Steal my content please, Part II

Turns out that the copyright issues surrounding photography in the Bubble video are still not resolved. Now other photographers are getting involved and asking for their images to be taken out of the video and are hoping for compensation. TechCrunch has an excellent article about the issues involved. I’ve taken a few images of Mike Arrington. You’re welcome to use them for free. You don’t even need to give me attribution, although that’d be nice.

The problem is that Flickr is part of the problem.

Why?

It’s hard to find the license on this photo. Even if I wanted to say “STOP, DON’T REUSE THIS IMAGE” it’s very hard in Flickr’s interface to make it that clear — instead you get a little tiny piece of text that says “all rights reserved.” Most human beings skip over that kind of text because it’s legaleze (tell me, what’s the last time you read the legal stuff that comes up when you install some software?)

I really wish Flickr would make it clearer. It’s SO easy to make a mistake and when you do photographers can hold you hostage for payment (an employee, not me, at PodTech once made this mistake — we used an image taken at our own party on a sign without getting the photographer’s approval. That photographer made us pay thousands of dollars for that image and if we had known it would have been so expensive we would never have used his images).

It’s also not possible for me to put this image into public domain, which is what I really want to do. I want to turn over all rights to my images to YOU so YOU can do whatever you want with them. I can’t do that in Flickr.

I wish Flickr made it a LOT clearer on the photographer’s wishes.

I also really like SmugMug a lot better because as a photographer it’s very easy to put a watermark across the image. For instance, here’s a photo where I added the word “proof” on top of the image. That makes it very hard to use without giving attribution.

If we’re going to have a world where photographers want to get paid, then they need to be a LOT clearer about how they would like those images used. If I were Lane, I’d make sure every image of mine had a watermark. If hers did, they never would have been used in the video.

In the meantime, I know that at PodTech we changed our approach to using images. We don’t use anything unless we have signed approval from photographers or other media developers. It sucks, but that’s the best way to protect your business against being sued (and, if you make a mistake the photographer can set any price he/she wants after the fact. It’s very hard to prove that an image is only worth $100 after the fact, and even if you could, the standard is that you’ll pay 3x the photographers’ rate if he/she has to go after you to get payment. In PodTech’s case negotiations started at $3,000 for an image that should have cost only $100 according to professionals I contacted).

Good luck out there. If you’re ever concerned about using my images, I’ll be happy to give you any legal approvals you need. If, for some reason (if I were commissioned to do a specific assignment, for instance), I don’t want you to use the images I’ll watermark them and put them over on SmugMug. But, generally, when I do assignments like that the copyright holder is no longer me and the copyright holder usually doesn’t appreciate their images being placed up on Flickr or other public photo sharing sites.

93 thoughts on “Steal my content please, Part II

  1. In the past, before all the blogs and such, the biggest copyright infringers I’ve ever seen/known have been (probably still are) Powerpoint mavens…sales people and speakers. How many presentations have you seen with images? Bet very, very few have ever gotten permission or even thought about it. I’ve always warned my clients that they need to rein in all infringment or they’re going to get burnt and as Robert mentioned, the damages are treble whatever the creator thinks they’re worth.

  2. Problem is, Flickr makes it trivially easy to infringe copyright. “I just need to right-click on this image, here…” Not to kick Flickr in the groin, because I believe that they are probably the innocent party, but seriously, without that capability, this would be a non-issue.

    Another possibility is that the image was “stolen” by someone else, left unattributed, and Richter Scales came by the third-party web-site, saw that it was unattributed, and just grabbed the image. Who knew?

    The web was created to allow, and indeed encourage, information redundancy. That means that there are going to be lots of copies of the same thing floating around all over the place. If this somehow does not fit into your business model…well, I don’t know what to tell you. It’s going to happen, regardless of any one person, or country’s intent.

    One thing I’m baffled by: how much money did Richter Scales get for producing their parody? I know they got over a million hits, but did they actually get paid anything? Does Hartwell deserve even 1/100th of whatever putative rewards came their way?

    This is having such a negative Streisand Effect…I just don’t see this going over well. I bet Lawrence Lessig is just burning to get in on this.

