Q&A: Going to the mat for photo copyrights
Photographer Lane Hartwell
(Credit: Lane Hartwell)It wasn't Lane Hartwell's first heated exchange over a photo copyright issue, but a tussle involving a witty YouTube video probably was the one with the highest profile for the professional photographer.
Last week, a not-for-profit San Francisco singing group called the Richter Scales posted a Web 2.0-mocking video, Here Comes Another Bubble, set to the tune of Billy Joel's We Didn't Start the Fire. One of the many photos that flashed by in the video was one Hartwell took of Valleywag's Owen Thomas.
The problem: Although Hartwell had posted the image publicly at her Flickr account, she had kept copyright, labeling it as "all rights reserved," and the Richter Scales didn't license its use. When Hartwell found out about it, she took action, and YouTube pulled the video down. Hartwell sought payment for the photo's use, but Tuesday night, the Richter Scales posted an updated version without the Thomas photo. Hartwell now says she'll send an invoice to the band for the times it was viewed.
Hartwell, who turned pro three years ago and now shoots for clients including San Francisco magazine, Wired News, and Valleywag, took fairly aggressive measures, stepping on some toes on the way. But in her view as a professional photographer, protecting copyright is paramount, particularly in a day and age when digital photography and the Internet make copying photos very easy.
Here comes another trouble: even after the Richter Scales posted a list of photo credits with the updated video, another photographer, Ramona Rosales, apparently isn't happy. She took the photo of TechCrunch chief Michael Arrington that appeared in Newsweek that's also in the video.
One issue at the heart of the matter is the doctrine of "fair use," which permits free use of copyrighted materials for purposes including commentary, criticism, news, and research. Opinions differ on whether the Richter Scales' use qualifies--fellow CNET blogger Gordon Haff has a reasonable wrap-up--but there's no question that digital photography and the Internet has focused more attention on the gray area between obviously permissible and obviously forbidden uses.
Indeed, I first got in touch with Hartwell after my employer, CNET News.com, became one of her earlier targets. We had published a photo of Yahoo CEO Jerry Yang taken by Hartwell's fellow photographer, Mitchell Aidelbaum. CNET had obtained permission directly to use the photo earlier, when it also had been available under a Creative Commons license that permitted others to use it as long as credit was included. But we used the image again later in a small thumbnail size without giving credit.
(I asked the editor in charge of the situation what our current policy is, and he told me News.com avoids using photos licensed under Creative Commons in thumbnail form. Some of the debate is recorded here at Digg, but Hartwell has since made private the Flickr photo where the debate took place.)
After the Richter Scales fracas, I thought it would be interesting to hear from someone who has chosen to draw a line in the sand. Here's an edited version of our chat.
CNET News.com: You seem to have a passion for the issue of copyright-infringing copying of photos. Has this become something of a crusade for you beyond just protecting your own rights?
My only intention going into this was to resolve the issue regarding the use of my image in the video. It's what I do every time someone uses my imagery without permission. I never expected the response it's generated, but I think the discussion is healthy and necessary.
How did you find your Owen Thomas photo was in the Richter Scales' video?
A friend told me. It's usually friends that tip me off when they stumble across my images on Web sites and blogs.
How did you feel when you saw the image?
While I thought the video was funny, my first thought about seeing my image was, "How come I was not asked for permission?" I also recognized another photographer's work in there. I can't say I was surprised; it was more a feeling of "Here we go again."
And how did you approach them about the issue?
I wrote them an e-mail and asked them to explain what my all-rights-reserved image was doing in their video. I explained that I am a professional, that the image is copyrighted, and that I license my work. I told him I had not been contacted to use the image.
What kind of response did you get from the Richter Scales? Did they or you contact YouTube or other sites where the video was posted?
I'd really rather not go into all the details of the negotiations, but I did file the takedown notice on the advice of my lawyer when it became apparent that the members of the band decided to not take any action regarding my requests related to the use of my photograph.
Are you concerned that your forceful stance might cause some kind of backlash?
I was concerned at first, but my friends, my clients, and total strangers have thanked me for standing up for what I believe is right.
Do think you might have made more progress in the long run, both with your career or in copyright education, with a more forgiving approach to the Richter Scales? You seem to have made a vocal opponent rather than a potential ally in your cause.
I had been in e-mail communication with three different members of the band for three days before making the decision to send the takedown notice, after consulting my lawyer. After three days of exchanges, one of the band members announced they wanted to take several days for a "cooling-off period" and that we could resume negotiations then. That was unacceptable to me. The video was still online and they'd made none of the changes I'd requested. I really wasn't left with much of a choice.
