I'm not touching you!!! Fair Use Doctrine

By
Real Estate Broker/Owner with Tutas Towne Realty, Inc and Garden Views Realty, LLC BK607690

Blogging BerthaHi Folks. I wrote this post several years ago. It brings up a good point about using images without the creators permission. Be sure to click through to the original post as the comments were very informative.

"I'm not touching you!" If you have children or remember your childhood you have probably heard this one before. I can just picture our twin boys, when they were about nine, with Paul's finger ¼ inch from Nathan's face saying these exact words, "I'm not touching you" "PAUL!! Leave your brother alone!!!!" "But I'm not touching him". Then of course TLW would run in the room and smack him upside the head. It didn't matter if he was "not touching him" at all. He was annoying him. And he was annoying us with his incessant whine of "I'm not touching him!"

This post was inspired by Bob Mitchell's recent blogging series, Blogging Bertha and The Fair Use Doctrine part 1 and 2. Now folks if you haven't read this series please take a minute to do so. And while you are there leave Bob a comment. It'll make him feel better.

As a quick summary for you, Bob used a picture of Blogging Bertha in one of his recent posts. In fact, he had used it a couple of weeks earlier as well. The first one I let slide but did leave a comment for him that he had best hope TLW doesn't see it. Why? Well, the Blogging Bertha images belong to TLW and she specifically states, whenever they are used, that they are her property, keep off them and if you use them she will hunt you down and shoot you!

In reality, she may not shoot you but she will certainly slap you upside the head. The second time Bob used TLW's image he had actually used it in a public post. On ActiveRain, Blogging Bertha has always been "members only". Anyway, I sent TLW over to his post and she asked him to remove it. Bob, to his credit, willingly removed the image. Thanks Bob.

After having removed the image Bob wrote the Fair Use Doctrine posts. He actually brought up some very good points. While I don't agree with him, he did get me thinking.

His argument, as outlined in his first post is that:

  • He didn't get paid for using it.
  • The material has been widely disseminated on the web and is easily available.
  • He only used a small portion of the copyrighted material, not the entire video(s).
  • His use of the picture did not cause the value of the copyrighted material to be diminished in any way. If anything, his use of the photo very likely enhanced the value of the material due to the viral nature of the web.

So, in Bob's opinion:

"I didn't have to remove it and I didn't do anything wrong when I used that photo. So, TLW...chill baby! It's all good! ;-)"

Now in fairness to Bob, he WAS the inspiration for Blogging Bertha. The very first Blogging Bertha video was a rebuttal to one of his several posts about ActiveRain being like High School, being a popularity contest, featured posts and blah blah blah........

Folks, I too am not an expert on Copyright Laws or Fair Use Doctrine. So your opinions are welcome.

However, having raised twin boys I am an expert on "I'm not touching you!" In my opinion, Bob's use of TLW's images, without her consent, is exactly like that. While it may or may not be illegal it is annoying. "I'm not touching you!" ‘BOB!!! Get off my images!!" "But I'm not touching you" Then you best duck cause here comes TLW!

My branding is exactly that.....MINE! Get off it and find your own branding. You can't be Broker Bryant!

Bob, you know I love you man! So take it like a man. I did. By the way, why not test your parody theory on one of Lenn's maps. They are in the public domain. Go for it.

And that's all I have to say about this. What say you?

By the way, Lenn Harley's comments in the original post are a really good explanation of Fair Use Doctrine

***All images and videos are the property of TLW. Hands off!! Touch them and she will hunt you down like a dog. ROAR!!

***I am NOT an Attorney nor do I play one on TV. Click the button below for my Bio.

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***I am NOT an Attorney nor do I play one on TV. Click the button below for my Bio.

The BIO for Bryant Tutas

 

 Tutas Towne Realty, Inc handles Florida real estate sales, Florida short sales, Florida strategic short sales, Florida pre-foreclosure sales, Florida foreclosures in Kissimmee Florida Short Sales, Davenport Florida Short Sales, Haines City Florida Short Sales, Poinciana Florida Short Sales, Solivita Florida Short Sales,  Orlando Florida Short Sales, Celebration Florida Short Sales, Windermere Florida Short Sales. Serving all of Polk, Osceola and Orange Counties Florida. Florida Short Sale Broker. Short Sale Florida.

