Can “Look, But Don’t Touch” Ever Be Enforced on the Web?


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.

Enabling Ignorance

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?


17 Responses to “Can “Look, But Don’t Touch” Ever Be Enforced on the Web?”

  1. Ben Franklin didn't help either. He never registered for patents either even tho he invented many things we use today. He thought it was the the bettering of mankind to not register them.

    The message is clear, register your images and then if someone uses without permission, you have the ability to take them to court and win.

    The problem of actually stopping this practice is like trying to make criminal activity to stop. It is a nice pipe dream, but criminal activity will continue, but society must enforce their laws.

  2. Additional problem:

    Most, if not all, social media content sharing sites - advised by lawyers - require all users to agree to terms of services that grant the platform unlimited non-exclusive rights to the content uploaded. Some terminate this license when the user closes his/her account. Some are generous to let the author keep his/her copyright.

    Now they need these rights to operate as social media tools. They need unlimited rights because their business model may change with technology and market evolutions.

    Problem is right-owners loose all control over their content by submitting to these platforms. Professional photographers loose their livelihood.

    Are professional content providers excluded from social media websites? Is there any platform out there that has come up with a way to reconcile these opposing interests?

  3. great post! would love to suggest a few ideas:
    For online usage :
    - Make copyright information unalterable. It travels with the file, whether you like it or not and can be easily readable.
    - Annul the Fair use law. nonexistent in non-anglo Saxon countries and no one died.
    - life sentence for repeated offenders:
    People will think twice
    - Give everything for free but raise everyone's taxes to pay the artists : that will send a shockwave.
    - Create an ASCAP of photography and put an extremely wealthy and nasty lawyer as its president.
    - Lobby the lame photo associations that do nothing.
    and finally, take great pictures and sell them for a lot of money.

  4. @Stanley,

    Thanks for the comment. While there are certainly cases where I wouldn't hesitate to put a legal shot across someone's bow for infringing my registered works, I actually don't think suits are always the solution.

    This is especially true of mom 'n' pop infringers: people infringing on my copyright to put a cactus picture of mine on their Facebook or personal blog.

    Wrong? Yes it is. But suing them probably won't yield much for me, and as the RIAA has established for us, machine-gun suits against anyone and everyone cause a public backlash; resulting in more infringement.

    For these infringers (who I really believe just don't know better) simply making it not so easy to infringe and engaging them in IP awareness campaigns will probably prove a better option.

    As for the corporate infringers and people who should clearly know better, well, I'm not going to hesitate to file takedowns and/or suits as applicable.

    @David

    Let me start by saying that I'm not an attorney.

    But it is my understanding that, although largely untested in the courts as it pertains to photo "sharing," two parties cannot enter into a contract that alters or modifies the rights of an uninterested third party.

    In other words, if I get you to sign a contract giving me permanent rights to all your work and, say, the entire Black Star catalog, the Black Star part of it is not going to be upheld, since (to my knowledge, anyway) neither you nor I have sufficient control of Black Star's IP to negotiate them.

    Generally, in those legalese disasters that are EULAs, they also require users to only upload intellectual property that they have the right to use.

    Technically, user MySpaceHottie012 can't upload works that she can't legally transfer the rights to in accordance with the terms of the EULA.

    I think that's how the lawyers keep the companies (social networking and photo sharing sites) safe.

    The real problem is that there is no system in place to keep the individual users from uploading things that they have no rights to.

  5. @Paul Melcher,

    Paul, I'm a big fan of yours. Your contribution to the industry has been and continues to be nothing short of remarkable.

    Feel free to beat me up a little over this one (and I'm straying further into murky legal-land), but Fair Use, to a very certain degree, doesn't bother me.

    Fair Use is what allows people to cite quotations in everything from homework assignments to book critiques.

    It allows you to reference a photograph of mine as a visual aid while you're discussing the merits of the individual work.

    I'm hesitant to even bring up the Fairey debacle (it was such a disaster on all sides, so as to serve only as an example of how not to do just about anything), but Fairey took a work that was pretty pedestrian and made it significantly and uniquely his own.

    Personally, I don't see it as any different than what Warhol did with a can of Campbell's Soup.

    Fairey could have handled things much better (as could everyone else in that disaster), but this type of re-interpretation has been a hallmark of art for as long as art has existed.

    That being said, Fairey could have freehanded it entirely and saved himself a world of hurt.

    And it's not an art that I particularly respect, nor is it something I would engage in myself.

    Personally, I'd love to see a system where copyright information is permanent and immovable in digital formats. Or film, for that matter.

    But if you can get to the bits and bytes, you can alter and remove whatever you want. Then you start getting into proprietary formats, and no one will make any money. Imagine if you had to install a different piece of software to view individual Web sites...

    I'm not sure about the jail thing... Maybe for the guys that go on Flickr and sell discs of "stock art" they downloaded there without permission. Maybe for the corporation that really, really should know better.

    Digital media taxes, in line with what Canada does, might be an idea worth investigating. But then, who qualifies as an "artist" for reimbursement purposes and what share of the $7 per image do I get to claim?

    Your last three suggestions are great, and I'd be happy to do whatever is in my power to make those a reality.

