Keep Your Freakin' Hands Off My Picture

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.

My son and his buddy about to leave for summer camp. Limited one-time use in return for large amounts of money is possible if you're feeling lucky and I'm feeling generous. All rights reserved.

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.

_______________

Mike

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.'"

Comments

[Karl Smyth]

Mike, let me start off with the obligatory 'long time reader, first time writer' line. Not only do I check out TOP every day, but your column is the first one I read in Black & White Photography magazine. OK, that's the ego massaging done.

I've really enjoyed the copyright pieces on TOP lately. It seems the world has gone overliy litigious - it doesn't matter if you're in the US or Ireland or anywhere else. I've had friends ask me am I crazy for not putting a giant "Copyright" icon or notice across the face of my photos on my website (work in progress) and my flickr site. Well, I explain, how is somebody going to steal a 500pixel x 500 image? What use will it be? And besides which, if somebody wants to use it on their website to illustrate something, I find it very complimentary. My only issue is if they claim ownership or fail to credit me.

You're absolutely right about the web. Once something's out there, it's in the public domain, be it images or words. You can take it down in time, but if somebody likes - or just plain wants! - your work badly enough they'll take it or preserve it somehow, whether downloading a JPEG or saving a webpage as a PDF or whatever.

Oh, any chance I can use your photo above on my blog? I'll send over the requisite 50 page contract and pay you the fee of a cup of coffee or a few beers should you ever find yourself in Dublin!

Keep up the fine work!

Karl

[Sean]

Bruce Dale had given out this word of warning to a photo-trek he was hosting a few years back. He basically said that if you don't register the images, it is very unlikely that any lawyer would even consider taking the case. He had actually won a settlement, and was looking forward to catching future infringement.

[MacDuff Knox]

I have to say that as an amateur photographer, even if I should want to go professional in the future, I totally agree with your usage of pictures. I would be very happy to have one of my pictures used on your site, or really any phtotography blog for that matter. I'm can't find the proper attribution of the quote "any publicity is good publicity" but I think in this case it is true. I take pictures for my own edification, but I enjoy having other people see them as well, and with the internet being awash in a sea of imagery its very hard to get people to see my pictures. I believe what you do on your site is definitely fair use and encourage you to do even more of it.

[KeithB]

This comes up on the Apple GarageBand site quite often. For some reason, when uploading a completely original song to MySpace, a person is refused because they "Cannot upload copyrighted material."

This is kind of funny since *all* material is copyrighted, as you point out above.

It is unclear how MySpace makes this determnination, whether it is an MP3 tag in the file, the resemblance of the title of the work to some other song or what.

I wonder if one of the classes in the Photo School mentioned above was "legal protection of images via copyright"!

[Mark Roberts]

OK Mike, here's a "copyright indignation" story for your archives:

I'm on a particular photography mailing list (of which you used to be a member). A couple of years ago, one of the members heard from a rep for the Canadian importer of a particular camera maker. There was a big photo show coming up in Toronto and he wondered if anyone on the list would like to have their photos displayed as part of a computer slide show that would run continually in this maker's booth during the show. (Since this would be a computer monitor set-up, small, emailable files would be all that would be required.) This was a pretty low-key operation: Some of us would get to show off our photos in a large venue and the importer could show off what "regular people" could accomplish with his gear. No big deal but potentially fun.

The outcry from some quarters was astonishing: Some person or persons even sent the rep nasty personal email, accusing him of trying of make a copyright grab (impossible under the terms given) and worse. Needless to say the whole idea was dropped.

The irony is that, of the people on the list, the pro and semi-pro shooters and those working in the photo industry were unanimously favorable towards the whole idea. It was the amateurs (and I find myself using the term in its pejorative sense for the first time) who spoiled the party for everyone else.

I think your story of the three sad slides and the six-page contract reflects the same kind of mindset.

[Rob]

Mike, what's your authority for the notion that innocent intent is a defense to an action for copyright infringement? From what I understand, it's at best something that can mitigate damages, and most likely not even that if there's a copyright notice associated with the work.

However, since you seem bound and determined to continue to publish copyrighted images (whether or not they have a notice) for which you have not received permission, there's little point in trying to talk you out of it. Hope it never comes back to haunt you. If it does, remember, you lose the right to bitch about legal defense costs when you went forward with your eyes open.