  3. Problem is, Flickr makes it trivially easy to infringe copyright. “I just need to right-click on this image, here…” Not to kick Flickr in the groin, because I believe that they are probably the innocent party, but seriously, without that capability, this would be a non-issue.

    Another possibility is that the image was “stolen” by someone else, left unattributed, and Richter Scales came by the third-party web-site, saw that it was unattributed, and just grabbed the image. Who knew?

    The web was created to allow, and indeed encourage, information redundancy. That means that there are going to be lots of copies of the same thing floating around all over the place. If this somehow does not fit into your business model…well, I don’t know what to tell you. It’s going to happen, regardless of any one person, or country’s intent.

    One thing I’m baffled by: how much money did Richter Scales get for producing their parody? I know they got over a million hits, but did they actually get paid anything? Does Hartwell deserve even 1/100th of whatever putative rewards came their way?

    This is having such a negative Streisand Effect…I just don’t see this going over well. I bet Lawrence Lessig is just burning to get in on this.

  4. @neil: your repeated use of the word ‘should’ isn’t helpful, and doesn’t scale. you *should* drive 55 miles per hour too, but if 90% of humanity is driving 65-70 and the other 10% is going even faster, how do you apply the legal penalty in any reasonable fashion?

    in general, lawyers are a means of last resort, not a primary solution. artists “should” probably be hiring web marketing consultants to promote their work, not lawyers to “protect” it by threatening to sue people.

    to paraphrase your last point: if you hire a lawyer instead of a marketer / salesperson, don’t whine when you get lawsuits & expenses instead of customers & revenue.

  5. @neil: your repeated use of the word ‘should’ isn’t helpful, and doesn’t scale. you *should* drive 55 miles per hour too, but if 90% of humanity is driving 65-70 and the other 10% is going even faster, how do you apply the legal penalty in any reasonable fashion?

    in general, lawyers are a means of last resort, not a primary solution. artists “should” probably be hiring web marketing consultants to promote their work, not lawyers to “protect” it by threatening to sue people.

    to paraphrase your last point: if you hire a lawyer instead of a marketer / salesperson, don’t whine when you get lawsuits & expenses instead of customers & revenue.

  6. “Most human beings skip over that kind of text because it’s legaleze”

    Most human beings don’t want to use my photographs for their own purposes, either. If you want to use somebody else’s work, you should do due diligence to find the licensing terms.

    If you want to use somebody else’s work and the licensing isn’t clear, then you should contact them to discuss terms rather than stealing it. Full stop.

    If you use somebody else’s work without doing these things, don’t whine when their lawyers contact you.

  7. “Most human beings skip over that kind of text because it’s legaleze”

    Most human beings don’t want to use my photographs for their own purposes, either. If you want to use somebody else’s work, you should do due diligence to find the licensing terms.

    If you want to use somebody else’s work and the licensing isn’t clear, then you should contact them to discuss terms rather than stealing it. Full stop.

    If you use somebody else’s work without doing these things, don’t whine when their lawyers contact you.

  8. I’ve pilfered more than my fair share of images for my blog, but never from Flickr, because Flickr is clearly a place for people to share their photos. Flickr isn’t a stock photo repository, and I don’t think it should be treated as such.

    I think a lot of us do play fast and hard on the net when it comes to copyrighted images, but I also think it’s not fair to blame Flickr for our negligence. It’s up to us to have better sense than to take photos from professional photographers and pretend they’re cheap stock photos.

  9. I’ve pilfered more than my fair share of images for my blog, but never from Flickr, because Flickr is clearly a place for people to share their photos. Flickr isn’t a stock photo repository, and I don’t think it should be treated as such.

    I think a lot of us do play fast and hard on the net when it comes to copyrighted images, but I also think it’s not fair to blame Flickr for our negligence. It’s up to us to have better sense than to take photos from professional photographers and pretend they’re cheap stock photos.

  10. If a picture is for “commercial use” you need a model release from each recognizable person in the picture. Not sure if The Richter Scales is a commercial enterprise.

    Yes and no. It depends on the commercial use. For both editorial and artistic pursuits you generally do not.

