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Photographers, Car Thieves and Copyright

Posted By Scott Baradell On January 12, 2009 @ 7:22 am In Legal Matters | 7 Comments

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John Harrington [2] came upon an obvious case of copyright infringement [3] by the Gizmodo blog last week. The gadget site, owned by Gawker Media, had created a photo illustration that incorporated one of photographer Jill Greenberg’s [4] famous crying baby images without her permission. But more interesting than the infringement — which, frankly, is the rule rather than the exception on blogs today — were the reactions John received in comments.

First, Robert Green, Jill’s husband, reported with some level of satisfaction that Gizmodo had removed the photo when the infringement was pointed out: “to gizmodo/gawker’s credit, they immediately took the image down when they were asked to without a second’s hesitation.”

Commenter Ian Evans then took exception with Robert’s response, which he apparently viewed as tepid:

Okay, let’s rewrite that sentence in a different context: ‘to the car thief’s credit, he immediately returned my vehicle to me without a second’s hesitation.’ The crime was still committed.

The exchange seemed to me a succinct summation of the ongoing debate among photographers on the subject of copyright and the Web. Should photographers be satisfied when Web sites remove copyrighted work upon request — which has become more or less standard practice — or should they fight harder to prevent their images from appearing in unauthorized uses — such as taking infringers to court as a deterrent?

Car Theft vs. Speeding

I certainly understand the logic of the car thief analogy. But when half the drivers on the road are “car thieves,” does the term retain its meaning? If the majority of bloggers — and blog readers — don’t believe these blogs have “stolen a car” when they lift a picture from Google Images, isn’t the battle already lost?

Maybe a better analogy, at least in terms of public sentiment, would be to compare unauthorized photo use with a lesser offense, like speeding. People know they shouldn’t speed, but they do it anyway; it gets them somewhere faster, in the same way that yanking a picture off Google gets their blog post finished faster than trying to find an appropriate image on iStockPhoto or Flickr. In the mind of the blogger, it’s rarely about stealing — after all, you’re only saving a buck or two by not using microstock — it’s about “speeding.”

When people are caught speeding, they expect to pay a fine of some kind — something not too crazy, but enough to make them think twice (or at least look twice) before doing it again.

I’m wondering if photographers who liken infringers to car thieves and want them “sent to jail,” as another of John’s commenters wrote, would be better off staking out more moderate — and obtainable — objectives?

An Arms Race with Technology

To see what photographers are up against, just look at what happened in federal court last week. The video-sharing site Veoh slapped down Universal Music Group’s copyright infringement claims [5], with the judge stating that Veoh was fine as long as it “expeditiously remove[d] or disable[d] access to [infringing] material.”

Sounds a lot like what Gizmodo did, doesn’t it?

Granted, video- and photo-sharing sites are one step removed from the actual infringement — so they don’t have “actual knowledge” of it — but to the layperson that’s a minor distinction.

And then there is the larger issue: even if the courts were siding with photographers at every turn, would this battle be any more winnable in the end? Jacob Andreas [6] frames the issue this way:

This arms race between technology and copyright protection … has been a continued feature of the American copyright debate; what is new is that technology has effectively reached the point where users may make an infinite number of copies at no cost.

Every Google search, every website visited and every email forwarded creates copies; all computer technology relies on the fact that every day billions, perhaps tens of billions of copyright infringements go unprosecuted … We can never design a copyright for the Internet age, because is not just impractical, but impossible, to prevent the copying of digital information.

What’s Worked — and What Hasn’t

We’ve seen different segments of the media take polar-opposite approaches to this issue — with less than stellar results. The newspaper industry has done virtually nothing to prevent its copyrighted content from appearing on blogs — and of course, we see how well that’s worked out for them. But at the other end of the spectrum, has the RIAA really done itself any favors with its draconian approach?

Perhaps what we should really be focusing on is finding a place in the middle. YouTube’s approach, for example, is an interesting one. The other day I got an e-mail telling me that one of my YouTube videos contained copyrighted music, and that because I had infringed on the copyright, they were going to add advertising to the video — the proceeds of which, I presume, would go to the copyright holder.

Fortunately, I was given the opportunity to protest the decision, and I did — sending back proof that I had actually purchased the music from a stock site. But if I hadn’t, I would’ve been OK with YouTube adding the advertising — a low-hassle solution for all involved.

Kind of like getting a speeding ticket.

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7 Comments To "Photographers, Car Thieves and Copyright"

#1 Comment By Epicanis On January 12, 2009 @ 9:55 pm

Copyright violation is nothing like "theft". Copyright is "trespassing".

Redistribution of someone else's copyright-encumbered work without permission is a usurpation of a right that the violator doesn't actually have - much as someone who "trespasses" is usurping the right of a property owner to control access to their property. Violation of copyright is still a "wrong" just as trespassing is, but if someone snuck into my house, wandered around a while, and then ran off when I got home, I'd probably call the cops, but I wouldn't be screaming that someone had stolen my house.

Also, the problem with someone stealing my car (for example) is NOT that the thief now has my car, but rather that I don't. If someone happens to make a "copy" of my car, it has very little effect on me. Now, since a car is a physical "scarce" object, you can argue that the extra copies of the car actually do you harm by reducing the value of your property. I maintain that even then, this wouldn't be "theft".

