Heineken Discovers Flickr Isn’t Full Of Free Photography

- - copyright

The incident below can serve as an important warning to corporations that mistakenly think Flickr photographers won’t jump your shit if you infringe upon their copyright. Also, they should keep in mind, the cc license is virtually worthless in protecting you, if you mistakenly believe those photos can be used for free, because it can be revoked at any time (Dan Heller explains here).

One of the photographers who’s work was stolen, Richard Sharman, sent me the following:

A website run by brewing giant Heineken was leeching hundreds, if not thousands of copyright photos through the flickr API and posting them to promote the Oxegen music festival in Ireland.

The website at, www.heinekenmusic.ie was pulled after Heineken Music Ireland started receiving demands for payment from photographers for the unauthorized commercial use of copyright material.

There is active discussion about this at several flickr groups including (here) that was set up specifically to discuss the matter. There are a number of screenshots there of the website and the use of copyright images.

There was a comment on their blog which appears to come from within the company about the problem with the heinekenmusic.ie website:

Normally our player should’ve only display photos with commercial CC license, he’re gone something terribly wrong and we’ve currently disabled the flickr photos module on the player. We’re currently looking into the thread on Flickr and see what we can do for the photographers …
I’m sorry if we’ve offended photographers …

Finally, it appears that Heineken is sending settlement emails to the photographers who contacted them with the following offer: “Accordingly, we would be willing to pay in full and final settlement an amount of €15 per image allegedly used” which might get a few to go away but no those who make a living shooting pictures.

You have been warned.

There Are 63 Comments On This Article.

  1. It’s not surprising to see news of this. I identified a couple underlying issues in how Flickr manages their API in relation to All Rights Reserved photographs being fed to sites such as this.

    From early July, but my concerns were first raised late last year.
    How Every Flickr Photo Ended Up on Sale This Weekend

    The degree to which their site is misused is increasing. I certainly want to give Flickr the benefit of the doubt, but on the other hand I can’t help but think the only thing that is going to wake up Flickr or sites misusing their API is an infringement lawsuit. If they’re not responsive to the community airing concern I’m not sure what other options they think they’re leaving their users.

  2. “If they’re not responsive to the community airing concern I’m not sure what other options they think they’re leaving their users.”

    You options are to leave Flickr and find yourself a photo hosting site instead of a photo sharing site, or to sue and to lose resoundingly. Either way.

  3. Indeed — I think for some photographers, this will be a payday. What I’m interested to know is what’s happening with web design; up until recently (it seems) most large agencies were savvy enough to understand that you had to aquire photo licenses for their clients massive websites. Now you have a massive beer company with offices in the U.S. (where the copyright law can *really* spank you) that hires out (I presume) an agency to create a website that thinks just yanking photos randomly out of Flickr is a great idea. Really? This reminds me of the Virgin incident with the unreleased, unlicensed image of the teen — with agencies that incompetent at doing basic things that agencies exist to do, exactly what the heck are the clients paying for?

  4. @ Ryan McGinnis

    I don’t think it’s a lack of understanding. In fact, quite the opposite.

    1) Copyright cases are extremely expensive to fight from the photographer’s perspective. A company like Heineken (or whomever their parent company is) has enough lawyers to bankrupt a photographer in pre-trial motions and hearings.

    2) What are the odds that Joe Flickr User actually takes any measure to register copyright? Even if he chases down Heineken, he’s probably only entitled to actual damages. Basically nothing more than what the infringement ‘cost’ him. No damages, no lawyer’s fees, no nothing.

    3) I bet many Flickr users would be thrilled to stand around the water cooler at the cube farm this afternoon and tell their interns how they’re pro photographers because Heineken uses their photos.

    4) Finally, what is the likelihood of someone who doesn’t fit the above case even finding out about the abuse? I couldn’t possibly see every site or publication where some nefarious or ignorant person grabbed something of mine.

    I bet that every one of these cases that a company gets away with, or gets off at 15€/infringement more than covers all the times they don’t.

    (Incidentally, +10 points for setting the ‘settlement’ price so low that it could cost more to seek the settlement than just walk away in disgust.)

    Copyright law needs an enema.

  5. The next kind of case that will come up is where the photographer then chooses to sue Yahoo (flickr’s owner) for “contributory infringement.” This will probably be the watershed event that causes Flickr to actually take this stuff seriously, and have a cascading effect on the CC licensing model as a whole. Flickr has already been notified of their liability here, and I’ve written about it extensively, and such references have been posted to flickr discussion boards. therefore, if someone were to make a claim for contributory infringement, flickr’s response couldn’t be that they were not made aware that their practices would lead to this. (That’s the only defense they would have.)

    If any of the photographers whose photos were infringed upon because of this are interested in pursuing this route, they should contact their lawyer (or me, where I can direct you to one).

    dan

  6. Scott Rex Ely

    It’s a website for SHARING is it not? Why should anyone be surprised that rampant piracy exists? The opportunity was created, regardless of the altruism involved, for sharing along with categorization which has made piracy even easier. In the mad exhibitionist rush to “share” one’s images people have ignored the lack of control they relinquish when they dump their images on the web. Wait until the SB Orphan Works get passed then what will the infringees have to cry about? I can here it now” I just put my images out there on the internet for all to see and some nefarious cretin decided to forward them to a huge corporation and now they’re part of Camel’s ad campaign”. It’s simple: Don’t want your stuff exploited without compensation, don’t post it on the web. Open source means open source, criminals or conscientious viewers who actually appreciate the sharing, it matters not, if you ignore reality and human behavior, once you put it out there you relinquish control. Sorry folks but Heineken just happens to be one of the violators who can pay the fine. I thoroughly recommend the following link, transcript to be posted soon: http://videos.cmitnyc.com/asip.html. read the part about Camel using an illustrator’s image in an ad. The tide is against us as creators so why contribute to one’s own abuse? The average person doesn’t care about taking something that they found, whether it’s a wallet or an image. If you have a mouse it’s the holes fault. Diligence on our part has to start with plugging the holes BEFORE the mice come in.

