Suit Centers on Silhouette Cowboy

Left: According to photographer D.K. Langford, this is the Texas vehicle inspection sticker designed from his photograph. Right: This photograph is exhibit A in Langford's suit vs. the Department of Public Safety and the Texas Department of Criminal Justice.

By Zeke MacCormack, San Antonio Express-News

BOERNE—A Comfort photographer is suing the state over roughly 4.5 million vehicle inspection stickers that appear to incorporate, without his authorization, an image of a saddle-toting cowboy he created in 1984.

Plaintiff David K. Langford wants the court to block the Department of Public Safety from further use or issuance of the stickers, the design of which he says is based on his copyrighted photo, "Days End 2."

[...]

"We've tried everything we can to settle this in a businesslike, professional manner between photographer and client, but we can't hardly get them to return a phone call," Langford, 68, said Friday.

READ THE ARTICLE at mysanantonio.com

Mike
(Thanks to George Housley)

Mike adds: At least most of the commenters seem to get it. To quote "Emily," "Those who suggest the photographer forget about it should just try working without pay. It's great fun to spend years getting an expensive education, work like a slave with no acknowledgment, but then have someone steal your images and use them without reimbursing you for it. Artists and other creatives get ripped off all the time this way. Let's see you do a year's work without getting any pay, and see if you feel 'lucky' to have had the opportunity."

I should add that every little controversy like this that gets brought forward helps photographers, because they help educate the public as to how photographers earn their livings. One little bit at a time, admittedly, but every little bit helps.

Featured Comment by CK Dexter Haven: "Isn't this a matter of 'Derivative Work?'

"How different is this from what Warhol did? He 'took' imagery and reproduced it by changing the media and colors. There are a lot of 'artists' who 'borrow' existing images for 'found art' projects. Personally, I don't like the rulings/law, but isn't this just one of those matters that has to be argued? I don't see it as being as clear cut as the rest of the responders in the comments."

Featured Comment by David: " 'Fair use' definitely has a place regarding reporting, educational use, or use in derivative artistic works, but this seems to be quite a direct lift.

"Personally, I think that the Shepard Fairey 'Hope' poster represents a case where fair use could easily be invoked—the use of a particular photograph was not distinct nor easily recognizable as being the origin for the derivative work, and the final product differed greatly in context and visual impact that the work from which it was derived. (The other details of the case regarding hiding of evidence of the derivative process notwithstanding) 

"In this case, the silhouette of the cowboy is the artistic intent of the original photograph. There doesn't appear to be any attempt at construction of a derivative work. In my humble opinion the state of Texas doesn't has much to argue other than 'sorry we stole your work.' "

Comments

[John]

A Government agency failing to do a little due diligence!!! So what's new? Maybe this time they actually get to pay the bill for their negligence.

[MJFerron]

I think the state of Texas owes him a dollar per sticker. You have to love governments. First officials representing said entity try to tell us where and what we can and cannot photograph and then steal them from one of the dirty unwashed. (not a reference to David K. Langford's bathing habits which I know nothing of.)

[Dean]

Typical. Find an image on the Internet and use it without thought to who owns it. The commenters who say the photographer "should be honored" that the state agency stole his photo are obviously amateurs who have never made a living from photography. They believe he should just be happy the great State of Texas decided to steal his image. My favorite comment is "I don't see a yellow sunset in the background of the [stolen] image." Priceless.

[Slobodan Blagojevic]

Coincidence? Also in the news today: "Minnesota Mom Hit With $1.5 Million Fine for Downloading 24 Songs"… looks like the recording industry is much better positioned to protect its rights than photographers.

[Steven Ralser]

You should remember that everything on the web is public domain. Check out this copyright issue on the consumerist website:

http://consumerist.com/2010/11/magazine-copies-entire-story-from-web-tells-writer-she-should-pay-them-for-publishing-it.html

Steve

[Roger Bradbury]

So far there's been between four and five million of these stickers issued. If David K. Langford got a cent for each one that would be around $45,000. Fair enough as they should have asked first. If the copyright holders for the other nine stickers show up, we could be talking about getting on for half a million in total. While that's such a tiny fraction of the state budget that a tax payer wouldn't notice it, it is embarrassing and I'm not surprised that the state isn't keen to talk. I do hope David gets paid for his work and if the other images were stolen, then good luck to those copyright holders too.

[Al Patterson]

There is a fellow near where I live who downloads celebrity photos from the web (google images), massages them in square black and white versions and prints them on wood via some form of process. He claims "Fair use".

This type of thing tends to be cropping up all over...

