Copyright And Photography On The Internet

- - Photography Business

So, it appears this story where photographer Lane Hartwell asked YouTube to remove a video, created by The Richter Scales, under a DMCA take down order is not going to get resolved quietly. I think they could have paid her a fee and removed the image and gotten on with their lives, but we shall find out in the coming days when she posts her side of the story.

Uber blogger Michael Arrington over at TechCrunch decided to make it front page news (here) with the same laughable fair use defense those Richter Scales tried but if you read through the lines it seems to be more of a case that a video everyone liked and Michael was featured in is not longer available and he’s pissed-off about it.

Michael ends his post with this Web 2.0 fairy tale:

Societal ideals around what constitutes ownership over art are changing. People who try to protect and silo off their work are simply being ignored. Those that embrace the community, and give back to it not only allowing but asking for their work to be mashed up, re-used and otherwise embraced are being rewarded with attention. At the core is a basic implicit understanding – if you want to be part of the community, you have to give back to it, too.

Dude, are you drunk? Content is king. People who steal work to mash it up and don’t attribute or pay their sources are dicks.

A cursory reading of the comments shows the usual dreck like “it’s the internet, get over it” or “your photos suck why would you care” or even better “it’s an awesome marketing opportunity that you should have taken advantage of.”

Here are a few of the better comments:

Amie Gillingham

December 16th, 2007 at 5:37 am

We shouldn’t be clamoring for such an erosion of ownership rights just because we all loved the end result. Permission is everything!

and

Paulo

December 16th, 2007 at 7:34 am

Er Mike, aren’t you supposed to be a lawyer? Grab a clue, man.

Those who can, create. Those who can’t, steal.

and

DT

December 16th, 2007 at 5:45 pm

The whole “you shouldn’t post your work on the Internet if you don’t want it stolen” argument seems like a path to a pretty depressing society. If you don’t want your wallet stolen, don’t carry it with you. If you don’t want your car broken-into, don’t park it on the street. If you don’t want your house burglarized then don’t have windows…

[...]Here, we all gain when artists put their work on the Internet. We can view their work from thousands of miles away and gain an appreciation for it. She can sell prints, I can send her feedback, etc. Everybody ends up happier.

The general public’s misunderstanding of copyright is not what’s disturbing here, it’s that influential bloggers like Michael and Robert Scoble (here), who should be leading by example, seem to think we should throw it out the window in favor of some type of web 2.0 community empowerment. I just don’t see the upside for anyone when the original creator of a work cannot be found.

Update: Lane Hartwell statement (here). Here’s a highlight:

The band did not remove the image from the video when I brought it to their attention and instead they told me they had the right to use it. They could have easily apologized, removed the video from YouTube and re-edited without my image and reposted.

Photography is my livelihood. It’s how I pay my bills. I’m not treating the band any differently than any other group that uses my work without my permission.

There Are 48 Comments On This Article.

  1. I generally agree with APE, however I think fair use is a valuable concept. I’m not sure how to apply fair use safely to photography. In music it is generally considered that a 30 second clip is fair use because it satisfies two of the four criteria for fair use. Photography seems trickier. I wouldn’t be so quick to dismiss a fair use claim in this case. As you pointed out, commenters are generally uninformed clowns, this one included.

  2. I dislike this mindset, that if it is on the internet, it is fair use and you do not own it any longer.

    I had a well known blogger rip a blog page of mine (that was undergoing a rewrite as it happened) and put it front-and-center of his know-it-all blog about our industry. When I asked him to remove it, he gave me the same load of belligerence that Arrington used as his argument against Lane Hartwell. He then berated me for trying to change history.

    It will be very interesting to see how the Lane Hartwell/Richter Scales story ends.

    I know that I am very careful about what I write and place on a blog or forum or my own site.

    Jeff Sedlik (http://www.sedlik.com/) had a huge problem with people ripping his Miles Davis images from his site. At one point, his site was invitation only.