  7. The Heineken legal department is in a frenzy right now because they know the following:
    1.) There may not be many individual photographers filing suit because of the prohibitive cost, but…
    2.) Some of the individual photographers have parents/other relatives/friends who are attorneys who will be willing to go to town regardless of the expense.
    3.) It’s only a matter of time before a massive class action suit is filed.
    4.) “Oh shit, we don’t have any releases from the people in the photos! We are seriously screwed!”
    5.) Companies can never hire a WEB DESIGN agency and trust that they’ll act like an actual ADVERTISING agency.

  8. Regarding the comment “1) Copyright cases are extremely expensive to fight from the photographer’s perspective.”

    No, they’re not. In fact, they’re virtually free. Any “strong” copyright infrignement case will be taken by a good copyright attorney on a contingency basis. In fact, the litmus test for any copyright case is that, UNLESS a lawyer takes it on contingency, it’s not worth pursuing. That means that you must have registered your photo with the copyright office properly, and that the infringer has unambiguously acquired your image through some means that you have no approved of. I don’t care how large the battery of lawyers is for anyone, they have the sole responsibility to prove that they acquired the photo legitimately from the copyright owner, or his assigns (such as a stock agency). there is no ambiguity about this, and nothing that anyone says can obfuscate this in front of a judge.

    It is because copyright infringement cases are so simple and direct and unambiguous that “good” copyright lawyers will take this on a contingency basis. In fact, they *prefer* it, because they will make far more money by taking a percentage of the settlement or the award judgment, than they would by taking an hourly fee. Hence, the litmus test: only a lawyer that would be willing to do it for an hourly fee would choose that option if he didn’t think he could win. and he wouldn’t think he could win if you didn’t register your work, or there was some other irregularity about how you license or distribute your work (or, how the infringer got it). If you can’t find a lawyer willing to take your case on contingency, you shouldn’t be pursing an infringement case. Thus, no photographer should ever have to pay a dime to pursue copyright infringers.

    For extensive discussion, see:
    http://www.danheller.com/blog/posts/glass-is-neither-half-empty-nor-half.html

  9. Boris Kafka

    Scott Rex Ely:
    “Don’t want your stuff exploited without compensation, don’t post it on the web.”
    “Open source means open source”

    Are you suggesting that an artist is not allowed to publish their work online because then it becomes public property and they should not be compensated? How about in printed magazines? Or in public anywhere? With your theory I could walk into any art gallery, snap some high quality pics or scan a magazine and then sell as my own work.

    You are confusing Open Source with Copyrighted property. Entirely different categories. They are clearly marked as to which category they fall under on Flickr. Even Open Source has levels of use and when the artist should be compensated.

  10. > ItÂ’s a website for SHARING is it not?

    personal sharing does not automatically relinquish copyright ownership rights.

    > Why should anyone be surprised that rampant piracy exists?

    “surprise” is not the operative word here. In fact, it’s irrelevant.
    If piracy exists, then copyright holders have an opportunity to
    collect damages if someone chooses to inappropriately aqquite images.
    The infringer does not have a defense, “they were there! everyone else
    does it! Why can’t I?” As any judge will tell you, ignorance of the
    law does not excuse it. Which leads to your next point:

    > … which has made piracy even easier.

    Stealing is “easy” in all sorts of manner — go to a store, take stuff,
    leave without paying. “Ease” has nothing to do with whether something
    is a defensible act.

    > people have ignored
    > the lack of control they relinquish when they dump their images on
    > the web.

    Nonsense — everyone from stock agencies like Getty, down to individuals,
    all have full-res pictures available because the web is a global marketplace
    and that’s how people buy stuff… There is plenty of precedent for things
    like this to exist in commerce.

    > Wait until the SB Orphan Works get passed then what will the
    > infringees have to cry about?

    Nothing will change — companies *still* have the responsibility to
    acquire images properly from copyright holders. Don’t believe the
    scare tactics that “anyone can claim they can’t find the owner,” and
    thus get away with infringement. It doesn’t work that way. For more
    info on this, see:
    http://www.danheller.com/blog/posts/my-take-on-orphan-works-act-of-2008.html

    > … decided to forward them to a huge corporation and now theyÂ’re part of
    > Camel’s ad campaign”. I

    GREAT! Now you can sue them for tons and tons of money! That photographers
    get upset that their images are “stolen” is so stupid. It’s *opportunity*
    if nothing else. Sure, I don’t want my pictures to be stolen either; I’d
    rather people be honest and license them properly. but if they don’t, I
    have no qualms about suing for infringement. It’s free and easy to do it.
    (It’s just that photographers are uninformed about how to go about it, so
    most think it’s hard and expensive.)

    > DonÂ’t want your stuff exploited
    > without compensation, donÂ’t post it on the web.

    That’s the very mentality that has kept most photographers behind the
    curve insofar as 21st century commerce. Everything is done online these
    days, and “staying away” (by not posting your pictures on the web) is
    how you keep yourself from being a viable business.

    > Open source means open source,

    uh… how did “open source” come into this? That doesn’t apply to anything
    discussed here.

    > once you put it out there you relinquish control.

    No, you don’t. That’s what copyright law is for.

    > Sorry folks but
    > Heineken just happens to be one of the violators who can pay the fine. I

    I would be more than happy to let Heineken pay me $10K for a photo
    they could have licensed for $10. If that’s their attitude, let them
    go for it. Now that they’re being sued, however, they’re now aware
    that it’s easier to license pictures too.

    > The tide is against us as creators so
    > why contribute to oneÂ’s own abuse?

    The tide is FOR us — it’s just that photographers are trying to swim
    against the tide in the wrong direction. The net has made opportunities
    for creatives much stronger than individuals had ever had before, and
    copyright law is there to protect your rights. Statutory damage awards
    are there to set minimum fines so that you can have a very strong upper
    hand against big-company violators. These are all good things.

  11. Yeah, I don’t really buy this “everyone is evil” argument, so we have to lock everything up or make it explode when people touch it. I actually believe the web design company that used the Flickr API did so without understanding how it works. The same goes for a CC license. People don’t understand the rights artists have because it’s so easy to move this stuff around now. Education through lawsuits is one way to get them to understand how it works.

  12. Debra Weiss

    @8 – “No, they’re not. In fact, they’re virtually free.”

