Showing posts with label Copyright. Show all posts
Showing posts with label Copyright. Show all posts

Monday, March 28, 2011

Copyright: Know it or Blow it



American Photographic Artists has an excellent program that is ongoing - Copyright, Know It or Blow It - which is travelling the country, and Topics to be discussed include:

-- What To Do When Your Image Has Been Infringed

-- How And When To Choose An Attorney

-- Putting Copyright To Work For You

I have spoken (and am speaking) at several of them as time and my schedule permits. To learn more about the FREE program, visit the APA site here.

(Comments, if any, after the Jump)



Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

Wednesday, February 16, 2011

Copyright - Enforce it Wherever possible

I read with great interest an article on the web site "webcopyplus" - Legal Lesson Learned: Copywriter Pays $4,000 for $10 Photo - where the website admits to stealing a photograph "...frankly, we screwed up." and then tells the tale of one of their copywriters who was "were under the impression that images on the Web without any copyright notices were “public domain” and therefore free to use. Naive? Yes."

Naive indeed.

The story reads like part admission of guilt, part "...we got busted and learned a lesson, but everyone does it..."

What lessons should photographers take away from this?
(Continued after the Jump)


First - register your copyright. They said that if the lawyer had contacted the design firm instead of the client, they had some options "Had the lawyer engaged Webcopyplus, in which case our client wouldn’t be caught in the middle, we would have had options: ignore the letter; say, “Go ahead, sue us”; or respond, “$1,925 is our final offer,” which there’s a chance they’d accept." When their request for a copy of the registration certificate was not provided, they were able to go to the Copyright office's website, "and by entering a registration number at the U.S. Copyright Office’s website (www.copyright.gov), we were able to confirm the image was copyright registered and the lawyer’s client was the rightful owner." Now, they are taking the demand seriously.

Second - (and I learned this from singer/songwriter Jon Sebastian) WHENEVER you learn about someone infringing upon your copyright, you should pursue it with great vigilance. By doing this, not only can you generate revenue, but you teach the greater community of users of photography that if they steal, they run the risk of paying the price.

Third - Don't try to go it alone. Get a lawyer. When you have a lawyer, people realize you're serious. The first correspondence from the lawyer to the infringer included the sentence "“Cease and desist demand and offer to settle copyright infringement claim, and digital millennium copyright act claim, subject to Rule 408, Federal Rules of Evidence.” according to the infringer. This is a critical sentence, because the letter made a demand for money, and if that sentence was not in there, the amount that the lawyer was asking for on behalf of the photographer to settle the claim would be something that could be introduced into evidence during a trial, and limit the amount the photographer could actually win during a trial.

Fourth - Engage the infringing entity - in this case, while the infringers were both the design firm and the company, going after the ongoing infringer - the company, you not only will often get a better response from their lawyers, but the company likely also carries insurance to cover lawsuit/settlement losses, and they will likely pursue reimbursement from the design firm. Many design firms don't have these protections, nor lawyers on retainer, and are likely to try to sweep these things under the rug. In this case, the infringement gave a black eye to the design firm in the mind of their client, so there was no sweeping under the rug! They noted - "It was a tough pill to swallow, but we were the ones who messed up, and salvaging the client relationship was priority."

The design firm suggests, regarding the settlement amount "We felt — and photographers we spoke to agreed — the proposed settlement amount was excessive." Well, I'm not sure whom they spoke to, but $4,000 is a very small settlement amount, so whomever they spoke to that represented themselves as photographers must really not understand the value of the photographs they produce - perhaps it was they who also advised a valuation of $10 - "Why would copywriters at Webcopyplus pay $4,000 for a digital photo that retails for about $10?"

One really bad thought that was posited was "...Based on recent discussions, even after we shared our story, some continue to suggest copyright laws are blurry, and insist if you ever run into conflict and get a threatening letter, you can simply delete the image and toss the document in the trash (one designer even labeled it “delete and toss”)." BAD IDEA. They then acknowledge that "While this might work with some individuals and organizations, particularly if they’re in a different province, state or country, which might make legal costs prohibitive, be aware: you could end up in a lengthy and costly court battle. For those who insist, “It won’t happen to me,” mind the fact that this beach photo was the only one we’ve ever grabbed from the Web for a client’s website. And it cost us almost $4,000. Consequently, we urge others to recognize and yield to a simple fact: If it’s on the Internet and others wrote or created it, do not use it without their permission."

While it's dubious to believe "...this beach photo was the only one we’ve ever grabbed from the Web for a client’s website..."
in the end, now, there's one less company out there who is under the misguided thought that if it's on the internet, they are "...under the impression that images on the Web without any copyright notices were “public domain” and therefore free to use." and who now professes "...We apologize, and it won’t happen again."

Good.

(Disclaimer - I am not a lawyer, nor is this specific legal advice, but rather general information for your review and consideration.)

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Monday, January 24, 2011

eCO Update - Group Registrations

One of the biggest problems with the U.S. Copyright Office's Electronic Copyright Office system of accepting uploaded content online is that they haven't been able to take group registrations - that is, registrations of a group of published images made over a period of time (but within the same calendar year). Now, they seem to be headed towards a solution.

(Continued after the Jump)


According to the January 24th Federal Register (here) (red emphasis added):
The Copyright Office is adopting interim regulations governing the electronic submission of applications for registration of automated databases that predominantly consist of photographs, and applications for group registration of published photographs. This interim rule establishes a testing period and pilot program during which the Copyright Office will assess the desirability and feasibility of permanently allowing such applications to be submitted through the Copyright Office's electronic filing system (“eCO”). Persons wishing to submit electronic applications to register copyrights of such photographic databases or of groups of published photographs should contact the Visual Arts Division for permission and guidance on electronic registration.


This is, of course, excellent news, because for many photographers, registering their published images online, when limited to images produced on just one day, or just one assignment, was cost-prohibitive and burdensome logistically.

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Related Posts



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Friday, October 22, 2010

Peter Krogh's Rebuttal to Our Post on Lawrence Lessig

In the interests of providing a forum for discourse on this subject, from time to time we offer differing and alternative viewpoints to be put forth, and to that end, Peter Krogh, former ASMP national board member, author of The DAM Book, Digital Asset Management for Photographers, and a longtime colleague of mine, has sent along an alternative viewpoint to our post titled "Lessig's Kool-Aid: Proposed New Norms - Don't Drink", which was a follow-up to our original post - "Thank God for Disney, The Wire Services, and the Record Labels!", in which we take great umbrage with Lawrence Lessig's position that was essentially encouraging wide-spread theft of intellectual property.

Following Peter's rebuttal, we'll offer a short response, and then the floor is open in the comments.
(Continued after the Jump)


John,
At the risk of seeming to be allied with the antichrist, I would like to point out that you are missing a large part of Lessig's point. And one part of it is undeniable - laws have not caught up with changing technology and cultural practice.

If you have not seen it, you need to watch RIP - A Remix Manifesto. It's freely available on the interwebs. It makes a pretty convincing argument that copyright law is broken. I don't agree with all of it, but I do agree with some of it.

It's clear that copyright law is being written for the large copyright aggregator, not the independent creator. The US registration scheme has long been written to protect the interests of big media while it works against the independent creator.

I believe that one of the difficulties we have is that photographers have cast their lot with big media, and our interests do not coincide. As a rule, we don't have the legal firepower nor the long-term interest in IP protection to warrant support of the same policies.