[Doug Nelson]

There's an old joke about how a liberal is just a conservative that's never been mugged. Similarly, I sense in your tone that you've never felt violated after someone had their way with something you've created.

I'm with the few others that got conflicting signals from your first and second post. This third post leads me to think my initial impression was correct.

I don't doubt your knowledge of the facts concerning copyright and fair use. However, much like the depth of field topic you mention, I find the most knowledgeable people about a subject are often the worst at discussing that subject. Once the depth and breadth of a subject are sufficiently internalized, it can sometimes be difficult to step back and discuss it in a way that is clear to the uninitiated.

That said, arguing about how you wish things would be does your readership a disservice. At least, without tempering it with a notice about how things actually are.

Slightly OT, but interesting none the less: I read your post the same day I read John Nack's post over on the Adobe blog about how many requests the Photoshop team gets for uneditable copyright fields embedded within images.

[erlik]

For those who haven't met Brad Templeton's list, here's the link

http://www.templetons.com/brad/copymyths.html

And his copyright basics

http://www.templetons.com/brad/copyright.html

[Hoainam]

For those whose panties are easily bunched, you can download a copyright registration form here:
www.copyright.gov/forms/formvas.pdf

Typical practice is to burn lo-res jpegs onto a disc and submit that to the U.S. Copyright Office, along with your completed application and $45 processing fee. The burned disc counts as a collection so you can register as many images as you cram onto a DVD or CD.

That being said, Mike could you please expound on angular perspective? I haven't heard much about it.

[Mike]

Rob,
I promise I will never use one of your pictures.

Right, innocent intent mitigates damages. Since damages are your only remedy in a lawsuit, it has a practical effect.

Again, Fair Use is NOT a violation of copyright in the U.S. It says so right in the statute.

Mike

[Stan Banos]

Got it! Now, are you sure- the higher the number, the less the light? That doesn't seem to make sense...

[Mike]

"There's an old joke about how a liberal is just a conservative that's never been mugged. Similarly, I sense in your tone that you've never felt violated after someone had their way with something you've created."

Absolutely not true--quite the opposite in fact. I've seldom had my pictures ripped off that I know of, but I've had ideas stolen, and my writing gets ripped off all the time.

I'll give you an example. A number of years ago I ran across an article about a manufacturer of stereo equipment that was suffering declining sales. I wrote a long email to them containing several suggestions--the main one being that they offer their equipment in silver faceplates as well as black, which they had offered exclusively up till that time, and a secondary suggestion that they do a version of their best-selling integrated amp that contained a phono section.

The response I got said that they were absolutely never going to offer their products in any color but black, but they were intrigued by the other idea, and would be in touch with me.

Some time later I got a call from the Vice President of the company, who reported that they had had their engineers check on it, and it looked like putting out a phono version of their integrated was physically possible. I reiterated my argument for the silver faceplate option. I don't remember how many times we talked on the phone, but it was at least twice.

A year or so later, when next I checked its website, I noticed the company was offering a version of the integrated with a phono section. I also noted with pleasure that the whole line of products was being offered with silver faceplates in addition to black for the first time. So I wrote a little note to my correspondent at the company, the VP, saying that I was pleased that they had come around on the silver faceplate idea.

They pretended not to know me.

Nothing seemed to jog the guy's memory--not numerous reminders of what we had talked about--and even forwarded copies of the emails seemed suspiciously unfamiliar to him.

I never had an intention of charging them anything for my suggestions--the silver faceplate option might have been my idea, but the real responsibility for the decision rests on them and the consequences for its implementation would come to roost with them, and that's the real risk--but obviously their lawyers had told them that they might be financially liable to me for the idea, so they should disavow any connection.

It was really very rude.

The funny thing was, all I would have really wanted would have been something along the lines of "yeah, thanks, we decided it was a good idea after all."

Similarly, I could name photography product ideas that were implemented on my suggestion without consideration to me, articles that have been reproduced whole without attribution or with false attribution, and ideas or insights contained in articles I wrote, things that I came up with, that other people have passed off as their own. It's not a rare occurrence at all.

Mike

[Mark G]

Mike, please, help your self to any of my photos - just let people know they are mine.

[Chad Thompson]

Also, if anyone cares to read about a current case of copyright woes check out Chase Jarvis' site.
http://www.chasejarvis.com/blog/

[Magumi]

I have yet to see a researcher who would object against a quotation from his article appearing in some other paper, thesis, journal or on the internet, as long as his name is cited, prior permission or not. And this is even though sometimes months or even years are spent working so that the article or book could be published. Why would anyone want to protect his or her amateur pictures displayed on the internet by long-winding copyright notices? If the images are precious enough to require protection from prying eyes, lock them in a password protected folder.

