A 'Random Excellence' I Dare Not Show You: Johan Peijnenburg

[Insert illustration here]

As you know I have an irregular but persistent feature here I call "Random Excellence." The idea, originally, was to show pictures I came across randomly in my surfing of the Web that strike me as excellent.

I started this blog in 2005. Things sure have tightened up since 2005 where still photos are concerned. Apparently anyone can repost a whole song or an entire television show on the Web with no consequences, but God forbid you grab the most trifling offhand snapshot to repost without wading through a tangle of dire warnings as to what's going to happen to you if you dare.

I kvetch.

Anyway this is far from a trifling snapshot, but I took one look at the photographer's Terms & Conditions page and decided in a flat second not to step into that minefield. The guy must be a lawyer. And the "chilling effect" descends. Like a wet blanket. Happens more often than you could imagine to me now. It's his right. But ah, the trials and tribulations of being a 2005 blogger marooned in 2021....

You can still look at the picture. Apparently that's legal. It's called "Stepping Stones, Lake Geneva and the Alps, Préverènges, Switzerland, May 2012." (Do I dare name the photographer? Not sure. Need to read those terms and conditions...but then I'd feel like I should read them again....)

The thing I thought was interesting about it—well, this is anticlimactic now—is that you couldn't actually step across these "stepping stones." It's common knowledge that one of the ways representational images function is the way they invite you into the picture or obstruct your eye from entering, and then how the eye is led around in the image. Here we have a picture that has a very strong invitation to the eye—rock, rock, mountains, one, two, three, step, step, step—where there's an obvious tension with the fact that you couldn't actually enter into the scene in that way if you were physically present before it. I'd drown long before I ever reached the mountaintops.

That's all. Nice picture. Forgive my griping.

Mike

P.S. I'm kinda being tongue-in-cheek here. I'm not actually anything like angry. I do feel a little put-upon since the rules for still pictures, as practiced, are kind of suffocating, but it's just the culture.

UPDATE Sunday morning from Johan Peijnenburg, the photographer:

"Dear Mike, First of all, many thanks for the positive feedback on the picture. It's appreciated! I am very sorry to read that the T&C 'turned you off.' I get it. Obviously, that's the last thing that should happen, and I will revisit the way they were written. Regrettably, you didn't contact me to see if you could use the picture as intended. The answer would have been 'Yes, of course, please do!' I would have asked you to link back to my site and mention my name, as many seem to forget that nowadays. Each publication actually helps me to do a bit of good since all the print and license sale revenues generated by the site go to charity via a foundation.

"Some commenters suggested that I 'stole' something or 'copied' things. Why someone would write something like that, without knowing a person or checking the facts, is beyond me. Should a high-quality site like this actually allow comments like that? I do really appreciate it when people share or blog about my work. Hence the sharing options that come with each published image, the relatively large size of the images, the lack of watermarks and the missing right-click protection. I guess I should make it even clearer. So in the future, feel free if you happen to stumble into another excellent one :-) .

"Kind regards and happy New Year, Johan Peijnenburg."

Mike replies: Thanks, and thanks for remaining good-natured! I actually looked for contact information on the site and never found it, although it's obvious enough when I go back and search again. I was distracted by the License page FAQ and the T&C, which seemed like pretty stout fencing.

And once again, forgive my griping.

In any event, here is "Stepping Stones" at last (and I added your name to the post title):

Johan Peijnenburg, Stepping Stones,
Lake Geneva and the Alps,
Préverènges, Switzerland, May 2012
(here's the photographer's website)

It's extremely rare that I would censor a commenter—everyone has a right to react to art the way they actually react to it, the way I figure it.

However I didn't get a Michael Kenna vibe from Stepping Stones myself. The two pictures it put me in mind of were one by John Paul Caponigro and one by Marcelo Guarini. John Paul's was one we did a print sale of, in 2013 when it was still a little edgy to offer a cellphone picture as fine art, and Marcelo's was a picture he submitted to a "Baker's Dozen" feature called "It Must Be Color" two years ago. My brother loved Marcelo's picture and badly wanted one, so I contacted Marcelo offering to buy a print of it, and he very kindly gifted a beautiful print to my brother (who is ill with Parkinson's), for which we remain grateful. 

Stepping Stones doesn't have the same form or elements either of those other pictures. Rather—for me—it echoes them, or recalls their feeling-tone, in the way almost all photographs do for me...I hardly ever see a photograph that doesn't remind me of another. Stepping Stones has its own individuality and its own magic.  