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Ambassador
1,090,772
Celeste "SALLY" Cheeseman
Liberty Homes - Mililani, HI
(RA) AHWD CRS ePRO OAHU HAWAII REAL ESTATE

What part of ...you didn't take the picture ...do they not understand?  I suppose this thinking would lead to....I copied most of your post but I didn't get paid for it.

YIKES>

Dec 24, 2010 06:12 AM #14
Rainmaker
650,247
Barbara Hensley
RE/MAX Properties - Rockwall, TX
Homes for Sale in Rockwall County, Texas

Yikes is right!  Being newish to blogging, this is a matter of great concern to me...thanks for the post.  merry Christmas!

Dec 24, 2010 06:26 AM #15
Rainmaker
301,963
Dan and Amy Schuman
Howard Hanna Real Estate Services - Solon, OH
Luxury Home Specialists

I always like to be overly cautious when it comes to copyright matters but I guess there are those that are either ignorant to the law or simply like to push the envelope.

Dec 24, 2010 07:02 AM #16
Rainer
241,927
Justin Dibbs
Pearson Smith Realty - Ashburn, VA
REALTOR® - Ashburn Virginia Homes for Sale

Wow, those were some interesting past posts to read.  Blast from the past.

Dec 24, 2010 07:55 AM #17
Ambassador
1,229,656
Melissa Zavala
Broadpoint Properties - Escondido, CA
Broker, Escondido Real Estate, San Diego County

I agree with Erica, and read the posts that you referred to in this one. Personally, I am so scared of TLW's wrath that I would never, ever borrow anything without permission. Yes, I'm a product of the sixties and I live in fear of irritating or disappointing others--probably why my own blog posts are so boring.

Have a happy holiday and thanks so much for your honest and candid feedback on my posts throughout the year.

Dec 24, 2010 08:59 AM #20
Ambassador
2,297,713
1~Judi Barrett
Integrity Real Estate Services 118 SE AVE N, Idabel, OK 74745 - Idabel, OK
BS Ed, Integrity Real Estate Services -IDABEL OK

I fail to understand anyone who would take something of someone else's and then stubbornly defend their right to use it...

There is a disconnect somewhere in that logic...

Broker Bryant,

I fail to understand anyone who would take something of someone else's and then defend their right to do so as though they were entitled to take it due to the fact that the object exists and was easy to lift..  There is a disconnect in that logic...

Came by to say Merry Christmas to you and yours.

Wishing you a prosperous and healthy 2011.

Judi in Extreme Southeast Oklahoma

Dec 24, 2010 11:55 AM #21
Rainmaker
1,073,964
Gary White~Grand Rapids Home Selling Pro Call: 616-821-9375
Flexit Realty "Flexible Home Selling Solutions" - Grand Rapids, MI
Real Estate Services You can Trust!

Hi Broker Bryant,

I have paid thousands of dollars in legal fees to get my logos, slogans and even a book trademarked, Registered, patent protected in some cases, and every challenge we have mounted has cost someone else.

You take the photo it's yours.  You write it with original content, it's yours.  You shot the video it's yours.  We allow other's by agreement to "repost" our blogs...without change.  Yet they can add personal comments that are not part of what is reposted for a reason.  The original is owned by the person that originally posted the material.  I had a company remove and stop use of a slogan I have used for over 10 years.  My attorney sent a nice letter.  The offender sent back a jump in the lake response.  We sent a greetings with a court document attached.  We recieved a sorry back with a confirmation of removal.

The fact is simple and no gray areas.  I read every response and shook my head.  You can be licensed to use a photo...i.e. Istock, more than one person can be licensed to use the same photo by paying a fee.  This is a non-exclusive license.  If you pay for an exclusive license, which no photo site will do...because photos are their revenue stream, you will be the only one allowed to use the photo until your license runs out or is renewed.  You can also be licensed to use photos by Microsoft by owning a licensed software. 

This is not a philosopical right or wrong.  By the way Blogging Bertha isn't that cute...I like TLW much better! :-) No offense Bertha!

Hope everyone understands...you write it, it's yours. 

Have a Great Holiday Season and 2011 everyone.

Dec 24, 2010 12:26 PM #22
Rainmaker
659,518
Randy Prothero
eXp Realty - Mililani, HI
Hawaii REALTOR, (808) 384-5645

Never cross TLW or mess with one of Lenn's maps.  If you do both you will get shot and sued.