    Arrington and Tech Crunch make very good bank from all those sweet ads on his blog. He can create controversy, get written up in Wired and continue to generate income while people go to his blog his read his drivel about copyright and creativity all the while his little cash register is going “ka-ching” from each visit or click-through.

  3. @2 (Pablo): Um, no. You can’t simply use a 30 second clip of music and claim fair use any more than someone can use one of my photos and claim fair use because they made it only 200 pixels tall. There are many more factors that go into deciding fair use. And that’s a perfect example of the kind of situations we have today, where people mistakenly think they can use a photo (or other intellectual property) for their purpose, as long as it meets some criteria they’ve heard about that worked as a fair use excuse in a particular situation before.

    Much of the bigger problem, in my view, stems from the fact that the DMCA and DRM unfairly prevent people from making lawful copies of things for legitimate fair use purposes, and so there are outspoken opponents of such over-reaching copyright protection, as there should be. But unfortunately, people who are against the DMCA and DRM in the interest of protecting the fair use doctrine find themselves on the same side of the argument as people who want to make illegal copies.

    And this confuses the issue for your average blogger, youtuber, and uninformed college kid who thinks they are in the right when they copy. After all, if well-meaning organizations like the EFF are fighting against over-reaching copy protection, then ignoring copyright can’t be bad, can it?

  4. APE: This quote,

    “Dude, are you drunk? Content is king. People who steal work to mash it up and don’t attribute or pay their sources are dicks.”

    caused me to spit coffee on my Eizo. Thanks for the morning cheer.

  5. scott Rex Ely

    Look it is very simple to explain. Licensing an image is just like renting a car. You pay for the use of the car and then you bring it back when you’re done. Using someone’s image without permission is just like joy riding in the same rental car without paying any rent. Value is reduced, therefore you have infringement. What the hell is so hard to understand here?

  6. This whole thing is such a crock of shit. They used the photo. They didn’t ask. Now they’re looking (successfully) for free press and LOVING IT. (case in point – who the hell ever heard of the richter scales before this crap broke out??)

    OK so let’s review our copyright law knowledge:

    In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

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

    (last time I checked, the Richter Scales weren’t a nonprofit, nor were they an educational organization)

    the nature of the copyrighted work;
    (it’s a photograph… actually, couldn’t Billy Joel sue them for using his melody, assuming they didn’t have prior permission?)

    the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (they used the entire photo – it wasn’t a cropped piece of it)

    the effect of the use upon the potential market for or value of the copyrighted work.
    (well, normally a photographer would be paid for the inclusion of one of his/her works in a music video, so considering they used it for free, I would say that brings it’s market value down to $0 per use)

    In Michael’s own, misguided words:

    In this case, the inclusion of the photo in a parody work would almost certainly be held by a court to be fair use, the attorney said.

    Sorry Michael – that would hold up if it were a satire of the photo itself, but they used it as a punchline to satirize a social/economic condition. For example, LHOOQ is a satire about the mona lisa itself. That isn’t the case here. The bad political satire music is not about that photo. Go back to law 101, dude.

    Maybe I’ll just download all his writings and publish “The Michael Arrington Reader”. It would be a great act of satire of the US copyright system, wouldn’t it?

  7. Understanding why fair use exists should be a part of the discussion. The whole point seems to be so that artwork can be used for education and so that artists may stand on the shoulders of other artists. The intentions of the law are good so the intended use should be as well.

    @1 Gem: The Richard Prince material doesn’t bother me as much as it probably should. I think just because it seems so surreal to me that people buy that type of thing.

    @4. Matt: The question of photographing architecture illustrates that example well. You wouldn’t credit them because your work is a derivative of the architects and you are using only a portion to create your work.

    Arrington subtly drops a line in the comments that Richter Scales created a work of art. I guess that’s central to the argument, whether or not it’s art. Thinking about that makes my head hurt.