Original contents copyright 2020 by Michael C. Johnston and/or the bylined author. All Rights Reserved. Links in this post may be to our affiliates; sales through affiliate links may benefit this site. As an Amazon Associate I earn from qualifying purchases.

Book of interest this week:

The Secret Lives of Color by Kassia St Clair
(clicking on the links above takes you to Amazon)

(To see all the comments, click on the "Comments" link below.)
Featured Comments from:

John Holmes: "Glad you linked to his blog rather than just his picture. Looking through his blog I see lots of great images. I'll be continuing following his blog."

Comments

[Nigel Voak]

Yes, typical Swiss precision with that legal stuff.

But, I could not help thinking this photographer has also carefully studied the work of Micheal Levin and his 2008 book "Zebrato" with one picture on his site being an almost carbon copy of the cover picture in that book.

I think if you post pictures to the WWW, you must accept they will get "stolen". A few years ago I came across a local guide book profusely illustrated with pictures scraped from my Blog.

I wrote a letter demanding some sort of payment, but the editor replied that his publishing house expected photographers to "donate" their photographs.

having no desire to get involved in a war between the poor, I just let it go.

I am now relaxed about the "value" of the pictures I take, whilst on my travels and which I post on my Blog. Some people are honest and ask; I send them a hi res file. To those who do not, well, I just hope they enjoy my photography.

Happy New year to you all.

[Bruce Appelbaum]

Yep, legal rights statements are getting more and more stringent. My company ran a photo contest among employees a few years ago. The T&Cs gave the company unrestricted rights to the photos submitted for use (and I swear this is what they said) in any form and for any purpose anywhere in the universe. This applied to winners and non-winners. The prize for winning was, I think, a Starbucks gift card. Needless to say, I did not submit anything to the contest AND I declined to have any of my NYC photos used after that on proposal and report covers.

Facebook immediately owns non-exclusive but overwhelming rights to any photos you post there. That's the price of a "free" social networking platform. Many others do the same.

Until they went bust a few years ago, I posted photos to jpgmag.com. I thought it was relatively safe and they maintained the photographer's rights to his/her photos. I had an email one day from a college student who wanted to use one of my photos in a report of some sort he was preparing. I declined, since it became apparent that he was going to pass my work off as his own. He got all bent out of shape, emailing me that once I post anything to the internet it becomes public domain. He stopped communicating with me after I set him straight, but I have no idea if he actually did steal my photo. The little weasel.

[John]

So here's a question: if "Stepping Stones" hadn't been in the title, would you have had the same reaction? I completely take the point you are making, and it's a good one. In this case, it's not just the image itself that forms the putative narrative, but the title too. Suppose it had instead been called, "Rocks, Lake Geneva and the Alps"? Does that leave things unchanged or would that have diminished somehow the interest the viewer has in this image?

[c.d.embrey]

Once upon a time the N.Y. Times published an article about right clicking photos to get FREE wall-art. If the Old Grey Lady said it, it must be OK to do. Thus the appended boilerplate.

I've only had one purloined photo. A snapshot of Dickie Valenzuela, at El Mirage dry lake. The lettering on Roger Crowe's '34 says "Have Chevy Will Race" This was used by an amateur hot-rod-history site. Lost revenue was about $.02—BF Deal.

From my POV photos have no value except as commissioned work. I do not copyright personal work, for that I use Creative Commons CC BY 4.0.

[Jeff]

He probably ‘stole’ the terms and conditions template from another site. :)

For better or worse, I can no longer look at a square format, long exposure, minimalist black and white photo, and not think it was a Kenna copy attempt.

[JimH]

Mike, your are very smart to be careful of posting photos. I know by experience.

I run a non-profit technical/professional society that produces a monthly newsletter. Over the 20+ years web ave don the newsletter online we have run hundreds of photos picked up from other news sites, company websites and PR. Our status as a non-profit and news site makes it legal for us to do this under the "fair use" definition or Section 107 of the US Copyright Act or Digital Media Copyright Act (DMCA) although like any document written by lawyers, it has loopholes, grey areas, etc.

