This question, and all photos of it, copyright grapefruitmoon.

November 16, 2008 3:32 PM

CopyrightFilter: I was taking a photo in a bookstore and I was reprimanded by a clerk for copyright infringement. What exactly are the legalities of photographing books?

Note: I was photographing the cover of a book. Sure, I was using my Big Fat SLR, but the photo itself was merely for documentation: so I could remember the book later and put it on my Amazon wishlist. Probably less conspicuous if I had a camera phone, but for the purposes of the question, a photo is a photo.

The very earnest young clerk told me that it is *illegal* to take a photograph of a book. Now, I was not taking a photo of any pages - though I certainly have done so before in bookstores, sans any finger wagging in my direction - merely the cover. Is this *really* a copyright issue? I've done this in countless bookstores before, and this is the first time I've heard of it. If this guy *is* right, are the employees of all the other bookstores I've frequented ill-informed and/or lazy?

posted by grapefruitmoon to law & government (26 comments total)

It becomes illegal when you use the photograph in a way contrary to copyright law. It is not illegal to take the photograph.
posted by lockestockbarrel at 3:44 PM on November 16, 2008

it's not illegal to take photographs of anything that's in public. it is not illegal to take a photograph of a book. however, the store, as a private business, can prohibit photography inside its confines. that's it.

maroons.
posted by micawber at 3:45 PM on November 16, 2008

Both of the above comments are right, though I'm not a copyright lawyer. The store, as a private location, can prohibit photography (to varying degrees, depending on jurisdiction) within its confines. The copyright claim is pretty ludicrous, though. Violations occur through use. There's a great website with all sorts of copyright information in generally readable language at http://fairuse.stanford.edu/.

A possible corollary to your above situation is that the clerk might have asked to see the photos you took or insisted that you delete the images. Neither of those is required without going through courts, though the law may be slightly different depending on where you live. There's a handy pdf of photographers' rights at http://www.krages.com/phoright.htm.
posted by msbrauer at 3:53 PM on November 16, 2008 [4 favorites has favorites]

There may have been a store policy against photographing within the store that the clerk misunderstood as a policy against photographing the store's books. When I worked at Starbucks, we were told that company policy forbade any photography in-store (I only ever saw one employee actually stopping someone from taking a photo, but that was the official rule).
posted by Meg_Murry at 3:54 PM on November 16, 2008

Funny story about the Starbucks restriction. I was told once that Starbucks restricts photos of its cool lamps, specifically. I thought this sounded crazy (still do. My wife works there and hasn't heard of such a thing.)

In any case, about two days after I heard about that I'm sitting at a Starbucks in downtown Pittsburgh. It's very slow - only a few customers in the place at all. The one employee went into the back room to get something, and instantly a guy pulls a huge SLR out of his bag and starts photographing the lamps.
posted by odinsdream at 4:04 PM on November 16, 2008 [4 favorites has favorites]

Hey, you're Starbucks, you pay some fancy-pants lighting company to do a custom jobbie that costs Superbucks and then you install them in all your stores. It's only a cool light if only Starbucks has it. They don't want to see knockoffs in the little coffee shop down the way....
posted by amanda at 4:08 PM on November 16, 2008

It is infringement but it is probably protected by fair use.
posted by norabarnacl3 at 4:08 PM on November 16, 2008

I've heard reports of people doing low-tech magazine piracy at bookstores with cameras, page (snap) by page (snap). Perhaps the clerk witnessed this behavior before and had his "loss prevention" hat on.
posted by porn in the woods at 4:22 PM on November 16, 2008

It is infringement but it is probably protected by fair use.

That is impossible—if it is fair use, then it is not infringement. The fair use statute specifically states this:

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work... is not an infringement of copyright.

It is impossible for you to face criminal charges for this. It is unlikely that anyone who might sue you for breach of copyright would, and even less likely that they would. But remember that the store is well within their rights to ban you from the premises if you do not comply.
posted by grouse at 4:37 PM on November 16, 2008 [1 favorite has favorites]

You were completely covered under fair-use, since you were only "taking" an excerpt, and it was (presumably) for scholarly purposes (your own, but still). As long as you don't go trying to sell the image, you're in the clear in terms of infringement. But as already said, private property & private whims of private owners trumps fair use in this case.
posted by Civil_Disobedient at 5:24 PM on November 16, 2008

I meant that it was "even less likely that they would win."
posted by grouse at 5:26 PM on November 16, 2008

I just want to clear up this fair use thing.