    For instance. I can take a photograph of anyone I want without a model release and publish it in a for profit newspaper or magazine.

    The courts have also offered artists much broader protection for commercial use. When Erno Nussenzweig, a New York Hasidic Jew, tried to sue artist Philip-Lorca DiCorcia for unauthorized commercial use of his likeness (DiCorcia sells his photographs for thousands of dollar) the courts upheld that as the purpose of the photograph was artistic that DiCorcia did not need a model release.

    In other cases where there is no artistic or editorial redeeming value model releases are needed. For instance, you can’t take a photo of Robert Scoble and then put it on an advertisement that says Robert Scoble uses Crest toothpaste.

    In the case of TRS, a fairly easy case could be made that their use of these imagery was both editorial commentary as well as artistic pursuit and thus no model releases would likely be needed for this use.

  11. If a picture is for “commercial use” you need a model release from each recognizable person in the picture. Not sure if The Richter Scales is a commercial enterprise.

    Yes and no. It depends on the commercial use. For both editorial and artistic pursuits you generally do not.

    For instance. I can take a photograph of anyone I want without a model release and publish it in a for profit newspaper or magazine.

    The courts have also offered artists much broader protection for commercial use. When Erno Nussenzweig, a New York Hasidic Jew, tried to sue artist Philip-Lorca DiCorcia for unauthorized commercial use of his likeness (DiCorcia sells his photographs for thousands of dollar) the courts upheld that as the purpose of the photograph was artistic that DiCorcia did not need a model release.

    In other cases where there is no artistic or editorial redeeming value model releases are needed. For instance, you can’t take a photo of Robert Scoble and then put it on an advertisement that says Robert Scoble uses Crest toothpaste.

    In the case of TRS, a fairly easy case could be made that their use of these imagery was both editorial commentary as well as artistic pursuit and thus no model releases would likely be needed for this use.

  12. @4 I made this same point on another forum. You are free to shoot people without need for a model release. Where the need comes in is based on usage of the photo. If it is used for editorial or personal uses, no model release is needed. If it is used for commercial purposes a model release may be needed. So Richter Scale may have opened themselves up to liability not only from Lane for stealing her photo, but also from all of the people pictured in their video. Those people could conceivably come after Lane also, even though she did not consent to the commercial usages of the image. Land NEEDS to pursue this issue legally to protect her liability.

  13. @4 I made this same point on another forum. You are free to shoot people without need for a model release. Where the need comes in is based on usage of the photo. If it is used for editorial or personal uses, no model release is needed. If it is used for commercial purposes a model release may be needed. So Richter Scale may have opened themselves up to liability not only from Lane for stealing her photo, but also from all of the people pictured in their video. Those people could conceivably come after Lane also, even though she did not consent to the commercial usages of the image. Land NEEDS to pursue this issue legally to protect her liability.

  14. Robert, If I’m not mistaken, Lane’s photo was taken from a client of her’s web site where it was legally posted. Lane had little to no control over the security of her photo, even though she still owns the copyright. A watermark would not have been an viable solution in this case protect the image. I suppose she would have some legal ground to go after the client for letting her image get stolen. Probably not a viable alternative either…

  15. Robert, If I’m not mistaken, Lane’s photo was taken from a client of her’s web site where it was legally posted. Lane had little to no control over the security of her photo, even though she still owns the copyright. A watermark would not have been an viable solution in this case protect the image. I suppose she would have some legal ground to go after the client for letting her image get stolen. Probably not a viable alternative either…

  16. I think the problem lies with the content producers as well (although users need to understand CC, etc). Lane could have chosen a service more conducive for professional photographers, e.g. Smugmug. If you’re that touchy about it, use the right safeguards.

  17. I think the problem lies with the content producers as well (although users need to understand CC, etc). Lane could have chosen a service more conducive for professional photographers, e.g. Smugmug. If you’re that touchy about it, use the right safeguards.