[thekevinmonster]

I was talking about copyright to a friend's friend while we drove to band practice. I'm one of those people who believes that trying to stop copying on the internet is like trying to save nawlins with a single sheet of Bounty.

Anyway, the gist of it is, I'm fairly copy-progressive or whatever. My friend's friend isn't, because his father is a college professor and had important work stolen by an understudy. Said father was involved in a serious car accident which gave him a closed head injury that has since made him unable to work. During his time off to recover and before he resigned, his understudy took credit for all sorts of stuff that The Father had done.

However, don't mistake personal feelings for rationality. I think Mike is doing something that's okay. No one has stolen from me. I really hope that I don't suddenly decide that stringent and ever-lasting copyright - the sort of thing Disney wants to protect their bottom line - is a good idea just because someone takes a creation of mine and says they made it.

You can scream and cry all you want, but it's just going to make you look like a baby.

[Doug Nelson]

"It was really very rude."

If that's as high as your violation-meter has ever registered, I hope you truly appreciate how blessed you've been.

But back on topic, I think one of the confusing aspects of your posts has been the casual alternating back and forth between the letter of the law and the pragmatic meaning that actually has in day-to-day life ("practical matters").

As you state, removing the possibility of financial damages reduces the practicality of legal pursuit to near zero. But also, the same lack of recoverable resources that means you're probably safe if you steal images cuts both ways. If the wronged party is the one lacking resources, the only probable award they'll have available to them is the knowledge they they were at least "in the right".

I suspect this is why those that are sans war chest are often the same ones that guard their few treasures with disproportionate fervor.

[Brian]

Why put it on the web if you don't want people to use it? I thought that was what the web was all about. The fact is the only way to keep it safe is to keep it off.

How come only a few people read carefully what you wrote so that their comments were appropriate? Also, I am amazed at how hostile people often get on the web compared to how they would speak face to face. I think there should be a lets do verbal/written battle web site just for their entertainment. (By the way thats not copy writed if you want to steal my idea!)

ps I consider this web site and blog educational and it has always lived up to that expectation.

[Rob]

Mike, ideas are not copyrightable, nor are they patentable. You may quite rightly have felt unappreciated when your ideas were used by the amp manufacturer, but you had no right of action against them.

You're correct that if there's fair use, it's not copyright infringement. The question is, what is fair use? I believe your interpretation is unlikely to prevail in court. BTW, it's not the plaintiff's burden to prove it's not fair use, it's the defendant's burden to prove it is.

I agree with you that your potential liability is not great and that the likelihood anyone would bother to sue is low. That said, if someone does get a bug up his ass, you're in for an expensive ride paying a lawyer to defend you. As long as you understand the risk and accept the possible consequences, go with God.

[mwg]

Could someone explain to me how Mike's use of photographs violates fair use? As I may or may not have said earlier today, I also remember complaints when Mike posted photographs with expired copyrights. It's fine to make a moral argument that he shouldn't post photographs under fair use or with expired copyrights, but that's not the same as a legal argument.

[Robert Roaldi]

It's funny, but I think I read a couple of comments by people suggesting that you either put up photos without their creators' permission or advocated doing so. I read all the recent posts and I don't recall you saying either of those things.

Did I miss something?

[Mike]

Rob,
I think you're just being argumentative.

Firstly, I wasn't SEEKING any right of action against the amp manufacturer! That never even entered into my thinking. It was their response that seemed hinky, never anything I did.

Secondly, when you ask "The question is, what is fair use?" You act like it's some sort of ultimate mystery or secret rite or something. Fair use is defined in the statute (i.e., the 1976 Copyright Act) and the definition has been refined by bushels of case law ever since. I even quoted it for you (leaving out a couple of parentheticals).

Think about it for a second. A politician makes a self-incriminating or embarrassing statement. A reporter prints it. Do you think the reporter went to the politician to get his permission to publish the quote first?

Fair use isn't some quaint little out-of-the-way loophole in the law. It's something that professional editors and publishers deal with on a day-in, day-out basis. Larger, established publications might have house counsel they can consult in particularly troublesome or risky instances, but most of the time it's non-lawyers making educated judgements on the fly. You imply that I'm taking my security in my hands each time I publish a quote or a picture, but, insofar as that's true, it's something that virtually all publications do every single time they publish.