On the one hand, with digital photography and the Internet, it's easier for a photographer to publish on the Net and reach a broad audience. On the other, the same technology makes copying easier and more common. Would you rather be a photographer now or in the pre-Internet, pre-digital era?
I love digital! I honestly think there are pluses and minuses to any advance in technology and I'd like to believe I approach things looking for benefits while knowing I'll probably have to deal with some of the downsides. Shooting digitally allows me to turn around client projects in hours instead of days. It's made my work visible to more people than previously possible. The downside is that I've had to deal with people who feel they can use my work without getting permission. One the whole, it's great. But dealing with infringers still takes up more time that I wish it did.
On about how many occasions have you had to deal with copyright infringement issues with your photos?
It's been happening a lot lately. In the past two weeks I have had five separate cases of it. I would say generally a few times a month. And mind you, these are ones that I have found out about; I'm sure there are far more. There are currently three sites using my work right now, uncredited and unauthorized. They all have advertising on the site. I will be sending them e-mails soon.
How do you think Flickr and the Web in general affected photo-copying issues?
I've spoken with countless photographers who express frustration that many people feel that anything found on the Internet should be freely available for their use. I quit my day job to be a full-time photographer. It's how I pay my bills. I can imagine how these people would feel if they were expected to work for free because other people were taking the things they made without paying for them. I've donated work to charitable organizations, and I've traded services for my photography. I can't, however, just stand by and let anyone who wants to use my work without being fairly compensated for it.
Do you think the Creative Commons licenses are a good idea?
In theory, I think it's great, but in practice, it's got a ways to go. If people don't respect something marked all rights reserved, and we are having this kind of confusion over a copyrighted image, are people going to respect the terms of CC licensing? Although I personally don't employ CC, I know many people who use CC licenses for their work and have been ripped off anyhow, as in those who take don't bother to follow the terms of the license, don't credit or link back. I also think it's become a way for large, for-profit corporations to find and use free content instead of hiring professionals. Was CC designed for Virgin to make advertising with Flickr images, or was it designed for the average person to use an image in a presentation or in some creative way without having to pay a small fortune to do so? Lawrence Lessig himself says: "A culture without property, or in which creators can't get paid, is anarchy, not freedom." I don't think a free-for-all is the intention of CC.
What do you think of technical measures to address the issue--watermarking, for example?
I think watermarks are a great idea, but it does take some time to do. Sites like Flickr need to employ an automatic watermarking system. The site I am moving my work to, Photoshelter, allows me to set that all up in advance and I never have to deal with it again. It's applied to every photo.
How much did you bill the Richter Scales, if I might ask?
They haven't received the invoice yet. I'd prefer to wait till after it arrives. I can tell you that I used a professional computer program called Fotoquote and calculated the invoice based on usage, the market where the photograph is to be used and various other factors, which are the typical parameters photographers use when pricing an image.
Earlier, you said on your blog that when you turned pro, you decided to follow the advice of another photographer who said never to shoot anything again for free--even friends' parties. Is that a little extreme, or is it really that serious a slippery slope?
Her point was this is my only source of income now. That my friends and community would be the first people to understand that and want me to succeed, and many friends have since commissioned me to do work. The bottom line is, I have to make sure I am able to make a living. It's called survival. Having said that, I have always been, and will continue to be, generous with my photography. But it's my choice to make...I should not be forced into it.
I certainly can't speak for the band. They've made their choices and will have to live with them. I think if I hadn't raised the issue, sooner or later another photographer would have. I'm disappointed with some of the personal insults I've received from people who don't know me, but they've been more than offset by the support I've gotten from the photographic and tech communities. This issue isn't going to go away. I think this is just the start of the discussion. I wish I could tell you there's some great moral to this story, but really, I'm just going to keep doing what I'm doing and part of that is protecting the use of my imagery online.
Stephen Shankland writes about a wide range of technology and products, but has a particular focus on browsers and digital photography. He joined CNET News in 1998 and since then also has covered Google, Yahoo, servers, supercomputing, Linux and open-source software, and science. E-mail Stephen, or follow him on Twitter at http://www.twitter.com/stshank.
Also what kind of idiot photographer are you if you can't figure out how to do your own watermark. There are thousands of tools available some FREE (though I'm sure you don't understand that concept) that can do it for you. It takes about a second and if you are that anal about getting paid you should watermark your images.