  8. Here’s an example of something that happens hundreds of times hourly in the blogosphere. When I read this post last December on a popular blog, a post which I’m sure was made completely innocently by someone who didn’t realize he was doing anything wrong, it bothered me:

    http://xo.typepad.com/blog/2006/12/what_britneys_c.html

    This blogger posted photos that were making the rounds showing Britney Spears flashing her pantie-less crotch at a paparazzi’s camera. Of course paparazzi photos of Britney’s crotch are not exactly high art, and there is probably a debate to be had about the merits/ethics of stalkarazzi as a profession. But still, some hard-working photographer took that photo, and is trying to make a living by licensing publication rights. I highly doubt that this blogger properly licensed it. And yet, he boasts about how posting it on his site caused such a spike in traffic that it “worked wonders for my ads bringing in a weeks worth of revenue in just 2 days.”

    Maybe an argument could be made that publishing the photo was necessary in order to discuss the merits of such a photo, which might be considered fair use. But this blogger posted several such photos over three days, far beyond what was needed to make his point. And he didn’t even credit the photographer. He just used the photos in violation of copyright, and profited.

  9. i bet they would be pretty fast in getting out their lawyer hats if someone would take the stuff they write and just plain ctrl-C ctrl-V it into a blog of their own and not quote them.

    @matt: did all the people we shot architecture for credit us?

  10. Oh yeah, and another misguided statement from Mr. Assington:

    “Copyright is a structure around prohibitions, not permissions, he says. That means it lays out rules for things people cannot do with your work – it does not give you the right to demand permission before any use is made.”

    Actually Michael, it IS about permissions or “authorization”… to quote the Stanford Copyright & Fair Use description above:

    “Copyright infringement occurs whenever copyrighted material is transferred to or from a website without **authorization** from the copyright owner.” [emphasis mine]

    So, get a clue dickhead. The video wasn’t that good so stop your whining.

  11. @ Matt:
    Last time I checked, architecture isn’t very well protected under copyright law.

    From:
    http://courses.cs.vt.edu/~cs3604/lib/Copyrights.Patents/Buchholz.poster.HTML

    “As it turns out, fewer than 100 buildings in the United States are officially trademarked. It should also be noted that when a building is copyrighted then pictures and other reproductions are explicitly protected.”

    So just know which those 100 buildings are and you don’t need to worry unless you’re building a copy of the structure.

  12. It’s funny that Arrington is OK with “fair use” of a photo, but I remember a while ago, some website basically copied Tech Crunch’s design and he got all up in arms about it. Theft is theft.

  13. Re: buildings — Note that there is a big difference between trademarks and copyrights. The existence of trademarks in some buildings aside, I believe that copyright, at least as far as photography goes, just doesn’t apply. As to the “rock and roll” case pointed to, check out an analysis of the appeal at http://cyber.law.harvard.edu/bridge/Philosophy/kent.htm.

  14. I think this is the main point a lot of comments seem to miss (comments on TechCrunch, not here):

    > I just don’t see the upside for anyone when the original creator of a work cannot be found.

    I so agree with this statement. All the clueless folks talk like she’s getting more PR than she’s ever had. Well yeah, BECAUSE SHE CALLED THEM ON RIPPING HER OFF. If she hadn’t done that, no one would have even knew her photo was in there, and there’d be no benefit to her at all. And for the folks saying she can point to it in her resume and get PR value that way are just as clueless because she was never informed herself (at least that’s what I understand at this point) of the use of the photograph.

    It’s common sense that they benefited from her photo, and she got nothing in return. Furthermore, it extremely suspect that this falls under fair use in my honest opinion, but we’re going to need a few really big, really well-known, and very transparent mishaps to happen like this before people get a clue.

    I think the reference to samples in music is a good one actually. There was a period of time where people sampled without worrying about it. Then some big-time legal precedents were set, and now no one does it on a major album release without clearing it first.

  15. Not to take this further off-track into the building-copyright angle, but it gets more complicated when your sky-line includes building-sized shapes of art, such as the controversy over who could photograph Chicago’s Cloud Gate, the giant “egg” in the middle of Millennium Park, and for what purpose.

    I would be fine with the anti-copyright zealotry of the Bay Area Scoble-ites if it wasn’t used in such obviously self-serving and hypocritical ways. Scoble cries “steal my work!” but he just means his photography, which is no more than a hobby to him. He’s not offering anyone free use of his book in, say, a freely distributed anthology.