Mike

[Rob]

Mike, publishing an isolated quotation from a work of prose is very different from publishing an image in its entirety. I'm not unfamiliar with the case law. I graduated from Yale Law School in 1971 and spent a career as a litigator and corporate lawyer. You're welcome to your own belief about what constitutes the fair use of an image, but you ought to leaven that with the recognition that just maybe you could be wrong.

[Rick]

"I" before "E" except after "C". "theiving" = "thieving". :)

[John Lehet]

While I get pretty decent traffic to www.lehet.com, I also get lots of hijacks every day. Dozens of my photos right now are adorning myspace pages, stumbleupon pages, blogs in other languages. The first time that happened was several years ago -- I've had photos on the web since '95 -- and it really freaked me out when I noticed it in my logs. Now I don't worry about it so much. I put up a jpg on my site, and I'm not doing anything to make it hard for someone to grab it. I can't be too upset that they do. But I at least do want attribution in those cases.

I know my photos are also being used as desktop backgroundas too, and that bothers me more. I'm usually not providing enough resolution for them to look good when spread out on a modern monitor.

Over the last year or so, since I've been much more serious about my site, I've gone from putting up "pure" images to marked ones. It wasn't a comfortable transition, but one I've felt I've had to make.

I do enjoy the fact that I can share my photos, but in the end I do want to sell prints. Sending my images out to bounce around unmarked is perhaps better for the former pleasure, but perhaps a bit worse for the latter goal.

[Mike]

Rob,
Yeah, well, I went to Dartmouth, so forgive me for not falling over backward at the mention of Yale Almighty. Wasn't Yale the place that let Dubya squeak through without making him take remedial speech class?

"You ought to leaven that with the recognition that just maybe you could be wrong."

Let's see:

First post:
"I might be wrong about this."

And in the comments:
"it's possible that my take on it is from my own narrow selfish little viewpoint"; and again: "I may be wrong about this."

From the third post:
"Don't agree? Okey-dokey. I'm not insisting I'm right about this."

So I should admit the possibility that I'm wrong? Hmm. Maybe you're right.

Mike

[michael gottlieb]

You could have posted a link to it. That would fall under "fair use," and the unexposed (pun intended) photographer might have been grateful for the exposure.

[brentj]

So Rob, Does Mike's use of photos on the blog constitute fair use or not? You seem to claim to know the answer, but have sidestepped the question.

[Ctein]

Dear Rob,

Can you please point me at some case law that goes against publishing an image in its entirety. The only court cases I've familiarity with say quite the opposite, except in extreme, aberrant cases. Which don't really count for the purposes of this discussion, any more than Harper & Row vs Nation Enterprises established a common and useful standard for how much text you are allowed to quote under fair use. Yes, I can create situations in which I'd be allowed to "quote" a portion of an image as fair use but not the entirety of the image, but they are very unusual.

If one is going to insist upon comparing images with prose, a more accurate and legally-useful analogy would be to look at the concept of the self-contained thought, which is what one usually wishes to quote in a critical or analytical context. The broad rule is that you're allowed to quote as much as is germane to the point you are trying to make and as is necessary to make that point. In the case of written arts, that could be as little as one sentence but may very well be several paragraphs or even an entire page. In the case of visual arts, it is almost never less than one complete image.

Note that this is a different question from whether not Mike's use of work here constitutes Fair Use. I think it's important that these two questions be held separate.

This has nothing to do with whether not one might sue, regardless. The world has always had bullies with deep pockets (or, at least, minions). For them, legality doesn't matter. The Burroughs estate was extremely successful at preventing publication of anything but "authorized" editions of the Tarzan books. It did not matter that the work was long out of copyright; they only had to threaten to make life legal hell for any publisher who wished to strike off on their own and no publisher wanted to deal with the hassle. But that's bullying, that's not law. And if you live your life in fear of the bullies, you end up living a very unhappy and restricted life.

pax / Ctein
[[ Please excuse any word-salad. ViaVoice in training! ]]
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-- Ctein's Online Gallery http://www.ctein.com
-- Digital Restorations http://photo-repair.com
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[Rob]

Mike, all I was trying to point out is that I've got pretty strong legal credentials. That doesn't mean you have to listen to my advice. It's a free country.