If you don't want to pay someone for something, don't use it. Goodness knows there are alternatives. The Free Software community has gone to great lengths to see that /you/ have the power to create, and digital camcorders get cheaper every day.
So are you going to mooch, or are you going to compete this model that you seem to despise so much out of the mainstream honorably, with your own sweat and tears?
Six months ago, I thought the way you do now.
..and for the record, I think attribution is the right thing to do even with public domain works. If not for the creator, for the viewer. How many times have you heard some cool song in a clip and been left with no way to find out what it was or who it was by? That always bugs me..
I also love the 'on the advice of my lawyer' quote. So you mean to tell me that you actually got a lawyer involved (and paid him) over this issue?
Listen, if you are so concerned about your stupid pictures, don't post them on the internet on a public flickr account. Better yet, yu should continue to shoot in film and then you can keep your pictures in a box under your bed, Far away from the Internet Boogeyman who is trying to steal your livelyhood.
Oh, and I am sure 'perfect strangers' are thanking you for sticking up for your copyright rights. Give it a rest already.
pictures and not paying for legal use of them (that is the theft)
the bit they ran is promoting ONLY the band for sales. No
credits given to the artists who took the pictures. No royalties
paid to them or contracts were signed before the use of the
artwork.
This is the key point. Artists post their pictures at low res to
promote their works and services on the web with releases if the
pictures were taken of others.
Public squares (say city streets) where there already exist camera
systems and it is not considered a "private" area if you take a
picture from aloft (8th floor) you do not need to obtain 300
releases of everybody in the picture unless you crop in on
specific faces.
This case cited is parallel to ripping MP3's but for the profit of
another party.
Some of us have a heart and expect honesty in this world.
Putting a bug in the corner of pictures is a distraction if you ask
me from a lot of the pictures I've taken. The pain is cleaning up
the photos afterwards!
In response to the two bozo stealers who have just posted, I'm another stranger that supports what you are doing. I was fighting the copyright battle in the 80's just to get recognition for the work I had done. I wasn't even asking for money, just affirm that was MY photo that was being used. "Go back to film", yeah that makes sense. I was getting ripped off and I was using film. Didn't make a diff if it was on the net or not. People steal. Violating copyrights is stealing. Oh, I've got an idea!! No more pictures or music!! Yeah, that's what you all want... Cheapskate, ripoff losers.
You don't have to be obsessed with squeezing every cent out of non-profits to make a living.
http://www.techcrunch.com/2007/12/18/the-bubble-is-back/#comment-1854861
The funny thing about your response was that you claim you were developing on film and not posting your work but it would still be stolen from you? How is that? Was your work so fantastic that people were breaking into your home and stealing your images?
Get over yourself. 'People steal', wow, with a view like that of the world around you, it's no wonder people didnt want to bother with you to get your permission.
In this day and age of incredibly cheap and easy content creation tools and free distribution options, is there even a NEED for copyright any more? It also doesn't look like there's any dearth of people willing to create interesting content for FREE, so even the incentive justification doesn't seem valid any more.
Do you drive? Shower? Eat? You can thank me every day because my work helps makes those things possible. Some of my work is protected under copyright. Some of it under other laws that protect my profession which in turn is designed to keep the public safe, and some of it under laws about trade secretes.
Your painting, writing, photo's or whatever can give away some of my trade secretes and copyrights. But you know what? I really don't care because it does no harm. It's only when someone tries to replicate my work and earn money by copying my own efforts that harm is created. In my case to public safety more than my income.
Flickr is owned by Yahoo! so I thought I'd take a moment and look over both of their policies concerning the posting of photos and other items.
While they both acknowledge the information belongs to the submitter, they also point out that you are using Yahoo! space and as such Yahoo! can do whatever they want with the material in your account or with your account if need be.
2. How many other sites own your supposed "copyrighted" material. If you join Myspace or Facebook do you think your pictures are really yours? When you become a Sam's Club or a Health Club member then have your photo taken do you really think you own that photo? The same could be said for any place, digital or not, where you submit your material.
3. If you really want to protect your proprietary material invest in your own web server and web domain name so that you can claim people are actually stealing it from your site.
I'm not saying she was totally wrong for going after that group for using her picture, but I really think she went about it the wrong way and could have simply tried to negotiate with the band without getting all "legal" about it.
Frivolous lawsuits such as this clog the legal system, but thankfully she recently dropped the lawsuit.