  16. The Richter Scales – Bad dog. No biscuit. It’s always polite to ask permission… and it’s also the law. Send Lane Hartwell a dollar to cover the value of her photo.

    Lane Hartwell -Thank you for standing up for your copyright but, take the dollar.

    Owen Thomas – You’re a gentleman. It was your face that they’re fussing about and you’re the only one not whining. Thanks.

  17. Fair Use is for “criticism, comment, news reporting, teaching, scholarship, and research.” The only time fair use really applies to art is typically criticism/comment or, for photographers, news reporting.

    Commercial uses are also generally not covered. (Such as, let’s say, promotional materials for a band for example.)

  18. I am always flogging a dead horse. I got into in on my blog last year this time calling out another blogger for appropriating a picture on his blog. Of course the distinction between fair use and appropriation is sliver thin sometimes, my point was that I think a lot of what we might call fair use is riding on coat-tails, IOW, posting something about someone really really good when you are not at that level, it obviously is not going to do the artist who is getting ripped off any good to see their pic on your well meaning but inconsequential blog. (and this blog was not inconsequential, but I still think it was riding on coat-tails to an extent. There were other ways to illustrate the point.)

    In other-other words, do I get to “use” or “perform” shall we say works from other artists on my site just to get hits? To raise my technorati? I always feel a twinge talking about other peoples work and posting photos of theirs which I try to avoid, since it is not up to “me” what I get to post. Well fair use, say for education makes sense. But so little of what passes on blogs is “education” it is all “interesting so I thought…” which is only a step above myspace friends.

    As far as copyright goes my opinion is that when it works, great. But we have these here internets and clearly it is not working. I regularly search google for my pictures and they come up all the time scraped off NYT. Yes, credited, but I am never contacted. And the old excuse is everyone else does it.

    I think artists on the web have to give some thought to this, just how can we actually make money instead of simply feeding “interestingness” for others. Because big media absolutely will monetize this space, that is what this writers strike is all about. Will the writers get a piece of online delivery? So far the only people to make money online are the distributors, the aggregators, etc. But here we are making this shit and giving it away for free to get attention. Seems like it is lowering the value of “work” overall, or making it so that only “stars” or those who attain a level where attraction matters are going to make money. The middle-ground will not.

  19. @ #7 who wrote: “Using someone’s image without permission is just like joy riding in the same rental car without paying any rent. Value is reduced, therefore you have infringement. What the hell is so hard to understand here?”

    —-

    As long as the technology allows such easy lifting, as in “just drag and drop onto your Desktop”, or even the more difficult “Command Shift 3″, the uneducated, (or lazy), (or devious), will continue to lift images.

    And I can’t imagine Apple Computer discontinuing Command Shift 3 or 4.

    Some internet technology makes it at least harder to steal images, but until it’s virtually impossible, it simply will continue.

    Education is good, but until technology steps in and helps prevent this, I can’t see it changing.

  20. @26-copying is one thing, appropriation is another. All technologies make it “easier” to do things, you are right, that is not going to go away. No one has a job as a biblical scribe anymore (but I heard they made ‘bank ‘fo-shizzle).

    But I don’t think you can make the justification that just because Apple offers a feature it’s indiscriminate use is ok in any circumstance. This is the kind of lazy web 2.0 thinking that got the creators of that video in trouble. They thought that they didn’t really have to bother too too much to get permission from the creators of all that content to do the parody.

    Ever wonder why the credits of a movie are so long? And why there are always in the order they are in-because someone negotiated that! Big surprise I know, but every appropriated song, film clip, video clip, artwork, etc was cleared by rights and permissions. It is a huge task, too bad it cripples our “creativity.”

    I think a lot of people want to hide behind lazyweb standards and “claim” they are “creating” when the reality is, yes, it is a lot harder to get permission, but much much harder to be forgiven.