Around 2018, we started getting emails from people claiming to be (copied from one of the emails):

Claims Resolution Specialist
Copyright Division
Law Firm of XXXX & Associates

I have close to 100 emails from this "law firm" regarding 2 photos we have used in our newsletter. I say "law firm" in quotes because what they are really is a "copyright troll," the online equivalent of an "ambulance chaser." They hire interns and turn them loose to find and harass users of copyrighted photos regardless of the legality. The interns are laughably stupid. One told me "You can't be a non-profit because you take credit cards."

To get them off my back, I had to pay my attorney to fight them. I also removed every photo I had posted online over 20 years that we did not specifically have permission to use or had taken ourselves. I will no longer post any photos without permission.

This organization is part of a large group of lawyers who are copyright trolls, threatening people so some actually pay them ~$1000 per single use of a photo to stop the harassment. I did some research on them and they have initiated what must be thousands of claims.

But if you are a for-profit, which TOP makes you, you really have to be careful. Fighting them can be expensive and you are likely to "lose" even if you win in court..

PS: I went back and edited the name of the "law firm" out of this post because they might find it online and sue me for libel.

[JohnW]

Great image and a lot of very nice images in the portfolio. But this is not a "user friendly" site. Seems more designed to deter you from dealing with them.

[Brian Stewart]

I really like the photo and especially its tonality but ... I have a strong urge to crop it. I find that the large detail-less foreground area is a distraction. Am I alone in reacting like this?

I understand and sympathise where he's coming from with his T&C, but all he's going to do is turn genuinely interested people away and not stop misuse. As others have said, once it's online you can't stop it. Everyone who posts online has to come to terms with this sooner or later.

Given the legalistic tone of his T&C I'm surprised that he has posted unwatermarked images that are as large as 1160x1160 pixels.

[c.d.embrey]

The phrases “in perpetuity throughout the universe” and “technology here and now known or yet to be developed.” are the result of a US Supreme Court decision. Check-out https://medium.com/news-to-table/technology-yet-to-be-developed-in-perpetuity-throughout-the-universe-2b43cf234f22 for the story.

Do you know who holds the copyright on a motion picture? It ain't the writer, director or cinematographer—it's the studio who hired these people to make their movie. These people all signed a Work for Hire contract, just like newspaper writers/photographers.

[Kirk]

I am amazed at people's shrugging capitulation to having their images stolen by "for profit" organizations. I had a photograph of a famous actor/director used without authorization by an international television production company and when I brought it to their attention they settled with me in 24 hours. Check in the Fedex.

The show with the photograph had been syndicated and shown in a dozen countries before I became aware of the misuse. Didn't dent my resolve in the matter for a second.

You have a "fair use" loophole you can use but organizations like the Turner Broadcasting Network and BBC Productions know that they need to play by the rules and settle when caught or the downside can be very pricey.

And yes, we still do register copyright for commercial work.

Never give in. If a company is big enough to be publishing books and magazines they know better and they know they have to pay if they are caught red-handed.

[Robert Roaldi]

Just to play devil's advocate, let's turn it around. Why do we "feel" that we should have the right to reproduce someone else's photo? Isn't it only BECAUSE we are on the web? If we just a group of people talking in a bar about some other guy's picture, we'd pass the book around and talk about it. It would not occur to us to photocopy it and print it in our own books. Because of endless daily repetition, the interweb has altered our frame of reference.

In some of the other comments, I detected some resentment that the photographer doesn't want his work reproduced willy-nilly. Why do we think we should be able to?

[Animesh Ray]

As Cartier-Bresson once said about two masters, “The world is falling to pieces and all Adams and Weston photograph is rocks and trees”-- here my feeling is the same looking at these photos after the Terms and Conditions page. Frankly, if someone steals my photos I am publicly indignant but privately thrilled!

[Yoram Nevo]

OK I can help saying it - those photos are boring

[Jakob]

I was relieved to see Jeff's comment above (mentioning Micheal Kenna), since I have the exact same reaction. I love Kenna's style, and since it's so distinctive, it's quite obvious when photographers are influenced by him. I find it quite amazing that a single photographer can stamp himself so strongly onto a style, that everyone else doing similar things immediately causes a 'Kenna-clone' reaction.

I'm struggling on how to deal with this myself. On the one hand, the style isn't owned by one person and it's a bit unfair to label others a copy. (But I would expect to see him at least mentioned as an influence somewhere on that site.)

On the other, how does one escape the clone-zone and carve out one's own style while still remaining in the same area?

