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> And the irony, of course, is this: the pictured bike itself was never stolen, but the rushed magazine photo has been – by hundreds of people, perpetuating a f

> And the irony, of course, is this: the pictured bike itself was never stolen, but the rushed magazine photo has been – by hundreds of people, perpetuating a fake crime over and over. At what point (if ever) would using a photo like this fall under fair use? The author doesn’t seem to care, but I’m curious if copyright is ever forfeited due to widespread use or inaction of the copyright holder.

ThunderSizzle 5y ago
My understanding is that copyright is only honored by the legal system if it's been enforced by the copyright holder. If the copyright holder knows its being used, and doesn't attempt to enforce copyright rights, but after a decade or similar, changes mind and starts enforcing, the court might rule that copyright is no longer enforceable.
- deleted 5y ago
  [deleted]
Nursie 5y ago
I don't believe one is required to defend copyright. Trademarks, certainly, but not copyright.
nash 5y ago
Never is the simple answer. Otherwise all copyright would have pretty much been eliminated by the pirate bay. Enforcement and collection of the damages is a totally different issue.
- jeroenhd 5y ago
  In the US, the picture would become public domain 70 years after the death of the author. As for fair use: if you were to criticise something related to the image (say, you make a whole youtube video criticising the blog posts on this website and this image scrolls by when you do a quick lookaround on the website) or make some kind of transformative art out of it and the author would sue under DMCA or similar and the lawsuit would be based on US law, fair use would probably apply. Fair use is a defence to use in a lawsuit, after all, not a right, but you can definitely do things with this picture that would be defensible under fair use. Companies specialising in copyright would probably try to convince you to avoid a lawsuit and come to a mutually beneficial agreement before the thing is settled, though, because big media companies do not like it when copyright law and things like fair use get defined (and thus consumer rights may be gained, and the excessive wealth of the media industry might get dented). What the pirate bay did could never really be construed as fair use. At best, they can claim to simply host links, no content, and should not be held accountable for the illegal behaviour of the users and searching clicking said links, just like normal service providers. That's not an exemption in copyright law, though.
  - dragonwriter 5y ago
    > Fair use is a defence to use in a lawsuit, after all, not a right The statutory fair use defense codifies a Constitutional (First Amendment) limit on the copyright power found by the courts prior to the existence of the statutory defense, so it is both a defense and a right, specifically, the Constitutional right of free speech. Lawsuit defenses, more generally, are assertions of rights, whether statutory, common law, or Constitutional.
toast0 5y ago
Using a photo like this in an article about how photos are used without permission is probably fair use. Using a photo like this as part of your article on bike theft without permission is probably not fair use.
boomboomsubban 5y ago
The now defunct magazine presumably held the copyright, and it's entirely possible the licensed the rights to a third party.
- usrusr 5y ago
  Given bankruptcy law, how much choice would they even have?
lozenge 5y ago
No, copyright isn't forfeited like that, only trademarks are. It fails this part of fair use: 'The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes. Courts typically focus on whether the use is “transformative.” That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original.'
- mindslight 5y ago
  > No, copyright isn't forfeited like that Taking a step back, why not? Even (especially) real estate gets forfeited like that. It seems like the mp3s I've had for 20 years should fall under adverse possession. Or if you'd like a higher bar for openly possessed, then torrents have that have been publicly seeded for multiple decades.
franciscop 5y ago
Note that the article author represented in the images seems not to be the author of the images themselves. AND since it was done for a company in all likehood neither the person represented in the image nor the person taking the picture hold the copyright of the picture (since it's a different person and not the author with a tripod as implied in the article).

ThunderSizzle 5y ago

My understanding is that copyright is only honored by the legal system if it's been enforced by the copyright holder. If the copyright holder knows its being used, and doesn't attempt to enforce copyright rights, but after a decade or similar, changes mind and starts enforcing, the court might rule that copyright is no longer enforceable.

deleted 5y ago
[deleted]

Nursie 5y ago

I don't believe one is required to defend copyright. Trademarks, certainly, but not copyright.

nash 5y ago

Never is the simple answer. Otherwise all copyright would have pretty much been eliminated by the pirate bay. Enforcement and collection of the damages is a totally different issue.

jeroenhd 5y ago
In the US, the picture would become public domain 70 years after the death of the author. As for fair use: if you were to criticise something related to the image (say, you make a whole youtube video criticising the blog posts on this website and this image scrolls by when you do a quick lookaround on the website) or make some kind of transformative art out of it and the author would sue under DMCA or similar and the lawsuit would be based on US law, fair use would probably apply. Fair use is a defence to use in a lawsuit, after all, not a right, but you can definitely do things with this picture that would be defensible under fair use. Companies specialising in copyright would probably try to convince you to avoid a lawsuit and come to a mutually beneficial agreement before the thing is settled, though, because big media companies do not like it when copyright law and things like fair use get defined (and thus consumer rights may be gained, and the excessive wealth of the media industry might get dented). What the pirate bay did could never really be construed as fair use. At best, they can claim to simply host links, no content, and should not be held accountable for the illegal behaviour of the users and searching clicking said links, just like normal service providers. That's not an exemption in copyright law, though.
- dragonwriter 5y ago
  > Fair use is a defence to use in a lawsuit, after all, not a right The statutory fair use defense codifies a Constitutional (First Amendment) limit on the copyright power found by the courts prior to the existence of the statutory defense, so it is both a defense and a right, specifically, the Constitutional right of free speech. Lawsuit defenses, more generally, are assertions of rights, whether statutory, common law, or Constitutional.

toast0 5y ago

Using a photo like this in an article about how photos are used without permission is probably fair use. Using a photo like this as part of your article on bike theft without permission is probably not fair use.

boomboomsubban 5y ago

The now defunct magazine presumably held the copyright, and it's entirely possible the licensed the rights to a third party.

usrusr 5y ago
Given bankruptcy law, how much choice would they even have?

lozenge 5y ago

No, copyright isn't forfeited like that, only trademarks are. It fails this part of fair use: 'The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes. Courts typically focus on whether the use is “transformative.” That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original.'

mindslight 5y ago
> No, copyright isn't forfeited like that Taking a step back, why not? Even (especially) real estate gets forfeited like that. It seems like the mp3s I've had for 20 years should fall under adverse possession. Or if you'd like a higher bar for openly possessed, then torrents have that have been publicly seeded for multiple decades.

franciscop 5y ago

Note that the article author represented in the images seems not to be the author of the images themselves. AND since it was done for a company in all likehood neither the person represented in the image nor the person taking the picture hold the copyright of the picture (since it's a different person and not the author with a tripod as implied in the article).