Use of card images on Instagram (copyright and fair use)

Leaving the legal issues aside, it is trully quite dumb from Llewellyn's side to pull something like that, especially given that most of the knowledge about different Tarot decks (including theirs) comes from some sort of social media. In fact, I cannot recall even one Tarot deck that I bought without falling in love with the images beforehand (except an impulse buy of Golden Klimt).

That notwithstanding, it actually WOULD be quite difficult to make a good case against it (sorry, master lawyers). If the posts including the cards are depicted as a result of a daily activity (and not a scanned high-resolution image), especially if the owner of the image is listed, it would be very hard to stand against say an educational defense.

If I were to take a deck and then model an app upon it and sell it for 6.99, then it would be serious infringement. But as I recall, Tarot decks are copyrighted by deck, not by card.

If I remember correctly a few years ago a Magic Realist(?) deck was bootlegged. The owner said it didn't matter if it came to court, they had to be seen to be protecting their copyright or it was precedent to, you didn't protect it before, now it's too late, you've already given silent permission.

delinfrey said:

That notwithstanding, it actually WOULD be quite difficult to make a good case against it (sorry, master lawyers). If the posts including the cards are depicted as a result of a daily activity (and not a scanned high-resolution image), especially if the owner of the image is listed, it would be very hard to stand against say an educational defense.

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I have to disagree with you here. "Educational" means "in a classroom in an accredited educational institution". It does not mean "I think I know something and I want to teach other people about it". Unless these images were being used as a part of a school curriculum (and were only being distributed to students following the relevant course) a claim of using the images for educational purposes would have no legal grounds.

If I were to take a deck and then model an app upon it and sell it for 6.99, then it would be serious infringement. But as I recall, Tarot decks are copyrighted by deck, not by card.

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Copyright protects a work in whole or in part. A big infringement and a small infringement are, legally speaking, still both infringements.

AJ said:

If I remember correctly a few years ago a Magic Realist(?) deck was bootlegged. The owner said it didn't matter if it came to court, they had to be seen to be protecting their copyright or it was precedent to, you didn't protect it before, now it's too late, you've already given silent permission.

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Exactly. It may SEEM like nothing, but it was an unholy mess and led to several of us on here who drew attention to it getting threatening emails form the bootlegger.

Fair use - if the publisher/artist/whatever deems it NOT fair use, I think they do have that right. Lo Scarabeo, by the way, didn't do it out of laziness; they just thought it was a nice thing to do and would save them getting constant requests !

http://www.tarotforum.net/showthread.php?t=189286

gregory said:

Exactly. It may SEEM like nothing, but it was an unholy mess and led to several of us on here who drew attention to it getting threatening emails form the bootlegger.

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Ugh. How awful.

Lo Scarabeo, by the way, didn't do it out of laziness; they just thought it was a nice thing to do and would save them getting constant requests !

http://www.tarotforum.net/showthread.php?t=189286

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I didn't say they were lazy. I said they probably did it because stopping it was futile, so why even attempt rolling that stone up that hill and instead be nice about it. After most likely giving it more than cursory thought, they made a calculated decision that I agree with. And that apparently was their intent, judging from Ric's comments on that thread.

If anyone was lazy in this, it's Llewellyn.

delinfrey said:

Leaving the legal issues aside, it is trully quite dumb from Llewellyn's side to pull something like that, especially given that most of the knowledge about different Tarot decks (including theirs) comes from some sort of social media. In fact, I cannot recall even one Tarot deck that I bought without falling in love with the images beforehand (except an impulse buy of Golden Klimt).

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I agree completely. The only deck I have ever bought without seeing more than a card or two I ended up not too happy with, so I'll never do that again. If this makes Llewellyn's decks harder for me to see, then I'm MUCH less apt to buy them.

That notwithstanding, it actually WOULD be quite difficult to make a good case against it (sorry, master lawyers). If the posts including the cards are depicted as a result of a daily activity (and not a scanned high-resolution image), especially if the owner of the image is listed, it would be very hard to stand against say an educational defense.

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Even if it would be rather difficult, it likely wouldn't be hard enough to discourage a large company who likely has lawyer or two on retainer, while it WOULD be exceedingly difficult *and* hard for the average tarot reader who doesn't have fifteen hundred bucks for a lawyer of their own. And if Tarot Company sues Tarot Reader and Tarot Reader doesn't put up a defense, even if it's because they can't afford a lawyer, the judge rules in favor of Tarot Company by default. That's just the way it works.

Now if you post a picture of you doing a reading with a deck, I would think that would be harder to successfully sue you for, just like it would be unlikely that Coca-Cola could successfully sue you for posting a picture of you drinking a coke. But that's not an educational defense.

If I were to take a deck and then model an app upon it and sell it for 6.99, then it would be serious infringement. But as I recall, Tarot decks are copyrighted by deck, not by card.

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Some of my decks have the copyright notice on each and every card, so that tells me the individual cards can and are copyrighted.