    In an ideal world this would be the case. However, it does not always work out this way. As an expert witness, I’ve seen outcomes to the contrary.

    @10 – “Nothing will change — companies *still* have the responsibility to
    acquire images properly from copyright holders. Don’t believe the
    scare tactics that “anyone can claim they can’t find the owner,” and
    thus get away with infringement. It doesn’t work that way. ”

    Everything will change. Yes – a responsibility will still exist to acquire images properly, however the responsibility will consist of a minimal amount of hoop jumping. What happens when several of these private databases are established and the photographer doesn’t have their images registered with each database. What happens when someone rips a page out of a magazine or grabs a screen shot with no metadata and goes to one of the databases where the photographer has not registered their images? Scare tactics? I don’t think so.

    “Statutory damage awards are there to set minimum fines so that you can have a very strong upper hand against big-company violators. These are all good things.”

    Now they are. With Orphan Works legislation statutory damages is off the table. Even if a photographer has found his/her work being infringed, the remedies that will be available to them will be strictly curtailed. These bills, if passed in their current form, will have a potentially devastating financial impact upon photographers. This is not a good thing.

  13. Debra Weiss

    @11 “I actually believe the web design company that used the Flickr API did so without understanding how it works.”

    Of course they did. The Easter Bunny told me so!

    “Education through lawsuits is one way to get them to understand how it works.”

    Lawsuits are expensive, time consuming, demoralizing and exhausting. There are better methods of education.

  14. Anybody who tries to sue Flickr/Yahoo! for “contributory infringement” is going to get a copy of the TOS and a motion for summary judgment in return. It’s quite clear that in return for using their (free) service, you waive all such claims against them. Absent some proof of willful conduct, between the DMCA and the clear contract between the parties, that’s just not going to fly. And no, I wouldn’t take it on contingency.

    Nor, for that matter, would I take a case for infringement against the primary infringer on contingency absent either a) eligibility for statutory damages based on prior registration, or b) some reasonable amount of known actual damages. In the case at hand, a RM license to use the images in the manner described would cost, at most, a thousand dollars from most macro agencies. (Of course, Heineken’s going to argue that they should pay microstock prices, and it’s a compelling argument.) Wouldn’t touch it. Under US copyright law, a prevailing party might get attorney’s fees, but that’s basically working on contingency – for your hourly. Again, not a strong motivator.

    The issue of releases for identifiable subjects is different – if you could get jurisdiction on ‘em, many jurisdictions statutorily mandate statutory damages or actuals, whichever is higher, PLUS costs and fees, and misappropriation of likeness is pretty open and shut ninety-five percent of the time.

    Bottom line: consult an attorney licensed in your jurisdiction and familiar with the relevant law before making legal decisions.

    M

  15. A similar boil is about to burst over a competition being run by Microsoft, Iconic Britain which invited entrants to use an adaptation of their image search engine to find a picture which encapsulated the title of the competition. MS were going to select 500 of these pictures and then invite votes for the public’s favourite. The problem is that searching brought up all sorts of results including copyrighted material on stock agencies and these images were not linked to the original source (like any good search engine should). Moreover, embedded information was stripped out potentially “orphanizing” them. Half an hour searching revealed about 30 of my images at Photoshelter, Acclaim and on my photoblog at Blipfoto.com. I even recognized some of Dan Hellers images whilst digging around. By making images available in this way, Microsoft were publishing them and should pay the copyright owner. Photographers are planning to invoice Microsoft for retrospective use and if not paid use the small claims procedure in UK which removes the need to argue copyright. It is interesting that when this first blew up prize sponsor Nikon hastily distanced itself and competition judges withdrew. At one point an MS spokesperson even defended their actions by saying that pictures on the web were public domain.

  16. scott Rex Ely

    I think folks are behind the curve who think that the general public, let’s just use teenagers as a study group here, actually respects copyright issues. My opinion is in reference to Flickr not Getty, Corbis or a particular photographer’s website. Look up Flickr using Wiki and what does it say? Sharing. Where on Getty’s Corbis’ and Dan Heller’s website does it say share? How many pictures are on Flickr, 2 Billion? I think the Heineken cases are going to be a nano-chunk of the infringements where a big abuser gets caught. All I’m saying is that with the nature of the Free membership and with the main idea of sharing being part of the open source premise, I think people really have very little room to complain if thy are infringed upon by posting their images on Flickr. It doesn’t make it right but the US Congress is about to make it a whole lot easier to use the phrase “NO Autopsy, No Foul”. If it has value protect it like it does. Would a diamond dealer on 47th st. put his $2000 gems out on a table for people to look at without a guard?

  17. To me the most offensive thing about this matter is that once Heineken had used the images they then try to deny it;

    “we have concluded that any use of the images was at best (if it could be said to be use at all, given they were immediately removed) use of a temporary nature only”

    What the hell is temporary use? You either use or you don’t use photos!

    And then there is the insulting settlement offer:

    “we would be willing to make a small payment for the inconvenience caused in having to write to us. Accordingly, we would be willing to pay in full and final settlement an amount of €15 per image allegedly used. This in our view represents a reasonable commercial royalty for the use of such images in this jurisdiction if, as we say above, there was any actual use in legal terms.”

    They aren’t willing to pay for use of the images but will pay for writing a letter!

  18. I found it a bit humorous to read the “outrage” from some of those Flickr people. It’s one thing when there’s money owed to you; it can be quite another thing when it’s you using someone else’s property. If I had a dollar for every time that I’ve seen a young photographer “swapping iTunes songs” I’d be a rich man. Funny how music is rarely regarded with value, but if someone swipes one of your Digital Rebel images, then there’s hell to pay.

    I’m not saying that Heineken was right, in any way, but it’s just hilarious when Little Tommy runs to his dad, the lawyer, on a deal like this.

    I’ve seen the same applying to Fonts, with Art Director friends. They never want to pay for fonts, but they’re quick to call for advice whenever someone wants a logo treatment. Same applies with software applications as well.

  19. @ 13. Debra Weiss: you would know since you’ve spent so much time working at ad agencies, magazines and design firms? It would be nice to hear from someone who actually does this stuff for a living. Also, do we have to invoke the ghost of Orphan works in a post on Flickr?

