pay

There’s an old joke in which a guy says that he needs a lawyer who only has one arm. When asked why, the guy replies, “because every time I talk with a lawyer he says, ‘on the one hand, on the other hand.’ ”

on-photography-newLay people might describe this as splitting hairs, but law is like that. It can be very fact and context specific, and going to court always caries a degree of uncertainty about how judges and jurors will interpret or see the facts or context in a given case.

Law also does not always have what legal scholars call “bright line” qualities, meaning that there is universal acceptance of what a law means and how it is to be applied.

It is what makes law such a fascinating field of study but such a frustrating endeavor for those seeking justice for a grievance.

In a previous column, I spoke about how if you post photographs on social media you may have your work stolen and used without permission.

Copyright law can be complex, but it is settled that the holder of a copyright has the right to control how his/her work is used in public.

The public performance clause of copyright law is designed to ensure that someone doesn’t profit from stealing the copyrighted work of another person.

So if you post a dramatic photograph of a train, say, plowing through a snow bank, someone can’t copy your image and sell it to Trains magazine while pocketing all of the money and taking all of the credit.

That is the theory behind copyright law. In practice, much of the theft of copyrighted railroad photographs is for non-commercial purposes and the remedies for that are limited.

Is it worth going to court if the thief didn’t make as much as a dime from using your copyrighted image?

Or it may be that the commercial gain that the thief who stole your photograph and used it without permission reaped was very small.

Are you going to go to the time and expense of filing a copyright infringement lawsuit over theft of a photograph that netted the thief $20?

Yes, some people have done that because “it’s not the money, it’s the principle.” Maybe so, but the principle does have a monetary cost.

If a thief steals enough photographs and makes $20 a crack, over time that adds up to “real money.” Teaching someone a lesson might have a long-term economic benefit.

Resorting to litigation is sometime necessary, but it can be clunky, time-consuming and unsatisfactory when the stakes are low. It is why there aren’t more copyright infringement lawsuits than there are.

As the proprietor of a non-commercial website, I have a set of polices about using other people’s copyrighted photographs.

As for the Akron Railroad Club blog, in a few instances I have declined to post an image that someone sent because it wasn’t clear if the sender had permission of the photographer to use that image on the ARRC blog.

A couple of times the sender assured me the photographer said it was OK to post the image and I accepted that at face value, but it was still a risk even if a small one.

With one notable exception I will not copy images without explicit permission from another website to repost on the ARRC blog. That exception is for photographs that I judge to be public relations in purpose.

Norfolk Southern, for example, creates photographs of locomotives that it has painted in a special livery.

NS holds the copyright on those photographs, but its motivation in making the image is not to make money from selling it to publications but to bolster its corporate image.

The railroad reaps public relations value when the news media and others reproduce photographs that it wants certain audiences to know about.

NS wouldn’t be spending thousands of dollars to paint locomotives in special liveries if it didn’t stand to gain something tangible from it in terms of boosting its image and reputation.

The benefit to NS from my posting news about its activities is small and the audience for the ARRC blog pales in comparison to what Trains magazine pulls in on daily basis.

I could use that fact as an excuse to get away with copying images without permission and posting them.

But I’ve drawn a line there. There is more than legal rules at stake here. I have my own reputation and moral character to protect.

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