By taking the side of copyright aggregators, we say to the world, yeah, we are on the side of the assholes (as many people perceive them). But we are not Warner music - collecting royalties on "Happy Birthday" 100 years later. We have an entirely different set of realities, needs and priorities.

Pretending that our interests coincide with those of big corporate copyright aggregators will not be effective for us, in the long term.

I'm definitely not saying that appropriation from the independent artist without compensation is okay. I don't think Lessig is saying that either. I think he is talking about big media - remixing works that have become part of the cultural fabric, and have already earned a generous return.

Of course this is a tough line for us to walk. I don't want to say any appropriation is simply okay. But are we really on board with supporting a $400,000 fine for downloading a handful of MP3 files from Napster? I, personally, don't think that's a reasonable punishment for the equivalent of shoplifting a CD from Walmart.

You can say "it's the law", but the law didn't get there by itself. It got there because big media made it happen. And they pushed for that law instead of one that would really be beneficial to the independent creator - such as the right to sue for copyright infringement in small claims court, rather than federal court. (This is a place where the interests of the creator and big media are in direct confrontation).

I think what Lessig is saying is that laws have not caught up with the reality of the digital age. The deficiency of those laws gets a lot more obvious once you take your perspective overseas. A licensing scheme that seems plausible in the USA is laughably unrealistic in most of the rest of the world.

I recently spoke with a software company representative who acknowledged that there is simply no way that they could mass market in India or China. The value proposition is entirely broken. I have seen this myself in Africa.

I certainly don't have the answers (in many cases, there simply are no good answers at the moment). And I don't think Lessig has all the answers either. But until we accept some of the nuances and complexities of the entire situation, we won't even start down the road to a solution that works for the independent creator.

As I said earlier, I suggest taking a look at Brett Gaylor's film RIP. It really helps to frame this as a more complex issue

Peter Krogh
Author, The DAM Book, Digital Asset Management for Photographers
Second Edition May, 2009
www.theDAMbook.com

---------------

We respond:

So, let me follow your logic on this one, see if I get it wrong:

The laws against the theft of intellectual property should be updated to allow for more efficient enforcement, tracking and compensation.

So, in the mean time, people should be encouraged to steal photographs from photographers, and photographers should be encouraged to throw away their IP or to allow unauthorized and objectionable uses of their creations?

Anyone should be able to go to your website, take photographs, use them, "remix" them, and do so without your knowledge or permission. Is that correct?

Really?

If not, what position would you take on people who visit your website and 1) want to use a photograph without your permission, or 2) take a photograph and remix it without permission?



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Sunday, October 17, 2010

Lessig's Kool-Aid: Proposed New Norms - Don't Drink

Mr. Lessig, Professor of Law at Harvard Law School, and the Director of the Edmond J. Safra Foundation Center for Ethics, has responded to criticisms of his position which essentially recommends wide-spread theft of intellectual property by re-mixers (and the law will eventually catch up and relent that doing so is ok), by using the time-honored defense of the beleaguered politician, suggesting what he was cited as having said was done so "without making clear the context within which I was speaking." Ok, let's first let readers listen to, in the entirety provided by The Creators Project, what Mr. Lessing actually said, because it's on embeddable video (and thus, allowable, according to Vimeo). So, without further ado, Mr. Lessig, in his own words:


(For you RSS readers, here's the link to see it on Vimeo)

Ok, so, let's look at what we said, in our last post:
"[Lessig] attempted to decree that the thieves of the world "can teach this culture how this form of expression is essential." By "this form" he meant, the mash-ups and repurposing of others intellectual property, and he goes on to say "When we've taught the culture, the law catches up..."
Hmm, that's spot-on accurate. That's exactly what he was saying. No contextual error there.

We also cited him as saying:
"We need to stand up and acknowledge what we're doing, give people credit, and thank them, but not ask permission"
What he said, if we are to actually believe the video showing the words coming out of his mouth, through the sound system, and recorded on video, is:
"Now, I think it's time for us just to stand up and be brave enough to acknowledge what we're doing. And acknowledge and respect the people we're building upon by saying it's this person's work I am using, and thank you for creating that work, but I'm not asking permission to remix that work."
Lessig spoke of this in relationship to how the hip-hop artists of the 80's and 90's were advised by corporate lawyers to hide whom they were remixing - why? Because it was illegal then (as it still is now) to do it. The context was essentially telling people that if you're using someone elses' creativity which they have transformed into intellectual property, whereas before people were hiding that violation of copyright, now, Lessig seems to be saying "stand up and be counted as someone who's taking others creative works, and give them credit when you repurpose it, but don't ask them for permission." Not withstanding the slight difference between the quote we cited from another blog, and the actual transcript of what he said, the sentiment is the same.

The last thing we quoted him as saying was:
"Respect in the 21st century is acknowledgment. When you use someone else’s work, you give them credit."
What was said was:
"Now we don't respect them in the old fashioned way, which means calling their lawyer or having your lawyer call their lawyer to get permission to include their stuff in your stuff, that's not respect in the 21st century. Respect in the 21st century is acknowledgement. it's to say, that when you use somebody else's' work, you're upfront about it. At the end, in the credits, somewhere, deep down, you clearly state I remixed, or I used this."
Hmmm, the context looks pretty much the same there, Mr. Lessig.

How about this one:
"When we've taught the culture, the law catches up..."
What he said, was:
"doing this more, acknowledging who we're building upon, and demanding the artist be respected as an artist, we can begin to teach this culture how this form of expression is an essential 21st century form of expression. We can encourage a much wider range of people to do it and celebrate it, and when we have done it in culture, then the law catches up."
And by "this", he was referring to his three (not four, as he suggested) points:
  1. Spread re-mixing of others creative works far and wide, in every context possible. Not just on video sites, but in schools, public performance spaces, "in every single place we can."
  2. Respect the work of others in a way he proposes to newly define "respect". By giving credit "deep down" somewhere, "in the credits", but not asking permission, nor, it seems, paying for that respect.
  3. Building environments where the re-mixer owns the rights to the re-mix. (But not the underlying source material, he cautions.)
So, let me get this straight - we need everyone to do as much re-mixing as possible without asking for permission from those whose work we remix and rights we violate, and then build a paradigm where the remixer has rights that should be respected? And, eventually, Congress and the law will have no other choice but to accept this new paradigm?

Thankfully, no.

Now, Mr. Lessig has presented his defense. In his response, on the Huffington Post, he write in an article titled "The "Imbecile" and "Moron" Responds: On the Freedoms of Remix Creators", he revises and then re-outlines his position - this time, intended for a much broader audience.

Now, Mr. Lessig, it's time for your cross-examination.
(Continued after the Jump)


Mr. Lessig states that the frame for his presentation was having just watched 50 remix videos for a video contest, and that he was to address that kind of creativity. Lessig first points to how the competitors must have done more than just "grab" the work of others, but rather, they must have been "using the work of others in a way that is transformative...", and Lessig, if his professorship at Harvard Law School is worth it's salt, must know that setting forth this notion of using the copyrighted work of others in a transformative way - compilations and re-mixes is often specious, at best. Transformative uses, according to Stanford University (here), is "any copying of copyrighted material done for a limited and "transformative" purpose such as to comment upon, criticize or parody a copyrighted work." With transformation, at least as it pertains to Copyright, it means that the use is in the public's interest, and as such, does not infringe on the copyright holder's copyright. So, hmmm, the famed Zapruder film of JFK's assassination - that old footage seen from a hill overlooking the motorcade as it passed by - the public's interest is so great that all showings of that film are transformative because of the public's interest? Hmmm, I think I know of at least one great lawyer who has demonstrated that this is false, in multiple courts of law.

