If you’ve run a race in the last several years you’ve received an email from MarathonFoto, Brightroom, or a local race photo company letting you know that you can look at the pictures they took of you. Low-resolution, watermarked proof shots are there to persuade you to pay for a print or full-resolution digital copy.
Here, Runners World regular Mark Remy debates with himself (sorta) about whether clipping those proofs with a screenshot and posting them online is okay. He doesn’t seem to see a big problem with it, but MarathonFoto obviously disagrees and says so in the comments section.
Under federal law “Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Works of authorship is defined to include “pictorial, graphic, and sculptural works.” Interestingly, copyright protection under federal law exists automatically; registration of a copyrighted work is only required in order to maintain a copyright infringement suit. You can read more (if you’re interested) in “Copyright Basics,” published by the Copyright Office.
Generally speaking, the owner of the copyright has the exclusive right to reproduce works of authorship. Anyone else who reproduces a work may be committing copyright infringement under federal law (assuming their use of the work does not fall under one of the recognized exceptions).
Perhaps the most famous (or notorious) of those exceptions is “fair use.” The doctrine originally developed in the courts as part of the common law, but is now codified in the United States at 17 U.S.C. § 107. Generally speaking, using a copyrighted “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” It’s not enough, however, to simply claim that one’s use of a work is covered by one of those categories. Courts will look at several factors in determining whether one of the exceptions applies: “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 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.”
So is sharing these race photos in the way that Remy describes allowed? Almost certainly not, in fact, I’ll go ahead and make that a definitive “No!” Incidentally, Remy circled back to this topic a few weeks ago to get the opinion of an attorney (spoiler alert: she agrees with me).
None of that’s to say that this particular corner of intellectual property law is good policy, but that’s the gist of the law as I see it. I tend to agree with Remy’s original article that the photography companies who post these proofs do not lose income over people sharing them to social media, but (as his interview with the attorney points out) you’re not likely going to win that point in a copyright infringement lawsuit. I would say that a copyright infringement lawsuit is rather unlikely against any particular individual, but we have the RIAA lawsuits against individuals who downloaded songs that makes such a suit by MarathonFoto or others, perhaps, not so far-fetched.