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Friday, 25 January 2008

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It's going to be tough limiting yourself to only ONE scoundrel per week.

The "frugal living" piece is interesting. I am wondering whether anyone has defined what "fair use" is as it relates to photographs rendered by a professional photographer from an event like a wedding or children's party. Would it be ok to use scanned copies as a sceensaver, what about putting some scanned copies up on a photosharing site for friends and family to view? Is their seeing it on the web any different then their looking at the pictures at my house? What about attaching a pic to an email sent to your 95 year old grandmother who couldn't make it to the wedding? Or, lets say someone sends me a postcard with an Ansel Adams pic of Yosemite on the front. I like it so much I want to look it everyday, can I scan that and stick it on my desktop? Lets say all my wedding pictures are lost in a flood, but I had scanned them. Would it be fair use to make a few prints from some of the scans to replace the ones that were lost. Charlie

Hey. If you want to see an recent reply to the post on Wise Bread you can see one I left there, or just read the following (satire alert -- I didn't really do what I said I did, so don't start with the hyperventilating already, OK?):

"Hi. Glad to hear someone finally talking sense about this sort of issue.

"Since I pay nothing to read the contents of Wise Bread, I copied the entire site and owe nothing. What a great deal!

"I will be editing the content to give it my own slant, then reposting it under my own brand on my own site. But it will obviously be read only by those who actually visit my site, so no harm done. The world at large will never see it, so I'm not violating anyone's rights, or laws or anything.

"Since the site design is pretty good I may use that too, but I'll probably touch up the colors a bit.

"I'm sure you will be glad to hear that others are picking up your ideas and running with them. In the internet era, it all wants to be free, right? Things are so cool these days.

"Thanks so much."

(Footnote: If you need to leave a valid email address somewhere, and maybe even retrieve a reply, but don't want to use your own email address, see Mailinator: http://www.mailinator.com/)

Yes I can see your point about Kirby, but I still have to put physical assault higher on my list of scoundrel activities.

Also, I find it funny that 'going viral' is used to describe how information has been passed between humans since the dawn of language. Technology has doomed us to worry about attribution, but the Internet paradoxically (because it's also a product of technology) keeps folk traditions alive.

I left this comment

Just as movie studios software companies etc try to stop people copying and steeling their work, This is what happens when a photographers work is copied. Yet there are many who will give you a disk of full res files ad I cant see why when you hire you dont just find one. $600 is not a lot of money to pay for a professional that may get you a couple of hours with a solicitor/lawyer, You can more than double the time spent with you for the time spent working by the photographer, ay pro will not be using a place like Walgreens they will go to a proper lab whos charges are a lot higher. But at the end of the day you are doing just the same as a software pirater.

Im sick of these people who think that pros are over paid ad think its ok to steal their work I do hope she gets sued but Im lucky in this my brother does intellectual property law.

nahhh.

no way the kirby person gets s.o.w. status. i mean, it's despicable, and low-down, and she doesn't feel guilty enough about it. or didn't--possibly she's reconsidering now, something we can be absolutely sure bruce isn't doing. but she did something to harm exactly one person (even if it is a relatively common offense). bruce is a public representative: his actions have far broader repercussions in this case. even if you didn't vote for him--oh, wait, *no one* voted for him--he still represents all of his constituents, and thereby multiplies the damage he hath perpetrated.

and bear in mind that kirby at least had the balls to say she'd done something wrong in the first place, something she didn't do out in public and didn't have to account for to anyone. this counts for something, i think, and counts heavily against bruce.

Regarding the Hungry Planet images: I've not received them through email, but I picked up the book last year and it's an enlightening read.

The ability of people to rationalize whatever they want to do, regardless of whether it is wrong or not, consistently amazes me. Carrie is a good case in point. She knows stealing is stealing, but blithely rationalizes it because she doesn't agree with the photographer's pricing methodology.

It is bad enough that the conservative right has been chipping away at the constitution, but now they have started to physically reprimand those that exercise those rights. Do you think Bruce would have done the same if the photographer was shooting a picture of someone praying to the east?