Dec 24, 2010 05:09 PM #23
Rainmaker
1,142,060
Bryant Tutas
Tutas Towne Realty, Inc and Garden Views Realty, LLC - Winter Garden, FL
Selling Florida one home at a time

Lisa. TLW is The Lovely Wife. An acronym that stuck back when ActiveRain was in it's infancy. I used to always write and mention The Lovel Wife because at the time she wanted to remain anonymous. The name stuck and became her brand.

Thanks everyine for stopping by. I hope you had an awesome Christmas.

 

Dec 26, 2010 12:47 AM #24
Rainer
85,164
Kim McMahon
Executive Realty Group - Skokie, IL

BB, While reading your post all kept I thinking was; "Lenn would have a field day with this" and viola you mentioned her and she commented.  I wouldn't even begin to mess with TLW!  Hope everyone your way had a great Christmas and here's wishing an outstanding 2011!!

Dec 26, 2010 05:27 AM #25
Rainmaker
559,831
Tim Maitski
Atlanta Communities Real Estate Brokerage - Atlanta, GA
Truth, Excellence and a Good Deal

Here's a question I'd like answered.

You put up the Blogging Bertha videos on YouTube.  As part of that, I'm pretty certain that you agree to allow anyone to embed those videos wherever they want.

Could Bob have just embedded that video in his post instead of the photo?

I read through all of the old posts going back to the original Twas the night before Christmas where the original photo was used that started the big stink.  I think Bob made good arguments for why he didn't have to.  I think Bob's bottom line is also very valid.  That sometimes this stuff isn't as certain as some experts might say it is.   I read through all of his comments and he sure seems to want to learn as much as possible about this. He doesn't seem argumentative.  His arguments don't seem baseless.   I don't think anyone was able to shed any light on his parody angle.  That was the main thing he was trying to justify.  Now I have a new research project for the new year.

Dec 26, 2010 12:29 PM #26
Rainmaker
889,462
Gail Robinson
William Raveis Real Estate - Southport, CT
CRS, GRI, e-PRO Fairfield County, CT

Broker Bryant, thank you for ressurrecting this issue.  I wasn't around for the first discussions on this and I'm glad.  I wouldn't want to do anything to upset my dear friend, TLW.  However, now that time has passed, hopefully we can all look at Fair Use Doctrine objectively for what it is.

Fair Use Doctrine is often misunderstood.  For those who say there are no gray areas in copyright infringement, the Fair Use Doctrine can only be applied to copyrighted work, e.g. images, articles.  Fair Use Doctrine describes the conditions under which copyrighted material may be used without permission. If a work is not copyrighted, i.e. in the public domain, fair use does not come into play.  The mere creation of a work in the U.S. establishes a copyright.  There is no legal requirement to register or declare copyright. 

The use of a thumbnail size image instead of the original image to parody or in some other way transform the work, is considered fair use, if several other factors are taken into consideration.  From my reading of the Fair Use Doctrine Bob would probably have won if this went to court.  Could he have been sued?  Yes  Any of us can sue anyone else at any time. 

The rapid growth of the Internet is based upon extensive use of the Fair Use Doctrine.  Google makes a ton of money, but they are allowed under the Fair Use Doctrine to use thumb-sized photos that link to the originals.  The commercial use of images is the least important of the four factors that are taken into consideration in determining whether the use falls under the Fair Use Doctrine.

If someone uses Lenn's maps on their real estate website or your photos of your listings on their brochures, that's not transformative, e.g.artistic, parody, etc.  This is why Lenn wins her lawsuits.  Other agents are directly swiping the images and trying to apply them for the same purpose she does.  That's what copyright law is designed to protect against.

The use of others images on AR may also be controlled by the rules and regulations of AR, not just copyright law or Fair Doctrine Use.  Flickr allows each member to decide how much permission to give others to use their photos.  AR provides the ability to allow your post to be reblogged or not.  Members who don't adhere to the rules and regulations of the community can be expelled or suffer other sanctions.

Beyond rules and regulations, we can basically respect TLW's request to not use the photos or videos she creates without her permission.  That's just being a good member of the community. a good neighbor, but it has nothing to do with Fair Doctrine Use.

Remember, the Internet would not exist as we know it without Fair Use Doctrine Use.  There would be no Google or other search engines, there would be no RSS feeds, most of the YouTube parodies would not exist.  If we use the Internet, we should be aware that copyright has its limits.  Copyright ends where Fair Doctrine begins.  That line is drawn in the shifting sands of case law and is shaped in part by the growth of the Internet.