Lessig then goes on to provide a history lesson on "fair use", the siren song of many an infringer. I agree that fair use is a critical cornerstone of copyright, and the ability to cite portions of a book, motion picture, or even a song (lyrically, or instrumentally) is important. When Lessig writes in his defense "even the most vigorous defenders of copyright recognize the critical importance of 'fair use' to our copyright system", I would fall into that category.

Let me make that PERFECTLY CLEAR again - I agree that fair use is a critical cornerstone of copyright, and the ability to cite portions of a book, motion picture, photograph, or even a song (lyrically, or instrumentally) is important.

Next Lessig posits his points from his talk (in his defense he suggests there were four, in the video, he only cites three). He states:
  1. "First, I urged creators of remix to make much more of it...It should be practiced and critiqued in a much wider context." He then goes on to attempt to draw a parallel between re-mixing and kids learning to do creative writing essays by quoting other creative writers. In other words (it seems) - this is all about learning and education. He attempts to suggest that in his video, where he wants this done "not just on sites like Vimeo, in schools, in elementary schools, in universities...", however, there's a big difference between "making much more of it" as he defends himself saying, and saying "We need to spread this kind of creativity and expression in every context we can...in every single place we can", and then later referring to all the money that the hip-hop artists of the 80's and 90's would loose if it was discovered that their remixes contained the creative efforts of others, when he envisioned a statement from the rappers' lawyers to the rappers, who might have said "if they ever discover it they're going to sue your ass, and you're going to loose all the money you're making, so, be as obscure about it as you can." Lessig understands then, as now, that there's money in them thar remixing hills.

  2. "we needed to develop better norms to govern remix creativity." The new norm, according to the videotape of his remarks, should be "Now, I think it's time for us just to stand up and be brave enough to acknowledge what we're doing. And acknowledge and respect the people we're building upon by saying 'it's this person's work I am using, and thank you for creating that work, but I'm not asking permission to remix that work." There are already established norms. For example, in publishing, if I wanted to quote Lessig in my book, I can cite a segment of his book - and while there is no hard and fast rule on the number of words citable without infringement, a paragraph or three, or a few hundred words from a 100,000 word book, would likely be within reasonable bounds. On TV shows, it's often 12 seconds or less of audio/music from a single copyrighted work. The problem with still photography, of course, is that the showing of a still photograph is not using a segment of the copyrighted work (i.e. a few seconds, or a few words) but the entire photograph. The new norm, it seems he's suggesting, should be that I can re-mix as much as I want, without needing permission. Norms, for sure in other arenas, have changed over the years. For example, the norm of acceptable language, sexual situations, and topics on TV has changed over the years. The norms for proper attire in public (street clothes and beach wear) too, has evolved. Yet, the norms of property ownership and the protection thereof should not be changing much.

  3. "the remix creator needs to be recognized as a creator -- meaning, that creator needs to be assured she can keep the rights to her creativity." What he said was "we need to build environments where the remix artists is an artist - meaning, that artist - he or she owns the rights to what he or she creates." In this instance, I will agree with Mr. Lessig, along very narrow lines.

    For example, I for one can appreciate the talent that went into remixing the Sham-Wow guy's re-emergence into tv sales for the slap-chop commercial (here - 11 million view). That re-mix was amazing, yet, yes, an infringement. Would that re-mix artist ever have gotten permission to do that? No, but it went viral, and the slap-chop garnered far more publicity because of it, which is why the slap-chop people didn't send a DMCA take-down notice - in fact, they used it as an actual commercial, as noted here. In fact, the re-mixer, DJ Steve Porter, according to this Reuters article, was all but unknown doing "standard dance remixes to little fanfare for a decade", and then along comes the slap chop video, and he's a star. Next, he re-mixes an NBC News affiliate's interview of Antoine Dodson after an attempted rape of his sister in their home, and now it's the "Bed Intruder Song" with a combined 48 million views - but wait - also according to Reuters, there's "revenue for Antoine Dodson and his family, who will receive 50 percent of the track's sales profits".

    Lessig, however, wants the artist to be able to, for example, simply by re-mixing Star Wars video, be able to claim ownership of the finished product, and the creativity that a Star Wars remixer employs and the benefits derived thereof can't easily be separated from the creativity of the original underlying Star Wars material. Because, it seems, there could be commercial value to that remixed finished product, but the finished product would be worth far less had not just the original costs of creativity been incurred, but also the tens of billions of dollars of marketing that has made Star Wars a household name since the seventies. Lucas is essentially coming at it from the mindset that movie editors are a credited contributor to the movie, but not a stake holder in the final movie, as is the case in Hollywood now, and then, compensated as an editor. Lucas is essentially saying that you can re-edit my movies, but you can't commercialize the finished product no more than someone I hire as an editor on a movie I make can.

    Lessig then employed a charged word "sharecropper" - which draws direct lines of recollection to the South after the Civil War, where former slaves would work the land of property owners as sharecroppers, which became, for some, a new form of slavery. A choice use of words, Mr. Lessig, but the slaves saw few alternatives to earning a living and felt relegated to that station in life, hereas assigning the word "sharecropper" to re-mixers sets them up as an underclass that does not exist - they have countless opportunities. They can sow the land of creative opportunity in the land of public domain, or they can do so in Tornado Alley where the risks are far greater.

  4. Lessig then spoke out of both sides of his mouth when he said "I suggested that remixers signal to others the freedom that they themselves have practiced....It's not my job to tell artists to give away their rights." Which one is it? You just did that, and, in point of fact, you espoused it's widespread happening "in every context...in every single way we can."
Then, you go on and suggest that "None of it, I thought when I finished, anyone should have any reason to disagree with. " Really? How about your organization, Creative Commons, whom you seem to have thrown under the bus? Where are you espousing CC licenses? Where? In fact, you didn't mention CC once! You espoused widespread use without regard for the rights of the original creators, as CC has a mechanism already in place and widely accepted, to do. Is this the ethical thing to do? I suppose as the Director of the Edmond J. Safra Foundation Center for Ethics, you can define what's ethical and what's not - or, well, maybe not? I am supposing that the ethics of banker Safra would not not have approved. In fact, from the Foundations' website we learn that Lily Safra, who chairs the foundation and espouses a commitment to the caring for the less fortunate, would find a need to defend the rights of the starving artist photographers who's work would be a part of a re-mix and could not bring suit in your new norm and new world of ethics. While it may be attractive to serve the underprivileged in third-world countries, closer to home there is a creative community that is starving for the ability to pay rent and put food on the table, and your new world order would harm that very creative community. Realize what I was trying to point out in the previous post - what you espouse for Star Wars re-mixers because it couldn't possibly hurt the pocketbook of George Lucas would most definitely hurt the freelance photographer, independent musician, or documentary videographer who doesn't have Lucas' bank account nor lawyers, but would suffer in your new world of copyright without the means to defend their rights nor earn a living.