Is it art? Photographers, blogs & publications debate this all the time. My opinion: It's subjective.

Most of us can probably agree that most photographers think of themselves as artists even if it is more hopeful than definite in nature. This largely stems from the culture we grow up in. The opinions of the public at large are generally formed in the same way with variations depending on economic status, education even the type of school one attended.

Laws, and copyright in particular require black and white decisions whereas our society at large is becoming far more gray. Good or bad, I can't say, but it certainly makes the morality of the law and even the application of it far more difficult. Is a snapshot art? Most of society would say no. The macro, landscape or street candid taken as a snapshot but producing some subjective aesthetic appeal perhaps. Even a professional wedding album, the work as a whole might be widely considered art. A number of frames within the album may be classified by the majority as artistic but certainly within the majority of even professional albums there will be frames that most people do not consider as art.

So more to the point is a picture, of a child posed in front of a backdrop, that has nothing unique about it to separate this photographer, “Artist”, from the many millions of identical portraits around the world really art?. As to the letter of the law, a contract is a contract and copyright is something I automatically get for everything I ‘create’ but does society see it as a creation or a service? As photographers engaged in photography as a business perhaps we need to recognize for ourselves when we are engaged in a professional service and charge for our time and skills and when the work we are producing is art, a creation, from which we can expect royalties.

Wisebread pulled the article. However, if you hurry you can google it and pull up the cached copy. Here's what they put up in it's place:

"Dear readers,

We've removed this article from our archives. We have great respect for photographers and their work. We do not endorse reprinting copyrighted photographs, even for personal use.

Wise Bread is a community blog created by many talented writers. The views of each writer does not necessarily represent that of the entire blog.

Yours truly,

Will Chen"

Can't we all just get along?

Why can't we have a TIE for Scum'O'Da'Week?

Everybody's a winnah!

pax / ever-helpful Ctein

The editor of Wisebread took down the post, not Kirby. However she could, if she wanted, post a comment in response to the 50+ comments that have been left -- most of which condemn her for her actions.

Because so much of what we buy is mass produced in a far off land by people earning very little the realistic pricing of services or products by professionals or craftsmen/women nearer to home comes as a big shock.
Now that a wealthy amateur photographer may well have a newer and "better" camera than the average working pro there is a tendency to think "that's easy, I could do that....etc" which makes one more hurdle in the way of a pro photographer earning a living wage.
Life in the 21st century just ain't as simple as we'd like it to be.

Cheers, Robin

Ethics apart, the Kirby case raises a very valid point. The photography medium is going through a large change right now, and we need to start thinking how to accommodate these changes.

Nowadays is much more common for people to regard photos as digital product instead of a physical one, and thus they perceive the files as the actual property, not the prints.

If I were a pro, I would just come up with a pricing scheme that gave full non-commercial rights of use of the digital files,(JPEGS or TIFFS) like a Creative Commons Non_Commercial/Non-Derivative license. And I would request in turn a model release from each person portrayed, giving me the rights to use the images for self promotion intents, and stock/commercial too if they were comfortable with it.

But I am not a pro. So I would love to hear a pro's opinion about this business model.

It is certainly not nice to kick photographers, and The Scoundrel Bruce was a damned fool to kick one: as we have seen, NO ONE will come to his defense. That’s fine, however there is more to this story. Bruce’s depictions of his actions are essentially truthful, and we should be aware of the fact that this story is most definitely NOT about injuries sustained by Javier Manzano. Douglas Bruce became the enemy of all the polical classes in Colorado by spearheading a citizen’s revolt that resulted in adoption of The Taxpayer’s Bill Of Rights (the TABOR Amendment). To other public officials he is a nuisance and a gadfly. He is not a likeable public figure. He is not a likeable person. People sympathetic to him explain that he is merely arrogant, merely an ass, merely a jerk. It is very easy to dislike this guy, and it is very human to gang up on someone as easy to dislike as he is. Bruce wronged Manzano, but that’s not really what the fuss was all about.

Maybe you could "borrow" from Keith Olbermann on "Countdown" and go for a trifecta: Worse, Worser, Worst. I agree it would be tough to limit yourself to only one per...