Brentj, in a comment to Mike's Tuesday post about copyright, I wrote, "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." In my comment earlier to today's post, I wrote, "I believe your interpretation is unlikely to prevail in court."

How is that sidestepping the question? I disagree with Mike's interpretation of what constitutes fair use for images. No one can say for sure how a court will rule; all a lawyer can do is give his best judgment as to who will win. My best judgment is that Mike's interpretation is unlikely to prevail. But I've been wrong many times in my life, and maybe this is one of those times.

[Ctein]

Dear Brent,

My reading of it is that Rob is saying that it can be complicated. And it really can! There are a large number of circumstance-dependent variables on Fair Use.

I *think* that "Random Excellence" is skirting the edge. I also think it's on the right side of the line, but there are lots of web sites that simply appropriate photos under the heading of "here's a bunch of cool pix I collected off the Web" and that's definitely not fair use.

But, for the sake of argument, let's assume that Mike is on the right side of fair use. Even then, I can come up with circumstances where using a specific photograph would not constitute fair use. For example, if he were to publish here a photograph that was otherwise only accessible from a pay-per-view web site, his situation would be a lot more dubious. And if it were a photo that had a high level of social or news interest, so that it was a real moneymaker for that web site, he would definitely be in trouble.

What Rob is saying is that fair use is sometimes tricky. And, importantly, MIKE IS NOT DISAGREEING WITH THAT!

pax / Ctein
[[ Please excuse any word-salad. ViaVoice in training! ]]
=========================================
-- Ctein's Online Gallery http://www.ctein.com
-- Digital Restorations http://photo-repair.com
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[Dave]

Copyright law is a mess. The commotion around the topic here is a good indication of it.

I do find, however, that Mike's choices are judicious. He's been regularly posting really interesting images that I almost always pursue to the original site (and am usually rewarded by other interesting images). What he's doing seems to me to be promotion rather than self-promotion.

Dave

[matt]

"If TOP is not presenting images in order to teach, comment, and criticize, then what are we doing? "

You mean besides making money from ads? Right?

It's interesting to think about this dilemma in the context of some of the questions that have lately been raised about creative commons licenses. Namely, can one use cc licensed material on a site that generates revenue from ads? There's fairly good reason to think that one can't. I'd have similar concerns that the use of copyrighted material used on a site which generates revenue from ads may have to answer some of the same questions.

Now take that back to fair use. It's interesting to note that the educational bit of fair use at one time allowed universities to publish course packets of xeroxed journal articles, book chapters etc for cheap sale to students. This is no longer possible for copyright reasons. I don't know the details, but having worked with professors who were assembling such packets, I know that you are now required to get permission from the publisher. If the educational right to fair use has been eroded, I'd be suspicious of the status of other fair use rights.

If it were my liability, I'd ask a lawyer, and not just someone who plays one on the internet.

[Mike]

Rob,
I'm not ignoring your advice, but I don't think you're correct about this. Or, if you are, then I think an awful lots of newsrooms and editorial offices around the country are laboring under some pretty egregious misconceptions.

I've never heard of the "entire work" proscription being held to apply to one single photograph; but then, I'm not an expert.

All I can contribute here is that a lot of publications do publish whole photographs without permission, under the terms of fair use.

Mike

[Mike]

"You mean besides making money from ads? Right?"

Matt,
That's really specious. The vast majority of periodical publications, television shows, etc. make money from ads. Making money from ads is not a disqualification from fair use.

Mike

[stephen connor]

Um, it seems to me that folks have forgotten Mike's original post (even Mike seems to have forgotten). He saw the work of a photographer and was impressed. He wanted to publish one of the photographer's photos on his site in order to say, "Hey, this guy's good!" He couldn't do so, however, because the photographer had posted a copyright notice, not on the actual photograph, so there was no aesthetic question involved, which forbade use without permission. Mike's original source of pique was the fact that the photographer had failed to provide any contact information so that someone who WANTED TO HONOUR THE COPYRIGHT, had no way of getting in contact to ask permission to use the photo. I gather that, had the contact information been there, and had Mike been able to contact the photographer, and had the photographer said, "No", Mike would not have published the photo. Had the answer been, "Yes", Mike would have published the photo. Since neither answer could be gotten, Mike did not publish the photo, thus honouring the copyright. i.e., folks, he was peeved about NOT EVEN BEING ABLE TO ASK, not about the copyright itself.

