I hate writing about copyright, I really do. It's one of those perennially misunderstood subjects like depth-of-field and angular perspective that never fails to get people quarreling, and that seems to resist clear explanation. Moreover, even clear explanation sometimes doesn't help, because not everyone agrees no matter what's said. At root it's about peoples' feelings, about their work or the reception their work has received in the world, and on that score there's just never going to be complete and harmonious accord.
I see that my old friend Bruce has raked me over the coals in the comments to the previous post, calling my use of images on this site "unprofessional." A perfectly viable opinion.
It's also perfectly understandable, since Bruce happens to be a high-dollar, full-time New York City studio and editorial professional. So it makes sense that his opinion is that of other professionals and their agencies and associations.
Of course, what I was suggesting in the original post is that this is just the attitude that may not be appropriate for amateurs and hobbyists who would prefer to get their work seen more widely, as opposed to girding their rights in chain mail and armor plate and remaining perfectly protected from ever having their work looked at.
Don't agree? Okey-dokey. I'm not insisting I'm right about this. Go ahead and mark your pictures with whatever notices and protections you want to. They're your images.
It's simply been my observation that some people "protect" themselves right into a black box of perfect invisibility where no one ever sees them. A little story: when I was a photo magazine editor, we were considering doing a portfolio of work by a young nature photographer. He had sent us a 4x5 film box full of chrome dupes. We'd decided against using his work for the portfolio, but I asked him if I could just hang on to a few of the dupes for a cover meeting we had coming up, although I explained to him that the likelihood of one of his pictures ending up on the cover wasn't too high. "Sure," he said, "just pay me your going rate for anything you use, and return the dupes some day if you can." That was the extent of our agreement.
We didn't use any of his pictures, and I did return the dupes, but what I remember is that he and I had a long discussion about how hard it was to make one's living as a nature and wildlife photographer. This guy was struggling—chiefly, he felt, because most of his sales were to stock, and he had "only" 650 unique images in his stock library. These were gorgeous 4x5 Velvia chromes that looked like David Muench pictures, many available in both horizontal and vertical format, done to an extremely high professional standard, taken all over the world—the Andes, New Zealand, the Yukon. He felt he was in a race to expand his stock catalog to 1200 or 1800 images, and it was an open question as to whether he was going to make it or not.
A few days later, I received a submission in the mail. It consisted of three lonely 35mm slides in the middle of a single Clear-Vue page. All three pictures were of the same nondescript mountain, in the middle distance, with a bland sky behind it and random trail foliage in the foreground. It wasn't much of an editorial dilemma—my feeling is that most home scrapbookers would have decided against them for inclusion in "Our Trip Out West." The cover letter explained that the Artist was about to graduate from photo school and intended to make his living thereafter as a nature photographer. Since he was poor, he said, he had not been able to actually take very many nature shots yet, but requested that I take a look at the enclosed nature shots from his "portfolio." To use them on our cover, all I had to do was sign the enclosed contract.
What followed was SIX PAGES of single-spaced legal boilerplate specifying what I had to pay him for every usage you could possibly conceive of, limitations on my rights, stipulations as to kill fees, strict limitations as to how long we could consider his images, agreements on settlements the magazine would have to make to him if we somehow stepped over one of these legal boundaries...it went on, and on, and on.
I think you can draw your own conclusions about the comparison.
A few more points about copyright
1. Although—as you may have noticed—people like to make absolutist statements about copyright as if it were a hard-and-fast thing, in fact copyright law is malleable and ever-changing, because it's not just what Congress and the Berne Convention say that goes—it also depends on the weight of precedent and how the courts interpret the laws. The law is constantly being challenged and amended and tested and changed. So even an attorney who specializes in copyright can't tell you with 100% certainty what your rights really are, much less whether you'll win or lose any given case.
2. While it's true that your rights are granted from the moment of creation whether you place a copyright notice on or near it or not, in practice you have further obligations as to diligence. The presence of a notice can (probably will) affect your potential damages. Since the way you exert your rights is to sue for infringement and make the infringer pay, this has a practical bearing on your rights. So it's still better to have a copyright notice on or near your JPEGs if you intend to be a stickler about infringement.
3. Further, as a practical matter if you intend to pursue legal action you must have registered your copyright first. (You don't have to do this to own the copyright, but you have to do it if you want to sue for infrigement, which as I mentioned is your only remedy against theft of your work. Furthermore, it has to have been done within 3 months of the creation of the work, or before the infringement, if you want to include your legal fees in your lawsuit.) Registration is expensive and time-consuming, and I'm willing to bet that only a tiny fraction of people reading this have ever registered their copyright for any image, much less all of them. As a practical matter, in the words of Brad Templeton in "10 Big Myths about copyright explained," "...if the work is unregistered and has no real commercial value, it gets very little protection." Moral rights and actual legal protection are unfortunately quite far apart.
4. Like it or not, fair use covers the way we use images on TOP. Subsection 107 of the 1976 Copyright Act states, "...the fair use of a copyrighted work...for purposes such as criticism, comment, news reporting, teaching..., scholarship, or research, is not an infringement of copyright." In practice, as I understand it, the courts judge both intent and actual monetary damage in assessing if something is not fair use. Obviously, that isn't the most comfortable situation for somebody in my position, because there's no person, body, or agency that can indemnify my use of an image in advance—I simply have to apply my best (amateur) judgment, and hope that if I'm ever challenged, the (expert) courts and lawyers would agree with me.
Still, the bar would be mighty high for someone who wants to sue me for using their image on this site. If TOP is not presenting images in order to teach, comment, and criticize, then what are we doing? That's all we're doing. That's the whole point of this site. It could almost be our tagline (I'll have to consider that...). Furthermore, they'd have to prove that my use of their image lessened its actual value, when it demonstrably most often does the opposite, because we're usually furthering their own publicity efforts which are already in place on the WWW (that being where I got their image in the first place, usually). And finally they'd have to prove malign intent on my part, which would be very difficult indeed, since I could marshall a lot of testimony to the opposite effect—probably plenty enough to demonstrate benign intent.
Featured Comment by Robert Phillips: "This is all reminding me of a story I read years ago. I sadly can't remember exactly, but I think it was either Thelonious Monk or Duke Ellington, or one of those guys, who was asked by a somebody whether they were annoyed that people were stealing their ideas, their tunes, their style, whatever it was....
"The response, which cuts right down to it for me, was something like this: 'Those cats can take whatever they want, I got plenty more where that came from, plenty more.'"