    It is not the “job” of technology to “police” the web. Tech is inert, it has no agenda per se. There are good uses and bad uses of everything. It is up to US to decide how we want to allow or deny our work to be used, distributed, credited, etc.

    And no, I don’t think the Richard Prince example is relevant here, certainly you can look at it out of context and say, what is the difference, but the context of what he did was just as important as the image he was appropriating, and as important as the meaning he was creating with it. There was a quote floating around where Prince said something like “he didn’t think of advertising as having an author” or something similar, and that is very interesting. On the one hand he is absolutely wrong, images have “creators” but you have to go back to the context of what he was doing at the time, tearsheeting magazines for Time Inc. and essentially that means ripping out all the ads to leave the “content” to send tears to the contributiors, so at the end of the day he was left with all this “trash” which he reused in his own work. Fast forward twenty five years and now with our over-commercial culture you could argue that a commercial photographer is an (art) star in a way that they never were in the 80′s, with few exceptions like Avedon, Bailey, Skrebneski, etc. The crossover is more common, meaning either art has gotten very lazy or advertising has gotten very good.

    We all look at people like Warhol in terms of appropriation and say, well what is the difference, and the difference is the culture, it is not revolutionary anymore to appropriate the lo-culture and deposit it on the doorstep of the hi.

    With regards to the video in question, it is funny, for about as long as it lasts. It is nice to see all those guys in ties (GITS) on covers of Business 2.0 put to some funny use. Which is enough it seems in a youtube universe. The issues it brings up however have more to do with the kind of creative work a culture can develop and sustain when that culture is essentially bloated and gaseous at the dinner table. Endless mash-ups of other more interesting work doesn’t really cut it long term.

  21. Robert,

    I am a commercial photographer like you. I am certainly not condoning the practice. But my point was, in terms of the masses out there, if you CAN do it, then they WILL do it. Whether it’s easy file sharing of songs, or bluetoothing files back and forth from PDA to PDA, or doing ScreenGrabs.

    Yes, I do believe that Technology can find a way to make it not possible. For example, if i buy a song on itunes on one of my Macs, and then move it over to another one of my Macs, iTunes prompts me for a password to make sure that i PAID for that song. If I don’t have the password, I’m out of luck. No song played. Pure and simple. Technology provided the solution.

    In my neighborhood, the city can put up speed limit signs til they’re blue in the face, and people still speed right thru them, because they CAN. There are no external limitations for force the change. But, if the city then comes along and installs speed bumps in the road, whether out of plastic or out of asphalt, then, miraculously, people slow down, because they don’t have a CHOICE.

    We’ve all seen those websites where, if you run your mouse over the image, you get a copyright warning, or worse, the image goes BLACK. So yes, that does slow someone down, (until they realize that they’ve only got to resort to Command Shift 4, then crop it, then drag thru it.

    Technology is the answer. Force is the answer. Not education. How did education work with Napster? Don’t answer that.

    Again, I’m on your side.

  22. @29-all good points, there is a lot to debate there, the efficacy of DRM schemes, the nature of freedoms vs. prohibitions, etc.

    So does that mean that the technology has actually created a world where more restrictions are required to be a good citizen, or has the citizen abrogated his or her burden to use technology responsibly?

    It would be ironic if the technology we create to “free” us of certain drudgeries and limitations creates less freedom and more limitations.

    Force vs. education is an interesting dichotomy. Or enforcement vs. education. And especially with regards to “the masses.” How often do we see some overly restrictive measure put into place because of the actions of a very few? So it is tricky. You don’t want to live in a police-d state, although to a large degree we do. I think there is a distinction to be made between the case at hand here, the posted video, and whatever appropriation is going on in “the masses.” I think I don’t care too much if johnny schoolboy lifts my picture off the web for his book report, neither autie mae making a calendar of my nifty macro photography. That kind of appropriation is fine by me. What irks me is people leveraging other creative works to make their bones, and you can’t tell me that ANY form of technological enforcement is going to stop that-remember we are talking about savvy creative people, not auntie mae here who gets her mail on AOL. Any DRM is going to fail miserably, and only serve to make things difficult for the large mass of innocent users, or if not innocent, not a threat to me.