As for Rob-From-Yale, gees, lighten up. I suspect there's more than one advanced degree floating around in Mike's readership.

[Dierk Haasis]

While I am with Rob so far as I find it a good idea, simply a moter of politeness, to ask a photographer about using his work, on everything else I have to side with Mike ['We are at war - pick a side!'*].

Mike's original point was that he wanted to contact a certain photographer but couldn't because that idiot forgot the First Law of Economic Communication: Give people an easy way to reach you. I am quite sure most of us put some kind of copyright notice on our self-published pictures - some obtrusive and degrading viewing experience, some so unobtrusive anybody can easily get rid of the notice.

After some consideration I decided to put such a note on for some uses, i.e. my sales galleries, but not for others, like my front page image. On the latter it would simply distract from the image itself, the former's task is to sell prints [which, BTW, will have an even less obtrsuive marking].

The main reason to have my name on pictures is to spread my name; distracting theft is a secondary reason. This secondary reason isn't even important to me because

a) interpolating Web images up to some good print sice is an exercise in mathematical impressionism
b) those grabbing my photos from the Web would never buy a print
c) there is a faint possibility people come back later to me and buy

When Mike uses images in his Blog for commentary he is essentially giving out free advertising space. The ads on the side are there not for the random pictures he chooses - no company in their right mind would go for this - but for his writing and taste. Just like his readers come here not for some strange photo of a complete unknown he puts up from time to time but for his unique voice.

Eventually it boils down to the question, 'Do I [as a photographer] want to have some free advertising on a high quality Web site frequented by people that matter [like decision makers in companies]? Or do I want to protect my work from being seen in order to fight for some abstract concept?'.

You know what, if mike considers any of my light catchings worthy of commenting on, I'd jump through hoops to get him what he needs.

*a) copyright probabyl with Stephen colbert, at least they way I use it, which is b) satirising b/w worldviews.

[Paul]

Regardless of which side you're on, mocking people for disagreeing doesn't serve much of a useful purpose. It might rally your sycophants to come stroke your ego, but that's about it.

Personally I'm somewhere in the middle, and I don't much care anymore. Copyright (and copywrong, copyleft, etc.) is a religion now, popular with armchair lawyers. It's all uncomfortably malleable and things like "fair use" are far from hammered in stone. (See http://en.wikipedia.org/wiki/Fair_use#Common_misunderstandings for more of an idea on just how much fun this can be. Yuck.)

It's interesting that an article on, say, an award winning photograph could reproduce that photograph directly under "fair use" but would still have to license the freelancer's photo of the photographer standing with the print.

And by extension, it's interesting that the freelancer could reproduce that award winning photo in his own while still reserving the right to license his to the publishing newspaper.

I don't know if that's good or bad, or even close to right or wrong, but I've decided to make the contact page on my site a bit easier to find :)

(I'll get to it eventually, I promise.)

[Ched]

Mike,

A bit OT: On May 19, 2002, you wrote in "the Sunday Morning Photographer, (Luminous Landscape, 'Image is Everywhere') the following: "The word 'image' has lately been spreading like a sort of verbal kudzu, choking out everything in its path...'Image', unfortunately, is ... a weak-willed, dirty-dishwater, sniveling little sot of a word. " (Note the quote without permission; God, this will never die...) Since I read that, the word "image" has stuck in my throat more times than I wish to remember. Sadly, I see the kudzu has now spread to the author!

PS: Please feel free to use my photographs. (Alas, I have no images.)

[Robert Phillips]

I would imagine that if any photographer decided that they didn't like having their photographs posted and then linked to form Mike's site then the furthest that any legal action would ever go would be a request for Mike to take down the images, which I assume he would do immediately.

It is very hard for me to picture any judge anywhere who would allow any kind of action to get very far after that had happened, even more so if no request had been made for Mike to take the pictures down.

More to the point, before we even get to a judge, can anyone seriously imagine any lawyer ever advising that such a ridiculous action even be taken to court, no matter which law school he went to. This just all seems like crazy talk.

[FredW]

The discussion on the subject here is very healthy and very constructive though. I enjoy it.

Mike mentioned a six-page contract accompanying some poor photos and KeithB told a story in which the amateurs were overly protective of their work and spoilt the show for the semi-pro and pros.