  20. scott Rex Ely

    Try to think like teenagers folks. Boris my ignorance about Open Sources, classic example. Persnickety details keeping folks from having fun are not part of the equation. I teach in high schools and at a university, Flikr isn’t a professional vehicle where everyone utilizes their comprehensive years of study of legal and professional business practices as part of their Flickr experience. It’s cool to participate, plain and simple. Just read the comments! Also if there isn’t an Eddie Slovik caught on a daily basis regarding a major infringement case then folks aren’t going to see what the fuss is all about. I agree that has left the door open for nefarious characters, who know better, to easily lift what they want and use it until they get nailed, but why contribute to one’s own abuse? Debra Weiss is right. Teach. Show people how to build and maintain value, and just take lawsuits out of the equation. The SB Orphan’s work legislation will sure lessen the pain for the really bad infringers, so prevent the abuse with better security and education. You don’t need a bomb as Rob puts it, but Don’t DENY the risk.

  21. Debra Weiss

    @13 Rob – are you kidding? I think you better need to understand my history.

    FYI – Orphan Works is not dead therefore, no ghost.

  22. Thank you for this very thought-provoking discussion. I’ve been infuriated by the numbers of organizations and individuals who have used my images without permission on their sites. Just last week, through blogpulse.com, I found that redfin.com had used one of my images of a surfer in the Mavericks contest on their real estate site, “surfing for great deals.” I called the company and demanded that they remove it. They removed it immediately and said that their blogger was “new to this and didn’t understand about copyright.” Riiiiight. I know there’s no way to track down every site with our images used without permission or without photo credit or link to our websites, and I assume that watermarking and “all rights reserved” on Flickr is basically meaningless unless we register our photos with the U.S. Copyright Office. At least that’s what I’m inferring from this discussion and from reading Dan’s site. I do have a “professional” website where photos cannot be downloaded, but even medium-sized photos can be photographed on screen. So is the lesson that we must register and copyright every single photo we upload to our sites?

  23. @ 22. Debra Weiss: No, I have no idea what your history might be. Just want someone who actually works at an advertising agency to comment on how they think Flickr works as opposed to the cynical view of the creative industry. Maybe I’ll have to ask myself.

  24. Debra Weiss

    @24 “No, I have no idea what your history might be.”

    Which is precisely why you shouldn’t be commenting on it.

    I wrote about Flickr and ad agencies on a recent EP thread following a lunch meeting with the head art buyer of a major national agency. Ad agencies (at least most major ones) have a “banned sites” list. Flickr is usually #1 on that list. Even so, there have been occasions when an art director wanted to use something or hire someone they had found on Flickr and she said they have done it, but not without creating major headaches.

  25. Great so you can email the art buyer and ask how their boss thinks the flickr api works. That was my point. Small agencies don’t have art buyers who understand these types of things. Education is the answer. Presuming like you did that the creatives are out to rip off photographers is not.

  26. Debra Weiss

    @26 – So what are you saying here – that everyone at small agencies is a moron? I don’t think so. Some of the best creative work comes out of smaller agencies. Copyright is not an obtuse concept at agencies, design firms, web design firms, etc. as they all create copyrighted material.

    To continue this conversation would be pointless. Enough. See you round the campus.

  27. @12 “No, they’re not. In fact, they’re virtually free.”

    In an ideal world this would be the case. However, it does not always work out this way. As an expert witness, I’ve seen outcomes to the contrary.”

    Uh, care to elaborate? Unless a photographer has perpetuated fraud, how is he/she exposed to significant financial risk by bringing a copyright infringement case that an attorney takes on contingency?

  28. Marc W: Contributory Infringement can take place irrespective of the TOS associated with images because it’s not just the photographer that can sue them — it can be a company that was sued by a photographer because of Flickr’s policies and practices.

    Consider if Flickr were to continue this practice that everyone knows is going on (and has notified Flickr of it):

    1) Flickr’s API allows for an image search based on CC attributes
    2) Flickr return images that are NOT attributed as having a CC license.
    3) The end-user believes that the image results they get are CC, even though they may not be.
    4) The end-user gets sued by the copyright holder for infringement.
    5) The end-user and/or the copyright holder then sues Flickr for having “contributed” to the infringement because they set up a set of conditions that were known to create the situation, that they were told about it in advance, and that their defective API has already been known to cause inadvertent copyright infringement suits. They have a responsibility to either fix the API or shut it down, but they’ve done neither.

    No court is going to hold Flickr harmless because of this. And correct me if I’m wrong, but “gross negligence” is the term used when an tort takes place where the party is in full awareness of the act. Flickr has been made aware of this problem for quite a long time, and no indemnity clause used by the end-user, or TOS agreed to by the photographer can protect flickr from this. For if such a ruling were upheld, it would set widespread precedent for all sorts of IP malfeasance.

    If flickr doesn’t solve this problem soon, we will see this in court.

  29. Contributory infringement? Are you serious? Flickr provides a photo sharing platform, and offers many ways to restrict access you to those photos. You can:

    1) Opt out of the API
    2) Hide from searches on & off Flickr
    3) Don’t tag photos
    4) Make photos F&F only.

    If you do none of that, and you upload those photos to Flickr, the photographer is a much greater contributor to any infringement that may occur.

    Good luck with that lawsuit, and good luck finding a good lawyer who will file the case on contingency. My guess is, any one who wants to sue will have to put their own money on the line to press their case.

  30. Regarding the whole discussion on the Orphan Works Act:
    Debra Weiss said:

    “With Orphan Works legislation statutory damages is off the table.”

    I have no idea where you get this. The full text of the legislation is online, and nowhere does it even mention anything close to it. There’s ONE section that states that certain “libraries, public TV stations (pbs) and educational users” (that’s it!) could be exempt from statutory damages if certain conditions are met. This raises three points:

    First of all, the ONLY people who can possibly be exempt are limited to an extremely small number of users (and *uses* within that group of users too). Secondly, those conditions that would enable them to be exempt are much harder to meet than you think. Some people have said that it’s “easy to get around them,” or that images may not necessarily be in some databases for search, but this is hogwash. Copyright holders have the upper hand because all they have to do is demonstrate one instance of their image showing up. Just once. the rule of law is on the side of the copyright holder, NOT the infringer. Their defense of “well, we couldn’t find it,” isn’t enough. Courts have a very high bar to clear for a potential infringer to get off scot free, and those libraries and educational institutions (accredited) aren’t going to get off easily.