    My concern is only the value of creative works on the web, and this is something that needs negotiation, and probably litigation to determine. You can build all the web speed bumps you want, but to my mind, it still is education in the form of a realistic understanding of what the benefit is, what the harm is, and what the money does.

  23. -but, if someone could come up with a really good watermarking scheme tied to a rights clearing house like what music has with ASCAP I guess I would be in. Of course it would fail a lot, but it might generate a payment possibility. Like micropayments. Guess we are on the way to an alternative form of currency aren’t we.

  24. Robert,

    In terms of our images on the web, the real car analogy is that we’ve parked our car on a public street, left it running with the keys in it, and spray-painted a note on the hood, saying “Steal Me”. Because it’s just that easy to drag and drop an image off of a website.

    In terms of education, do you not think that a million college students who were swapping “free music” over Napster were not “educated” that what they were doing is/was illegal? So clearly, education provides no solution to the problem. Same with copying DVDs. Yes, it is about force. And in our case, it’s about a technological solution.

    Clearly, to speak to your question, yes, absolutely, the citizen has made a clear choice to ignore copyright law. “Music is free, man. So are those pictures. It’s digital, man, it didn’t cost you anything. Want a toke?”

    If a person absolutely knew that a small bomb would explode inside their G5, if they opened a stolen picture in Photoshop, clearly, they would not do it. Until that happens, as long as it’s this easy, people will continue to lift. Education or not.

    I can be as liberal as the next guy, “hoping” that people will play by the rules, but in this case, I study the Bible of 2×4 To The Head, to get their attention.

  25. “People who steal work to mash it up and don’t attribute or pay their sources are dicks.”

    nuff said.. i love you. haha.

  26. @32 you are probably right, people need the big stick not the carrot. By and large DRM keeps nearly honest people mostly honest most of the time.

    As I said, it is not the “most” people I worry about, it is “few” other creative people who are making their own websites or commercial ventures that appropriate content whole-hog. I think that until it happens to you, and you see the cost, then that changes your behaviour.

    Every few months or so I do a google search and come up with a a few other blogs that “repackage” content from NYT for example, and they will actually run the pic that ran on the NYT site. It amazes me that they think this is ok. And they have advertising too. I am sure that the revenue is slim, but minus the photos, all they have is column of text! So the photos are integral. One day the shoe will drop and someone will start appropriating their content without permission, I really hope.

  27. A lot of people that do not rely on photography to put food on the table and believe in the ‘it’s on the internet, of course it’s free’ mentality will never understand the value or potential value of an image to a photographer.

    The fact that so many people believe they are ‘photographers’ or that it’s just a ‘photo’, do not help matters one bit either.

    For all those pukes crying ‘it’s on the web, it’s free’ or my absolute favourite ‘it’s just a photo’ so lighten up, you need to learn the cold hard reality of copyright and what it means.

    As for the value, well, if copyright didn’t exist, there wouldn’t be companies like Getty and Corbis with multi, multi million dollar revenues per annum and there sure wouldn’t be as many photographers around. No doubt about it.

    This will continue to be a problem and I agree with the above posts about a technology solution and force. Forget education, that will only go so far and that won’t be far enough.

    On a slightly different note, I would like to ask PE this: do you ask the photographers work you display on this web site for their permission before hand?

  28. @35.

    Thomas wrote:
    “On a slightly different note, I would like to ask PE this: do you ask the photographers work you display on this web site for their permission before hand?”

    I was curious about this too and my belief is that this is in fact a legitimate example of fair use. (and some of the work appearing is self-submitted) This is a not-for-profit discussion group involved in a valid educational discussion and comment on the photography itself. As such, the photographs are ends in themselves. They are not used for anything other than as a reference to their own making.

    The Copyright Office has some pretty easy-to-read material on the matter:
    http://www.copyright.gov/fls/fl102.html
    The Richter Scales would do well to read this.