I added the cached text from the removed article to a page on my website:

[link removed —Ed.]

I plan on keeping it there for anyone who hasn't read it but is interested in doing so.

It seems everybody jumped on Kirby for her admission in the second part of her post. However she (and a couple of people who commented) raises a very valid point in the first part.

Why do photographers adopt this odd pricing structure? They undervalue the part of their work which has added value (making the picture) and overcharge for the printing, which in most case has essentially no added value.

Printing sure did provide added value back in the days, and certainly still does for some. But in most cases a pro lab would print just as well (that's probably where the photog gets the prints from anyway).

I would much rather pay more for the hard work of a pro taking and processing pictures and have access (and rights) to them, than save on the sitting fee and have my kids birthday pictures stuck on the photog's backup drive forever. Unfortunately, many pros will not give you the choice...

One of Kirby's last comments is also spot-on. It's not necessarily about how much you are ready to pay -- it's about what you are paying for.

Cyril,
The problem is apparent if you think it over: People don't want to pay a lot of money without seeing the results. With a per-print pricing structure, the photographer is rewarded for doing a good job and pleasing the client (who will presumably order more prints), and--just as importantly--the client isn't stuck paying a large up-front fee for work that turns out to be sub-standard. It removes a lot of the risk for clients to price it this way.

Mike J.

I want to raise a distinction that many people commenting over at the original article are ignoring. Many of them say, blithely: You are breaking the law.

There have been a lot of bad laws made over the time that human beings have governed each other. A lot of current intellectual property laws do not respect the economic context of our time. They make the world a worse place, not a better one.

I think a lot of the people appealing to law, are upset not because someone violated the law (that's just the crutch they latch on to rationalize their anger), but because someone violated one of the fundamental principles of _justice_ (as distinct from law) that tie communities of individuals together: the ability to make agreements with your fellows and stand by them.

Photographers (typically) sign contracts with parties that commission them. Forget copyright law and "theft". Nothing was stolen - when something is stolen one person gains a copy and another loses one - here, additional copies were created; arguably potential revenue was not realized, but nothing was "stolen" - this distinction is why intellectual property law is a field of its own. Physical objects are different than intellectual creations and we should never forget that. Forgetting, copyright law, we have a contract. A contract is the testament to a meeting of minds. Society enforces laws like copyright penalties whether you agree with it or not, but this scoundrel _agreed_ to this arrangement... and that makes her doubly dishonest.

To violate a trust with a fellow human being is despicable in a way that violating a law enforced against you without your consent is not. I do not want this important distinction (i.e. contract vs. copyright law) to get lost in the shuffle. No one should ever feel guilty about breaking a bad law; and no one should feel justified in betraying a fellow human being who bestowed upon them their trust.

Dear Keith,

Ermmmm...

You realize you just STOLE her article? Unless I missed something on the original page that gave folks permission to reprint it without asking her, you just ripped off Ms. Kirby.

Not cool.

Writings online have automatic copyright just as they would offline and just the way images do. You can excerpt them and comment on them under the usual fair use rules. Reprinting in toto is most assuredly not fair use.

Page caches and online archiving projects like the Wayback Machine do raise some complicated and unresolved copyright issues, but what you did doesn't. You have no right to repost that article without Ms. Kirby's permission.

Please remove it until you get that.

pax / Ctein

Keith, did you seriously just copy an entire article verbatim from someone else's web site in an attempt to condemn the theft of intellectual property? Classic.

Its a long time since I operated as a commercial wedding photographer but in those far off days it was not unusual to be asked to photograph a wedding and hand over the developed negatives. You just priced it differently. In those days re-prints from a wedding were regarded, by me, as the icing on the cake. (i.e.) My price for the job meant I was covered for the work and re-prints were a bonus, something to enjoy but not something to build into the business plan and anyway experience had taught me there wasn't a lot of icing in it. In the light of this it was easy to give a price for just shooting the wedding. I got a days work and got paid for it. End of story. Move on.