Fair use is not applicable here. The fair-use doctrine permits other people to use copyrighted material without the owner's consent in a reasonable manner for certain purposes, notwithstanding the monopoly granted to the owner. In order to assert fair use, you must have made secondary use of the original copyrighted work.

Here, the photograph of the book was never used for anything; it was merely taken. Thus, we don't even reach fair use because there was never a use.
posted by lockestockbarrel at 5:35 PM on November 16, 2008

I had a similar experience outside of a movie theater. I was taking pictures of the neon lights on top of the building, and an employee told me that I couldn't take pictures because of copyrights. I started packing up my camera, but couldn't resist asking her how they went about copyrighting neon lights and the sky. By the time I was done packing up my stuff, the employee was joined by a manager, a security guard, and a police officer. It was crazy.

My search for answers about the episode led me to the photographers' rights web site that msbrauer linked. I never worry about taking pictures anywhere now. I would have to try really hard to take a truly illegal photo. So thanks movie theater employees! You have set me free!
posted by diogenes at 5:43 PM on November 16, 2008 [2 favorites has favorites]

So you say, but the act of creating a digital image makes a copy of the copyrighted work, which is one of the copyright holder's exclusive rights, as would be copying it to your computer for display. There is no need to reproduce it on a large scale or publicly.

If you have some case law that says otherwise I would be curious to see it.
posted by grouse at 5:45 PM on November 16, 2008 [1 favorite has favorites]

Here, the photograph of the book was never used for anything; it was merely taken. Thus, we don't even reach fair use because there was never a use.

What was used was the copyrighted material - the book - to make a photograph. Your analysis can't work because then there would be no protection for precisely this activity of making copies that are never 'used'. If I photocopy pages from a book but immediately throw them out that's still 'copying' and is still protected by 'fair use'.
posted by norabarnacl3 at 6:23 PM on November 16, 2008

So you say, but the act of creating a digital image makes a copy of the copyrighted work, which is one of the copyright holder's exclusive rights, as would be copying it to your computer for display. There is no need to reproduce it on a large scale or publicly.

This reasoning taken to the next level would mean that it would be impossible to take a non-infringing photo in public in most urban areas since there are copyrighted works all over the place.
posted by mmascolino at 6:25 PM on November 16, 2008

This reasoning taken to the next level would mean that it would be impossible to take a non-infringing photo in public in most urban areas since there are copyrighted works all over the place.

That's your reasoning, and it is incorrect. It is OK to take photos that have a de minimis inclusion of some other copyrighted work. See Gordon v. Nextel Communications. Taking a photo that consists almost entirely in a copyrighted work is not a de minimis use.
posted by grouse at 6:37 PM on November 16, 2008 [1 favorite has favorites]

I can go into a library and make photocopies of book covers all I want. What the person in the store meant is, we don't want you to do that because we want you to have to buy the book instead. From us. Now.
posted by ctmf at 6:54 PM on November 16, 2008 [1 favorite has favorites]

Grouse is right. Most of the other posts are talking out their a**.
posted by JimN2TAW at 7:30 PM on November 16, 2008 [1 favorite has favorites]

That is utterly fascinating. However as I read the Gordon v. Nextel brief that seems to be about reproducing copyrighted works (in this case Gordon's drawings) in a commercial enterprise (Nextel's ad). Wouldn't a personnel, non-commercial photograph and at this point non-distributed photograph be a wholly different thing.
posted by mmascolino at 7:48 PM on November 16, 2008

Wouldn't a personnel, non-commercial photograph and at this point non-distributed photograph be a wholly different thing.

