How effective is a law that is unenforced? How effective is a law when the public has no clear concept of its meaning and spirit?
Unfortunately, that is the current state of copyright law. I would argue that the entire concept of copyright is in peril, with the threats coming from multiple directions.
In the Beginning
Many people don’t realize that our founding fathers cared enough about copyright protections to include them in our Constitution. Article 1, Section 8, Clause 8 gives Congress the power to enact laws
to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
Copyright allows the creator of intellectual property to control its use by others, and thereby monetize its scarcity. The profits encourage the creator, as well as others, to make more intellectual property.
And because copyrights expire, all intellectual property eventually enters the public domain for the enrichment of America’s cultural heritage. Everybody wins.
It sounds like a pretty solid system to me. But the digital age is threatening to blow it to bits.
Copyright? Screw the Man
The problem starts with ignorance and misconceptions regarding the law and what it’s designed to protect.
Denizens of the Web are quick to associate copyright law and enforcement with Hollywood and the recording industry. They see it as a way for the rich to get richer.
They despise the RIAA for going after children and grandmothers for illegally downloading a few songs from a file-sharing service. The harsh tactics have created a backlash. Stealing IP is a way of sticking it to The Man.
All of the back and forth and bad feelings have somehow led a lot of people to the conclusion that no artist — rich, poor, famous or otherwise — has any right to make a living on their IP.
And that’s for the small percentage who have an opinion on copyright law. Most folks on the Web are simply ignorant of it, or find it too confusing to worry about.
Shades of Gray
Just last month, Sonia Zjawinski of The New York Times, a company dealing almost exclusively in the creation and licensing/sale of IP, wrote in a blog post that downloading and printing pictures from Flickr is a great way to decorate your home.
Her column generated a small avalanche of protest from photographers, and so she followed up her post with another, in which she included quotes from lawyers, said copyright law provided little clarity on the issue, and left us with the conclusion that the law had “lots of gray areas.”
From my perspective, photographers who put pictures on Flickr with copyright notices that reserve all rights to their work have clear intentions. They want you to ask for permission to use their work.
That means you can look, but not touch. If you want “look plus touch,” you can choose one of the many photos on Flickr licensed under Creative Commons.
That seems pretty clear to me.
Unfortunately, Sonia found a lawyer to muddle things up for us, arguing that it is OK to use “all rights reserved” photos to decorate your home as well:
[Stanford law professor] Anthony Falzone pointed to the 1984 Supreme Court decision in Sony Corporation of America v. Universal City Studios, which said that it was legal to use a VCR to record copyrighted content from broadcast television for personal viewing.
“There are a lot of parallels with what’s going on with Flickr,” Mr. Falzone said. “People are posting photographs and know very well that they are going to be viewed by people on a computer, and if someone wants to print a photo out that they see on Flickr to enjoy some other time and in some other place, that seems fairly analogous to what people did with the VCR.”
From that legal angle, if someone decides to download an “All rights reserved” image from Flickr and put it on their PC desktop or print it at home, they should be covered under fair use.
With such “gray areas,” it’s no wonder that copyright controversies extend beyond our living room wall art.
Fair to Me
Companies and individuals ranging from small blogs to major electronic publishers have made a habit of grabbing pictures and graphics from wherever they can to illustrate whatever they want.
Is it illegal or infringing every time? No. But too much of it is.
“Fair use” has become a catch-all defense, but most people who use it have no idea what it means. (Here’s a good overview of fair use.)
Some people think that as long as the use seems “fair” to them, it’s fair use. I often hear people defend using images on their blogs by saying, “I’m not making money doing it.”
Well, that might sound “fair” to you, but that has nothing to do with fair use.
Whether or not you make money by using someone else’s IP, it’s possible you have diminished the creator’s ability to make money from his or her work. In other words, an enforceable infringement.
I once had a realtor grab a photo off my Web site, use it on his blog and tell me it was OK because he put a ©Will Seberger under it.
From our conversation, I realized that he simply had no idea how the law works. He promptly took down the image without any further argument.
But this is obviously not a battle that can be won on a conversation by conversation basis.
Especially when software like OffiSync is on the market. OffiSync is designed to facilitate interplay between Microsoft Office and the Google cloud. As such, it has a built-in Google Images search box, presumably to help users find and use Google Images in documents, spreadsheets and presentations.
If OffiSync lets you do it, it must be legal, right? Why would they let you do it if you aren’t supposed to?
What to Do?
I’m afraid I don’t have any easy answers for photographers wishing to protect their work.
I could tell you to remove your photographs from sites that are generally accepted (incorrectly or otherwise) to be clearinghouses for free photos.
I could tell you to place a warning on your site (they work so well with cigarettes), watermarks, metadata, .htaccess redirects and right-click blocking. I could tell you to only upload low-resolution versions of your images.
At the end of the day, the best of these solutions are merely duct-tape fixes for a structural problem.
It would be nice to think we could simply pull the plug on our Web servers and make the problem go away. But these days, I need the Web to create visibility for my photography business — and I’m guessing that you do, too.
So where do we go from here?