Then, when you defend your statement "take it and use it" by saying:
"If you understand 'take it and use it' to mean take whole copies (what others call 'piracy'), rather than what everyone in the audience heard, take in order to remix, then indeed it does sound as if I'm 'advocating widespread infringement.'"
Yes, when you're talking about the use of, say, a photograph in a video, guess what - you're taking the whole copy. That's what happens when you use a still image.

When you state "it would indeed be outrageous that a professor of law would be advocating infringement. "

Yes, it would, and - certainly when it comes to still images - you would be doing so. In fact, many remixers use whole songs as the audio track of their visual remixes. Here's an especially amazing example of that (25 million views) - possibly using military footage (which would be likely be in public domain) but a copyrighted song. So, what say you?

You then write "I believe copyright law should be updated to the 21st century. But in the mean time, I am quite explicit: don't violate other people's copyrights." So, which is it, Lawrence? "in the mean time...don't", or, is it do it now "in every context...in every single way we can." and then, as you state in the video "when we have done it in culture, then the law catches up." You can't have it both ways.

Then, seemingly chagrined to be challenged by the rights-holders when your mindset comes to light for an audience greater than 150 people, you write "I didn't give the talk I gave on national television, or even, on the Internet. I gave it to 150 souls." So, this is like the Dixie Chicks hoping their anti-American tirade they went on on stage in Europe shouldn't reach their American audience? Or, perhaps, then candidate Obama, who, in an intimate donor's dinner in San Francisco, as cited in the Huffington Post here where he thought he didn't have a broader audience, criticized the good people of Pennsylvania when he said "they get bitter, they cling to guns or religion."

You then suggest "We need an anti-moron norm: If something sounds crazy, assume its not." Really? "A woman drives her minivan with her kids strapped into the seats into a lake to drown them, so she can be with her boyfriend." Crazy, but true.

How about: "Mr. Embassy official - my son, he's going on a jihad against America. He's going to strap a bomb in his underwear and try to blow up an airplane on Christmas Day." (here).

If you follow "if something sounds crazy, assume it's not", then what about that guy (here) who built a "community where they could escape American capitalism—and criticism—and practice a more communal way of life?" In the end, his followers, under US government scrutiny relocated to Guyana, and no one could have ever imagined that his direction to drink the Kool-Aid he gave them would kill more than 900 people!

It seems you're offering up your own flavor of "new-norm" of Kool-Aid, and no one should be drinking. Not 150. Not 900. Not anyone. Please, return to your ivory tower, and while you're at it, get Rapunzel a haircut.


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Thursday, October 14, 2010

Thank God for Disney, The Wire Services, and the Record Labels!

Fortunately, for we lone photographers, awash in a sea of a litigious society, our rights stand equal to that of the mighty behemoths - Disney, Sony Music, and all of the news photography wire services. Now, don't get me wrong here, but there's an old adage - the enemy of my enemy is my friend. I greatly dislike what the record labels have done to independent musicians, and the contracts that the wire services dictate to the freelance community is crushing self-employed photographers like Steinbeck's Joads were. While I want to tag them as Steinbeck did when he wrote "I want to put a tag of shame on the greedy bastards who are responsible for this", in reference to the Great Depression, there'll be enough time to sort out things and finger point later. Right now, these folks, with their deep pockets, and unreasonable demands for our intellectual property will be the defenders of intellectual property in general, and thus, in a strange twist of fate, the IP of yours and mine as well.

How so?

(Continued after the Jump)


We need only look a few years back, when the hooligans that ran Napster were, quite literally, running amok with the creative talents of musicians everywhere. More than one professional photographer I knew had streams of Napster-sourced music running in their studio, and they seemed to see nothing wrong with it, until I pointed out the hypocrisy, but then I was the killjoy. Too bad. Call me Kilroy, or Killjoy, stealing music was stealing from artists. Period. Then, someone (ahem - Apple) invented a way to properly manage music, and Napster was lobotomized into a lifeless parody of itself, all legal, of course. All, thanks to the music industry's deep pockets and lawyers on retainer.

Now, we have the imbecile Lawrence Lessig, who, from the ivory tower of Harvard University (by way of a video festival awards ceremony), attempted to decree that the thieves of the world "can teach this culture how this form of expression is essential." By "this form" he meant, the mash-ups and repurposing of others intellectual property, and he goes on to say "When we've taught the culture, the law catches up..." Really? Is that what they're teaching at Harvard these days? Teaching the general public to break the law, and eventually it will be ok? Gosh, that sounds a lot like the early arguments for the 12,000,000 illegal aliens undocumented immigrants, and they're close to getting just that. Lessig posits "We need to stand up and acknowledge what we're doing, give people credit, and thank them, but not ask permission". Fortunately, what's good for the goose is good for the gander.

With we as the goose, enter the gander. While I didn't like that Disney mickey-moused with the copyright laws to protect their aging-into-public-domain mouse, it did demonstrate their might, when they wanted it to be exercised. Photographers will likely be among the beneficiaries of the platoons of lawyers the intellectual property industry entertainment industry brings to bear against ill-concieved pronouncements like Lessig's. When the wire services, music, or movie industries leverage their might against the mash-up madness, the laws (and yes, the constitution) will rear up its ugly head and lop off Lessig's Medusa-like head. Lessig can pander to the masses, who no doubt cheered his cute little idea, but if he has any sense at all, he knows it'll never happen, but he gets points and street cred from the mash-up artist for these ideas. How's that working out for you so far, Mr. Fairey?

Lessig, according to the PDN article on this, is quoted as saying "Respect in the 21st century is acknowledgment. When you use someone else’s work, you give them credit." Ok, and I can pay my mortgage with....credit? Mr Lessig, are you saying "let's screw the creative community now, and you'll respect them in the morning?" If so, who's wearing the beer goggles now?

While the concept of Creative Commons was a good one, Lessig has essentially named himself Creative Evisceration Officer, and anyone who now supports CC is aligning themselves with his as-yet-unstated-until-now position. ASMP, who has previously associated themselves with Lessig (here) should immediately disassociate themselves from Lessig in no uncertain terms. Plagarism Today, asked in a piece - Is Creative Commons a Rights Grab? - and it seems that that was the smoke, and Lessig's latest comments reveal the fire. Who will he burn next?



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Monday, October 4, 2010

Morel v. AFP, AFP v. Morel - Which Way Blows the Wind?

Much has been said critical of Agence France Presse (AFP), and Twitter (and the unrelated yet seemingly related site TwitPic), in the case where, in the early hours following the devastating earthquake in Haiti, photogapher Daniel Morel "tweeted" 13 of his photographs to the outside world via the TwitPic network, and AFP distributed those same photographs to their worldwide network of customers, without compensating Morel for their use of his photographs. To date, much of that criticism has been directed towards AFP and TwitPic/Twitter, admonishing them because they "stole" the photographers work.

To the contrary.
(Continued after the Jump)

Morel signed up for a TwitPic account, which is free, and which has a lengthy set of terms and conditions under which he may use the account, and further, what TwitPic may do with material he transmits across their network (text or visuals). He agreed to these terms and conditions. Whether he conveniently forgot what he agreed to, or whether he never read them before clicking the metaphorical "I accept TwitPic's Terms and Conditions" button, the photographer is in the wrong. TwitPic has a network, and the tangent to TwitPic has a network, Twitter, which is bearing the brunt of this suit, and alleged wrong-doing. They both provide the service for free, for reasons that are mostly unknown right now. It may be that they are mining data from tweets about trends in society, age groups, or otherwise taking the pulse of the collective consciousness, and that may be a marketers dream data set. However, the Twitter network spends millions of dollars a year to operate itself, and in exchange for making that multi-million dollar network available to it's users, Twitter gets rights to content it carries over it's proprietary network. Their conveyance of those rights to third parties - in this case AFP, is perfectly within the bounds of their rights, and Morel is out of line.

