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Thursday, 26 February 2009


I'm a great believer in the sanctity of photographer's copyrights. But, IMO, clicking away at a public figure in a press conference or a public meeting does not qualify as producing (unique) copyrightable material.
The copyright laws were intended to foster and protect creativity for the benefit of society in general, but as we all know they have been debased and rewritten for the benefit of corporate ownership (most notably the music and movie industries), and the public is, of course, screwed as usual.

Thanks, Mike. Listening to it now...

I liked Manny Garcia's description of the act of making the photograph. It sounded exactly like what I'd be doing in the same situation, but maybe he'd push the button at a different 1/30th of a second than I would.

May this young man enjoy his proverbial 15 minutes! I think they're almost expired.

^^^ Shepard's been very well known in the art world for some time; so I think the "proverbial 15 minutes" have been more than 10 years so far...

Shepard Fairey's 20 year retrospective exhibition is up at ICA Boston through August 16.

Very provocative piece; I heard it on the way home last night and (funny) thought of TOP -- figures Mike would have heard about this one way or another. I thought it was interesting how "squishy" the legal standard is. I found myself wondering if the result changes if Fairey had painted or silkscreened "freehand" he image he presented to the world, rather than relying on some form of mechanical reproduction. I suspect not. I find Fairey's argument of the difference in "authorial intent" behind the two images very persuasive. If I were the judge, I would find that the level of stylization in Fairey's campaign poster image had made it uniquely his. The posterized image with "HOPE" emblazoned below it is not an image that Garcia could have conceived of -- he is a freelance photojournalist who was at the press conference for the news purpose of covering George Clooney. There is an argument to be made that every work of art or social expression is, in some sense, derivative of those that came before it. The link here is a little more direct, in this case. By the way: in my mind you get a different result if Fairey was trying to take credit for the photo itself, presented as a photograph.

Mike, thanks for the continued updates. Boy was I disappointed listening to Mannie describe his rather naive opinions on copyright law and fair use.

It inspired me to post my thoughts on the matter here:

Makes me wonder, did you ask Jewel Samad for permission to post her photo here?

Dear Justin,

Assuming your quote of Mannie is complete, I don't find it either innacurate nor naive, on the whole. Rather, it is far more often correct than not. There is a widespread misconception that Internet content is free for the taking ("taking" in the sense of re-using it for your own public purposes-- what you do in the privacy of your own home falls outside the scope of IP law). Most of the time, it isn't. "Fair Use" is a rather narrow domain in the entire realm of reuse, and most of what the vox populi believes constitutes fair use doesn't.

It's a point I repeatedly find myself having to make in panel discussions of IP and copyright law, because, honest to god, an amazing number of people don't get it. You really don't want to know how often I've heard some variant, said in all serious sincerity, of "Well, if they didn't want people to copy it, why did they put it online?"

In Mannie's place, I'd have said just what he did, and I'd be right enough.

Doesn't mean that in this specific case he's right; the courts will decide that.

People like you and me understand the nuances of IP law on a level way, way above the average NPR listener. It's the right (enough) message for the right audience.

pax / Ctein

Ctein, I'm with you, I just find the extent of fair use a little broader and fuzzier. Especially online. Yes there are a-holes on the internet that swipe photos and make them the background of their MySpace pages.

But what about Mike's "Random Excellence" photo inclusions. Aren't those examples of fair use? Unless in every case he has asked permission from the photographer in advance, I'm guessing the vast majority of the photos on this site, which allow him to generate some amount of advertising-generated income, have been taken from some online source, presumably from sources without a Creative Commons license, and uploaded here. I dunno, Mike, care to chime in?

In all honesty, I'm giving Mannie a hard time in a difficult situation, it can't be easy getting the press he's getting. And Jesus, I feel bad for the guy---a gallery is selling autographed versions of his photo, but his take is being held in escrow, pending the outcome of the AP copyright claim. I just wished he'd presented a little more thoughtful, progressive outlook on copyright and fair use, rather than the same old internet-FUD.

"But what about Mike's "Random Excellence" photo inclusions. Aren't those examples of fair use?"