    Thirdly, they have yet another incentive to not use “any old image they like”: the photographer can still sue — and no one wants to be sued for copyright infringement, even if they believe they may be exempt from statutory damages. It’s much easier for a photographer to sue an educational institution than it is for that institution to defend itself. hence, few of them are going to suddenly feel a sense of liberal freedom to copy images willy nilly.

    And lastly, no one else in the corporate world, non-profit world, or any other world is affected in any way by OWA. In fact, nothing about OWA will have any affect on anything discussed here, or pretty much anywhere else.

    My blog posting gets into full detail on these points. danheller.blogspot.com

  31. Jake–

    You clearly didn’t read my post, and/or you don’t understand the nature of what’s being discussed.

    Contributory Infringement has nothing to do with what you’re talking about. It affects END-USERS who acquire images from Flickr under the mis-information that FLICKR HAS TOLD THEM THEY CAN USE THE IMAGES FOR FREE, BUT IN FACT, THEY CANNOT BE USED.

    Anyone that publishes a copyrighted work MUST GET PERMISSION from the copyright holder. Full Stop.

    If you assign a CC license to your image, you have given permission for its use. If you do not give permission, then you have not given permission for its use.

    If Flickr says to the would-be publisher: “We have gotten permission from the copyright holder that you can use these images,” even though they have NOT gotten such permission because the photographer did NOT attribute the CC license to his images, then Flickr is now guilty of “contributory infringement.” that is, they have contributed to the infringement act by another party, and that other party had reason to believe that Flickr was telling the truth.

    dan

  32. Let me put it this way:

    Let’s say you walk into a store and see a table with crackers on it, and above is a sign that says, “Free Samples.” You take one. But as you leave, the people who make the crackers stop and you say you didn’t pay for them and force you to pay them the $1.99 that they cost when you buy them on the shelf. Isn’t the first thing you’re going to do is go back into the store and say, “hey! you gotta give me my $1.99 back because you lied! They _weren’t_ free, and I wouldn’t have taken them if you told the truth.”

    THAT’S akin to “contributory infringement” in this discussion.

    Ok, now pretend that the cracker company called the police and had you put in jail and paid a $200 fine for robbery. Chances are, you’re going to sue the store for their having duped you into getting into trouble.

    That’s what happens when a Heinekin gets sued for $10K because they infringed on photos that they were given assurances were “free to use.” They got those photos from Flickr using their API, and the API has a very old and well-known bug in it that returns non-CC images, even if you say you ONLY want CC images.

    As a result, the end-users who publish these images are now liable for copyright infringement without their knowledge. Hence, Flickr could be held liable for contributory infringement.

  33. So you think Heineken is going to sue Flickr? Instead of trying to play matchmaker between lawyers & clients, you should just email Heineken directly and suggest they sue Flickr. I’d love to see their response.

    Like you said, Flickr provides ways for users of the API to screen their images as appropriate, and make no warranty that any image can be used for any reason. Here’s a bit from their API terms:

    “Comply with any requirements or restrictions imposed on usage of the photos by their respective owners. Remember, Flickr doesn’t own the images – Flickr users do. Although the Flickr APIs can be used to provide you with access to Flickr user photos, neither Flickr’s provision of the Flickr APIs to you nor your use of the Flickr APIs override the photo owners’ requirements and restrictions, which may include “all rights reserved” notices (attached to each photo by default when uploaded to Flickr), Creative Commons licenses or other terms and conditions that may be agreed upon between you and the owners. In ALL cases, you are solely responsible for making use of Flickr photos in compliance with the photo owners’ requirements or restrictions. If you use Flickr photos for a commercial purpose, the photos must be marked with a Creative Commons license that allows for such use, unless otherwise agreed upon between you and the owner.”

    And much more like that.

    So clarify for me who exactly would be suing Flickr for contributory infringement, and what exactly would the claim be? Please try to avoid the confused analogies, they tend to just muddy the waters.

  34. “Contributory infringement results when somebody knows of the direct infringement of another and substantially participates in that infringement, such as inducing, causing, or materially contributing to the infringing conduct. That substantial participation could take the form of providing a device or service that facilitates the infringement if that device or service has no substantial use other than infringement. In the classic case on contributory infringement, the Supreme Court’s 1984 “Betamax” decision, {FN75: Sony v. Universal City Studios, 464 U.S. 417, 220 USPQ 665 (1984)} the Court held that Sony was not a contributory infringer by selling VCRs because there was a number of uses for the VCR (including time-shifting of a broadcast program for personal use) that would not infringe copyright.”

  35. Debra Weiss

    @31 Dan Heller wrote: “I have no idea where you get this.”

    From my meetings in Washington, DC and LA with members of the House and Senate and particularly from Howard Berman’s Chief Counsel. I think I’m going to go with what she said Dan. I believe she knows a bit more than you.

    “Some people have said that it’s “easy to get around them,” or that images may not necessarily be in some databases for search, but this is hogwash.”

    These databases haven’t been established yet. We have no idea as to how they will work or how many databases will even materialize. Hogwash? I didn’t realize you were psychic.

    “Copyright holders have the upper hand because all they have to do is demonstrate one instance of their image showing up. Just once. the rule of law is on the side of the copyright holder, NOT the infringer.”

    You have an interesting way of interpreting these bills.

    “And lastly, no one else in the corporate world, non-profit world, or any other world is affected in any way by OWA. ”

    Except photographers.

  36. Mr. Heller:

    You’re wrong – grossly wrong, if you’ll pardon the expression. Consider yourself corrected.

    You know, law school only takes three years (or five if you go at night.) If this burning and unquenchable desire you have to dispense legal advice is just that irresistable, I suggest you look into applying. As has been pointed out here and elsewhere, your penchant for doing this is going to get you and/or anybody unknowledgeable enough to listen to you into a lot of trouble one of these days. At the very least, a J.D. will teach you not to build elaborate arguments around fundamentally incorrect understandings of the law and its terms of art.

