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Wednesday, 27 June 2007

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Mike,
I love your blog which I found through your articles in 'B&W Photography' (I've been a subscriber since its launch). I think what you posted could be summed up as 'Common Sense about Copyright'. Henry

This really cracked me up! While I thoroughly agree with you, I can see why you'd really get up someone's nose... small fry indeed! Take that!

I guess I missed something in your original article.

As far as I know (for any Berne convention signatory country) a copyright notice is merely a reminder. The work is copyrighted by the photographer the instant it was created. You legally can't use it without the photographer's permission regardless of the presence of a copyright notice.

In the absence of a license statement on the site giving you permission to use it (such as a Creative Commons type license), you need to contact the photographer to find out their licensing terms.

So, my understanding of what you are saying is that if (1) there is no copyright statement, you don't mind if you can contact the photographer since you intend to illegally use the photograph, but if (2) there is a copyright statement, you're ticked that they aren't making it easier to get a license to use the photograph. If you don't mind using it illegally in (1), why not go ahead and use it illegally in (2)?

Alternatively, there are generally fair-use/fair-dealing exceptions to copyright, and you might be able to argue that your uses, especially when accompanied by a review and used to direct visitors back to the original site, would fall under those provisions.

As for whether a 700-pixel-wide image is has value, that's a fair sized image for a web page -- possibly over 1/4 of the screen. While it has no (ok, limited) use for printing, it does have plenty of value as an "accent" image to an article. Are you suggesting that the 170x100 pixel image of a lynx in the right hand column of your page has no value? or the 170x170 ads in the left hand column have none? I'm sure that the advertisers would have a different opinion if I were to start posting them (or a modified version) all over the net.

In general, I'm fairly lax about other's using my work, and my use of other's work, but I just wanted to clarify that there is a difference between what we commonly do, and what we are legally entitled to do.

E.

Mike

I must say that you don't really understand why people are upset. If you appropriate work without permission from the photographer, you do a giant disservice to the industry. Period. I have no problems with photographers making their work available for free, but it is not for you to decide. It is up to the copyright holder. All the major organizations that represent photographers EP, ASMP, APA, NPPA, et al, spend enormous time and effort in getting photographers to understand the benefit of registering copyrights and taking control of the licensing of their imagery.

It is your very cavalier attitude, especially with your notion of Fair Use (I totally disagree with your assessment of your claims, but we’ll leave that to the lawyers) that has kept me from participating on TOP a larger level. I find the image appropriation issue unprofessional. There is absolutely no need to use someone’s work without permission, plenty of websites that cover the photo industry manage to do this and still provide a great service to the people they cover and their readers. PDN, Digitaljournalist, ASMP, APA, EP, all of them manage nicely while supporting the principals of doing business professionally.

To be clear, and not a total downer, I have been visiting the site often and I like it for the most part. I think your strong suit is really your own homegrown content, not the links and images from the Times, New Yorker, Slate and other sites.

I hope you reevaluate your policy toward posting work without prior agreement, you might find a great resource and readership in the professional ranks down the road.

Still your friend,

Bruce

Mike,
You are just too sensitive, too nice, worry too much! It's your website PLEASE say what you want,post what you want,thats what makes it so interesting! My own photoblog gets sooooo many hits that I had to turn on comment moderation! That, of course was because the only ones going there were spammers and people who, for some reason, wanted to post rambling porno stories! I used to worry about somebody "stealing" my work over the internet but strangely enough I've always been paid for the photography I did commercially but haven't had anyone interested in paying me for my "art"-- in fact they just haven't been interested in it period. From the number of hits I get it's pretty evident that more people see my photos "for real" than on the internet! So, start posting some personal pictures..... you won't run me off!

Mike, thanks for continuing to be a voice of reason.

The web is a really bad medium to appreciate photographs anyway.

Hi Mike,

Spot on and I can't figure out why it's so controversial, but, then again, I don't like reading "ugly screed". I wrote a little companion piece at http://christopherwlane.blogspot.com/2007/06/copyrights-and-wrongs.html.

I really appreciated your using one of my images some time ago. Anybody that wants to show off my work by using one of my 72ppi images, as long as I am credited, is welcome to do so, and will make me smile! And, I can't understand why anyone would even have a website without any contact info. I guess you can look at the hit count and feel good if it's large. But to me, the real reason is to engage with the community, and maybe once in a while sell something.

And I just ran across "that other website"'s screed. Sadly, the author on that site tends to see everything in terms of money, and his take on your post is no exception.

It it just me, or are there a LOT more very touchy people around these days?

It's not just me, is it?