  18. watermarking is nice and dancy and I use “URL to the blog” as watermark on my doodles but what when somebody removes this copyright/watermark and place it on his blog servers – as Jason Calacanis did to me? How come this is not copyright violation?

    please note also that perez hilton – the number one blogger in the world uses other people’s images a lot but at least he links to the source…

  19. watermarking is nice and dancy and I use “URL to the blog” as watermark on my doodles but what when somebody removes this copyright/watermark and place it on his blog servers – as Jason Calacanis did to me? How come this is not copyright violation?

    please note also that perez hilton – the number one blogger in the world uses other people’s images a lot but at least he links to the source…

  20. That YouTube “piano playing cat” is playing a song I wrote and have a copyright on… I’m waiting for the cat to get signed by a media company before I move in to protect my “rights”.

    The best outcome from the Lane Hartwell exercise in “Internet Rights Management” will be that more people understand concepts like “Fair Use”, “derivative work” and that lawyers expect to be paid… and they cost more than photographers.

    I think Lane’s going to eat the legal costs in the end but she will probably continue to fund the “good fight” to control the use of her work.

    http://www.copyright.gov/fls/fl102.html

    “The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.”

    True. But I still think it’s better to ask forgiveness than permission for community donated “art”. Why give power to others over art when “Fair Use” extends protections that can be assessed based upon 4 factors:

    1.the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

    2. the nature of the copyrighted work;

    3.amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    4. the effect of the use upon the potential market for or value of the copyrighted work.

    The Richter Scales guys are a non-profit, they do benefits gigs and they sell a few CD’s. The act of creating the music video in question probably took a lot of free time away from family for a guy that has a day job.

    Re-generating the video with a new image after the DMCA take-down cost another round of invested hours.

    Let’s support legal use of cultural artifacts in “folk art”

    EFF: “Free the Richter Scale”

    NOTE: the contested image and 10 others are still available for derivative works at:

    http://blog.wired.com/business/2007/05/geeks_and_suits.html

  21. That YouTube “piano playing cat” is playing a song I wrote and have a copyright on… I’m waiting for the cat to get signed by a media company before I move in to protect my “rights”.

    The best outcome from the Lane Hartwell exercise in “Internet Rights Management” will be that more people understand concepts like “Fair Use”, “derivative work” and that lawyers expect to be paid… and they cost more than photographers.

    I think Lane’s going to eat the legal costs in the end but she will probably continue to fund the “good fight” to control the use of her work.

    http://www.copyright.gov/fls/fl102.html

    “The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.”

    True. But I still think it’s better to ask forgiveness than permission for community donated “art”. Why give power to others over art when “Fair Use” extends protections that can be assessed based upon 4 factors:

    1.the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

    2. the nature of the copyrighted work;

    3.amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    4. the effect of the use upon the potential market for or value of the copyrighted work.

    The Richter Scales guys are a non-profit, they do benefits gigs and they sell a few CD’s. The act of creating the music video in question probably took a lot of free time away from family for a guy that has a day job.

    Re-generating the video with a new image after the DMCA take-down cost another round of invested hours.

    Let’s support legal use of cultural artifacts in “folk art”

    EFF: “Free the Richter Scale”

    NOTE: the contested image and 10 others are still available for derivative works at:

    http://blog.wired.com/business/2007/05/geeks_and_suits.html

  22. I guess part of the problem is that a photo is often worth more when the copyright is infringed, than if it was offered to be licensed in the first place. So, a photo that might be worth only a few dollars in the open market, can be worth thousands (or even more) to a photographer that can prove their copyright has been infringed. That’s just the way the law is – for right, or wrong.

    For commerical use, I often use photos from iStockphoto – the license terms are clear; and the prices are reasonable.

  23. I guess part of the problem is that a photo is often worth more when the copyright is infringed, than if it was offered to be licensed in the first place. So, a photo that might be worth only a few dollars in the open market, can be worth thousands (or even more) to a photographer that can prove their copyright has been infringed. That’s just the way the law is – for right, or wrong.

    For commerical use, I often use photos from iStockphoto – the license terms are clear; and the prices are reasonable.

  24. So how does this all work anyways, for images on the web? I mean, the way browsers work is they copy the images down to a temporary directory on the client system. “All rights reserved” would presumably mean that this implicit copy wasn’t allowed, so that can’t be right. So either the web, as currently implemented is violating copyright on virtually every image on every webpage, or there’s at least an implicit right granted.