    M

  37. Jake–

    > Like you said, Flickr provides ways for users of the API to screen their
    > images as appropriate, and make no warranty that any image can be used
    > for any reason. Here’s a bit from their API terms:

    The whole point of “gross negligence” is that it supersedes contract
    terms with or by other parties. Their TOS for their API is inapplicable
    if Flickr has been notified that their program causes harm, or that
    allows others to cause harm, AND Flickr has chosen not to fix the
    problem while in full knowledge and awareness that such harm is being
    caused. This is the same sort of thing that keeps getting cigarette
    and gun companies in trouble, despite blatant, copious warnings on
    product packaging. There are other precedents set in all other manner
    of society, ranging from consumer products to the software world.

    Once a company performs in a manner that allows others to cause harm,
    and the company has had opportunity to correct the problem, they cannot
    defend themselves by pointing to their TOS agreements. Those become null
    and void.

    > So clarify for me who exactly would be suing Flickr for contributory
    > infringement, and what exactly would the claim be?

    Two possibilities:

    If Heineken were to be sued by someone for a lot of money (statutory
    damages go up to 30,000 for works registered with the copyright office)
    and the copyright holder did not want to settle, thereby forcing Heineken
    to not only risk losing $30,000, but also their lawyer fees AND the legal
    fees of the copyright holder, the best financial decision would be to go
    after Flickr. They would argue to the court that Flickr has known
    about this bug, that there have been other cases already, and that
    people continue to be harmed, and that Flickr had ample knowledge and
    opportunity to correct the bug, the court could hold Heineken harmless
    and rule that Flickr is liable in the ruling against Heineken. Thus,
    Flickr would have to pay the copyright holder for the violation.

    (This won’t happen because photographers are willing to settle with
    Heineken, who’s willing to pay a measly $60 per photo — a tiny price
    to pay, and much easier than the scenario I just described.)

    The second possibility is that a photographer continually finds that his
    photos are being infringed upon by other publishers, who acquire them in
    the same “blind sighted” manner that Heineken did: they searched for CC
    attributed photos, and got non-CC photos as results, which include the
    said photographer’s photos. The photographer can claim that his photos
    are being infringed upon as a direct result of Flickr’s API providing
    false-positive results in a manner that causes financial harm. The
    natural counter-argument is, “so if you knew that was happening, why
    don’t you take your pictures down?” Answer: Because Flickr has now
    because a very good platform by which to promote yourself, your photos,
    and to gain business and traffic. Personally speaking, I have quite a
    lot of photos on Flickr, and many people contact me to license images
    legitimately because of that. Similarly, I get a lot of traffic to my
    site because of Flickr (my photo captions link to my site where more
    similar photos can be found). In short, Flickr has become a viable forum
    for which business can be conducted; I no more want to vacate the Flickr
    “mall of stores” just because Flickr has a faulty sign that says “Free
    Samples” over some of my inventory. I just want them to fix the problem,
    which is in their full power to do. If that “bug” in their system is
    known to cause others to infringe, and those others are forced to pay
    penalties because of this bug, then Flickr can be found to be accountable.
    I personally have not found any copyright violators who’ve acquired *my*
    photos using Flickr’s faulty API, but clearly, it *is* happening to some
    people. Those people could file a “contributory infringement” claim as
    described here. Moreover, it only requires ONE infringement — say,
    this Heineken case — for a case to come to court. (A likely outcome
    would be that Flickr settles with the photographer and then fixes the
    bug.)

  38. Debra Weiss: the OWA is a hotly political issue, and as we all know, everything in washington (and anything political) has “experts and pundits” all over the place that opine in opposite directions supporting what they believe to be “right.” You’re against the OWA, so of course, you’re going to talk to people who will just tell you that it’s bad and it’ll do harm. Similarly, people on the other side will argue differently, and they are equally knowledgeable and qualified in their credentials. But at the end of the day, the OWA is a legal document that contains words — show me the words that support your assertion that rights will go away.

    I am a photographer! I want to keep my rights! I don’t want to lose anything either. I’m not on the other side. So, don’t think I have any relationships or vested interests in people or companies that want to see this passed. And yet, I don’t see anything wrong with the OWA. I’ve read all the analysis of it, and it’s almost entirely baseless fear-mongering. I want someone — anyone — to cite specific language in the bill and show me the steps on how that language suddenly reverses rights or commpromises anything. I’ve already pointed to the language that shows it doesn’t, and the only response I get from people is, “well, *I*’ve heard otherwise,” and that’s it. Sorry, but that’s not a cogent argument.

    dan

  39. Marc W –

    If your only argument against my positions is that I haven’t gone to law school, that’s a pretty poor way to argue a case. If you have specific exceptions to my assessments of the matters in discussion here, address them directly. Character assassination does not win an argument.

  40. Debra Weiss

    @40 – Dan Heller wrote: “You’re against the OWA, so of course, you’re going to talk to people who will just tell you that it’s bad and it’ll do harm.”

    Dan- FYI – Howard Berman introduced the bill on the House side and Patrick Leahy in the Senate. Believe me, they weren’t telling me that this bill is bad. Quite the opposite. Neither was anyone else I met with in Washington.

    “So, don’t think I have any relationships or vested interests in people or companies that want to see this passed. ”

    Well golly, now I actually have to wonder if you do.

    “And yet, I don’t see anything wrong with the OWA.”

    Perhaps that’s because either you haven’t read the bills, or, you’ve read them and are not cognizant of what they actually mean.

    @38 – Marc, thank you. You’re my new hero.

  41. > Perhaps that’s because either you haven’t read the bills, or, you’ve read them and are not cognizant of what they actually mean.

    Now you’re just being silly and argumentative. I posted a a link to a lengthy blog where I show actual text of the bill, and I go through a discussion of the whole thing. And yet you say “perhaps you haven’t read it…” Have you not paid attention?

    Again, if you can cite specific text that is a problem and explain why it harms photographers, this discussion can move forward. Otherwise, I’ll just bow out.

  42. Dan,

    You might want to start out by complying with Flickr’s own rules regarding using Flickr for commercial purposes. Complying with those community guidelines would help establish that you at least understand Flickr’s rules.