Jean Francois Leroy, the Director of Visa Pour L'Image has a similar take on this. Over at Duckrabbit, (here) they use similar language - "AFP took Morel’s pictures without the photographer’s permission" and "they thought the photos belonged to somebody else". The operative word in the first quote is "took", and it's wrong. "Took" implies without permission, and they make it clear that's what they meant, when they say just that. The fact is, Twitter's T&C give AFP permission, granted to them by Morel, when he accepted them as a condition of his use of Twitter.

Leroy was quoted as saying:
"Anyone who puts images on Flickr or on Twitter, and then sees them being used, well too bad for him… a photographer should never put his images on a social networking site. If you put your image on Twitter or Flickr and find that it’s been stolen by someone else, well… tough. You can’t ask me to defend you. What I’d like is for all photographers reading this is that they stop putting images on such sites."
The only objection I would have to that quote is that Leroy characterizes the action as "stolen", and, as I have detailed above, AFP did NOT steal them, they have a license (permission) to use them. Otherwise, Leroy is spot on.

What if Morel had been smarter about his images, and used the internet to transmit his images to, say, a service like Photoshelter, where people can access and license images immediately, and which are search-engine friendly so the photos get found easily? They might not have seen the distribution and publication depth and breadth that they did because AFP has thousands of subscribers worldwide, but Morel would have maintained control of the licensing of his images, and likely profited significantly from controlling his rights.

I stand with Leroy, and common sense - don't use free internet services when your own intellectual property is at risk. Not only do you risk losing control of your work, but also, it's just not professional.

For those of you curious, here are the respective Terms of Service (i.e. the terms under which you may use the service, and further, agree to):

From Twitter's TOS:
- You may use the Services only if you can form a binding contract with Twitter

- The Content you submit, post, or display will be able to be viewed by other users of the Services and through third party services and websites...You should only provide Content that you are comfortable sharing with others under these Terms.

- You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
- You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

- Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

- We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.
From TwitPic's TOS:
- By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites

- you retain all of your ownership rights in your Content. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.
What part of that's not clear? Photographer “A” delivers images to party ”B” (TwitPic and then Twitter) and in doing so, accepts terms expressly providing that party “B” has the right to sublicense his work to third party/ies “C”, then the photographer must abide by terms to which he/she agreed. As to Party "C" being Lisandro Suaero, who downloaded the images from TwitPic and reposted them on Twitter under his name (see FastCompany article here for this gem of information), nothing in TwitPic's terms require photo credit, let alone, an accurate photo credit. Setting aside Suaero's ethical breach for taking credit for someone elses' work, AFP has obtained their rights from Twitter who legitimately got them from Twitpic who legimiately got them from Morel. AFP did the right thing, as they learned that Morel was in fact the photographer, and not Suaero, so they corrected the photo credit to attribute Morel. Morel is not some newbie, or someone unschooled in how to transmit photographs - he used to be an employee of the Associated Press as a photographer, so any claims of "I didn't know..." will, for me, fall on deaf ears.

Any questions?

------------
Related:

AFP sues Morel for defamation (PDF)

BJP - AFP v. Morel: The debate rages on

BJP - AFP v. Morel: The Important Questions



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Monday, September 13, 2010

A Copyright Ruling That Could Affect Photographers



In a 3-0 decision by the 9th U.S. Circuit Court of Appeals on Friday, the court said that companies that make and sell software can use shrink-wrap, or in the case of online downloads - click-to-continue licenses to preclude "owners" from the re-sale of the license.

The ruling seems to be the first ruling by an appellate court that specifically focuses on the sale (i.e. the sale of a license) to a party beyond the original purchaser, and the terms of that sale affecting the ability to re-sell it later.

How can this be, you might ask? Well, back in 1909, the "First Sale Doctrine" allowed the owner of a legitimate copy of a copyrighted work to sell/transfer ownership of that particular copy without the authorization of the copyright holder. The court ruled "The first sale doctrine does not apply to a person who possesses a copy of the copyrighted work without owning it, such as a licensee..." This has the potential of having a substantial impact on photographers' licensing and contracts.

How?

(Continued after the Jump)


As it stands, if you have, say, a photographer's book, you own that physical book, and you can tear out the pages, frame them, and then re-sell each of those framed "prints" without the photographers permission (generally speaking.) There has been some controversy in the past about this. This, however, would be a case where you possessed a physical copy of the work, and the first sale doctrine would apply in most instances.

In the past, I have purchased software from bankrupt companies, and had the licenses transferred to me. Having the bankruptcy executor sign a document stating that they represent the bankrupt company worked, and in cases where, say, I wanted to sell a piece of my software to a colleague, I would execute an agreement to that effect. For example, Adobe has guidelines and policies as it regards a transfer, and the documents they require - here.

However, if you posses a license to the work, according to this new ruling, you could not transfer it without something in writing. This certainly can affect contracts. For example, in my contracts for advertising/commercial work, I have this language:
This Agreement shall not be assignable or transferrable without the prior written consent of Licensor and provided that the assignee or transferee agrees in writing to be bound by all of the terms, conditions, and obligations of this Agreement.
This is an important clause. Because, if your images are contained on a client's hard drives, no doubt, the language in the sale of the company as it pertains to intellectual property likely reads something like this:
Company X hereby transfers all right, title, and interest to all trademarks, patents, copyrights, without restriction...."
Thus, the aquiring company could wrongly believe they own copyright to the photography that is yours, on their hard drives. As such, the clause in my contracts is critical to protect me.

The software company that was a party to the lawsuit, Autodesk, had a significant number of restrictions on the sale or transfer - they hard to provide written consent, and further, under no circumstances could the license be transferred outside the Western Hemisphere.

While the company who lost in this case has vowed to appeal, the 9th circuit had overruled a lower court who ruled that the when a purchaser is allowed to keep the work they purchased as the original purchaser, they have the right to re-sell it at their discretion. The American Library Associiation and eBay took a position counter to the ruling of the court, arguing that other copyright holders (among them, photographers, book authors, etc) could follow suit. The court acknowledged as much, but left legislative solutions to that, noting the government should modify copyright law "if it deems these or other policy considerations to require a different approach." With Congress introducing bills to protect fashion designs (as reported here and here in the Washington Post) which are currently not protected by copyright at all, it seems that copyright laws may be in for a substantial revision in the near future.

You can read the courts opinion here (as a PDF).


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Friday, April 2, 2010

Digital PhotoPro - Misinformation indeed!

There are plenty of purveyors of misinformation on the web, and to be sure, in print too. Yet, I was shocked to find one whose core readership are DIGITAL PHOTOgrapher PROs (hence Digital PhotoPro) telling photographers that it is a myth that "stolen images are a bad thing." What kind of idiotic advice is that, anyway?

The article, Misinformation - Copyright Tech, on the last page of the magazine (pg 118) itself espouses the notion that you can gain notoriety if your images propagate over the internet, and are appreciated by "...a lot of fans out there who want stuff for free." (I'll address that one later).

The article then says "The fine line between good publicity and outright thievery is a matter open to debate." No - that's idiotic line #2.