  25. So how does this all work anyways, for images on the web? I mean, the way browsers work is they copy the images down to a temporary directory on the client system. “All rights reserved” would presumably mean that this implicit copy wasn’t allowed, so that can’t be right. So either the web, as currently implemented is violating copyright on virtually every image on every webpage, or there’s at least an implicit right granted.

  26. I sure hope so for their sake, cause the same thing goes for trademarks. Ford, Facebook, In ‘n’ Out, Krispey Kreme, etc. I’m amazed there have been no complaints along that line.

    I don’t see any indication of them being a non-profit. And when I go to buy their CD there is no indication there either.

  27. I sure hope so for their sake, cause the same thing goes for trademarks. Ford, Facebook, In ‘n’ Out, Krispey Kreme, etc. I’m amazed there have been no complaints along that line.

    I don’t see any indication of them being a non-profit. And when I go to buy their CD there is no indication there either.

  28. If a picture is for “commercial use” you need a model release from each recognizable person in the picture. Not sure if The Richter Scales is a commercial enterprise.

  29. If a picture is for “commercial use” you need a model release from each recognizable person in the picture. Not sure if The Richter Scales is a commercial enterprise.

  30. I was wondering about that. You need permission from the photographer, but do you also need permission from the person in the photograph as well?

  31. I was wondering about that. You need permission from the photographer, but do you also need permission from the person in the photograph as well?

  32. Robert:

    This is another Mike. Because of my non-existent programming experience, pardon the newb quesiton but:

    Is there a way for Flickr to post the image normal and if its downloaded, copied or taken from the site it can be watermarked in that transfer. (Copying would be difficult but id imagine that if you hit download there would be a way to add a few lines to watermark it).

    Would that be at least some middle ground: You can see the image non-watermarked (as mike above points out in its beauty) but when you take the image it becomes watermarked.

    Id love to hear your thoughts on this. Thanks!!

  33. Robert:

    This is another Mike. Because of my non-existent programming experience, pardon the newb quesiton but:

    Is there a way for Flickr to post the image normal and if its downloaded, copied or taken from the site it can be watermarked in that transfer. (Copying would be difficult but id imagine that if you hit download there would be a way to add a few lines to watermark it).

    Would that be at least some middle ground: You can see the image non-watermarked (as mike above points out in its beauty) but when you take the image it becomes watermarked.

    Id love to hear your thoughts on this. Thanks!!

  34. I’m wondering how long it will be before someone realizes that they’re also going to need model releases for those pictures.

  35. Hindsight vision is always 20/20. She’s moving her images to another photosharing service to do watermarking automatically. I don’t know much about Flickr but seems they may have a mass exodus if they don’t get this functionality added (or easier to use), at least for more pro oriented crowd.

  36. Hindsight vision is always 20/20. She’s moving her images to another photosharing service to do watermarking automatically. I don’t know much about Flickr but seems they may have a mass exodus if they don’t get this functionality added (or easier to use), at least for more pro oriented crowd.

  37. “If I were Lane, I’d make sure every image of mine had a watermark. If hers did, they never would have been used in the video.”

    And she would never get contacted about licensing the photos by anyone who saw them at Flickr either, because they’d be ugly as f*#$! Your example is one ugly photo because of the word splashed across the center of it, if I’m going to license a photo I don’t want to have to imagine what it would look like without the watermark, not when there are hundreds of similar photos that don’t have one available for me to browse.

    That being said, making them private guarantees pretty much the same outcome, so that’s not a great answer either.

  38. “If I were Lane, I’d make sure every image of mine had a watermark. If hers did, they never would have been used in the video.”

    And she would never get contacted about licensing the photos by anyone who saw them at Flickr either, because they’d be ugly as f*#$! Your example is one ugly photo because of the word splashed across the center of it, if I’m going to license a photo I don’t want to have to imagine what it would look like without the watermark, not when there are hundreds of similar photos that don’t have one available for me to browse.

    That being said, making them private guarantees pretty much the same outcome, so that’s not a great answer either.

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