    The levels of irony here are outstanding. I suggest you walk softly and don’t bring your account to the attention of Flickr staff, because there is a very real chance that they would terminate your account for using it to so directly promote your commercial business.

  43. Debra Weiss

    @43 Dan Heller wrote: “Again, if you can cite specific text that is a problem and explain why it harms photographers, this discussion can move forward. Otherwise, I’ll just bow out.”

    Hey, I’m all for the above. Surprisingly, explaining OW legislation to you is not high on my list of priorities.

    If anyone is interested, please visit:

    http://www.apanational.com/i4a/pages/Index.cfm?pageID=3866
    http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185

  44. Flickr is now and always has been extremely well aware of my presence on their site and other venues (including postings to their own forums). I have spoken with them (both vocally and in writing) about this and other subjects. I am industry analyst, and I draw upon my interviews with experts and other sources to gather informed, educated information, which I then disseminate through my blog, or on private contract with clients. I’m not an unknown in this industry, so I am very cognizant that my words travel. I stand by all statement I ever make.

    There is no irony here–the discussion at hand is about copyrights and infringements and such. All your questions have been addressed. That you are taking this as an “argument” is unfortunate. Either reply to specific statements, or ask more questions. Stooping to character assassination is not helpful in your comments.

  45. Flickr may be a photo sharing website, but this does not mean sharing as in the making copies for personal/commercial use. An image can be viewed, this constitutes as sharing in the same way as showing a 6×4″ print to a friend. I cannot believe those who quote the idea of sharing as free-use, excusing commercial use saying flickr is open to piracy.

    Heineken Music hasn’t admitted to anything despite claims and proof from photographers. More over these are only those who had the chance to check through their website to find their images. There are many more who would have had their images used and known nothing of it. With this in mind I cannot imagine Heineken would apologise and compensate ALL who were involved not just those who were fortunate enough to find out, take screenshots and pursue a claim.

    Secondly Flickr is not exclusively a free website, many users pay an annual fee for storage of over 200 photos. So it is a subscription service, as seen by any member that has “pro” by their username.

    With a view to complaining that their images were used photographers have every right to. It is their property, and should not be open to exploitation by companies, regardless of size. The internet may be awash with people having their images misused but this does not excuse the behaviour, or mean it is in any way right. Nor should those involved be made to feel uncomfortable for airing their concerns.

    The Internet is a stable of modern life, and as such will have to evolve to serve its community. As more media become available online, policing techniques with soon have to find a balance, curbing the activities of those who wish to exploit it.

    Even the smallest website designer has to work within the rules of the industry, and with that in mind how in the world do they get away without fact checking?

    If this was in a magazine, or even part of an advertising campaign that was only out for a week and they printed all rights reserved photos without permission would that make it more acceptable for those who doubt the validity of the photographers’ claims?

    This is after all a business, and the website designers would have been paid for their design and implementing the Heineken Music website. It is in their interest to ensure that all of their information, sources and media – in this case photos are suitable for their final design before the website is live.

    The website designers are at fault for not insuring that they have properly used the API. A simple check of even a minority of the flickr usernames involved with the images that they had pulled using the API would have shown them that the images in question were all rights reserved.

    There will be those who quibble the finer details and get into bitching matches, but it still stands for 20 days Heineken Music posted all rights reserved photos on their website without permission or prior agreement. They pulled the website when they were found out and put another in its place, and have angered a community of photographers professional and amateur alike.

    And for this they only have themselves to blame.

    Next time they want to use the API, they might want to check first. Use the search box, its in the centre of flickr’s home page. Type a username and read their profile see where they stand on image use, most people have a viewpoint and are upfront about it. Hell, even click on the image you want to use and look at the photo details on the bottom, it’ll tell you all you need to know.

    And if all else fails and you’re still not sure, ask – Flickr users are usually a friendly bunch, you just don’t want to see them when they’re angry…

  46. If anyone is left reading down here and still thinks that Copyright infringement, Flickr API and the CC license is easy to understand… you’re crazy.

  47. > Debra Weiss wrote: If anyone is interested, please visit:
    > http://www.apanational.com/i4a/pages/Index.cfm?pageID=3866

    This is from the APA, but it is similar to the other doucments listed, as well as virtually all arguments made in objection to the OWA. It all boils down to this quote from their document:

    “Our primary objection to this legislation is that its effects cannot be limited to old or abandoned copyrights” because it “will necessitate that rights holders register their works” in order to get into the databases. “Why? Because as users come to rely on these
    databases to conduct a ‘reasonably diligent search’ for rights holders, any works not found in these databases could potentially be infringed as orphans.”

    This is the primary and most fundamental error in this analysis: that a court would side with the user of a work simply because the work was not found in the database. That’s not how the law works. Courts are very much aware that billions of images are on the internet and many of them will not be “registered.” They are not going to simply give a green light to publishers simply because the image was not found in a database. That would not only alter the entire precedence of copyright law, but all sorts of laws well beyond copyright. Courts look at real-world conditions and understand the context of what’s going on. The publisher of the image will have to make a much stronger case to show they had good reason to believe it to be orphaned by a long-deceased copyright holder, and that no heirs exist. the purpose of the database is NOT to establish whether a work is orphaned, but rather, as an aid to determine who the owner of a work *is*. Just because it’s not in the database does not establish it as an orphan.

    Since all of this only applies to a very, very narrow scope of users and uses that would be eligible for this in the first place, there is plenty of opportunity to allow the court system to play out initial scenarios with extremely minimal impact on the industry.

  48. > If anyone is left reading down here …

    Judging from the amount of email I’m getting at my site as a result of this discussion, there do seem to be a lot of people reading all the way down here. :-)

    As for “understanding it,” suffice to say, it takes years of research in this and related areas to piece it together easily. I can understand why most people go to (and listen to) their industry-leader types rather than try to digest it themselves. The years I put into the research for my model release book has yielded far more information in what appeared to be unrelated areas (like this) than I bargained for.

    I appreciate that you brought the subject to light… again…. :-|
    In any event, I do think the discussion has come to an end–I’ll drop out from there. People can forward me follow-ups to my email address if they want to continue talking…

    dan

  49. I find it ironic that Dan puts “argument” in quotes when he seems to be the only one using the term. I have no issue with you Dan, I just think that your interpretation of contributory infringement is wildly off the mark.