In the light of the Kirby story if I was still working professionaly this is the approach I would use for the sort of studio job that was done. I would offer the client the option to get the digital images, for a price that would make this option attractive, and which would include a little extra for me. Just be pragmatic. Re-prints were never a big thing in my day. In this digital age they must surely be even less.

Andre, where did you get the idea that I condemn the theft of intellectual property? I certainly never said that. Assumptions like that are also quite classic.

I copied it for the sake of critique/criticism. If I remember correctly the same can be done with a photograph so long as credit is given.

I read Ms Kirby's full comments and I have to say that I have some very mixed feelings. I don't find her to be as worthy of SOW (hmmm, that sure looks like a bad acronym in this case) as the Rep. Bruce, not nearly the villian.

Like Thiago and Ms Kirby, I think that, in the case of family-type pictures, a new pricing structure is required. Many years back (18+), I saw the work of a young photographer at an art show. I loved her pictures and, knowing the impossibility of me getting my kids to pose for their "old man", for serious portraits, I contacted this young lady and hired her to take the portraits. Her pricing surprised me as so different from the commercial studios. She asked a large (for those days) sitting fee, and, basically, "direct costs" for all prints. She made the first print, and had a local commercial lab do any additional ones. We even had a discussion about one negative that we both liked but she felt she couldn't get a decent print from on her condenser enlarger. She gave the negative to me to try on my cold head. I'm very satisfied with those results. Mike, I hired her based on her displayed work - it was head and shoulders above any of the local studios. It was not really a gamble. Maybe I was a more knowledgeable buyer? I think that the arrangement was perfect, ahead of her times. I would use her again, if she hadn't left the area. I don't really see a down side to this model for this type of work. As a fine art photographer, I sell each print - it's "spec" work, not commissioned. But if I took a portrait and printed the "perfect" print, the idea of making (20) 5X7s, (52) wallet sizes, a year and a half later, holds no appeal for me. Give me what its worth and unlimited rights upfront, and they can have their CD. We're fighting a losing battle in this digital age, if we try to keep charging by the print.

Dear Keith,

No, you cannot copy an entire article the same way you would a photo. Law is really clear about that. When critiquing an artwork, it's understood that it's often (if not usually) necessary to show the work in its entirety to glean meaning from it or 'illustrate' a point you're making about it.

Same ain't true for text. Broad rule of thumb (to which there are numerous exceptions): keep your quotes down to 15% or less of the entire text you're commenting upon.

Also, you are providing neither commentary nor critique. You're just reprinting it without permission. So you fail the 'fair use' test on two grounds.

This is a no-brainer-- you're not even close to a grey area.

Please remove it now. You're breaking the law; you're stealing someone else' work.

pax / Ctein

Dear Ctein,

You have on the face of it, a real point, that is, until I think about the concepts of commentary and critique. You raise a very interesting point and a conundrum.

It feels to me like there is implicit commentary and critique in rescuing said text from oblivion and keeping it avaiable to the public. That argues for publication.

That their site's editor, Will Chen, felt impelled to take their self incriminating text away says much the same.

Whatever they or others may do, that text is cached in several places and isn't going away anytime soon.

I guess I'm more concerned that the scammer felt good about putting one over on the photographer. It appears the scammer more right than the photographer to evaluate the true worth of the services appropriated. Why shouldn't that person's words be available as a morality tale? Presumably they were indeed the author's words and were made public voluntarily.

If Keith confines himself to revealing just 15% of the text, does that protect anyone's rights better than 25%. In one sense, showing the original text in full offers a very good object lesson on mis-appropriation - but if you are correct, the lesson is itself achieved by mis-appropriation.

C

"It feels to me like there is implicit commentary and critique in rescuing said text from oblivion and keeping it avaiable to the public. That argues for publication."

The relativism is so heavy in the air that it's getting difficult to breathe. It doesn't *matter* what it "feels" like and it doesn't *matter* what purpose it would serve. It's STEALING. It's illegal. Keith's doing to Carrie Kirby exactly what she was doing to her photographer--appropriating material that doesn't belong to him because it feels like it's a morally permissable thing to do. That doesn't make it right, and in fact it isn't right--it's wrong.