*takes off armchair lawyer hat*

LindaMechele said:

Now if you post a picture of you doing a reading with a deck, I would think that would be harder to successfully sue you for, just like it would be unlikely that Coca-Cola could successfully sue you for posting a picture of you drinking a coke. But that's not an educational defense.

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I don't know. If you were someone who sold readings or items, I wonder if it could be interpreted as an endorsement by the tarot card copyright holders for you to be shown using their cards. Maybe coca cola wouldn't normally care about picture of their products posted without permission, but what if someone is at a KKK rally or something, and posts a picture of themselves casually drinking a coke? What would they do then?

I remember the girl scouts getting sued for royalties and such for allowing copyrighted music to be sung at their camps, though I think the threats stopped due to bad publicity.

oh here it is http://law2.umkc.edu/faculty/projects/ftrials/communications/ASCAP.html

Okay, but how about this then? When I'm doing an online reading, I photograph the spread as it appears in real life and add it to the reading I send to the seeker. More often than not in my case, the seeker leaves the deck choice up to me and often reads something in my deck choice as well. OR, the seeker chooses the deck beforehand out of the choice I have given because he/she is familiar with it, it has a special meaning or they just like the imagery.

Taking into account everything written above, should I not be allowed then to send a photo of the spread then, either? And if you say that "online reading is not the same as face to face" (as someone above pointed out it is "temporary"), then I must say that I have had several seekers who have taken a snapshot of the spread, for various reasons, and I have done it as well (usually when there a really stellar read pops up).

And then we shouldn't even get into my blog! When I post readings, I always post the spread (diligently crediting the publisher, the deck name and the artist name - or whatever is relevant in the case of the deck). I haven't done it because I'm scared of the repercussion; I do it because it always frustrates me when I see a deck online that I like and there is no credit offered - how do I know how to buy it then??? And I always note the publisher, since editions could be different (still sad over my purchase of the Gilded Reverie Lenormand after seeing a wonderful video review on Youtube, and learning that my US Games Systems version came without the extra cards). But, hell, I've been doing articles on card positions, odd spreads, card symbolism... Should I take them all down then?
And here is a note for Llewellyn (doubtful they read this thread, but anyhow): I have done reviews on Gilded, Legacy of the Divine, Shadowscapes and many others... I will be more than happy to take them down now.

delinfrey said:

Okay, but how about this then? When I'm doing an online reading, I photograph the spread as it appears in real life and add it to the reading I send to the seeker. More often than not in my case, the seeker leaves the deck choice up to me and often reads something in my deck choice as well. OR, the seeker chooses the deck beforehand out of the choice I have given because he/she is familiar with it, it has a special meaning or they just like the imagery.

Taking into account everything written above, should I not be allowed then to send a photo of the spread then, either? And if you say that "online reading is not the same as face to face" (as someone above pointed out it is "temporary"), then I must say that I have had several seekers who have taken a snapshot of the spread, for various reasons, and I have done it as well (usually when there a really stellar read pops up).

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I know absolutely nothing about law, but I feel like just sharing the slread with the person you're reading it for wouldn't be copyright infringement. You're not posting it publically; I would assume it's like watching a movie. If you and a few friends come over to watch a movie at your house, it's not illegal. But copying that movie and putting it on the internet for everyone to see is. As is showing it for large audiences without getting the rights to it. ((That's just what I would assume, I could be completely wrong.))

Also, I have a question as well. I've been planning to make a tarot drck based on a movie as a collaboration with people on my Tumblr, with lots of different artists drawing the cards. I'm not planning on marketing or anything; the decks would be given as a reward for the Kickstarter that funds the printing and whatnot. I've seen people do things like this before, but I'm wondering what kind of legal things would apply to this? Is a tarot deck changing the material enough? Especially if we're not using screenshots and scenes directly from the movie?

Yelell said:

I don't know. If you were someone who sold readings or items, I wonder if it could be interpreted as an endorsement by the tarot card copyright holders for you to be shown using their cards. Maybe coca cola wouldn't normally care about picture of their products posted without permission, but what if someone is at a KKK rally or something, and posts a picture of themselves casually drinking a coke? What would they do then?

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I doubt they would have a valid case. Btw, I think I muddied the water with the coke analogy since that would be a trademark infringement question, not copyright. Oops. But say the KKK member was wearing a t-shirt with a copyrighted image in that pic - I still doubt there would be an actionable case, BUT IANAL. And that's why we have them and judges - because writing out laws to cover every single instance would be nigh impossible. Lawyers argue their client's interpretations of the law and a judge decides which is right.

There's the letter of the law (word for word interpretation), and then there's the spirit of the law (what the authors really meant). There's sometimes a big grey area in there, and that's where a judge comes in handy. For instance, in the Girl Scout case, the letter of the law says they should pay, but the spirit of the law says probably not. Same thing with some photos of Tarot cards and readings we're talking about here. Will the letter of the law prevail or the spirit? Dunno, and it would take a court case to decide.