    Of note:
    “There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”

  29. @35: I don’t ask for permission first so depending on your take of “fair use” I could be a guilty as the Richter Scales people and an amazing hypocrite. So far the work I’ve displayed without permission comes from photographers I have a good working relationship with and if anyone asked me to take them down I would but I also hate the idea that photographers have to police the internet looking for stolen images and then asking for removal. I plan to correct this in the coming months because I should be leading by example as I’ve asked others to do.

  30. @ 37:

    I deliniate is this way: If someone does a screengrab of one of my images, and then uploads that PNG file to THEIR server, then they have clearly crossed the line.

    If someone merely LINKS to my site, and they only provide a URL there, then it’s just fine.

    It’s when they grab the image, and put my image on THEIR site; that’s when they get an email from me.

    You have done both, here, on your site, but again, you have a relationship with these photographers, which on some level, throws it into a grey area. (Plus, it doesn’t hurt that you’re complimenting them as well, and showing their work in a very favorable light).

  31. …we all loved it when Alec did it on his blog…pointed to other photographers and work he wanted to discuss.

    I single one person out but it is everyone, it is the nature of blogs to referential.

    I think in a lot of cases it can become more self-serving than educational. You are looking for traffic so you post things that you feel will bring traffic. Not your own things of course. Others.

    Upside is the community and the discussion, as far as that goes. Downside is the norm it perpetuates on the web that the “screen” is a free space. Well, that’s one attitude, and my question has always been, forget copyright, forget fair use, what are we encouraging here? What social norm with respect to value are we saying is ok? Is this what artists and creative people are going to do-give away a large volume of “work” for free? I ask it as a question.

    NYT as an article today on artisan websites which is tangentially relevant

    http://tinyurl.com/29gjt2

  32. In my entire career as a working slob in several creative fields, I’ve never made a dime off of copyright, off of licensing any of my work, so I’m a bit confused as to its value to me personally, beyond a more or less esoteric “ownership recognition”.

    As a researcher for a University I did “work for hire”. I developed several quite nice chemical tests that a large chemical company once wanted to buy, but they were instead published in a journal for everyone to use free (they cost pennies per assay). I was working on salary so never felt robbed of any potential income.

    In Canada we have the same idea of “work for hire” for photography, and many photographers have releases that claim copyright for themselves on their work if they feel it’s important. All the commercial guys I know don’t bother, they get paid up front and hand over the images without worrying about future potential uses of the images, especially if they would need model releases from their clients to use them anyway.

    On copying as theft, we also have a Canadian system that has been in place for a very long time where we pay a royalty on each and every cassette tape, CD, and DVD. This goes to a central fund and the big publishing companies dip into it to pay royalties to their artists for any copied works that go onto these materials. Whether or not the publishing companies actually trickle this money down to their artists is a question.

    While they lobby for this system to be extended to hard drives, these same companies are running ads telling us that all copying is theft.

    So, from what I’ve seen, copyright is a big advantage to companies who buy content, aggregate it and mass market it. Thus the interest that Disney has in extending copyright each time one of its movies gets near to falling into public domain. Let’s remember that copyright was created to protect book printers, not authors.

    I’m going to make a million dollars on one of my photos one day? The million dollar prices for prints are being paid to collectors, not to the photographers or their estates. The original author got what he got for selling the print in the first place, subsequent sales benefit the galleries and collectors. This is the same system for painters and sculptors. A painter may still own copyright to his painting but he’s not getting a cut of that multi-million dollar sale from one collector to another as far as I know, copyright or not.

    Writers and photographers have somehow inherited this rights and licensing system which seems a lot more time-consuming and complex to me than the straightforward “work for hire” system. Pay me what I figure it’s worth for me to produce the content for you, and then do with it what you wish afterward. That way I don’t have to worry about tracking its use and I can get on with creating more content for more pay.

    Whaddya think? Are most average photographers out there making money off of multiple licensing of their prints for years on end, or on the initial production and sale of the image? Weddings, seniors portraits, event photography, news reporting, editorial? How important is the sale of one of those images years afterward to the bottom line of making a living? Would it be better to ask for more up front and hand over unlimited rights? In my case as a creative I made all my money on the front end.