[Phil]

I hope the photographer gets satisfaction, and that the state puts procedures in place to keep this from happening. We live in an era when intellectual and artistic endeavors are viewed as ripe for the pickin's by too many in the population. This also applies to illegally copied fonts, and pirated music and videos on Youtube. Copyrights are there for a reason.

[Archer Sully]

@Slobodan

Trouble is, the artists whose works were illegally shared will likely see none of the fines levied against the Minnesota woman. The RIAA only protects the record labels (publishers), not the artists.

[Roger Moore]

I hope he registered his copyright in time so he can demand statutory damages. As the saying goes, if the government wants us to obey the law, it should really set a better example.

[Avi Lewis]

I hope his copyright was registered. At the recent PDN Photo Expo in NY I picked up ASMP magazine. They are pushing for a number of interesting copyright reforms, one of which would be establishment of a small claims court which would handle alleged copyright violations of copyrights which had not been registered w/ the US Patent Office.

[Avi Lewis]

On another note, as an amateur hobbyist I've been perfectly happy to to give permission when asked, gratis, to use my pictures for what I thought were worthy purposes; I only asked for a photo credit, but I would still be very unhappy to find one of my images appropriated by someone. How much worse if I were trying to earn a living from photography! Also in that ASMP magazine was a notice about an online service (for registered copyrighted works) that looks for (and tries to recover fees for) unauthorized use of images. they have an automated system that searches fo images in their data base. They are a business, and retain a percentage of what they recover.

[Wizwow]

Sovereign Immunity.

Dealt with it before.

It isn't pretty.

It will piss you off, but it is the law of the elites.

No one can sue a state. Oh, you can file the paperwork, but they have NO obligation to respond. It is, ahem, the law.

[The Lazy Aussie]

Was trying to work out what a comfort photographer was.

[jc]

Steve: Obvioulsy the patronising editor that writes Monica that Internet is public domain and that he is doing good to her by stealing her work is trying to fool her into accepting the steal.

Not the first time I read something as preposterous as that. A couple of months ago I received an email from someone claiming to be the legal representative of a person named like me who has a company with his name, warning me that using my own name as an internet domain was fraudulent and that if I did not cease to use it inmediately and revert the domain rights to them in 24 hours they'll sue me. I replied that my lawyer would be happy to tackle the issue in court, considering the fees and damages he would extract from them when they lost. Never heard from them again.

Internet is not in the public domain, and the same laws in use in the rest of the world apply to it. If someone steals your work he should be taken to court, but you have to be able to prove that it's your work. Not too difficult in these days. You also should be able to afford legal expenses, a major problem if your opponent has deep pockets. That's why unions and professional associations are important.

[Jim McDermott]

I'm just amazed that Texicans still see their collective image as a rugged outdoors man, and not as some exercise-phobic, ambient food-locker. Is it a sort of reverse anorexia?

[richardplondon]

"Howdy ma'am. They call me Silhouette."

How far would he get? [grin]

[Mike Johnston]

"Was trying to work out what a comfort photographer was."

Lazy Aussie,
I did that too. I'm assuming it means a photographer from Comfort, Texas, which turns out to be just northwest of Boerne, which is just northwest of San Antonio, which would all probably be immediately obvious to us if we lived in San Antonio and read their newspaper.

My policy when I'm doing partial article links like that is to use no more than 3 paras (more often 2) and 1 image, and provide the link along with the original author's name, title, and (if applicable) caption. I don't customarily change anything. That's not an accepted style as far as I know, it's just what I do.

Mike

[Mike Johnston]

"I'm just amazed that Texicans still see their collective image as a rugged outdoors man, and not as some exercise-phobic, ambient food-locker. Is it a sort of reverse anorexia?"

Jim,
It's one of America's biggest problems--we believe our own bullshit. (To be fair, it's a problem for the residents of any nation with an extensively developed mythos. England figures high on that scale, too. And it was certainly one of the things that Hitler exploited to the hilt about Germany during his rise to power. The Germans at least have had to do some adjusting. Our complex is called "American Exceptionalism"--Google it--essentially the same thing that is known in the Bible as the pride that goeth before a fall. ["Pride goeth before destruction, and an haughty spirit before a fall. / Better it is to be of an humble spirit with the lowly, than to divide the spoil with the proud." Proverbs 16: 18-19, KJV.])

Mike

[Soeren Engelbrecht]

Two similar cases spring to mind: Korda's iconic picture of Che Guevara and Peter Thomann's "Mare with Foal", which was used on a Kentucky license plate (and in many other commercial contexts) without compensation.

And yes - of course they should pay him.

[Terence Hogben]

This totally infuriates me. They must pay.
Real photographers must stick together and assert our legal rights, that way maybe our profession can get some respect back.

