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Artists rights vs fair use

Asked about 3 years ago - Schenectady, NY

I'm seeking copyrights advice on Polyvore.com. It is a site that employs a "clipper" that its users utilize to import images from any website on the web onto the Polyvore site and then use its graphics application to alter the images for use in collages called "sets".

Polyvore asks that users comply with copyright law but seems to enable the swift theft of copyrighted material and then disseminate the images to a full community of members who then believe the image, since it is on Polyvore, must be ok to use.

Artists who do not want their images on there have sent cease and desist letters only to find their images on there later on down the road. We want Polyvore to change the way it handles image import. What artists want to know is is it ok what they are doing? By law do they have a right to facilitate the reproduction of copyrighted material without the original artists knowledge? Aren't they taking away a right guaranteed by the Copyright Law of 1976? Some Polyvore users believe they fall under Fair Use.

Please enlighten me. There are two petitions going around, one to shut down polyvore or make them only utilize images that have been ok'd and another to keep polyvore open, created by users who seem to think polyvore is well within its rights. It's turning into a pissing match. I want to know if we artists stand on any legal ground.

Sorry so long. Thanks for any advice you can give.

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Attorney answers (2)

Daniel Nathan Ballard

Reputation Level 18

Answered about 3 years ago. Intellectual Property Law Attorney in Sacramento, CA.

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The following is not legal advice and should not be relied on to take or refrain from taking any action. The below information applies generally and does not have any particular application to Polyvore.com or any other company or business.

A person who reproduces or distributes another's photograph without permission is a "direct infringer" -- note that fair use is a defense to infringement, not an affirmative right. A person who contributes, benefits from, or induces the infringement may be liable as a "secondary infringer."

Copyright law recognizes three theories of secondary liability: (1) contributory infringement, which occurs when a party knows that others are infringing and materially contributes to the infringing activity, (2) vicarious liability, imposed when a party in a position to control the infringing activity, regardless of whether or not they have actual knowledge of it, receives a direct financial benefit from the infringement, while declining to exercise the right to stop or limit the infringement, and (3) inducement to commit infringement which occurs when a person distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps. See Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d.259, 262 (9th Cir. 1996) and Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 125 S.Ct. at 2780.

There is a large body of statutory and case law that addresses secondary liability in the internet context and a smaller body of law that addresses the scope of copyright protection afforded to product photographs (in short, photographs of products enjoy "thin" copyright protection).

While the safe harbors created under the DMCA for internet service providers who handle (i.e., transmit, temporarily host, or permanently host) other's copyrighted material do provide "immunity" for some secondary infringement, that immunity is not absolute and must be applied within the broader context of secondary liability law.

A good article on the subject is available at: https://www.law.northwestern.edu/journals/njtip...

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Kenneth Leo Kunkle

Reputation Level 7

Answered about 3 years ago. Licensing Attorney in Saint Paul, MN.

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Under current US law, websites that allow users to upload content can avoid liability for copyright infringement related to user loaded content by complying with the Digital Millennium Copyright Act's safe harbor provisions. The basics of this law provides that if the copyright holder sends the website a notice of copyright infringement, they must take it down and notify the uploader about the removal and giving them a chance to respond. If the uploader alleges that they had the right to post the material, the person claiming infringement has 10 days to file suit.

Based on your notes, it would appear that what the uploaders are claiming is that their use of the material is within the fair use exception of the Copyright Act. In many cases they may be correct that their USE of the image to create a mashup is a transformative use that falls within the exception. HOWEVER, just because the final product may or may not be "fair use," the distribution of the images to other users by uploading in the first place may violate the underlying copyright (though this is a contested issue in some circles).

In short, there are no easy answers on this one and disputes would need to be handled on a case by case basis.

http://www.polyvore.com/cgi/help.copyright

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