    You write, “The photographer can claim that his photos
    are being infringed upon as a direct result of Flickr’s API providing false-positive results in a manner that causes financial harm. The natural counter-argument is, “so if you knew that was happening, why don’t you take your pictures down?” Answer: Because Flickr has now because a very good platform by which to promote yourself, your photos, and to gain business and traffic.”

    1. I have no idea what you mean by false positive. If the API requests ARR photos, the API returns ARR photos. If the API requests CC photos, the API returns CC photos. If a photographer has opted out of API searches, then the photographer’s works do not appear in photographer’s searches.

    2. If you know exactly how Flickr works and believes it enables copyright infringement, then you should stop using it. If I were a judge (I’m not), I’d laugh someone out of court if they sued for contributory infringement and the litigant claimed that although he knew that the infringement could occur, he used the service anyway because it was such a great platform for promoting his work. At that point, the litigant would be a contributory infringer to at least the same extent as Flickr.

  50. @42 – Debra, you’re too kind.

    The problem with Mr. Heller is that he seems to be reasonably intelligent, he’s well spoken, and he argues well. To his credit, he is so persuasive that he convinced a publishing house to let him write a book about model releases even though he’s not a lawyer!

    It is for people of this type that the phrase “a little knowledge is a dangerous thing” was invented.

    While I’ve learned there’s no real point arguing with him, and my post was perhaps a little sharper than it needed to be, I really do think he should try law school. But until then, I really do think he needs to stop giving legal advice.

    M

    And because nobody ever seems to quote the whole stanza, and it is quite apropos:

    ” A little learning is a dang’rous thing;
    Drink deep, or taste not the Pierian spring:
    There shallow draughts intoxicate the brain,
    And drinking largely sobers us again.”

  51. I was asked to come back and answer this:

    Jake said:
    > 1. I have no idea what you mean by false positive. If the API
    > requests ARR photos, the API returns ARR photos. If the API
    > requests CC photos, the API returns CC photos.

    Clearly, if Flickr has fixed their API, then they won’t be liable for contributory infringement. That has always been the one and only issue at hand. All other claims that Flickr could be responsible for how others (such as Heineken) have used images are baseless. People may not like that companies access images from Flickr and use them inappropriately, but this isn’t Flickr’s fault. If anyone’s felt that I have said otherwise, they haven’t been reading closely.

  52. Just a quick update on what’s happening with this.

    Heineken are playing hardball with this – their lawyers are saying the following:

    - Heineken are not responsible it is the responsibility of the web developer
    - Photographers are being told that if they pursue the matter through the courts individual legal action will be taken against them for deliberately damaging the reputation of Heineken by discussing the matter on internet forums and in the media
    - Heineken are disputing jurisdiction of any claims lodged in courts outside of Ireland
    - Heineken are saying that if any claims are filed in court they will move to bring action in the Irish High Court to have any claims struck out and will be pursuing individual photographers for their legal costs.

    The advice I have is that any counter claims by Heineken would be laughed out of court and that Heineken are definitely responsible not the web developer.

  53. “This song is Copyrighted in U.S., under Seal of Copyright #154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.”
    [Woody Guthrie]

    For photographers:
    Sure, a lot of people are using some of your pics to illustrate their websites or blogs. 99% of them don’t even know that law is violated by doing this.
    In my personal case kids are showing around images in automotive forums (look, that’s my dream car …) or women do illustrate their profound diaries with some of my images – Great, love it, appreciate it.

    Does it really harm me ? Do they really ‘steal’ something ? At best they make an illicit copy. Where’s my dis-profit ?

    I even give away free wall prints when somebody does like an image very much but can’t afford it. Why ? Usually people are very selective what to put in the living rooms, they ‘must’ look at it every day. That way it’s a great honor for me to be with ‘em.

    It’s different when somebody steals my car, there will be a lot of empty space where my car was before. A big drawback – now I’ll have to walk :-(
    And let’s hang the car nappers on the highest tree (no lawyers needed).
    ……………………

    Of course things are quite different when a company uses images. They run a commercial biz and should know about the laws (at least a bit)

    So for Heineken:

    They violated copyright laws and now the photographers are threatened by their lawyers because they claimed about it ? Very weird … very very weird *smile

    The average price at microstocks for web usage is approx $ 1 / image. For sure you get a big discount too when buying more stuff …

    I guess Heineken does have this budget and I assume they didn’t do it by intention. And I even believe ‘em that’s the fault of their web designer.
    A ‘poor little guy’ who maybe was misleaded by flickr’s API for CC licenses like Dan Heller has stated it above. Or whatever happened.

    Just speculation, of course … but does it really matter WHO is responsible ?
    It’s the name of HEINEKEN that’s out there, not the name of any webmaster.

    Heineken should state : Hey folks, sorry … it happened … whoever was responsible, we haven taken down the images immediately… we are very sorry, blablabla ..

    And then Heineken shall ship a sixpack (btw,it’s good stuff) to all the affected photogs … and it will be very ok.

    To take over responsibility (especially when it wasn’t your fault) will make for ‘great guys’.
    And ‘great guys’ will brew ‘great beer’ – best marketing. And all the photogs would drink more Heineken stuff in the future because now they have a ‘relationship’ to the company (again … marketing)

    Or, instead of spending tremendous money on lawyers, Heineken could give the cash to the photographers (that will buy ‘em truckloads of beer, not just a sixpack *smile) … would be even better.

    Or … Heineken shall fire the lawyers – would be best.

    Anyway, nice weekend … let’s party … there are A LOT of other good beers out there

    Best, reini

  54. David Collins

    Australian photographer Richard Sharman is through his union, the Media Entertainment and Arts Alliance (MEAA), chasing payment from alcohol brand Heineken Ireland. MEAA claims that Heineken used 26 of his images on its website in June and July to promote its links with the Oxegen music festival which it is the major sponsor for. The images have been taken down. Heineken Ireland informed MEAA that it does not think it has infringed copyright but has offered Sharman £15 per picture — well below the market rate of more than £600 per picture.

    >>>Market rate of £600 per picture? For internet use? Good luck mate, your dreaming.