Old 06-16-2009, 12:21 PM   #1
Joe the Photog
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Default Mitch's Photo Is Stolen, But It's Not The Thieves Fault

In case you guys missed it --

http://www.trainorders.com/discussio...5758,nodelay=1

But it wasn't really the thieves fault since, well, it was a spur of the moment thing and, oh yeah, he was really just trying to see how long it would take folks to see it was a "hoax."

Mitch, you nicer about it than I would have been.
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Old 06-16-2009, 12:47 PM   #2
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Hey Joe, can you post the direct image URL for those of us on here who aren't members of T.O.? Thanks.
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Old 06-16-2009, 12:58 PM   #3
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I'm not a member of TO either, so I probably can't see more than you can.
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Old 06-16-2009, 01:40 PM   #4
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Here is mitch's photo, highly modified !
Attached Thumbnails
Click image for larger version

Name:	MG photo.jpg
Views:	195
Size:	116.6 KB
ID:	4207  
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Old 06-16-2009, 02:07 PM   #5
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Quote:
Originally Posted by Joe the Photog View Post
In case you guys missed it --

http://www.trainorders.com/discussio...5758,nodelay=1

But it wasn't really the thieves fault since, well, it was a spur of the moment thing and, oh yeah, he was really just trying to see how long it would take folks to see it was a "hoax."

Mitch, you nicer about it than I would have been.

Amen to that, Joe!

This is horrendous and inexcusable on their part. Are these two ('cinder' and 'feltonhill') on RP? If these guys will try the things on a brazenly copyrighted image, what will they do with others.

Mitch's tolerance on this shows a lot about character, if you ask me. And even if you don't ask me.
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Old 06-16-2009, 02:46 PM   #6
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Are these two ('cinder' and 'feltonhill') on RP?

cinder is. But I think you'd be surprised if you really knew what was happening with photos. I'd bet there is a lot more of this kind of stuff happening that we never see. It's the nature of the internet. If you post something on it, you should EXPECT it to be stolen, though that certainly doesn't excuse the act of stealing it. I would have figured that cinder would have a bit more common sense than that, since he seemed a little smarter than some people who post over there.

Side Story: I accepted a friend request on Facebook a few months back from a kid who likes trains and lives near where I grew up in Kansas. Upon accepting, I discovered that the kid had been using some of my shots as his profile pic a few months previous!
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Old 06-16-2009, 03:26 PM   #7
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cinder is. But I think you'd be surprised if you really knew what was happening with photos. I'd bet there is a lot more of this kind of stuff happening that we never see. It's the nature of the internet. If you post something on it, you should EXPECT it to be stolen, though that certainly doesn't excuse the act of stealing it. I would have figured that cinder would have a bit more common sense than that, since he seemed a little smarter than some people who post over there.

Side Story: I accepted a friend request on Facebook a few months back from a kid who likes trains and lives near where I grew up in Kansas. Upon accepting, I discovered that the kid had been using some of my shots as his profile pic a few months previous!
Hear ya, Ken. With my life experiences, I'm not surprised by much of anything these days; some of the suff and foolishness that happens these days makes me pinch myself every so often and see if I wake up.

I do realize that stuff is stolen and butchered all the time. But as you said, it doesn't excuse it, it's STILL wrong, and I will call a spade a spade when I see it.
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Old 06-16-2009, 03:57 PM   #8
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I do realize that stuff is stolen and butchered all the time. But as you said, it doesn't excuse it, it's STILL wrong, and I will call a spade a spade when I see it.
Well, there is wrong, there is WRONG, there is the law, and there is ...

Anyway, let's take a look at the law. First, I am no lawyer! Second, for the "law" I am going to rely on the wiki summary of "fair use found here. I am simply reading this and applying it to the shot in question. So that tells you something about the soundness of the following.

There are "four factors of analysis" for fair use in the US, according to the Copyright Act of 1967.

1) purpose and character, and in particular is the use "derivative" or does it reach the higher plane of "transformative". Here, the latter, clearly, there is no attempt to copy, but rather to make use, toward another end, a hoax, and a transparent one at that. It is transformed.

2) nature of the work - I am unclear about how this clause applies, so I'll pass, other than to say the original is not something that should be considered in the public domain.

3) amount and substantiality - here, the image makes use of a substantial portion of the original image, the entire main element. But it isn't used in a way that makes me think that a fine piece of work has been taken - the lettering is backward, the plume is bizarre in the new setting, the blurred driving rod, etc. There is no notion that the original image is being "superseded".

4) potential market/value - I see no loss of value to Mitch in terms of, say, possible print sales of the original, because of its appearance in the hoax.

I'd say that 1) and 4) clearly lead to a judgment that this is fair use, and its not even a close call.

J
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Old 06-16-2009, 04:20 PM   #9
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Well, there is wrong, there is WRONG, there is the law, and there is ...

Anyway, let's take a look at the law. First, I am no lawyer! Second, for the "law" I am going to rely on the wiki summary of "fair use found here. I am simply reading this and applying it to the shot in question. So that tells you something about the soundness of the following.

There are "four factors of analysis" for fair use in the US, according to the Copyright Act of 1967.