I can think of a possible reason for that. The amateur is (by definition) not making money from his images. It would be the greatest insult to him, if some semi-pro with a better insight into the business world of photography would come along and make money from his photos.

Pros sell images all the time, they can afford to be cool about people stealing their ideas. Amateurs often have to pay out of their own pocket to have photos exhibited or printed. That might be the reason for the outcry mentioned in Keith's reply and the 6-page contract in Mike's original post.

Amateurs might simply be scared that someone else might succeed where they've failed so far. Does that make sense?

[Neil Hunt]

I'm just trying to work out how photographers obsessed with copywrite infringement ever market their work - this is the electronic age - you are either out there or not, there is no half way.

Also the real issue around copywrite is moral not legal. Of course a tiny percentage of web users or commercial clients will try to rip you off, but my practical experience of owning and managing businesses of various sizes, is that it is almost impossible to gain redress in most cases. Just don't deal with them again and tell others about what happened - they seldom stick around for long. The main point is that 99% of people will not try to cheat you - they may just like your work!

If someone downloads a low res JPEG of my site or my FLICKR pages I don't feel violated - I just hope that if they liked it enough to download they may remember me when they have money to spend.

[Svein-Frode]

Photo Narcissism (Showing excessive love or admiration of oneself and ones photography).

I must say I have laughed many times the last couple of days. The discussion revolving around copyright here on TOP is such a caricature of American culture. Looking at this from the right side of the pond the display of narcissism and "see you in court" attitude sums up the American way of life. Even God has entered the discussion, which is just too funny (he has copyrighted everything, hasn't he? Be careful Mike, you might be sued to hell…)

Suing Mike for his fair use of images on TOP would in most of Europe be labeled "making a mockery out of the legal system". But much more interesting is the fact that so many people are in fear of having their < 0.5 megapixel images "stolen". These persons must either be making a living from selling images to web designer (not very likely), be unable to make money from their photography at all (likely) or simply be paranoid and narcissistic (very likely).

As I see it, a low resolution jpeg published on the internet has little or no value. Anyone who wants to "steal" my images are more than welcome as long as they don't republish them as their own work. I will include copyright and my website URL in the corner of every jpeg though. This is just to make it easy for clients to contact me. They often download the jpegs and use the photo during the layout process. With my URL there they know were to go if they decide to use the image. I don't have a large watermark covering the entire image for obvious reasons.

There is little marketing value in being online. Unless your potential buyers know your name and URL they are not likely to find any of your photos unless some major website like TOP publishes it. There are millions of amateurs and pros with websites. Very few of these have any traffic at all, except for "regular" visitors. The spirit of the Internet is "take what you want, pay if you care". Sad as it might be, it is unlikely that Internet behavior will change. TOP use of images is more than fair, to the point that having a photo published here should qualify Mike for a nice gift!

[Colin Work]

A fundamental problem is that the Internet (and particularly the web) exists despite copyright law. Copyright was written for a world of physical, tangible assets - it does not adapt well (despite constant tinkering) to a virtual world.

If you seek legal advice on whether to publish something on the web (and in my day job, I have done this many times), the usual response is a lot of hemming and hawing, followed by a statement along the lines of "don't do it if you want to be safe" - which I take to mean, if you do publish, I won't give you professional backup.

I would have no problem with Mike using one of my pics in his blog. He's a nice guy. I WOULD have a problem with a Nazi sympathising purveyor of child pornography using my pic in his blog. And I would attempt to do something about it. Sadly (and assuming both are just blogs) the same laws that might help protect me against the Nazi also could be used against Mike.

An important aspect of copyright law (at least the UK version), aside from the commercial aspect, is my right to control how my intellectual property is used.

Colin

[Dave Pearson]

I have to admit to being as confused as Stephen Connor. It was my understanding that the main issue was about making it easy to contact you iff you licence your images in such a way that contact is required before publishing.

Seemed like a sensible enough point to me.

[Greg Mironchuk]

Mike... I have no quibble with YOUR general usage of other people's work... you appear to always either seek prior permission, or... at the very least... honor any request to remove a piece of work from TOP, when its author is located, and not willing to have it up on TOP. I'm pretty sure that's hard to argue whether usage is fair or not, when permission is granted... even verbally.

Besides... showcasing other people's online work is pretty much THE POINT of TOP. That's why we all come here.

My problem with all of this is the "... but, I'm doing you a favor..." defense.

