Images: Copyright, Fair Use, & Public Domain

  • As the facts begin to unfold, lawsuits over copyright violations were indeed largely responsible for "The Taco" going dark. What with over 350 thousand images, policing such became untenable on their dated platform. Our forums are a bit more modern and include functions to flag posts for moderation that may violate copyright law. I encourage the community at large to use such responsibly to ease the monitoring burden of admins and moderators. We're better together and as this site grows there will surely be something that flies under our mod/admin radars.

    I enjoy awesome pictures as much as the next person and hate to be the party pooper. I place even greater value, however, on the long term growth and survival of our fledgling community.

    Thank you to all for your understanding and cooperation. 🐕

    A community member tipped me to this excellent article Copyright Fair Use and How it Works for Online Images, authored by legal eagle Sara F. Hawkins.

    tl;dr? Excerpt below focuses on five key points.

    Five Key Points

    1: Do you understand the term fair use?

    Just because you provide attribution and/or a link back to the original doesn’t mean you’re free and clear. Fair use has nothing to do with attribution. That’s an issue related to plagiarism, which is different from copyright.

    Fair use basically means you’re allowed to infringe on someone’s copyright and they can’t do anything about it. If your use is covered by fair use, you don’t have to provide attribution anyway (although it would be nice). Well, generally, the copyright holder can't do anything about it, but in reality they can submit a DMCA takedown, make a demand for compensation, and/or sue in federal court. If you believe you have a fair use right to use another person's work you have to be willing to defend against a claim of infringement since your determination of fair use is not the final say; that would be up to a judge if the copyright holder were to sue you.

    2: Why are you using the image?

    If it is “…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…” you’re on the right track.

    If you’re just using the image to pretty up a post, then think twice; or better yet, get permission or buy a stock image. If your use does not fit one of the allowed purposes under Fair Use, get permission, buy a stock photo with the appropriate license for your use, find a photo with the appropriate Creative Commons license, use an image that is in the public domain, or take your own photo.

    3: Have you transformed the image?

    If the new work which incorporates the copyrighted image is a “transformative work”―what you created no longer resembles the original―there is a greater likelihood of finding an exception to copyright infringement.

    Are you taking an image and incorporating it into an infographic? Is the image now part of a video used for one of the reasons set forth in the Copyright Act? The copyright holder does not lose their copyright but the new transformative work that incorporates their copyrighted work is now a separately copyrighted work. When using a copyrighted work in a new transformative work always provide attribution to avoid a plagiarism claim and to give credit to those whose work you are building upon, it's like being grateful for those who placed the bolts you use for your climb. Understand, though, that there is a grey area where what one may see as transformative and separately copyrightable and another sees it as derivative and not separate from their copyright.

    4: How much of the image are you using?

    If you’re using a thumbnail and linking to the original location, there is greater likelihood of finding fair use than if you just post the original image. If you’re doing a post about facial features and are just using a portion of the face from an image, you stand a better chance of arguing fair use than if you used the entire image.

    5: Are you willing to risk your site being taken down, getting a cease and desist/bill/DMCA or being sued?

    The Digital Millennium Copyright Act (DMCA) provides very powerful options for a copyright owner to protect his or her works in the digital space. By hitting “publish,” you may be opening a can of worms. The DMCA does not provide for damages from an alleged infringer; however, hosting companies routinely remove content under the DMCA or for repeat offenders may suspend or disable hosting of the site which can have significant impact.

    Disclaimer: Although Sara is an attorney, the linked article, nor the excerpted portion above is to be construed as legal advice. Please seek competent legal counsel if you have any doubts about what you may be posting. Else just don't do it.

    Note: The astute reader may note the excerpted portion above differs from that in the linked article. Sara graciously not only granted us permission to use the excerpt but expounded upon some aspects she felt may be particularly relevant to our community. Mad props to Sara for her time and wisdom. 🏆

    A shout out also goes to @The-Gnome as well for tipping me to this article. Appreciated.👍

  • Another question about posting images that have been published. In this case, I am asking about & sharing information on posting images from 1960's - 1980's climbing gear catalogs for historical threads to follow. I note my old Chouinard catalogs have no Copyright notices until 1982, when "All Rights Reserved" is added. That is a quasi-legal catch-all that includes Copyrights.

    I found this statement on the subject: "Anything published before 1923 is in the public domain. Anything published without a copyright notice between 1923 and 1977 is in the public domain. Anything published with a copyright notice between 1923 and 1963 is in the public domain if the copyright was not renewed." at Small Business forum:

    So?? Is management OK with pre-1982 Chouinard catalog photos used in historical & gear identification & history threads?