[Dan States]

The Governer of Texas was just on the radio proclaiming the excellent small business climate of his state. Time to prove it and pay this photographer for services rendered. I'll be searching all the stickers I've bought from the state of Wisconsin for evidence of a really nice picture of a leaf I took in high school!

[David]

"Fair use" definitely has a place regarding reporting, educational use, or use in derivative artistic works, but this seems to be quite a direct lift.

Personally, I think that the Shepard Fairey "Hope" poster represents a case where fair use could easily be invoked--the use of a particular photograph was not distinct nor easily recognizable as being the origin for the derivative work, and the final product differed greatly in context and visual impact that the work from which it was derived. (The other details of the case regarding hiding of evidence of the derivative process notwithstanding)

In this case, the silhouette of the cowboy IS the artistic intent of the original photograph. There doesn't appear to be ANY attempt at construction of a derivative work. IMHO the state of Texas doesn't has much to argue other than "sorry we stole your work."

[Jona]

Kentucky used to have a pretty horse license plate but they may have also inappropriately used that silhouette from a photographer too. My wife who was from Kentucky once mentioned this many years ago but I had trouble finding any proof online.

Here is the old plate and if you scroll down this page and read the first few sentences about the plate used after the horse plate, the author mentions a lawsuit threat from the photographer of the mare and foal which caused Kentucky to change the plate.

Also look at some of the license plates Kentucky used after switching away from the horse plate- they are horribly ugly. Just pay the photographer and keep one of the prettiest plates in the US! I bet they paid Churchill Downs royalties to use the spires at the top of the horse plate but ignored the inappropriate use of the photo. I hope the photographer still sued and won money for the 8 years Kentucky used that image without his or her permission.

[TBannor]

"You should remember that everything on the web is public domain."

I assume this is sarcasm. This has been on the web for over a decade:

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

[Paul W. Luscher]

Of course, for me, I'll never get to the point where I'm going to have to hassle somebody about unauthorized use of my photos. It'd almost be a compliment if someone did....

[David Dyer-Bennet]

That's a cowboy carrying the saddle for his horse (and some other tack), right? So it's kind of appropriate for vehicle inspection stickers -- driving a vehicle is what you do in Texas if you can't ride your horse, isn't it?

[Mishka]

They should pay a percentage of their profits as a royalty.

Of course, $0.00 * X% = ...

[Mani Sitaraman]

They used to hang rustlers in Texas. How now?

[charlie]

My policy when I'm doing partial article links like that is to use no more than 3 paras (more often 2) and 1 image, and provide the link along with the original author's name, title, and (if applicable) caption. I don't customarily change anything. That's not an accepted style as far as I know, it's just what I do.

Mike

And what a name it is.

Zeke MacCormack

[Ctein]

Dear Wizwow,

An important except to sovereign immunity was carved out by the US Supreme Court, which ruled that if government violates written law or policy, they can be sued.

That's the real shorthand version-- no doubt one of our lawyers in residence can state it more completely and clearly.

pax / Ctein

[Jim McDermott]

'Jim,
It's one of America's biggest problems--we believe our own bullshit. (To be fair, it's a problem for the residents of any nation with an extensively developed mythos. England figures high on that scale, too.'

Mike,

As I finish my snorter of 400-year-old single malt, adjust the lapel of my Saville Row suit, pat the brace of black labradors and consider jumping into my Bristol Beaufighter for a swift perambulation of the estate while reciting Henry V from memory, I'm stopped in my tracks by your absurd assertion that we (viz: God's Own Englishmen) have, or wish to encourage, any sort of surreally improbable image of ourselves.

[B Grace]

My photo club offers personal image galleries on its web site to the members. We routinely hold discussions on copyright protection and what we can do to protect the images we place in our online galleries. I admit that I have a pessimistic outlook on the future of image sharing via the Internet and my usual suggestion to my club's members is to never place an image in a gallery which is intended for income of any kind or is considered reserved for viewing by friends and family. In fact, I've adopted the challenge of shooting images for my club gallery with the goal of having them stolen and then finding them elsewhere. During the past two years we've found several images in our club's galleries linked to private and commercial sites around the world. The best assumption is that once an image is placed on the Internet it will be used without the owner's permission.

The sad part of all of this goes back to my application of the Lowest Common Denominator principle. As photographers become more aware of the difficulties of protecting their images posted online they will post fewer of their outstanding images, effectively dumbing everything down. The good news is that as the Internet evolves into a giant facsimile of a JCPenney catalog we'll revert to those photography books we have in our bookcases which we've been meaning to get to.