Yes, they are. That's the short answer.

Sometimes I'll ask for permission, sometimes not. FWIW, editorial use is not considered commercial use, whether the publication accepts ads or not.

For the most part we're delivering valuable service to the photographers we feature--we're driving traffic to their website (which they want) and/or increasing the visibility and recognition of their name or their work. We're adding value, not stealing value. I've never had anybody complain about this, and quite often I get notes of thanks from the photographers we feature. (We seem to be just big enough that word usually gets to the photographers even if they're not very active on the web.)

If there's any question of propriety, I make sure I'm providing a link. That's usually enough to forestall any objection.

If I get the sense that someone might object (often just a gut feeling), I'll ask permission first. And of course if anyone were ever to come to me and demand that I take something down, I'd probably do it. I can think of hypothetical situations where I might *not* do it, but so far that's only a theoretical issue because no one's ever asked.

As a practical matter, you have to get a sense of what the picture's doing in the place where you found it. Let's say a picture comes from a wedding photographer's site. I run it and say nice things about what a great wedding photographer the person is. The photographer's hits go from 50 a day to 500 or 1500 right after our mention of it. What photographer would complain about that? Not gonna happen.

If I stumbled upon a semi-private, personal home page, and there was a note there that said "these photos may not be used by anyone no matter what," then of course I'd never use those. At the other end of the spectrum are press pictures provided by manufacturers of their new products. It would be silly to ask permission in those cases because they're obviously trying to publicize their products and the pictures are provided for the press to take and use. That's what they're there for, and everyone knows it, or should know it, and you'd be laughed at if you asked for permission to use them.

There's a line even there, however. If a camera review website takes its *own* pictures of a new product, I don't consider those fair game--that's proprietary content that they created to decorate *their* site, and thus it's not mine to take. I suppose I might use something like that, on certain (rare) occasions, but never without carefully giving credit and providing a link to the originating site (and sort of holding my breath even then).

I would never use a private individual's photo from a site like flickr without asking permission. Note, however, that if I did use such a photo it would be perfectly legal for me to do so as long as I used it in the correct context (i.e., within the definition of editorial Fair Use).

I had a situation a number of years ago where I asked for permission to run a controversial picture, and the publication that owned the rights (a newspaper) tried to put me off. But someone at the paper relayed to me--anonymously--an internal memo. The editor of the paper, addressing other employees of the paper, mentioned that "he" (meaning me) would probably be perfectly justified in using the photo under Fair Use--but that if they just ignored me, maybe I would go away. That was enough for me. I ran the shot, and never heard from them.

There's another side to this: as you know, there's a huge amount of work out there in the world. I could run a dozen pictures a day and never begin to lack for content. So I can pick and choose. And sometimes, I'll want to use a certain picture by a certain amateur, but I have no way to contact the photographer and the rights to the picture are too closely guarded on the site where I found it. The result is that I don't use it. Why go to extreme measures to get permission to use a picture when I can find a hundred (or a thousand, or ten thousand) pictures that will serve the purpose just as well? In a lot of these cases, perhaps the photographer would have been ecstatic to get the attention, and would have *loved* to have had his or her photograph featured on TOP. They've sort of shot themselves in the foot in such cases.

There was a photograph once that I wanted to use as a cover. I never could find the photographer, so we had to use something else. Chances are the photographer would have loved to be on the cover of a magazine, but what am I gonna do? I can't run it without consent. And so it goes. The lesson here is, protect your work, sure, but also make sure people who might want to buy your work can find you.


Mike, thanks.

I'd love to see a conversation between you, Ctein, and Mannie on TOP. I'm a fan of Fresh Air, but somehow I imagine the level of discourse here would be much more enlightening.

I was at an IP law conference last Friday and attended a lecture by Fairey's lawyer. (He also represented Steve Vander Ark in the infamous Harry Potter "Lexicon" case.)

Fairey's no good, in my opinion, but not only is his position on this in the right - again in my opinion - but that lawyer of his could talk birds right out of the trees. It would take somebody as charismatic as Rowling to beat him - she handed him his head on the stand - and AP ain't it.

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