    I sculpt wood and sell the objects, I don’t license them. I can’t imaging doing any drywalling or roofing on a licensing fee system. Making Jewelry? Painting? Why is photography different? Or rather, why are corporations happier with the licensing system than with paying up front in a work for hire system? Could it be that they get a better deal?

    Kim Taylor

  33. @40 my point exactly in questioning the tactics of the photographers organizations through the 90′s. However the problem is that there is a wide range of business models for how photographers get paid. Some do make most of their money from licensing. It depends on scale. I think to a great degree licensing helps those at the top most, and those nearer the bottom least. Or to put it another way, if you have a very limited extremely valuable product you want a licensing model to extract as much incremental revenue as possible. If you have a more work-a-day product licensing is not going to help you very much. The difference goes to the post today, how society is moving towards a winner-take-all kind of approach. Winners are going to benefit most from licensing models. The Lie I believe that was told was that this model could “trickle-down.” It does not.

    The sharing of business information and practices on the internet now is a very different environment from the 80′s and 90′s in photography. People really did not discuss what things “cost” or what things were worth. So encouraging good business practices amounted mainly to educating photographers about contracts, rights, taxes, negotiation, etc. All of this has a place today, certainly. And in a more rational marketplace it would be good enough today. But that is not where we are, and I agree, in some markets and with some products, you could argue it is the bottom-line-price only, or if you want to call it that, work-for-hire. Because we do have a wfh-defacto marketplace now. Certainly photographers retain rights, but in many cases those rights are not worth the trade for an up-front price that would be more realistically tuned to costs in the real world. You think of police forces having residency requirements and yet paying wages that don’t suppor that, it is the same thing.

    If these discussions can have any value it is to publicly “out” the double standards in billing practices and hew all the players towards a more realistic model. I think there is plenty of slush in the fund that could be distributed better to middle-players and achieve cost savings for magazines. And the way we do it is to acknowledge the true cost of the work at realistic market rates. Since it is all being paid to third-parties now, that rate is easy to determine, just look at your bills. I think you will find that on average magazines pay more now than they used to.

  34. The reason I asked the question in post #35 was because I wanted to see where the discussion went and what the reasons were – it is one of the things that I think make this blog such a good read.

    As a non-lawyer, I personally think it would come under fair use and IMHO, it is okay. However, that is an irrelevant view, because really the only opinion that matters is in fact the photographer(s) whose work you are displaying as a screen grab and the rules of copyright law.

    To me this really highlights the changing way (or medium if you will) in which photography can be displayed and more importantly, how the internet can potentially be used to lift a photographers profile (this site being a good example). Or alternative, to slam a photographers profile – it is a double edge sword. Unfortunately, I wonder if copyright is really reflecting the online mediums we have today?

    @40: you raise some good points. Personally, I would be happier with a work for hire scheme where the photographer was PAID MORE UP FRONT and the client was just given the photographs. Why? Because money now has more value to me than the promise of money down the track through re-licensing.

    Now that is just my opinion and I know many, many people won’t agree with it. Which is fine.

    However, it should be noted that I do not do work for hire. Why? Because there is a system in place which allows me to re-license imagery when I can. Until this system of licensing and copyright is removed and replaced with a work for hire scheme, I will always license my work because it is POTENTIALLY a better deal for me.

    On a slightly different note, thanks PE for such a great site. I thoroughly enjoy reading your site each morning over a cup of tea.

  35. @11 APE wrote “…so that artists may stand on the shoulders of other artists.”

    Like Vanilla Ice on the shoulders of David Bowie and Queen? :)

    But, yeah, the issue is not really that difficult. Fair use does not allow pirating ppls work for self-promotion — even low budget YouTube videos. It’s pretty clear that the band (who I refuse to name) does not meet the criteria.

  36. I’m a professional photographer. It’s my opinion that Lane is legally in the right, but that the Richter Scales’ mistake was understandable. I posted a more in depth analysis of the situation on my blog.