1) purpose and character, and in particular is the use "derivative" or does it reach the higher plane of "transformative". Here, the latter, clearly, there is no attempt to copy, but rather to make use, toward another end, a hoax, and a transparent one at that. It is transformed.

2) nature of the work - I am unclear about how this clause applies, so I'll pass, other than to say the original is not something that should be considered in the public domain.

3) amount and substantiality - here, the image makes use of a substantial portion of the original image, the entire main element. But it isn't used in a way that makes me think that a fine piece of work has been taken - the lettering is backward, the plume is bizarre in the new setting, the blurred driving rod, etc. There is no notion that the original image is being "superseded".

4) potential market/value - I see no loss of value to Mitch in terms of, say, possible print sales of the original, because of its appearance in the hoax.

I'd say that 1) and 4) clearly lead to a judgment that this is fair use, and its not even a close call.

J
And that's your opinion, you have the right to it, and get no argument from me from a logical point of view.

My opinion is that he should have acknowledged the copyright and moved forward with his work from there. He didn't.

Now to get back to my popcorn, watching a flame war develop on another thread...
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Old 06-16-2009, 04:29 PM   #10
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I was not actually debating you so much as adding another viewpoint.

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My opinion is that he should have acknowledged the copyright and moved forward with his work from there. He didn't.
How can you acknowledge a copyright if you are doing a (playful, I think) hoax? He acknowledged it once the hoax was revealed, as he expected it would be.

Maybe hoax is even the wrong word to use, maybe that should be reserved for those things that are intended not to be revealed as fradulent.
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Old 06-16-2009, 04:34 PM   #11
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Well, he only used the word hoax after Mitch chimed in about it. If he did intend to try to fool some folks, it took fifteen whole minutes before the first poster callled him out. It's just odd to me.
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Old 06-16-2009, 04:46 PM   #12
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I was not actually debating you so much as adding another viewpoint.



How can you acknowledge a copyright if you are doing a (playful, I think) hoax? He acknowledged it once the hoax was revealed, as he expected it would be.

Maybe hoax is even the wrong word to use, maybe that should be reserved for those things that are intended not to be revealed as fradulent.
Hey, your other viewpoint has a lot of merit.

I see your point of wanting to see how long it would take, therefore rendering acknowledgement out of the box premature. I was taken aback however, at his comment to feltonhill about whether he could 'keep' his further adjustment.

At that point was when it was time to reveal everything, but since Mitch caught it at that point, as the old TootsiePop commercial says; "The world may never know".
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Old 06-16-2009, 07:18 PM   #13
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I think the whole thing is much ado about nothing. Do we really know the dynamics of the relationship (friendly or not) between "cinder" and Mitch? Who knows what goes on behind the scenes. I recently created a "hoax" picture myself using a photo that was linked to another forum from locophotos.com:



My original:

Image © Jim Thias
PhotoID: 285891
Photograph © Jim Thias


I hope the photographer of the yellow loco isn't too terribly offended that I "stole" the subject of his roster shot.

(photographer credit goes to Stan Lytle)
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Old 06-16-2009, 07:32 PM   #14
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Anyway, let's take a look at the law.

Yes, let's:

Quote:
Notwithstanding the provisions of sections 17 U.S.C. 106 and 17 U.S.C. 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[1]

Here endeth today's lesson.

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Old 06-16-2009, 07:49 PM   #15
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Yes, let's:




Here endeth today's lesson.

Good point. Obnoxious and unnecessarily large font, but good point.

What the case law is on the phrase "for purposes such as" is WAAAY beyond my level.
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Old 06-16-2009, 08:29 PM   #16
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Obnoxious and unnecessarily large
Thanks.





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What the case law is on the phrase "for purposes such as" is WAAAY beyond my level.
A lot of people deeply, fervently want to believe that "non-commercial" = "fair use," which has never been the case. And a lot of people equate "personal use" - the classic example of making a cassette copy of your LP - with "fair use."

As a practical matter, there's not much point in siccing the lawyers on some 12-year-old with a copy of Photoshop and too much time on his hands, but that does not equate to "fair use."

It pretty much boils down to: If you're using it, you didn't create it, and you aren't teaching it or writing a review of it, you're violating it. The fact that it's not economical to punish you doesn't make it "fair use."
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Old 06-16-2009, 10:27 PM   #17
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Well, he only used the word hoax after Mitch chimed in about it. If he did intend to try to fool some folks, it took fifteen whole minutes before the first poster callled him out. It's just odd to me.
My sentiments exactly...

And later he asked if he could "keep it" referring to an improved edit someone else provided. It was only a "hoax" after the fact and one of the oddest attempts of a hoax I've ever witnessed. Southern #261 from the 80's??

Common sense, if not the law, dictates that if you use someone's work, you need ask first, or at the very least, credit that work. And outsite of April Fools DAY, if you modify an image you must make mention of that fact.

Was I "injured" by the action - no, though I imagine others might have considered so in this letigious world. Let's just be glad someone learned something about ethics this week.

/Mitch
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Old 06-16-2009, 10:36 PM   #18
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My sentiments exactly...

Let's just be glad someone learned something about ethics this week.

/Mitch

Very well put, and very big of you to handle it the way you have.
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