Also, regarding copyright, just because something is copyable doesn't mean it's legal to do so, and the issue here is not whether Flickr and Yahoo may do something with your photos but whether a third party may. The ease of copying, whether from Flickr or one's own publicly accessible Web server, certainly means you're running a risk by making a photo available. It's easy to break the speed limit, too, but that doesn't mean you'll get off without a ticket if you get caught.
Have you ever converted a friend's CD into MP3 files for your own use? It's a lot harder to do than retyping a book and then selling the result, but in both cases it violates copyright. Personally, I like some ideas behind the Creative Commons licensing regime, which permits photo sharing within various limits, but I can see how a professional photographer might not want to go that route.
Here are some things Flickr has to say about the issue:
http://flickr.com/help/photos/?search=copyright#87
How can I copyright my photos?
In most parts of the world, including the U.S., Canada, EU countries, and Japan, you are automatically granted copyrights to your photos.
http://flickr.com/help/website/?search=copyright#24
What considerations have been given to copyright?
...
If you see your work in someone else's photostream, please submit a Notice of Infringement to the Yahoo! Copyright Team. Information on how to do this correctly is here, and there's a link in the footer.
http://flickr.com/help/general/#147
I'd like to use a photo I found on Flickr. How do I do that?
We don't act as matchmakers, so contact the photographer yourself. Only members of Flickr can send messages to one another, so if you haven't created an account, that's your first step.
As a member of Flickr, you can move your mouse over someone's buddy icon and click the little arrow to open the "person menu." Then select "Send FlickrMail" and compose your message. When you contact a photographer, it's best to include as much info as possible about the photo, yourself, and how you want to use the photo.
am able to make a living. It's called survival. Having said that, I
have always been, and will continue to be, generous with my
photography. But it's my choice to make...I should not be
forced into it."
The point is that she does help charity and good causes with
her work, when she's given the chance. How would you feel,
Mr. Engineer, if as an independent consultant, you found out
that work you'd done for a client was being sold by that client
to another vendor, without your permission and in violation of
the contract you had with them? Kinda puts things in
perspective, doesn't it? The bottom line is that if either of you
are not compensated for your work, you'll change professions
and soon society will soon have no one to provide that
service/skill. It's not about her slice of pie, it's about having pie
at all. Copyright is all about keeping that balance, and making
it easy for people to post notice when they expect
compensation, yet still allow them to give it away when they
choose.
She even said "I have always been, and will continue to be, generous with my photography" but that doesn't allow someone to take what is not theirs and then refuse to pay for it.
And a Doctor is not an engineer, but think about this for a second. Let's say you get your relative to look at your kid's ear, and this doctor relative makes a bad diagnosis and your kid winds up with a perforated eardrum due to unchecked infection. Do you think a Judge is going to compensate you or your kid for malpractice after you sought medical attention under the table?
waste of time
Again, this was a band who made a snarky little video to amuse people, not make money. The picture was shown for a quick second during the video.
The picture was available to the public for viewing. Nobody profited directly from the video. Seems like fair use to me.
A similar case is that we do not have Truth Laws in the US, but we do have libel laws which allow truth as a defense against a libel action.
That may seem like a small point, but it is critical to understanding a bigger problem:
Too many people interpret the term "fair use" to mean anything that they think is fair or equitable (such as "a one second use of a photo must be fair"), but in reality the term "fair use" has a very narrowly defined legal meaning in the context of copyright law.
intellectual "property" and other foul habits of
the Old World.
The New World, the one being born right now,
between humans freely communicating with each
other, will hopefully crush down every form of
selfishness. We need a new mentality of
cooperation and sharing, if we are to survive in
the rising New World.
The writers of the constitution and many others of the time, as well as lawmakers and courts for nearly 200 years afterwards, considered the idea of anyone being able to "own" an idea to be odious, and said so repeatedly. Haven't heard that in a while (since Disney et al took control of our government).
You are probably about 25 years old if that and have not met enough people in your life to understand how humans work.
That didn't happen. Communist experiment failed, many times in many places (including, strangely, first pilgrims settlements in North America). It required ideal people. Real people, though, needed fair compensation and material stimuli.
You cannot force people to give everything away AND expect them to be productive. Either this or that.
The entire intent of copyright and patent is to increase the widespread availability of new ideas for the PUBLIC to benefit from. It is explicitly NOT a property right, and confers no actual ownership - just a limited monopoly, for a limited time.
That the public believes otherwise is a testimony to the effectiveness of the propoganda campaigns from the major content corporations and their industry associations.
And yes people did make money off the video. Its not important who did. You tube isnt a non profit, they made advertising money.