I'm feeling rather ashamed that my post has had this result. Time to trot out the much-overused term "Kafkaesque"--it's appropriate here.

Mike J.

Dear Chas,

There is no such thing as "implicit commentary and critique in rescuing said text" except in your imagination. It has no legal validity whatsoever. It is NOT an excuse for theft, which is what Keith has engaged in.

Keith does not get to break the law to make an "object lesson." Not until he's made dictator.

I've discussed "fair use" at great length in previous threads. The VERY short form is that, usually, a 'taking' of 15% is not considered to infringe upon the rights of the creator. There are notable exceptions-- in some cases, more has been allowed; in others, reprinting a fraction of 1% has been found to be a copyright violation (by no less than the US Supreme Court, and their reasoning was entirely sound).

You're quibbling, anyway. This isn't about 15% vs 25%, this is about wholesale reprinting WITHOUT permission.

Don't try to rationalize an outright theft. This one is black and white.

pax / Ctein

Mike,
I disagree. What I did is just like what she did if the world is black and white only, but it is not. She did what she did to save a few bucks. And that decision took money away from the photographer. Money had nothing to do with my motivation, but everything to do with her motivation. So what are the negative implications of me posting it on my site? At the moment I can't think of any, but I will certainly keep thinking about it.

Furthermore, every person who has read this chooses (probably on a daily basis, if not hourly) which laws they want to observe and which they want to ignore. So please don't give me that "it is Illegal so it is wrong" line.

As for what I should do about having the article on my site, I have to get more info and then make a decision. I don't think it is so clear-cut.

Ctein,
at the moment I have not provided any comment on it, that is true. However, whether or not I comment on, or if I leave it for other people to comment on, it doesn't change that that is the reason it is there. And I think that makes a difference.

Mike,

Per-print pricing makes a lot of sense, of course.

The point is why should it be so difficult and unusual to have the choice of another pricing structure, especially for clients who want to keep access and rights to the pictures. "Per-print" forces the photographer to restrict that.

A second issue is that it's easier than ever to get good quality prints, or even custom post-processing. And "per print" makes it sound like the client pays mostly for printing, hiding somewhat the fact that print prices is recouping some other costs.

Dear Ctein,

I'm new to this site - so have missed out on your previous posts regarding fair use and law, so I'm not up to speed on your thoughts on the matter. I guess that in a nutshell, I think Carrie Kirby should have talked it out with her photographer in full, and, once published, her online confession deserves ongoing visibility. If that can be accomplished through 15%,all the better.

I acknowledge the difficulty you note, but isn't there a public interest in the facts accessibility - as well as a public interest in protection from misuse of intellectual property? I see two important public values colliding. I'm not sure that's quibbling.

C

I agree with Chas, the point that he makes is the basic reason that I republished the article. A "public interest in the facts accessibility" was my motivation, and it didn't even occur to me that there would be a problem with what I was doing. Here is part of the explanation that I posted on the Wise Bread comments (and yes, I did ask myself for permission to repost):

"My reason for copying and posting that story wasn't about money (unlike the motivation of the author of that story), or the condemnation of the author or her actions (despite what that quoted commentor may think). I just thought the article was important and didn't want to see it disappear, especially because of how much reaction it was getting here and at The Online Photographer. In fact, because it is available as a Google cached page (for some limited time), which is where I copied it from (a copy of a copy), and the main purpose of me copying and posting it was for the sake of critique/critcism (which you *can* do with photographs without needing permission), it didn't even occur to me that there would be a problem with this. That's right, it never occurred to me that it would be a copyright issue."

That said, I have removed the article from my website at the request of Wilson (Will)Chen. Will is the editor of Wise Bread, and it is Wise bread who holds the copyright to the article.

I still think there is significant reason for the article to remain accessible to the public. However, Will asked me to pull the article because of concerns over an association that could suggest that Wise Bread condones this kind of activity. I pleaded my case and asked him to reconsider, but to no avail. It is his decision, he wants it removed from public accessibility, and technically it is his article. A human being (with something at stake) asking me to remove it is more imortant to me than interpretations of the letter of the law, and the law is always about interpretations. And letters, too.