I'd like to point a perspective issue. The web makes it possible for its users to make stuff available to other users, in different degrees, which can be limited in an textual way, through copyright notices, or mechanisms that prevent them from getting something the owner doesn't want them to. We can talk about morals, but the truth is there are several worlds colliding here, people from countries or cultures that don't believe in the same ethic codes, people of ages that don't believe in the same ethic codes, and not believing is even too strong, they just never heard about them, and that is NOT going to change. Expecting the online world to behave in the same way as the brick and mortar world will only bring about frustration. To most web surfers, what appears to be free IS free. If you don't want others to get your stuff, be clear about it, or just don't upload it if it's really that important. It might sound nasty, and extreme, but it's just reality. The ridiculous part about the strict ethics proposed is that the unprotected pictures online will get all the use from those who don't really care about them as art and intellectual property, and none from those who do.
I think believing you can surf the web without in any way absorbing and using content is just quixotic and defeats the web's purpose. In reality it always ends up being a personal decision about how selfish your use of such resources is, and I happen to think the one here isn't.

Paul,
It's not just you.

Mike

This discussion illustrates nicely why Creative Commons' licenses is a good idea. With a CC license on an image (or other work) you pretty much know where you stand regarding what the owner is fine with and what they are not. As much as I like the fair use doctrine (I'm a researcher and implicitly make use of it all the time), having explicit permission for non-commercial use, for instance, is safer footing to stand on. Don't forget, you can set a CC license that is very restrictive if you want, all the way to completely permissive; but you'll be doing it in a standardized, easy to interpret way. A license is another means of communication, and using a common set makes that communication easier and less prone to misunderstanding.

Is it my imagination, or did Bruce Katz totally miss the point of both your original post and this one? Did he miss your saying that the main reason you were upset was that THERE WAS NO WAY YOU COULD CONTACT the photographer whose photo you wanted to use? And that, since the photo was clearly copyrighted (not actually on the photo, but...), there was no way you could, in good conscience, use it? Did I miss something?

I have to admit that I am guilty as charged. I don't have any way to contact me on my websites.

Your graph looks very nice if the goal is to get visitors.
Some my images are on web servers that can handle a huge load (even then I don't particularly care about lots of visitors). But I also have images at home, behind a DSL line. And that line would become completely overloaded if you pull a stunt like that.

So my suggestion is this: if you have enough candidate images, just ask permission.

Mike: This is an uninformed guess, but I can't imagine that posting a link to someone else's page with a description of how to find the image you find exceptional would violate any copyright law -- no more than recommending the title of a book so that someone could find it for purchase or at a library. I think the reaction was generated from your walk of a fine line, which I would sum up as "I like the image enough to want to mention it, but not enough to follow through with finding the author." I get that the photographer in question didn't set up his site elegantly to solve your problem, but you could have filled out the order information with "bad" data from a purchase point of view, but enough of a message for the photog to know who you were and that you were looking for a way to contact him. Just a thought.

As for the varying sensitivities of folks to this issue and how you handled/presented, you gotta just stick to your game plan, baby. Even this discussion adds something of value, I believe. Good on you for getting it out there. As always, I enjoy the site and although I like the material you post in varying degrees, I've never disliked a single thing you've put up. Hey, from that perspective, you're batting 1,000 -- not bad for a scrappy website derived from one writer's sensibility.

Best,

Ben Marks

Stephen-

I didn't miss the point, Mike freely admits to using images on this website without prior permission, or proper licensing. It is this practice I object to, If you don't have permission, you shouldn't use the work.

Did he miss your saying that the main reason you were upset was that THERE WAS NO WAY YOU COULD CONTACT the photographer whose photo you wanted to use? And that, since the photo was clearly copyrighted (not actually on the photo, but...), there was no way you could, in good conscience, use it? Did I miss something?

I think so. Virtually every photograph is copyrighted, it doesn't matter if the notice is there or not.

The only images I don't put copyright information on are camera phone images, but I've been recently thinking of re-evaluating that policy. I also make it easy for people to contact me (and I get the spam to prove it). I'm not a commercial photographer, though, so if an opportunity for exposure or money fell into my lap, I'd probably be less apt than some to cash in, and more apt to just take my lens cap off and take another picture.

One of my images, the thieving duck[1] is only 700px wide but became an email attachment[2] to a joke email and has apparently been seen by thousands of people who don't know I'm the author of that image. It's also been used by several other sites[3], and even the UK tabloid newspaper, News of the World used it without crediting me. Thankfully NotW are sending me a cheque after I contacted them :)

Most sites that used the image and who I contacted have put a link to my blog, but the latest joke site to do it, "phunnypictures.com" haven't done so which irks me. I do wish I'd put a copyright notice on that Duck image in the first place..

Yes, I agree you're one of the good guys, and you may use any of my images because I know you'll link back, but it's only polite to ask first before taking.

