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FB profile picture into meme...legal or not? Copyright

Discussion in 'Copyright, Trademark, Patent Law' started by KleineVampir, Jun 5, 2019.

  1. KleineVampir

    KleineVampir Law Topic Starter New Member

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    Jurisdiction:
    Nebraska
    So I was arguing with people on facebook in a closed group, fyi. Then as a response in this argument, somebody (Who I wasn't even talking to) suddenly posted an altered picture of me. The picture was me on the left, and it had text on the right. The picture was my FB profile picture. (Not sure if that's a private thing or not..) Obviously he did not have my permission to use the picture of me. The text was of me saying something silly that I didn't and wouldn't say, and then he deliberately misspelled my name to be silly for the quote.

    Just out of curiosity, not that I'm probably gonna be litigating anyways, was what he did legal or not?
     
  2. zddoodah

    zddoodah Well-Known Member

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    One of the least productive possible uses of anyone's time.

    Impossible to say without seeing it (and no, that's not a request for you to post it). It's potentially a violation of the copyright in the photo. However, since the copyright owner probably suffered no actual damages and the infringer earned no profits, and since the copyright almost certainly wasn't registered prior to the alleged infringement, the owner of the copyright could not possibly recover anything. The only other conceivable claim might be some sort of defamation claim, but again, one would need to see the picture or know what was written to know for sure. However, in the context, the defendant could likely assert a defense that what was done was obvious satire or parody (and, as with the copyright claim, you almost certainly suffered no legally cognizable damages).
     
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  3. mightymoose

    mightymoose Moderator

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    It is unlikely that this was unlawful, but even if it was it would be difficult to pursue and hardly worth the effort.
     
  4. KleineVampir

    KleineVampir Law Topic Starter New Member

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    Ok thanks for your thoughtful response. You guys are probably right on both accounts! I did some research purely out of curiosity, and I got some things that sounded close but I just wanted to know once and for all how this works. And yeah I definitely do NOT want to share that picture! It's embarrassing! The picture was taken 10 years ago.

    Though I will say, when I was researching, some things that people were saying made it sound like I might be the copyright holder of the photo...now obviously I didn't go down to the copyright office and make it official in any way. But it is a picture of me. I guess nobody needs permission to post that? Once again, some things people were saying lead me to believe that perhaps they would need my permission.

    And of course, none of this has anything to do with business or money. That is true. Could a case be made based on him "putting words in my mouth" by making me "say" something I would never say? Also the misspelling of my name was pretty disrespectful in my opinion, but not necessarily illegal. I mean that is my family name...
     
  5. Tax Counsel

    Tax Counsel Active Member

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    The copyright holder, at least initially, is the photographer, not the person in the photograph. So you'd not be the copyright holder of the photo unless the photographer was you (e.g. a selfie photo) or the photographer transferred his/her copyright to you.
     
  6. Zigner

    Zigner Well-Known Member

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    ...yet you used it as your FB profile picture? :confused:
     
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  7. zddoodah

    zddoodah Well-Known Member

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    The copyright in a photograph is generally owned by the photographer unless the photo is taken by an employee in the course and scope of his/her employment, in which case the copyright is owned by the employer. If your photo was a selfie, you might be the copyright owner. If you didn't take it, then you probably aren't.

    As far as needing permission, the right to display a protected work publicly is one of the exclusive rights of copyright, so your "guess" is incorrect.

    Maybe. That's why I previously wrote that it's impossible to assess the legality without seeing the picture (both the original and altered version).

    That's nothing more than playground level teasing. Not at all illegal.
     
  8. KleineVampir

    KleineVampir Law Topic Starter New Member

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    Ha, true! But generally it's smaller..and in the right context it's ok. But he framed it in a way that puts me in a bad light. Also he took the color out of the picture, so it's black and white..which draws even more attention to me instead of the background which is also part of it. Also it implies that I look like that NOW since that's probably what he thinks. It's just very annoying. But probably not illegal. *shrug*
     
  9. KleineVampir

    KleineVampir Law Topic Starter New Member

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    So, about the origin of the photo...somebody else did take it. So does that kill the whole thing right then and there? I mean it was taken for me and was never in possession of the guy who took the picture. I mean, it seems like common sense would dictate that it's my picture since it means nothing to the guy who took it, but if we're doing black and white law with clear lines in the sand then maybe I'm SOL.
     
  10. Zigner

    Zigner Well-Known Member

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    You don't own the rights to the picture...the guy that took it does. That means that you don't have standing to address the copyright issue.