ALL, and I mean ALL, copyright infringers... no matter HOW thieving and egregious, defend themselves with the "... but, I'm doing you a favor..." defense.

This is a corollary of the popular, "do this for me, for free/unbelieveably cheap, and get your foot in the door..." come-on that many non-scrupulous/unscroupulous editors/art buyers/art directors use on trusting, sparkly-eyed photo-newbies (and a lot of photo-oldies, too. They're getting bolder, these days...).

Sometimes, dogs DO eat homework... but any kid with more than three viable/firing brain cells... and a paper-hungry dog... knows enough to find a better excuse for his teacher, when it happens.

Were I you, I would... quite rightly... explain to us all that I am engaged in the business of Critical Comment, and that each and every Permissioned Usage of peoples' work in TOP is Fair Use, in the same way as the showing of movie clips (usually provided by the copyright-holding movie studio)... in a television movie review show, or news programming segment... is Fair Use.

The "... but, I'm doing you a favor..." thing just has SUCH a bad taste to those of us who are engaged in the never-ending attempt to make a living, in what has become a generally tough and unfriendly business.

Greg.

[Carl Root]

First, an awful lot of people who upload photographs to their own web pages or larger internet sites consider them to have no commercial potential and don't seem to mind when others copy them for whatever reason. There also seems to be this strange notion that you're either an amateur who doesn't care, or a full-time professional who wants people to pay for any and all uses of their work.

I'm not a full-time professional photographer, but I run another one-man business, and like to be compensated for my time, investment, and talent, such as it is.

I have been paid for, among other things, web use, but the difference between using an image to promote your own personal or business interests, with or without attribution, is obviously different from using someone else's image solely for the purpose of promoting that photographer. The problem here is that it isn't clear that said photographer has any interest in being promoted, given that he hasn't made an effort to make it easy to contact him.

Solution - promote people who clearly would welcome the increased exposure.

[John]

matt:

Creative Commons licenses are not nearly as powerful as you think they are. They do not supersede copyright law (specifically, in this case, regarding fair use), and -- from advice I've gotten from a handful of lawyers -- the "non-commercial" clause is effectively useless.

Further, applying CC licenses to your work can potentially hamper your future use of your own IP. To begin with, the language of the licenses makes it impossible to remove the license from a work at a future point.

Long story short, if you put a CC license on your work, you may as well have simply entered it into the public domain, because that's pretty much the extent of the actual CC protection you'll get.

[Mike I.]

Can I get this on a t-shirt? Please?? :-)

[Ben Rosengart]

Mike's usages look like fair use to me, and anyway, I think he said he always asks.

I once had a photo appear here. I consider it a feather in my cap. :-)

[Mike]

Ched,
Believe me, I'm still very aware of that. But I think "digital image" is a better term than "digital photograph", and moreover, a small JPEG online is really in a real sense an "image" of the original, not an original in its own right.

BTW, I give you permission to use the quote. (g)

Mike

[matt]

"Making money from ads is not a disqualification from fair use."

I wouldn't disagree with that. However, I'd argue that what you are doing is often not covered by fair use for a couple of reasons.

1. Presenting a whole photograph would not seem to pass the test regarding "amount and substantiality."

2. Despite your claims about presenting images to "teach, comment and criticize", often images are presented with little to no accompanying criticism etc.

3. In absence of "criticism, comment, news reporting, teaching, scholarship, and research" (see point above), the nature of the use would seem to be mostly commercial, particularly in light of the presence of ads on TOP.

4. While I suspect that in most cases presenting a photo on TOP would actually be financially beneficial to the photographer, it's conceivable that you could adversely impact the marked value of photo by distributing it outside its intended channel.

Take a look a the government's own website about this topic:

http://www.copyright.gov/fls/fl102.html

I visit TOP everyday. I'd hate to see it go away because you got embroiled in a copyright battle with someone.

Matt

[Svein-Frode]

If you should ever get lawsuit paranoid Mike I could always host the site on this side of the pond. We have a little more civilized legal system as I said earlier ;)

[Eolake]

I couldn't agree more, Mike.

On my personal site I don't worry about copyright at all, I post very large pictures, and sometimes I bother to put the domain on them.

On my commercial site (the "tasteful nudes" one) I bother only a little. If somebody posts thousands of pictures, I complain to the host. If somebody posts less, I consider it free advertising. And a big portion of my sales comes from this kind of thing.

Eolake Stobblehouse