[1]http://inphotos.org/the-thieving-duck/
[2]http://inphotos.org/the-most-sent-around-duck-photo/
[2]http://ocaoimh.ie/2007/06/15/the-thieving-duck-on-the-news-of-the-world/

Mike, I think it's swell that you call attention to others' work, and I happily give you permission to publish any of my photographs, now or in the future. But what's troublesome is the attitude that laws that are inconvenient simply don't apply to oneself. Call it the Paris Hilton approach to jurisprudence.

And the problem isn't cured, I'm afraid, by your cockamamie view of fair use. Taking an entire image without permission and publishing it, at least in anything greater than thumbnail size, is not fair use. That would be equivalent to taking an entire work of prose and publishing it, as opposed to publishing isolated sections of a prose piece for purposes of review or discussion. The latter is fair use; the former is not.

I was, as others, irked by the original copyright post but have now come to better understand Mike's intentions. The original post was, unfortunately, written in a way that made it seem Mike was looking more for free photos than helpful and relevant links.

So, perhaps much of this discourse is a result of simple misunderstanding.

"Virtually every photograph is copyrighted, it doesn't matter if the notice is there or not."

This is true. But--and this is purely a personal judgement or feeling--that the presence of a copyright notice says, "hey, I don't want you to snitch my image without asking." The absence of such a notice indicates a more casual attitude. It might say, "hey, this isn't the real work, it's just a tiny 72 dpi JPEG. What do I care what you do with it?"

As I've said several times, I could be wrong about this. But I simply feel that the presence of a copyright notice acts a bit like a request that the image not be reproduced elsewhere. I'm not talking about legalities here. I'm reasonably certain that I have a legal right to use your JPEG under certain conditions if I want to. I'm talking about politeness, about observing peoples' wishes. If I'm walking down the sidewalk and someone is sunbathing in an open back yard, I feel little compunction about looking at them (not staring, just looking over). If on the other hand the yard is surrounded by a fence with pickets, I probably won't look through it even though I could peer through the pickets. The fence is a sort of request for privacy, and to be polite I will observe the request.

Do you see what I mean? As I say, maybe I'm just imagining this distinction.

In any case, we should stop talking about legalities. I have a legal right under Fair Use to reproduce any picture on the web, as long as I am using it for the purposes that Fair Use covers. As the statute explicitly says, Fair Use is not a violation of copyright.

Mike

Mike,

Surely by linking back to the photographers page you are giving credit to the photographer, i understand it's a contentious issue and i wouldn;t like my images stolen and used for all sort of purposes without my permission, but if they linked back to my site, then i'd be ok with it. Google does this all the time with it's images, is google contantly fighting copyright battles?

well thats my two pennyth

"Mike freely admits to using images on this website without prior permission, or proper licensing. It is this practice I object to, If you don't have permission, you shouldn't use the work."

Hi Bruce,
That's simply not true. You're talking about commerce and I'm talking about journalism and free speech.

Fair Use covers specific uses of photographs under the First Amendment. In fact, I can use one of YOUR photographs on this site, if it were used strictly in accordance with the Fair Use provision (for instance, if we were arguing about copyright and I wanted to indicate a textual point about what kind of photographer you are). I have a legal right to do this even if you explicitly DENY permission to me to use the picture--again, as long as my use of your picture falls under the definition of fair use.

Furthermore, all you could do about it, if you wanted to, would be to sue me for infringement. You would have to demonstrate that my use of the picture was not fair use, and that I intended to infrige your copyright. Furthermore, unless you had registered your copyright prior to my use of your picture, you could not get me to pay your legal fees if you won. Further to that, you could only sue me for the actual concrete monetary amount that you could demonstrate a) I earned from publishing your picture, or b) what you lost from my publication of your picture. At best, those are very likely to be rather paltry sums of money.

So you would very likely lose your case, but even if you won you would have very little to gain.

The better arrangement would be for the two of us to act civilized about it--for me to either ask you for your permission in advance, or, if I were unable to contact you, for me to look for some indication of your wishes and intentions on your site or on or near your picture itself and observe your desires voluntarily; and for me to accede to your requests in regard to your picture if you contacted me after the fact.

In practice, if anyone ever contacted me and said, "Hey, I don't want that picture reproduced on your site," I'd very likely take it down, regardless of the legalities.

Mike

Hi Mike,

Just a question, would you use an image that has the name and website URL on it in an unobtrusive way? Would that preclude the image from being used on your site (I have a contact section on the website though)?

the reason I'm putting my name and website on my online photos is because in my site stats I see a lot of image searches via google images, which leaves the images orphaned without any info on how to contact me... I don't do it to prevent image usage (hey, I'm flattered if anyone deems the images good enough to use them on their site), but I would like to have a credit on the images so that people can find my work if they want... Is that bad practice?

(this is all honest questions, not attacking you in any way)

For heavens sake!! METADATA!!

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