    Just let it go - if you make a stink about it then it's going to be in the front of people's minds for much longer.
     
  11. KleineVampir

    KleineVampir Law Topic Starter New Member

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    Ha, ok...fair enough. At least now I know what I'm signing up for when I have that profile picture and want to raise a fuss on the internet! Also maybe somebody else can find the answers they were looking for on here since I was a little unclear as to how profile pictures worked with stuff like this. Looks like ownership is the main thing.
     
  12. zddoodah

    zddoodah Well-Known Member

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    Kill what thing? As mentioned, the photographer typically owns the copyright. Since you weren't the photographer, you don't own the copyright (unless you obtained a signed, written transfer of the copyright).

    I would hope it would go without saying that legal rights are not determined based on whether something "means nothing" or something to someone. You certainly have an express or implied, non-exclusive license to use the picture, but that's it.

    Yup.
     
  13. KleineVampir

    KleineVampir Law Topic Starter New Member

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    Kill my case, hypothetically. So if I take a picture of myself and press the button myself, it's my copyrighted photograph. If I tell somebody else to take the picture, they do it, then walk away, it's THEIR photograph. Even though that person was just assisting in the taking of the picture and it's obviously not intended for the photographer to have?

    This reminds me of the whole tourist thing where you hand the camera to a stranger and they take your picture. Is that picture theirs then?
     
  14. KleineVampir

    KleineVampir Law Topic Starter New Member

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    Are there no grounds for a harassment charge? It was obviously meant to embarrass and torment me. It's just bully tactics instead of addressing the argument.
     
  15. Tax Counsel

    Tax Counsel Active Member

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    No. It takes a lot more than posting one picture to embarrass you to constitute a crime. We still have free speech in this country, and sometimes speech embarrasses or angers other people. Speech isn't a crime just because someone else gets upset over it. Under Nebraska's stalking and harassment criminal laws, "Harass means to engage in a knowing and willful course of conduct directed at a specific person which seriously terrifies, threatens, or intimidates the person and which serves no legitimate purpose". NRS 28-311.02(2)(a). The picture you complain about comes nowhere close to being part of a willful course of conduct that seriously terrifies, threatens, or intimidates you. It's embarrassing, but that's not enough to make it illegal.
     
  16. mightymoose

    mightymoose Moderator

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    Nothing you have described sounds like cause for any legal action against anyone.
     
  17. Zigner

    Zigner Well-Known Member

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    Legally, yes. Practically, not really. You are, however, on a legal forum...so yes.
     
  18. zddoodah

    zddoodah Well-Known Member

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    I'll write this once more: The copyright in a photograph is typically owned by the photographer (I explained the primary exception to this the first time I wrote it). If you take a picture of yourself, then you own the copyright. If someone else takes the picture, then he/she likely owns the copyright. No one who says, "hey, can you take a picture of me in front of the Capitol Building," really thinks about copyright, and no one who takes a photograph under such circumstance is likely to assert a copyright claim, but there you have it.

    The picture? No. The copyright? Yes. You need to distinguish the copyright from physical and virtual copies of the work that is protected by copyright.

    Yes. Fortunately, the law has not changed so much that every act of making fun of someone else is a crime.
     
  19. KleineVampir

    KleineVampir Law Topic Starter New Member

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    Ok. I think I've tried to stretch it to its limit and it isn't happening. So now hopefully somebody else can get the answers their looking for without anybody even having to respond.
     
  20. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    This is a very easy question to answer if you're seeking content removal. First look at Facebook's own terms of use or "community standards" which I am confident will cover a situation such as this one. You don't usually have to get to copyright law because Facebook has fenced rules which cover more than the law in order to foster a friendly environment.

    We remove content that glorifies violence or celebrates the suffering or humiliation of others because it may create an environment that discourages participation. We allow graphic content (with some limitations) to help people raise awareness about issues.

    Facebook reserves the right to remove content which it feels ridicules other users. In your case it's your own profile photo. It's almost certainly within Facebook's best interests to not allow content its users provide to be used against them. Even if copyright law didn't apply (which it should), this provision will allow Facebook to remove the photo and make what could be a more challenging issue something that is hopefully no more effort than reporting it.

    With regard to your legal rights I'd rather not get into a discussion about whether this is parody, etc. For example, is drawing a mustache on a photo of President Trump copyright infringement? (Don't answer that!)
     
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