Because I still think that public accessibility to the article is important, I'm going to recount the article in my own words using a couple of short direct quotes. I will post that on my site when I'm done. I expect that Mike J. will be ok with putting up a link to it here so long as it is all legal-like.

A further irony about this whole thing: somebody posted a comment to Wise Bread letting people know what I had done (although they didn't use my name). And then within their comment they added the comment that Andre had left here... verbetim, but minus my name. Sure, the quote is only two sentences, but it was the whole comment and they didn't even credit the author! So, you have somebody condemning me for copying and reposting words by they themselves copying and reposting words, and the words that they copied and reposted were a condemnation of the very act of copying and reposting words.

Whew... this has been rather bizarre. And BTW, I also think that Rep. Bruce's actions were more absurd and deserving of the award than Ms. Kirby's.

Dear Angry Photographers,

After reading the many responses to my post this weekend, I want to clarify a few things:

1) I wish I had made it more clear that the topic of my post was not saving money. Although one of Wise Bread's big topics is "frugal living," it tackles a range of consumer finance topics, and I wrote this as a discussion on a consumer issue.

I would never advocate that people "save money" by scheming to get high-end photos while short-changing the photographer.

My goal with the prints I bought and what I did with them was to preserve my family's access to and flexibility to use the images. How is that different from trying to "save a few bucks"?

Well, I bought many more prints, in large formats, than I actually want for display. For the $600 I spent, I could have bought enough prints directly from the photographer to use myself and gift to relatives. I chose not to because my husband and I wanted to make sure we could get the best-quality scan possible, so that no matter what happens in the future, we control the safety of these images.

Despite the law, to us it seemed just wrong to have to go back to the seller every time we wanted to do something with the images that we felt we had already bought. I understand that most photographers do not agree with that point of view, but my piece was meant to give a common client perspective.

So, since the digital files were not available, we spent the money to buy the biggest prints we could get, even though we didn't need them all for display.

As I said in my post, it's something I probably wouldn't do again -- because of the hassle and the substandard results.

So, since I failed to write clearly the first time, let me spell it out now: I think the most common pricing model in photography is frustrating and silly, and that it leads to disappointment on the part of both clients and photographers. My story is an example of what customers are liable to do in the current situation.

2) "Stealing" versus "breaking a contract" or "breaking the law."

Many people have said I was morally wrong for copying the photographer's work without permission, and I'm not going to argue with that.

But I have to roll my eyes at the many people who claim that I don't want photographers to be paid for their work, and that I deprived my specific photographer of money.

Let me be clear: If the technology did not exist to make more copies at home or through other printers, I would not have paid my photographer one penny more. Not a chance. I bought her full package, and I would have bought her full package either way. It was a financial stretch for me, but I feel it was worth it, and, yes, that she deserved it.

I'm not out to convince anyone that I'm a paragon of virtue -- but I'm also not responsible for any photographer's financial problems.

3) I don't have anything against professional photographers. Any insults thrown around in the various online discussions of my post were thrown by commenters, not be me. I never said that I could do what a professional photographer can. I don't think photographers are in general trying to rip people off, or that they are necessarily overcharging everyone.

4) Thanks for teaching me a bit about how a photographer's job works. It was enlightening to learn how much time the process of preparing selected images for printing takes.

Based on this knowledge, in the future I will indeed try to save money by selecting fewer images. My photographer offered a package with 7 images, which was probably many hours of work for her to prepare. I would have been happy with 3 images.

5) I am speaking for myself, and my views are not necessarily the views of Wise Bread.

6) I don't think it was terrible to repost my text on here. Sure, maybe technically an infringement, but it certainly didn't harm me in this case. I think the person who did it can go to bed with a clear conscience tonight.

In fact, I am working with Wise Bread to see if I can repost it here, just for the purpose of discussion.

Then again, maybe everyone is sick to death of the piece and the discussion by now ;-)

Scoundrel of the Week
Carrie Kirby

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