The article then suggests that Creative Commons is a good solution for photographers who want to share their work. Let's get this straight - Creative Commons is a mechanism for conveying a license (i.e. permission) for end users that is set by the photographer. Most people who use CC licenses are granting broad rights, often seeking only photo credit, or allowing for all uses except commercial. This - CC is a manner of granting PERMISSION to do something.

(Continued after the Jump)


There is all manner of PWC (person with camera) in the world who doesn't give a damn if they ever make a dime of their photography. Their "payment" is photo credit, an atta-boy, or bragging rights amongst their PWC peers. However, images that are "stolen" are done so without anyone's permission. If you leave a broken toy on your front lawn and it gets stolen in the night, you may not care enough to call the police, and in fact, might thank the unknown thief for taking something you were going to throw away. Yet, in the end, not only is it still theft, but you are also telling the thieves that in your neighborhood it's ok to steal, and the next thing to go will be items of value. Teaching a community that theft is ok is just plain wrong. Telling a readership of photographers that they should get over it, and evolve from "...the old-school way..." The article then suggests that CC "...provides you flexibility in protecting your works for meeting the ever-changing world of supply and demand." So, DPP editors - which is it? It's a "Myth [that] stolen images are bad thing", or, you should use CC to protect your work? You CANNOT have it both ways.

The article suggests your work will be appreciated by "...a lot of fans out there who want stuff for free." Guess what? Fans who want stuff for free is a growing audience that...wait for it...won't want to pay you. So, you can grow an audience of people who want to free-load off your creative works, which will not pay your bills.

I looked to see who wrote the article, or generally writes that column - but I couldn't find a name. Perhaps no one was willing to put their name behind the piece? Perhaps it was written collectively by the editorial staff. Among the "professional advisers" on the masthead are Jeff Schewe, Doug Sperling, and Ryan Stevens, alongside contributing editors John Paul Caponigro, Robert Hawk, Michael Guncheon, and William Sawalich. I am pretty sure that most if not all of them would NEVER want their images "stolen", let alone endorse the notion that stolen images is an idea that should be spread around. Some might want a broad CC license granted to their work, but that's a license/permission, not a promotion of the attitude that theft is ok.

In addition, a CC license extends to every single person on the planet, is perpetual and irrevocable. Further, CC does not clearly distinguish between commercial and non-commercial use either. Lastly, when applying a CC license you FOREVER forfeit the right to issue an exclusive license to anyone who approaches you to use that image. CC is a great means of destroying your exclusive rights and sapping nearly all of the value out of an image.


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Saturday, November 14, 2009

US Copyright Office - 23-Month Wait on Registration

I am someone who strongly encourages everyone to register their copyright. Doing so is your ticket to federal court when you are infringed, and provides for remedies like statutory damages and repayment of attorney's fees when you win. These added benefits make pursuing a copyright infringer far more likely to result in a positive outcome for you.

On December 21, 2007, I visited, in person, the US Copyright Office to deposit a copy of my images from a specific set of assignments that took place the month prior, in November of 2007 between the 5th and 27th of the month. Above, you will see a scan of the top of that certificate, which is one of hundreds I have going back to 1989. It is important to note that the effective date of registration, as noted there, is the date the US Copyright Office received the registration - December 21st, 2007.

Yesterday, November 14, 2009, 23 months later (695 days), I received the envelope with my formal certificate in it. Below is the return address and post-mark for the letter, dated two days prior:


I'd like to think that this would happen faster, however, in the end, I've been protected all along. If you'd like to see the online version of this same registration as displayed at the US Copyright Office, click here and enter "VA0001687427" (which is how you enter the VA number with a series of leading zeros and no dashes) as shown below:


If you've got your own registrations, check them out here as well - it's refreshing to see your listings, but they're not all online, so don't panic if you don't see it online.

Previously, we posted a walk-through of the entire process of a copyright registration - have a look at it here. To see our sample PDF that would help you process your own copyright registration, along with pointers/guidance, click here.

For those of you who are wondering if there is a limit to the number of images you can register, after the jump is more conversation on that.
(Continued, after the Jump)

You are not obligated to use the GRP/CON form when submitting your registration. Regulations give you that option, however, if you do, your registration will be limited to 750 images per registration. Below is one example of a registration I did for an entire year, for images produced between January 10, and December 31, 1999, for a total of 23,131 images on one registration. For 1997, for example I registered 15,915, and for 2000 I registered 28,999 images.



Now, go register your images, and protect yourself!


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Thursday, November 5, 2009

Dim-witted Ideas from The Copyright Registry

Advising photographers that you should only ever register a single image at at time is just as dim-witted as advice to someone to never go across the street because you might get hit by a car. Yet, the brilliant minds parading around as experts-in-residence at the dubiously named Copyright Registry are telling you to do just that, when they suggest, in their poorly titled blog piece - Best Practices Copyright Registration Quantities - "Best Practices for governmental copyright registration dictate that you should only publish and register one image at a time." We previously wrote about the dubiously named Copyright Registry - What the....? C-Registry = Con Registry?

The "diminished value" advice in this article may - and I emphasize heavily *may* - be just as technically correct as the notion that you should never cross a street or you might get hit; or, you should avoid flying because you might crash; or, a la Howard Hughes - never interact with another human because you might get germs. However, photographers are not producing a few oil-on-canvas works of art each year, they are producing tens of thousands of images a year - often thousands of images from one day. You do the math - $45 per registration multiplied by 500 images and guess what? You're essentially convincing photographers that it is not economically sound to register.

It's easy to sit in a Park Avenue apartment dreaming up ideas that you shill like a turn-of-the-century snake-oil salesman, as the owners of the dubiously named Copyright Registry seem to be doing. Yet this ivory tower mentality has almost no real world application, and is not rooted in reality.
(Continued after the Jump)

It seems they are trying to scare you into using some poorly thought out product they offer that will somehow automate the process of "governmental copyright registration", as if there is any other type! They suggest
"A la carte, individual registration eliminates the efficiency of bulk registering all the images of a photo shoot or project or calendar year and adds a significant logistical burden to creators."
And then in the next sentence hold themselves out as the solution
"This is one reason why image registries like C-Registry.us are growing rapidly."
Filing images in any way, either by somehow uploading all your images to their system or an online gallery (as if these are not a logistical burden in and of themselves!) does absolutely NOTHING to protect your images from infringement. The only proper protection is actual registration at the accurately named Copyright Office. It sounds misleading at best to say in a video tutorial "Site Protector is the easiest way to register your images with the Copyright Registry". Someone who doesn't know any better could be duped into thinking that doing this actually gives you "copyright registration". It DOES NOT. By writing "governmental copyright registration" they seem to be suggesting that "copyright registration" without the modifier "governmental" is somehow worth anything, and thus, they suggest with language like "register your images with the copyright registry" you should be using their service, almost to the point that you might actually think you have actually filed a real copyright registration that is actually worth something. YOU HAVE NOT.

Statistics speak volumes about the realities of copyright registration. Fewer than 5% of all professional photographers have ever registered their work with the US Copyright Office, and fewer than about 2% register with any regularity. This blatantly unrealistic and bad advice about registering one image at a time just further demonstrates how out of touch the dubiously named Copyright Registry is.