[Dave Sailer]

What with copyrights from 1925 evaporating two days back, it's a shame that Shimmel Zohar never existed, so his work could be in the public domain. Faint hope for a fictional fellow, eh? But his work would have been mid-19th-century anyway, and free from a long time back.

But it's still fun even if fictional. Totally.

Various mentions of Zohar's work, as created by Stephen Berkman, show different images and have different things to say. It is left as an exercise for the reader to snuffle them out, internet-wise, but one of the quickest kicks in the head is "Conjoined Twins" at https://bit.ly/3hFifZ5 via "Lenscratch".

This, combined with the work of home-town wonder Shane Balkowitsch, (Bismarck, ND, just barely possibly the son of one of my high school classmates) is almost enough to make me give up retirement, dump digital, and adhere my suckers to a world of wet-plate work, for as long as I can still move them.

Anyone interested? Try...

"The Uncanny Tale of Shimmel Zohar" at "The Atlantic".

"Stephen Berkman: Predicting the Past: Zohar Studios: The Lost Years", at "Lenscratch".

"Predicting the Past: Zohar Studios, The Lost Years" at "The CJM".

I love this stuff.

[Bruce Appelbaum]

One last thought from me on rights and T&Cs. Over 20 years ago, while working for a boutique consulting firm, I developed an automated system that would analyze the cost of production of various commodity chemicals. It was basically a database laid on top of a Lotus 1-2-3 spreadsheet (these were the days before Microsoft Excel). The idea was to license this product to our clients, and not sell it outright. So, of course, I needed some terms.

Attached to the Lotus 1-2-3 box was an end user license agreement (EULA), and I decided that what was good for Lotus was good for me. I adapted the document and checked other software packages to see if everything was covered (EULAs do not vary significantly from product to product, I learned). A year or two later, my company was acquired by IBM, a firm that also had purchased all of the assets of Lotus by that time.

After the purchase, I had to spend some time with the IBM intellectual property (IP) lawyers for them to determine that the product I developed would be free of any IP claims by anybody in the known universe. The subject of a license agreement came up and they screamed at me about how crappy the EULA I developed was. And where did I get it? When I pointed out to them that it was basically the same as IBM's EULA for Lotus products, they really started to bluster.

After that, each year that the client license came up for renewal, the lawyers had to review the EULA again. And of course changes were made that were basically insubstantial (changing order of lists, punctuation, etc.). But in the end, it remained pretty much the same as the EULA I cribbed it from.

Ironically, these days I work pretty closely with my firm's contracts specialist, who at one time was an IBM IP lawyer. He and I had a good laugh over my previous experience -- and over the years he has taught me more about contracts and IP and indemnification than I ever thought existed.

[Ernest Zarate]

Glad to read the issues were resolved. As I was reading your mild vexations (along the lines of, “I found something I really want to share with you, but I can’t...”), a thought popped in my mind: What is a reasonable set of Terms and Conditions? One that would strike a balance between the creator’s rights to protect the work, yet allow a visitor/viewer access to the work (in this case, The Editor of TOP to post an image from a site)?

Is it a case of damned if you do set forth T&Cs that adequately protect the work, but scare off anyone looking to legitimately “expose” the work to a larger audience, and damned if you don’t, that creates a free-for-all situation where the work is stolen? Or is it not at all binary, but full of shades of gray? Or is it a fool's errand to even think of such a thing - put your work on the web, and it WILL be stolen?

And I thought “Mike would know! He’s no doubt come across dozens/scores/hundreds of T&Cs, and has a good read on what works and what doesn’t! Ask him...”

To wit...

[Michael Farley]

When I looked at the T&Cs, the copyright section especially, one name came to mind. Richard Prince. I am surprised that no else has mentioned him but a while back there were lawsuits taken out against him for the way he incorporated the work of others in his own. There is no mention of the outcome for the later cases so presumably there were out of court settlements.

[Rob Campbell]

There's no need to show an actual image in a site such as this one; all that needs to be done is to provide a link to it which, if anything, gives the owner of it some nice publicity. Should clicking a link in a legitimate site such as TOP prove too onerous a task, well, it would hardly make any difference to the lazy reader either way.

[David Mantripp]

These kind of T&Cs to me say more about the photographer than the photos. "Kenna-like" on a superficial level at best. Bolting on a ND filter does not make you Michael Kenna.

I've seen a lot more interesting "Random Excellence" photos than this.