  • @FritzRay

    I was aware of these loophole/exception years but forgotten their specifics. Thanks for the refresher.

    Since those days, however, we also now have the DMCA, which could cause us a lot of grief if ol' Coonyard decided to take aim so I would prefer not to risk it. Maybe shoot them off an inquiry asking for permission would be a safer approach. Catch more with honey than vinegar type of deal.

    It also occurs to me that Greg Epperson may well at least co-hold copyright for some of that stuff unless he signed a "work made for hire" type agreement. Might be worth reaching out to him. Hmmm.... maybe, just maybe... I still have an email address for him? Somewhere.....

    Additionally, Sara F. Hawkins, excerpted for our image copyright thread, has quite a few blog postings along these lines and seems to be pretty responsive in her questions and comments roll.

    Hmm.. further potential complication that Chouinard Equipment is no longer owned by Yvon but rather Black Diamond. I don't know who's running that outfit these days but would presume they "inherited" any rights to such.

    Update: I have sent an email inquiry to Black Diamond requesting permission/confirmation. Imagine it may take a few days for a reply. Please stand by.

  • Toby: I will respect your wishes & refrain from posting any but my own photos on your site. I hope you are not opposed to my own photos of old Chouinard climbing hardware? I am not going to contact any of the folks you mention, since I see that as a somewhat futile exercise.

    Re Black Diamond, when I was looking at my collection of Chouinard catalogs today, I also noticed this statement on page 1 of the first Black Diamond catalog dated 1990: "We have purchased the assets of Chouinard Equipment - the machine shop, designs, trademarks, and the inventory, as well as a limited license to use the Chouinard name for a period of one year."

    Best wishes for your success.

  • @FritzRay

    I would be shocked if things have become so crazy that we cannot post pictures of equipment we own. That would seem pretty ridiculous. I used to shop at Great Pacific Ironworks in Ventura and those folks were always way cool. No clue how they are modern times.

    I may be naive but I do expect to hear back and get a green light. I mean, it's free advertising with a targeted community. Builds goodwill. Conversely, a negative response could certainly leave a bad taste in some people's mouths. But mayhaps they've become such behemoth big company these days that they don't concern themselves with such things? I'm still optimistic for a go.

    Edit: My interpretation of copyright law is that you automatically own the copyright to photos you take upon creation. I mean, imagine how ludicrous it would be if otherwise? Every climbing photo in existence that showed gear would be grounds for suit? I think not, but then.... I am not an attorney. Nor do I play one on TV.

  • Toby: I have lost all my direct connections to the Patagonia folks. I did just enjoy a two day visit from one of the original Chouinard/Patagonia sales-reps, who worked during the early 1970's to early 80's for Chouinard. This morning he looked at my Chouinard gear collection & offered to get me a tour of their museum, but he confessed, he was not close to anyone currently "in power" at Patagonia.

    After a lifetime working in the outdoor industry, I can't imagine any mid-level corporate employee giving permission for use of a company's Copyrighted images for use on a blog site, when the next person posting might be a "hater," who would damage the company image.

  • @FritzRay

    Great news from Black Diamond! We got the green light:

    ".... as long as there is no attempt to sell anything or make money from posting Black Diamond/Chouinard items, we are ok with those being posted."

    Shout out to Amy at Black Diamond for following up on this a getting back to me. 🏆

  • @toby
    Nice job, Ken!👍
    OK Ray, get busy! 😀

  • Thank you Toby. Seeing is believing. I think I'll refrain from using catalog covers, but it looks like gear photos from old Chouinard catalogs are fine, which was my original thoughts.

    Bear with me folks, my laptop suffered hard-disc failure two weeks ago & although I have most everything backed up, I'm currently limping along on a notebook. I can't download my DVD of Chouinard images until my new computer with DVD drive arrives. Then, I apologize, but I'm off climbing with fellow old-farts next week.

    I do have some gear thread & travel stories to share when summer is over.

    Machhapuchhre From Pokara, 6993 Meters
    Machhapuchhre From Pokara 6993 Meters.jpg

  • @FritzRay


    Please post these up in a thread in the general "Off Belay" category though rather than here.

    Thanks and have a great trip. No rush. We'll be here when you return 😉

    P.S.; We are not selling anything so no chance of any profit. I think you are good posting whatever from those catalogs.

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