Let's start with a "Best Practice" that the dubiously named Copyright Registry and I can agree on - you should be registering your work. Second, we both can agree that, as they admit about the two ideas put forther in their blog article "neither of these approaches is practical". Let's be perfectly clear here then - you are suggesting a "best practice" is NOT PRACTICAL? That then makes it not a best practice, since you can't practice it practically. This idea isn't just out in left field, it's standing with its' mitt in the parking out outside the stadium wondering why no pop flies are coming over the stadium walls.

To paraphrase the game Monopoly, which, when sending you to jail says "do not pass go, do not collect $200", I say "Do not spew forth impractical and inaccurate advice to photographers on copyright. Do not draw photographers into an ill-conceived flim-flam of an idea that is almost certain to fail them when they would most need it. By then you'll be on to your next money-losing charade."


Related Stories:




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Wednesday, November 4, 2009

ACTA - Sounds Too Good To Be True

The ACTA, or Anti-Copyright Trade Agreement, on its' surface, and if all the leaks are to be believed, sounds too good to be true. The goal of the agreement is to fix the standards that are essentially broken in the copyright field. Frankly, from what little I have heard, it sounds great. The devil, of course, is in the details. Fortunately, the negotiations are taking place in secret, to minimize intrustions by those who want the entire internet to be free, and for anyone anywhere on the internet to use things like photographs they do not own, for free.

Wikipedia has done a good job of summarizing it here, but here's the reality about copyright...
(Continued after the Jump)
While you own the copyright to what you create the moment your image is fixed in a tangible medium (i.e. film, memory card, etc), your ability to get paid and punish infringers is minimal unless the image is registered. Estimates show that fewer than about 2% of photographers regularly register their work, and about 5% have ever registered. Sure, you can send a DMCA takedown notice, but the infringer can continue their infringing ways. How cool would it be if, like California's "three strikes" rule - which dictates that criminals after having committed three felonies, go to jail for good - you would experience an escalation of punishments - and fees - which would end in your being forbidden from using the internet? Gizmodo suggests here - " An example of a graduated response is France's "three strikes and you're out" law. There, you get two warnings if caught sharing music or movies, then you're banned for up to two years."

Thus it seems, your ISP would refuse to make available to you (presumably at your home) internet service. How would they police mobile internet cards, or your access at public libraries, etc? Obviously, there would be some challenges, but - and I stress this again - on its' surface, it seems too good to be true.

I don't expect, given the international coalitions that are negotiating this agreement, that any one organization or corporation will be able to stop it. The Berne Convention, for example, was initially unpopular, and the US didn't sign on until 1989, however there are still a few elements of Berne that the US does not accept, like the rule of the shorter term. Could this happen to elements of ACTA? Yes, but not to the degree that would gut the benefits that photographers would see from it.


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Saturday, October 17, 2009

NBC sued for Copyright Infringement over Fonts


It may seem unusual, but yes, those fonts you are using are graphic designs, and copyrightable. In fact, while Adobe owns a great many of them, Font Bureau owns - and creates - custom fonts for clients. Enter NBC, and their copyright/trademark/breach-of-contract, and so on. As Softpedia reports here, and The Business Insider here has the actual copyright registrations on display, and Ars Technica has another take here. With apologies in advance to our non-US readers, Saturday Night Live, one of the shows that is alledged to have used the fonts without a license, cracked a joke about the $2M in damages that Font Bureau is seeking - suggesting that NBC doesn't even have $2M to pay out:


The SNL joking about not having $2M wouldn't be so laughable if
(Continued after the Jump)

the entire Business Week brand hadn't just been sold by McGraw-Hill to Bloomberg for a paltry $5M. Really? $5M? Yes - according to the Wall Street Journal (here), the 80-year-old holding of McGraw-Hill is now a Bloomberg property. But I digress.

This should remind you that you can't just copy software package X from one computer to three without paying for more seats. Photoshop "helps" you with this, by requiring activation of your software, for example.

In this case, a font was purchased for use on one computer, and was used on multiple ones, and even - allegedly - distributed outside of the company. This would be like someone licensing your photo for a brochure in English, and then printing it in Spanish and French as well, figuring you'll never find out - hence, the value of discovery.

What's that, you say? "It's just a font - big deal!" Really? Try saying it this way "It's just a drawing of the letters of the alphabet - no one owns the alphabet!" Then, try that logic on "it's just a photo of the sky and the mountains, you can't copyright those things - they belong to everyone!"

The font is an artists' rendering of the letters of the alphabet in a unique and creative manner, just as that photo of Half Dome by Ansel Adams is more than a photo of a sky and a mountain.


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Friday, October 16, 2009

Shepard Fairey v. AP ~ Fairey's Falsehoods and Fabrications

The Associated Press has released a statement regarding the case brought against them by Shepard Fairey. In a remarkable turn of events, according to the AP, "Shepard Fairey has now been forced to admit that he sued the AP under false pretenses by lying about which AP photograph he used to make the Hope and Progress posters." Further, the AP is stating that not only have Fairey's attorneys sought the permission of the court to withdrawl from the case, but that "Mr. Fairey has also now admitted to the AP that he fabricated and attempted to destroy other evidence in an effort to bolster his fair use case and cover up his previous lies and omissions."

Stunning.

Complete statement follows:
(Continued after the Jump)

Statement from Srinandan R. Kasi, VP and General Counsel, The Associated Press
Striking at the heart of his fair use case against the AP, Shepard Fairey has now been forced to admit that he sued the AP under false pretenses by lying about which AP photograph he used to make the Hope and Progress posters. Mr. Fairey has also now admitted to the AP that he fabricated and attempted to destroy other evidence in an effort to bolster his fair use case and cover up his previous lies and omissions.

In his Feb. 9, 2009 complaint for a declaratory judgment against the AP, Fairey falsely claimed to have used an AP photograph of George Clooney sitting next to then-Sen. Barack Obama as the source of the artist’s Hope and Progress posters. However, as the AP correctly alleged in its March 11, 2009 response, Fairey had instead used a close-up photograph of Obama from the same press event, which is an exact match for Fairey's posters. In its response, the AP also correctly surmised that Fairey had attempted to hide the true identity of the source photo in order to help his case by arguing that he had to make more changes to the source photo than he actually did, i.e., that he at least had to crop it.

After filing the complaint, Fairey went on to make several public statements in which he insisted that the photo with George Clooney was the source image and that “The AP is showing the wrong photo.” It appears that these statements were also false, as were statements that Fairey made describing how he cropped Clooney out of the photo and made other changes to create the posters.

Fairey’s lies about which photo was the source image were discovered after the AP had spent months asking Fairey's counsel for documents regarding the creation of the posters, including copies of any source images that Fairey used. Fairey's counsel has now admitted that Fairey tried to destroy documents that would have revealed which image he actually used. Fairey's counsel has also admitted that he created fake documents as part of his effort to conceal which photo was the source image, including hard copy printouts of an altered version of the Clooney Photo and fake stencil patterns of the Hope and Progress posters. Most recently, on Oct. 15, Fairey’s counsel informed the AP that they intended to seek the Court’s permission to withdraw as counsel for Fairey and his related entities.