Yes, because it would never end up in front of a judge. But if someone were stupid enough to bring it in front of one, the de minimis analysis, which would typically be done first, as explained in the opinion, would not consider whether the copy was commercial or whether distribution occurred.
posted by grouse at 8:10 PM on November 16, 2008 [1 favorite has favorites]

First up - it's inside a private store, and they can stop you taking photos if they want. You're generally entitled to do so until they ask you to stop, at which point you should. Their rights to detain or harass or demand the photos deleted are however limited.

Copyright is basically the right to make copies, which rests exclusively with the owner of that right until it expires. Making a copy of a work, whether it's by camera, computer or photocopier for personal use is still making an infringing copy. By knowingly allowing you to do so with their copies of the work, the shop itself could technically be charged with contributory infringement. Taking the photo itself is copyright infringement as you're making a copy of the cover art, a copyrighted work.

There are two defences; one, that the amount sampled is so minimal and/or incidental to the new work (your photo) that it does not constitute copying at all.

The other is that is fair use, or fair dealing, depending upon jurisdiction. This is a defence to copyright infringement, and depends upon the nature of the copying.
in the US, the things taking into account are:

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.

Specific, but not exclusive examples of fair use are for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research - and potential infringement under these circumstances is declared not to be an infringement of copyright at all.

"For personal use" is not specifically declared to be an exemption, and it would still depend upon the nature and quantity of the work copied.

So, in this specific case: was it infringing, and do you have a fair use defence?

Well, you were specifically taking a picture of the book cover, so a de minimis argument doesn't hold much weight. So, fair use.

Ironically, you'd be better off having taking a photo of a random page; as a small section of the work (the story), especially for non-commercial use, this almost invariably falls under fair use. See photocopiers in libraries.

The cover-art though is a slightly different matter. Copyright for it normally resides with the artist or publisher, and is often separate from the contents of the book. As the whole of the work was copied, you'd need a decent argument that it was non-infringing. Assuming you had no intent to distribute the photo further, and the value of the cover art in situ is not great, and that you were doing it for personal reference only - in this educated layman's opinion, you'd have a good shot at arguing a fair use defence, though you'd want to talk a copyright lawyer to be entirely sure.

The thing is, copyright law is rediculously overbroad. If you interpret the law strictly, it's virtually impossible to go through the day without breaking it repeatedly. The only reason it works is that most infringement is not persued, even blatant and repeated infringement.

Every time you quote a book, forward an email without permission, take photos, print a webpage or watch a taped tv show without deleting it afterwards (heaven forbid you use a DVR!) you are potentially infringing copyright, though most of the time you'd have a fair use defence.
posted by ArkhanJG at 8:33 PM on November 16, 2008 [1 favorite has favorites]

If this guy *is* right, are the employees of all the other bookstores I've frequented ill-informed and/or lazy?

We would doubt that your bookstore was the copyright holder of the book you photographed, so the clerk's comments to you were useless as well as annoying. The employees of the other bookstores have merely been using common sense.

BTW, don't get hung up on the word "illegal." This is not a criminal matter and the police will not be interested.
posted by JimN2TAW at 8:34 PM on November 16, 2008

Just to give one last example - some architects have started claiming copyright on buildings, statues and installations now. That taking photos of same without permission is copyright infringement. Years ago this would have been laughed out of the building, but it's go so bad some cities are now enforcing it - just in case.
posted by ArkhanJG at 8:40 PM on November 16, 2008

Just to give one last example - some architects have started claiming copyright on buildings, statues and installations now. That taking photos of same without permission is copyright infringement.

Thankfully, U.S. copyright law states that architects can't prevent others from making pictorial representations of buildings visible from public places.
posted by grouse at 9:05 PM on November 16, 2008

"No photos in the store" is policy in almost every business. Except possibly camera stores. I've heard reasons varying between preventing secret shoppers to keeping people from casing the joint to rob it. (Both of which are bogus.)

However almost* every time I've been told to stop taking a photo I've said "I'm buying this for a friend and I want to make sure I've got the right one. Is that okay?" and they relent because if they don't let me photograph it then they won't get the sale.

Taking the photo with a camera phone helps.

*The one case where it failed was at a pet store, in which case the line doesn't work.
posted by Ookseer at 11:52 PM on November 16, 2008