Can I sell a picture postcard as a picture?

[divgradcurl]

divgradcurl--

Just for my further enlightenment, if a person brings me a photo, or other visual work, and claims that to be their own, where does that put me regarding reproduction rights? Legally, I'm not to copy and print images that I know belong to someone else, but if someone swears to me the work in question is theirs, then am I not in the clear regarding copyright issues? Ownership and copyright questions are a big deal for the photofinishing industry, and this thread isn't helping me stay clear on the subject. There have been some big lawsuits concerning this problem, and now I no longer think I know the answer.

Having someone "swear" that they own the work, or have rights to the work, will not protect you from a charge of infringement if you reproduce a copyrighted work without permission. "Innocent infringement" is still infringement -- there is no "intent" requirement for copyright infringement. In such a case, it would be virtually impossible to prove that your infringement was "willful" (and thereby subject you to treble damages), but you could be found infringing nonetheless.

There is no simple or easy answer to your question. If you reproduce a copyrighted work without the permission of the copyright holder, you could be liable for copyright infringement, period, no matter what representations a client might make as to the copyright. There is no easy way to tell whether a work is copyrighted, or who owns or has rights to a particular work.

You'll just need to decide for yourself what risks you are willing to take. You can probably be pretty comfortable if the shots they want reproduced are family vacations and the like. Obvious promo shots, shots of celebs, etc., are probably easy to pick out as well, and you might want to avoid reproducing those shots. As for the huge "gray" mass of shots in between, probably you'll have to rely on your judgment, and hope that you don't run afoul of anyone. And make sure you have insurance...

 

[Yamitron]

What statutory or caselaw authority do you have for the assertion that "you cannot claim it as your own in any way"?

I meant you can't claim it as your work, I should have phrased that better.

Again, look up the "first sale doctrine." I think that you will find that this type of behavior is perfectly lawful, and not subject to the control of the copyright holder once the "first sale" is made.

No, you don't need any permission. And what is a "seller's permit?"

I understand that you don't need permission, but what I am saying is that if the orginal copyright holder saw that someone had taken their work, stuck it in a frame, and resold it at a higher price, they would be upset, wouldn't you? They could attempt to sue for it, and the hassle about it would be more than what it is worth to resell. Which is why I would ask permission even if I thought I didn't need it.

The sellers permit may be something that only applies to my state. I was told to get a seller's permit if I wish to distribute any of my work. I believe it has something to do with taxes.

I guess that what I am assuming is that (I see this a lot) a seller will buy some postcard or something for $.25, stick it in a frame, and then sell it for $25. If it were my work.. I would be pretty mad that they made a bunch of money off of something of mine.. and I would try to do anything I could to stop it.

I understand that the first sale doctorine gives people the right to resell things, that I did not know, but I don't think it implies that it's allright to augment the original work and sell it for whatever price you want.

 

[Yamitron]

divgradcurl--

Just for my further enlightenment, if a person brings me a photo, or other visual work, and claims that to be their own, where does that put me regarding reproduction rights? Legally, I'm not to copy and print images that I know belong to someone else, but if someone swears to me the work in question is theirs, then am I not in the clear regarding copyright issues? Ownership and copyright questions are a big deal for the photofinishing industry, and this thread isn't helping me stay clear on the subject. There have been some big lawsuits concerning this problem, and now I no longer think I know the answer.

I may not be in the best position to be continuing relaying advice on this topic (considering my last post) but here is what I think about that.

Ask them if they have it registered for copyright, and ask to see the paperwork. If everything looks legit, create a contract for your use of it and, and have them sign another document stating that they are the legal copyright holder. It would be a lot of extra stuff, but if you are that uncertain, it may be worth it.

It might not be enough to cover your butt, but that is what I would do. (not that I am smart or anything)

 

[Yamitron]

BTW.. I googled first sale doctrine. I already knew that you can resell stuff that you buy, but I am not finding anything that says that you can augment the original form and resell it... just that you can resell it.

I'll post the link if I find a place that says anything about that.

 

[divgradcurl]

BTW.. I googled first sale doctrine. I already knew that you can resell stuff that you buy, but I am not finding anything that says that you can augment the original form and resell it... just that you can resell it.

As I noted above, check out Lee v. A.R.T. Company, 125 F.3d 580 (7th Cir. 1997). In that case, it was found that purchasing a picture and laminating it to a tile did not create a "derivative work," and selling the laminated tile was a lawful act.

 

[divgradcurl]

I meant you can't claim it as your work, I should have phrased that better.

Again, what statutory or caselaw support do you have for this assertion? Certainly it's not morally or ethically permissible to clain someone's work as your own, but in many cases, it's not actually illegal. There are limited "moral rights" or "rights of attribution" in the U.S. -- see 17 U.S.C. 106A for example, and the Gillam case in trademark law -- but there is no general right of attribution in the U.S.

I understand that you don't need permission, but what I am saying is that if the orginal copyright holder saw that someone had taken their work, stuck it in a frame, and resold it at a higher price, they would be upset, wouldn't you? They could attempt to sue for it, and the hassle about it would be more than what it is worth to resell. Which is why I would ask permission even if I thought I didn't need it.

It's irrelevant whether or not the original copyright holder would be upset -- there is simply no cause of action here. I doubt any lawyer would take the case, because it would be a frivolous case.

I guess that what I am assuming is that (I see this a lot) a seller will buy some postcard or something for $.25, stick it in a frame, and then sell it for $25. If it were my work.. I would be pretty mad that they made a bunch of money off of something of mine.. and I would try to do anything I could to stop it.

Why would you be upset? Presumably you got a price that you thought was fair when you sold the rights to your picture to the postcard company -- and there is certainly nothing stopping you from taking your own postcards, putting them in frames, and selling them. Part of the rationale for the first sale doctrine is that the artist has already been fully compensated for their work, and later resales of the product do not impact the compensation of the artist in any way.