The AP intends to vigorously pursue its countersuit alleging that Fairey willfully infringed the AP's copyright in the close-up photo of then-Sen. Obama by using it without permission to create the Hope and Progress posters and related products, including T-shirts and sweatshirts that have led to substantial revenue. According to the AP's in-house counsel, Laura Malone, "Fairey has licensed AP photos in the past for similar uses and should have done so in this case. As a not-for-profit news organization, the AP depends on licensing revenue to stay in business." Proceeds received for past use of the photo will be contributed by the AP to The AP Emergency Relief Fund, which assists staffers and their families around the world who are victims of natural disasters and conflicts.
Well, that about wraps things up for Fairey's claims - and now the AP will have a bunker full of ammunition against Fairey in seeking their countersuit.

AP Link to motions and exhibits here.


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Thursday, October 8, 2009

PicScout Goes On Offense - But Can it Score?

Since the inception of the PicScout service, which scours the web fingerprinting images and locating the uses (and occasional unauthorized use) of their clients images, PicScout's service has been a defensive mechanism. There was no solution that actually helped connect image buyers to rights holders. Until now.

PicScout announces a product they are calling "Image IRC". The IRC stands for "Index Registry Connection", describing the process. The question at hand is - who will pay for this service, and is the process of actually enabling it so onerous, that it is a flash in the pan? Of greater importance though, is as much as it might help photographers - could some of their tactics damage the stock photography market?

(Continued after the Jump)

In a briefing I recieved last week from PicScout, I was impressed that PicScout has gone on the offense, looking to create a positive encounter with clients, rather than the potential adversarial scenario that would exist when the image user is being caught using the image without permission, and PicScout stepping in.

Let's take a look at the promise of Image IRC. searching for images in a web browser can lead to legal problems for people who don't use images with the proper licenses. What if, however, when you searched Google Images, a small "i" overlay appeared on images for which there was licensing of that image with just a few clicks?

Further, what if you were reading an article on a website anywhere, and decided you wanted to license the image that was in that article for your own specific needs?

No need for hunting, searching for the exact image - just click the "i" icon that is there, and you are a mouse-click or two from licensing and downloading the image - legally - for your own needs. By clicking on the "i", a panel like at right (illustrated based upon our preview) would appear as a pop-up. To see larger examples, PicScout has provided us with screen grabs. Here is a screen grab without the plug-in installed. Here is the result with the plug-in installed, and here is the result when you click on the "i".

Pretty cool, yes?

Not so fast. the challenge here, is that, you won’t see the “i” unless you have first proactively downloaded and installed the PicScout Image IRC plugin into your browser(s). No plug-in, no “i”, no image license opportunity. There is no actual integration with Google Images.

In order for any photographer to benefit from Image IRC the Image Buyer (IB) must:
  1. be aware that Image IRC exists
  2. be convinced that IRC is a good thing and that there is a benefit to them to install and use, even though only a tiny percentage of images on the web will be identifiable using IRC.
  3. convince their IT department to commit resources to testing and approving the plugin for adoption and installation in the browsers of computers on the corporate network.
  4. be looking at an image that happens to have been submitted to PicScout by a photographer or stock agency and then fingerprinted by PicScout.
  5. desire to pay to license the image.
In a one-person office, installing an application or plugin is a fairly simple process. Unfortunately for PicScout and Image IRC, the installation of plug-ins is anything but simple in the corporate environment, where network policy almost always prohibits image buyers and other employees from installing plug-ins in their browsers. IT watchdogs are extremely wary of plug-ins and are unlikely to allow plug-ins to be installed into client computers on the network. This will be a very significant hurdle for PicScout - getting professional image buyers to install the IRC plug-in, without which image buyers will be unable to use Image IRC. If image buyers at the ad agencies, design firms, publishers and other major corporations don’t adopt and install image IRC in droves, photographers and stock agencies will be no closer than they are today to monetizing their images scattered around the web, and will derive little benefit from Image IRC.

Take, for example, Flash. With tens of thousands of cutting-edge developers building content that required Flash, and most of the coolest websites not only requiring flash, but requiring you to "click here to download and install the Flash Player", it still took a decade for Flash to be a mostly transparent part of the browsing experience, as javascript has been almost since the beginning. PicScout does not have these tens-of-thousands of developers, which creates implementation problems.

Image IRC is a very niche product/service, that, while a good concept, is likely to fail due to lack of adoption by buyers.

Would I like to see it adopted? At first, my response was a hearty "Yes - anything that will connect photographers and image buyers to make a sale, I am in favor of."

Then, I took a closer look at PicScout’s recent marketing, which reveals a bombshell:

PicScout is evidently intent upon launching and encouraging an unprecedented and aggressive promotion of free ($0) image licenses, that is ultimately targeted at the very same clients that professional photographers and stock agencies depend upon for their livelihoods. This seems contrary to the potential good of Image IRC for photographers/rights-holders, because if PicScout truly cared about professional image makers who earn a living making and licensing images, they wouldn’t be serving up millions of free Creative Commons images to our clients on a silver platter - especially since there's no apparent revenue stream for them in licensing images that are free. With this in mind, I would be very surprised and disappointed to see any photography trade organization endorse a PicScout service that openly promotes and facilitates widespread free usage of images in competition with pro photographers, within the same user interface. If PicScout succeeds in its efforts to help our clients identify and use millions of free images, PicScout might well be to blame for driving the final nail into the coffin of the independent professional photographer. There's no money in being the facilitator of licensing free images - for anyone.

Which brings me to the cost part of the equation.

One of the questions I asked PicScout was “who will pay for this service?” (hint - no one, if the photos are free!) Though, apparently, they haven't quite worked that the dollars and sense cents on this yet. One idea would be for the photographers to pay for fingerprinting and tracking, and the appearance of the “i”. This would be cost prohibitive for me, and for almost any photographer, and is the reason that I don’t currently pay for PicScout’s web spidering and enforcement services. In addition, the fact that PicScout also requires that photographers agree to allow PicScout to exclusively handle any resulting litigation and settlement discussions (and take a huge chunk of the resulting award/settlement) also doesn't sit well with me. One other idea floating around is that PicScout wouldn't take anything up front, but take a percentage (which should be under 5% in my opinion) of the license fee resulting from the image buyer clicking on the “i” and then licensing the image.

As I said - this hasn't been decided yet, and even if PicScout succeeds in getting significant numbers of professional image buyers to install the plug-in, they will not succeed unless they come up with a pricing solution that convinces photographers and stock agencies to buy into their service and submit large quantities of images.

PicScout's own FAQ outlines who their general audience is, when posing this question and answer:
How many images do I need to sign up for your services?

The quick and easy answer is that we've found the cost-benefit tradeoff to be around 30,000 images, which is currently our minimum requirement to use our services. If you have less than that, chances are that you will pay for more than what you'll get in return...Stock photo agencies and higher-end commercial photographers tend to be typical candidates for our services for these reasons."
So, it seems that the average photographer as an independent is not their audience.

Further compounding the problem – when a user searches Google Images and the search yields thousands of images, that user is unlikely to browse past the first 3 pages, and many users never go beyond page 1. How many images on that page will happen to include the PicScout “i?” Using Image IRC without a Google partnership will require that image buyers wade through page after page of Google Image sludge, with only an occasional image happening to have been registered with PicScout, and thus displaying the Image IRC “i”.

Of course, adoption by Google would go a long way toward solving that issue, but Google is apparently not buying into Image IRC. Given that Google’s business model is almost entirely focused on advertising revenues, a partnership between PicScout and Google is unlikely. Not impossible, but highly unlikely.

I am doubtful that this great idea will succeed. I am hopeful that I am wrong, and I am really really hopeful that they will not be a part of promoting free images.

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