How should the use of copyrighted photos be addressed?

Question

Many questions are posted with copyrighted images included. These are generally images from well known aviation photo websites that Aviation.SE users have uploaded to Imgur—with the copyright banner still right there at the bottom.

Examples of such image use can be found here, here, and here, ...and you get the idea.

_{(By the way, let me just say that I'm not trying to pick on any particular users; to find the above examples I systematically went through the newest several score of questions and found any instances of obvious copyrighted images.)}

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The Stack Exchange Network Terms of Service makes it clear that users shall not contribute copyrighted material to SE (a user is called a "Subscriber" in the legal jargon). See this excerpt from §3:

Subscriber represents, warrants and agrees that it will not contribute any Subscriber Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party

Now, one might plead that this is fair use, but this is clearly not the case, at least for US jurisdiction. Fair use is determined by four factors; instances such as those I highlighted above clearly do not pass factor 3,

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole

since the copyrighted photos are reproduced in their entirety.

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How should we respond to such copyright infringement?

Should we just ignore it until the copyright holders file infringement claims?

Should we militantly pore over every post on the server and remove all copyrighted material?

Should we flag new instances of infringement or otherwise draw attention to the misuse?

Is there something I am missing, and such use is actually acceptable here?

Answer 1

Moderator Hat ON

As a moderator my job is not to be the copyright police - we're janitors, not enforcers. We'll generally deal with blatant plagiarism, but from my perspective dealing with copyright claims on photos and the like is far above my pay grade (and would be even if I were getting paid).

Copyright is a legal issue, and it's a very complex one (is it "fair use", a "transformative work", what jurisdiction governs the claim, etc.) -- I am not a lawyer, and even if I were I would not be Stack Overflow's lawyer on copyright-related stuff because copyright law gives me a bloody headache.
Stack Overflow has a network-wide policy on copyright which can be found here (Sections 3 and 15 are particularly relevant). If anyone has an issue with the use of copyrighted materials I direct them there for information on how to report their claim and let the lawyers deal with it.

Moderator Hat OFF

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Photographer Hat ON

Removing the copyright banner from a photo is a pretty sure way to get yourself into trouble. Personally if I go through the trouble of watermarking my images and someone subsequently removes my mark or copyright notice I am more inclined to pursue them than if they left it there. (I know airliners.net automatically marks everything - I have objections to that practice, but it doesn't change the fact that removing someones copyright notice from a work is a big no-no! They might strangle you with their camera strap.)

Photographer Hat OFF

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In the general case I come down on the side of fair use and common sense: Do your best to comply with any terms laid out by the author, leave any copyright notices (unless what you're doing to the work is really substantially transformative), and try to provide attribution to the original author. Do not just copy and paste someone else's work and pass it off as your own (and don't think that "I found this on the internet BIG COPYPASTA IN A BLOCKQUOTE" will fly either). At that point if someone has a problem it's a job for lawyers.

If you want to make sure you're staying on the right side of (US) Fair Use there's nice bit from Columbia's library on this, and also Circular 21 from the US copyright office which are pretty easy to digest.

. . . and now if you'll all excuse me I'm going back to the hat rack because my head is cold.

Answer 2

My suggested approach would be to start by drawing user's attention to their instances of infringement and by trying to direct them to constructive alternatives.

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Such an alternative solution might be to use a thumbnail image to link to the full size image on the original website. This solution could also be retroactively implemented, especially where images have been properly attributed.

To properly implement this, the OP—or an editor—would need to manually resize the image to an appropriate thumbnail, upload it, and then manually edit the photo link to point to the host page for the original image.

Here is an example of what I am suggesting. I am using the first example question of this issue that I linked in my question above. I have re-sized the image to 270p wide which is consistent with the thumbnails that Google uses for their image results.

Example photo (click to go to Airliners.net for large version):

This approach of using thumbnails should constitute fair use—as defined by court precedent—in that the use would be insubstantial relative to the original whole. However, this approach would retain some of the value of having an actual image on the SE page in that viewers could see a preview of the linked image.

Obviously, this is not as desirable as having the larger size image viewable on the SE page, and requires some work, but it would have the advantage of being legally defensible.