One final analogy: imagine JK Rowling decides her bathtub full of 1000-pound notes is not full enough, and writes yet another "Harry Potter" book. She has a publisher make one copy, and she auctions it off. For the sake of this discussion, let's presume you're a rabid Harry Potter fan with a huge amount of money, and you win the auction for a huge sum of money.

A year later, Rowling decides she needs a second bathtub full of money, and has the publisher run off a few million copies of the same book for normal distribution. Instead of being unique, your book is now just the first of several million identical books. Question: Has JK Rowling "stolen" your book?...

#2 Comment By Epicanis On January 12, 2009 @ 9:55 pm

(Excuse me - "Copyright VIOLATION is trespassing")

#3 Comment By Philippe Roy On January 12, 2009 @ 10:40 pm

I've just stumbled on this page through Stumble-Upon, and I'm happy I did. Copyright issues for photographers (like myself) are never easy, especially in the new world of web 2.0 and whatnot.

However, I've stopped trying to hunt down people hot-linking my images or using my images on other websites without my permission. It's just too time consuming in the end. It prevents me from moving forward on my own personal work and other projects...

That being said, the part that burns me, is recognition. Too often there's no recognition, link back or mention of the photographer, his work or website. After all if we quote another blog as a blogger, it's standard practice to link back to that website, no? But it's not the same common practice with photos. People just freely take photos without acknowledging the photographer and linking back to his/her website. This, in my opinion, is where the web-mass lacks "education" - for lack of a better word.

With clients, as much as with people in general, with photography becoming so accessible to everyone... professional work is taken less seriously. How many times have I heard a client tell me "I have a D70 you know, if I had more time I'd be doing this myself..."

#4 Comment By john andrews On January 12, 2009 @ 10:45 pm

Extend your speeding analogy... the speeding ticket is all about the fine, which goes to the "bar", a non-profit supported by dues-paying lawyers & owned by judges who make the laws. The fine is also shared with the police patrol.

For willful ripoffs like stealing my photos to use as quick free images for your blog, add an instant $300 fine *in addition to* the immediate cease and desist, just like the speeding ticket. Share that fine with the photographer, allowing further debate on royalties etc. to be addressed in court as per the law. Do that and you'll be well on your way to solving the convenient-to-steal problem - just like with speeding.

#5 Comment By Abstracts of Nature On January 13, 2009 @ 2:33 pm

Good post! I recently had an issue where I found one of my images being used as a header on a blog for which the owner had never purchased a license or even asked if they could use it. I discovered the blog owner was 16 so I sent a very stern cease and desist email.

They responded with an apology and advised they had removed the image at my request, then told me "you must understand, I am only 16...." and "I didn't know about copyright, sorry". I pointed out that I didn't have to understand anything - that if they hadn't been 16 they would have received an invoice for twice the license fee. I also explained that they would have noticed the file was copyrighted when they opened it to remove my watermark! and that that I had noted a statement on their blog saying that nobody was allowed to take any of their content!!

OK, the offender was only 16 but hopefully the experience will have taught them a valuable lesson. Unfortunately however, as you say, it is so common now that sadly, it won't make that much difference.

#6 Comment By robert green On January 14, 2009 @ 10:56 am

not that i troll sites that mention my wife's name...

scott, i'd be interested to get your response on the colloquy that developed on the linked exchange later in the comment thread. i maintain that digital photography (on the distribution side)is making the concept of copyright less valuable to a photographer. yet remember, because of the strange rules of US federal law, photographers cannot collectively bargain as they are independent contractors and to do so would be price-fixing. the sop they get in return is copyright ownership (unless otherwise specified in advance as work-for-hire by the client). thus, at least in part, the lovely tendency of photographers to underbid the shit out of each other, as they are legally bound to be in competition.

the problem is twofold: should jill spend all day every day on the phone with her lawyer suing people? the policy that we have is to pretty much only go after corporate miscreants (although gawker is arguably corporate, but for the sake of this conversation let's call them "editorial") legally and financially. but for each one you go after you lose one more future client permanently. c'est la guerre.

my proposed solution: digital watermarking of images with some kind of a widget embedded that pings the copyright holder immediately upon use. some kind of DRM is necessary. and then a lo-res image used on a site with under x viewers per day would automatically pay y for having used it. or something.

#7 Comment By Scott Baradell On January 14, 2009 @ 4:43 pm

Robert,

I think digital watermarking with an embedded "pinger" is a great idea. Maybe you can even set it up to send an automated email to the offending site, telling them to take the pic down. Then you can focus on your work and let the widget be the sheriff!

Of course, as soon as something like that is developed, people are finding ways around it. But it's the kind of creative thinking we should be doing to address the issues, rather than this nonsense about sending people to jail.

You're welcome to troll here anytime ;)


Article printed from Black Star Rising: http://rising.blackstar.com

URL to article: http://rising.blackstar.com/photographers-car-thieves-and-copyright.html

URLs in this post:

[1] Tweet: https://twitter.com/share

[2] John Harrington: http://rising.blackstar.com/author/johnharrington

[3] obvious case of copyright infringement: http://photobusinessforum.blogspot.com/2009/01/copyright-infringement.html

[4] photographer Jill Greenberg’s: http://rising.blackstar.com/jill-greenberg-bogeyman.html

[5] slapped down Universal Music Group’s copyright infringement claims: http://blog.wired.com/27bstroke6/2009/01/online-video-sh.html

[6] Jacob Andreas: http://jacobandreas.net/2008/the-failure-of-copyright/

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