    Especially the part about making tons of money. :)

  6. I am blushing..thank you for the kind words.

    On Fair use: Unfortunately, the way it is set up, it allows for complete confusion and misunderstanding. I am not totally against it but I wish that a provision would be added to contact the copyright owner. Out of pure courtesy. Same with Creative Commons.
    instead of "all rights reserved" we could have "Available through Common Courtesy".
    best

  7. Copyright is a way to create totalitarian bureaucracies. In this age, power derives from information. If we allow anyone to controll our data, we in fact let them controll our lives.

    In the age of the computer, you can not at the same time have democracy and copyright.

  8. @Thomas,

    Indeed, power derives from information.

    But there is a distinction between your information and my information.

    We maintain the right to do whatever we want with our information. We can sell it, give it away or keep it entirely private.

    Those rights are indirectly afforded by copyright law.

    In fact, copyright allows people to make a living by uncovering and displaying information.

    I fail to see how the Internet and computers place democracy and copyright at odds with each other.

    The Internet has opened up new, and much more cost-effective, means of getting information out to the masses.

    Indeed, HTML was designed as a way of easily linking documents to documents. But there's an inherent difference in saying here's a link to this really cool (photo, video, story, painting, song, etc.) than there is providing the medium in its entirety on your own page.

    From an academic standpoint, I am very interested in your opinion that technology puts democracy and information at odds. Please expand.

  9. Property rights exist, because most physical objects can only be used by one person. Each object having an owner is a neat way to organize the physical world.

    Treating data like physical objects is the most retarded thing you can do with a computer, because the very problem why property exists, does not exist inside the computer.

    Why would anyone want property rights inside a virtual world? That does not make any sense, except if we are dealing with morbidly misguided or plain evil people.

  10. @Thomas

    Thank you for the clarification. Now I see where you're coming from.

    People want property rights online simply because maintaining those rights keeps the lights on, the kids fed and the business going. Basically the same reasons people do any jobs.

    The Web allows for the free flow of ideas in ways not previously possible.

    Discussions can happen anywhere.

    Supporting or contradictory evidence can be provided instantly with in-line linking.

    But that doesn't mean that the content itself is free. We all have bills to pay...

    Is the Internet a virtual world, or is it one facet of the real world?

  11. But having property rights only creates a new form of control over our culture. I have seen those crazy DRM ideas, where a monopolistic industry organisation has the control, on which computer at which time a file is allowed to be opend. That stuff is scary. The danger of descending into a new totalitarian age is very real, i am afraid.

    Totalitarian systems like Communism and Fascism exist, where the brutish mindset of an old culture and the refined technologie of a new culture come together.

    I dont mean to fight you, but there is no doubt in my mind, if we allow our culture to be treated like property, we will loose our freedom. I will fight for my freedom to do whatever i want with any data i get my hands on.

  12. @Thomas:

    You wrote "I will fight for my freedom to do whatever i want with any data i get my hands on."

    So from your argument, if I could get my hands on your street address, home phone number, driver's license number, Social Security Number, etc., you would have no problem with me posting them with your name, for any would-be identity thief to use as they see fit? That is all just data after all, and from your statement, "whatever I want with any data I can get my hands on."

    Linking to a work, possibly in some cases using a thumbnail of the work while discussing the work is the digital world replacement for the appendix of references in the back of a paper book.

  13. I was talking about copyright, not about privacy issues, so stop distorting my arguments!

  14. The problem here is that we are not just talking about "data", or even information. 2 + 2 = 4... this is data, and information. 1110010001001 is data, do with it what you will. I don't think I will be able to copyright it, and it is free for the world to see.

    This is different from a photograph, or a novel, or a song. These things are not arbitrary data, that belong to the world. These are artistic and/or intellectual products created by my mind and my hands. I arranged those 0s and 1s in a particular order. That order belongs to me. If I read you my book, or show you my photo, it does not make them belong to you.

    The "data" that belongs to you is the photos that you created, or the words that you wrote. Feel free to do with them as you see fit.

    Unless you receive written permission from me to use my work, then reproducing it is the same as stealing my car. It belongs to me, you take it and use it without my permission, that's THEFT.

  15. @Thomas

    So, Thomas, you would have no problem if I obtained your photo, and used it in an ad for a political candidate of my choice-
    or perhaps I could photoshop that photo of you and use it to advertise a drag club in a city near you? Or the before photo in a Viagra ad?

    After all, I would just be, in your words, "do(ing) whatever i want with any data i get my hands on."

  16. @ lyn

    Privacy laws and copyright laws are completely different matters. The rights of the one making the photo, and the rights of the person inside the photo are different.

    I you want to use someones picture for your political campagne, you need that persons permission. That has nothing to do with copyright. I am not challenging privacy law, i was talking only about copyright.

    Privacy != Copyright

    @ Brian

    Something that is not physical can never be property. It is not possible to own ideas. Copyright is a market regulation, nothing else. The phrase "intellectual property" is just a clever trick to distract from the anti-market nature of it.

    Copyright != Property

  17. Fair use is a defense to a (C) infringement claim, not a right.

    I think a strong watermark is the only online deterrent available today.

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