The idea that all copyrights shouldn't exist in the "new world" is not really matching with the new world. YouTube and all the other companies that make up the new world exist and profit because of copyrights.
As was mentioned previously many of the opinions here are immature and not well thought out.
When you take away peoples ability to make money on their work you assure that there will soon be no content to steal. The folks who choose to give away their work are making their income some other way.
However in those photo's are copyrighted, patented, and tradmarked items.
It really isn't reasonable to post credits and seek permission on every item in a photo. The can of Coke, the design in the fabric on clothing, the landscape design, the parking lots engineering. These items are all protected and yet it's fair use to take a photo of them. Even if one person happens to be carrying a photo...
The YouTube video cost her nothing and copyright was designed to protect her ability to market her work for money. Nothing more.
If it really is about control she better sign up for a long hard fight to publish a photo because she's going to have to ger Coke's permission to use their tradmark, their Copyright permission, the Clothes maker's permission the Architects permission for the design on the building (which is protecte) the Engineers Permission for the use of his designed and patented lighting sytems light spread and color, the civil engineer design visible in the parking, building, and landscape, and so on.
You can take it too far way to easily. She's on the first step of the journey to make her own job hard.
http://www.danheller.com/model-release.html
Trust me - gets real murky, real fast. It can (and does) get complex when trademarks and people are involved.
IOW, the job is already hard. And ugly.
/P
Then that work is supposed to go into the public domain.
The point of copyright is NOT to protect profits.
The point is to encourage creativity and fill the public domain. A healthy public domain is one of the reasons our country grew so quickly. The perversion of copyrights in the last 50 years and thus the decline of the public domain is one of the reasons we are decaying so quickly.
This lady lost nothing. It is greed and stupidity on her part.
Public wealth created by said profits, in turn, feeds creative folks. In poor countries, those creative types just die out, because nobody would pay them anything. If you deny copyright protection, nobody would pay artists here, either.
http://lawgeek.typepad.com/lawgeek/2007/12/copyright-fair.html
TechDirt wasn't very kind to her argument either.
http://www.techdirt.com/
Copyright doesn't ensure you're right to make a living, it only exists to encourage "useful arts and sciences" and it has limits. Some uses of your work can be made without your permission or any compensation being paid.
excuses about how you have a "right" to steal is just more hot air.
And any artist is a creator. Stealing creation is still stealing. The
music group who stole these images for their own benefit
(publicity!) are simply thieves. No ifs, no buts.
Sometime later I decide to sell my house and post a video tour online. The picture shows up in the video and based on the video the house sells.
Is this moron somehow entitled to any profits I might make from the house?
Did I violate copyright.
No, fair use you say.
What if I got sick of the picture and sold it?
Does she have a right to any profit I might have made?
No, fair use you say.
Well, that is what this case amounts to, fair use.
She is greedy, and the only thing she will do is damage what little potential for a career as an "artist" she does have.
an issue of the print. That print is yours. You can do what you
want with it. Make a paper airplane out of it, emergency printer
paper (I hope not!) resell it years down the road if you wish.
That ISSUING is yours. The artist has already made their cut on
the initial sale.
As for house sales and artwork showing up. You are not using it
to sell other artists work. The couch is made by a company,
should they get a cut? No. Should JVC or Sony get a cut if you
see their speakers? No. If the home has a video tour you are
simply trying to sell the property the art does NOT come with it.
Buyers know this in 98% of the cases.
The last line is key. IF artwork (large statues, rare paintings)
were to come with it that may have a small bearing and you may
want a waiver from the artist so they don't go after a percentage
of the sale.
However, explain to me how the eye can see the details of a
painting or picture from 10-20 feet away? With the details
unclear when you fisheye a room, the artist won't have much
standing compared to a picture of the artwork alone where you
can make out all the details.
Remember; the initial argument was another artist took her
photo and used it in their video without permission or any
contract or agreement for use of such.
You are saying in your distorted argument that it would be fine
for me to use copyrighted material such as music (lets use an
overprotective band) say Metallica and mix it with video footage
I have, put it on my site. I'd have their lawyers on my door in a
few minutes for not having any form of contract to pay them for
use of song. This case is no different.
As long as we have the "Mickey Mouse" copyright laws these issues will continue to come up. We all know the copyright for Mickey may never go away. Just imagine is Shakespear could have done that.
- then if the pic is so important
-
by newgun2000
December 22, 2007 3:16 PM PST
- DONT POST IT ONLINE.
-
Reply to this comment
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(88 Comments)you know these computes copy pics with little effort. If i had a very valuable pic I would keep in to myself