Hope I didn't stir anything up from the past, but you did ask, and I think it's important for all of us on AR to understand Fair Use Doctrine and to separate it from being good AR citizens, which means going beyond what's legal, and respecting each other's wishes.

Dec 26, 2010 02:30 PM #27
Rainmaker
1,142,060
Bryant Tutas
Tutas Towne Realty, Inc and Garden Views Realty, LLC - Winter Garden, FL
Selling Florida one home at a time

Hi guys. I think where Bob would have lost is the fact that at the time Blogging Bertha had only been posted as "Members Only" on AR. He took it public which is in direct violation of AR rules and regs.

Secondly, TLW specifically had a disclosure telling fols not to reuse the image.

Thirdly, the youtube video was private and not made public.

So nowhere and at any time was permission granted to use the image in a public forum. In fact it was explicitely prohibited.

Plus and most importantly, Bob was fun to mess with!!!

Great info folks!!

Dec 26, 2010 10:53 PM #28
Rainmaker
559,831
Tim Maitski
Atlanta Communities Real Estate Brokerage - Atlanta, GA
Truth, Excellence and a Good Deal

Bryant,  Now that Blogging Bertha is public on YouTube, can people use those videos on their blogs?  I'm just curious to know what's what.

It's funny. As I was looking up Blogging Bertha on YouTube, I noticed another video of TLW walking into a lake.  I saw that Drama Queen #1 and #2 only had about 500 views where as TLW walking into the lake had almost 80,000 views. I wonder who's watching that so many times.   

Dec 27, 2010 12:04 AM #29
Rainmaker
1,142,060
Bryant Tutas
Tutas Towne Realty, Inc and Garden Views Realty, LLC - Winter Garden, FL
Selling Florida one home at a time

Tim. I guess they could. TLW would probably go into YouTube and disable it if she knew about it..

80,000 people looking at my wife's ass. I guess that's a good thing!!!

Dec 27, 2010 12:09 AM #30
Rainmaker
150,096
Michael J. Gallo
Florida Luxury Realty - New Port Richey, FL
Florida Luxury Realty - Gulf Home Sales Team

Law aside...You Didn't take the photo, Its not yours to use and I dont care if you can steal it off a Google Image Search...You didnt take the Photo and It's not yours to Use. Period.

Dec 27, 2010 02:20 AM #31
Rainmaker
889,462
Gail Robinson
William Raveis Real Estate - Southport, CT
CRS, GRI, e-PRO Fairfield County, CT

BB, Actually public or private doesn't make a difference with Fair Use Doctrine according to case law.  Fair Use Doctrine also doesn't care whether there is any warning not to use the image in a public forum.  There is nothing in case law that really helps you.  Your strongest argument is that it was a violation of AR rules and regulations, and the sanctions would lie with AR to enforce.  The community can also voluntarily shun those who violate the norms.  There are a lot of ways to deal with this, but legal channels are probably not one of them. 

Dec 27, 2010 08:03 AM #32
Ambassador
3,315,170
Debe Maxwell, CRS
www.iCharlotteHomes.com | The Maxwell House Group | RE/MAX Executive | (704) 491-3310 - Charlotte, NC
Charlotte Homes for Sale - Charlotte Neighborhoods

As so many before me have said, you didn't take the photo (or draw the map in Lenn's case) so, LEAVE IT THE HELL ALONE!  Heck, if someone stole something of mine, TLW and Lenn would be the first ones I would call--they are far more fierce than any attorney!!

Dec 27, 2010 11:44 AM #33
Rainmaker
1,477,933
Maureen McCabe
HER Realtors - Columbus, OH
Columbus Ohio Real Estate

Oops I clicked Report a concern on #35 accidently.  Sorry... just got an Ugg Boot email and I was too quick on the trigger....reflex reporting spam.  

While #35 is interesting it is not say it is not "Report a Concern" worthy.  There is NOT a way to Unreport a concern.  Sorry.

Feb 03, 2011 08:39 AM #34
Rainmaker
1,142,060
Bryant Tutas
Tutas Towne Realty, Inc and Garden Views Realty, LLC - Winter Garden, FL
Selling Florida one home at a time

The UGG boots spam drives me crazy. Do you need help with a term paper :)

Feb 03, 2011 11:42 PM #35
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