Issues of Copyright

Over at January Magazine, I've been dealing with an issue that's got my blood boiling.

A few days ago, we discovered that one of David's photographs had been prominently used on a very prominent Web site. Prominently. We did a Google image search on this particular author and found that the image had been used on 30 or more sites. But David has photographed hundreds of authors for January over the years. Many of them extremely well known. And he's a great photographer, so his images kick ass. Everyone wants them. In fact, he has sold publication rights to magazines and newspapers all over the world. He's gotten to be a kind of go-to guy for high quality images of authors, because David's are the best.

We started searching for images of other authors David has photographed and we found his images used without permission so widely across the Web, I could not believe my eyes. And I'm not talking blogs here -- though there was some of that, as well. But city guides, culture guides, university and college Web sites, you name it. In short, people who should know better, people who should be sensitive to the needs and rights of creative people, abusing those rights because it's convenient to them.

What is it about the Web that would seem to grant permission for illegal image use? It's easy, but that does not make it right.

Copyright law is not ambiguous. Web use is not more acceptable than print use when it's a matter of copyright misuse. However, in order to reproduce an image in print, you mostly need to contact the photographer to get an actual continuous tone print or a negative from which to work. On the Web, with it's steady 72dpi reproduction, it's possible to just grab something, perhaps rework it slightly (like slicing David's credit off, for instance) and then pop it onto your own site. I mean, that'll work. But it's still against the law.

There have been times, in the past, when issues like this have come up and we've just asked the people using it to pull the image. But there's a standard fee that David charges for Web use (when people do ask) so, this time, we sent invoices to the abusers. And we sent scores of them. Our thinking being that, since cease and desist letters have not always produced the desired result in the past, an invoice should hit them where they live. The replies have been nothing short of astonishing. A few -- a very few mind you -- have been extremely apologetic and have removed the images immediately. We mostly gave these ones a pass. Others, however, have been anything but apologetic.

Some have been outraged that we would have the audacity to charge them for something they'd already used. And one railed at me for taking him to task. I know it's risky, he said to me, though I paraphrase, using copyrighted images. But, generally, when I explain the good work we're doing, the copyright holders waive their fee.

He explained that, in nearly a decade online, his Web site had heard from many outraged copyright holders but that said holders had relented once they knew what he was up to. Honestly, he wrote, if I had to chase down the holder of the copyright for every image we have on the site, I'd never have time to do anything else.


This is exactly the sort of cavalier attitude that is eroding the rights of the creative community. I really feel that, with our little hit back, David and I have been making a stab at this practice. Because it's not OK to use copyrighted images -- or sound bytes or news stories or art -- without permission and attribution. It's not OK for so many reasons, many of which have nothing at all to do with money.

BTW: the image at the top of this column is the one that started all of this. The photograph is of Salman Rushdie, copyright David Middleton and used with permission. For cryin' out loud.

Comments

Elaine Flinn said…
Cavalier attitude? I rather think it's an erosion of ethics - which seems to be on the rise. Good for you both for going after them!
shelley said…
It is such a big issue in the typography/font business, that it's now a common thread at conferences and on internet forums. One friend of mine goes after about 4-10 a month - she sends them a letter (form-written by her lawyer) that offers them a chance to pay for what they stole or else be sued by an IP lawyer. Apparently her lawyer fees are easily reimbursed. Too bad she'd rather spend her time designing fonts than hunting pirates. . . .
Sandra Ruttan said…
One thing I wonder about is those emails with all the photos. As a photographer as well, I have this conflict. I'll put joke pictures like those on my blog sometimes -clearly taking no credit for it - but everything on my website I either took or own (my wedding photo).

I think this is a very serious issue, and I'm forever telling aspiring writers to be more careful about posting their wip's. Unfortunately, they all think I'm being ridiculous and nobody would dare steal it.
I like what Shelley's friend is doing: going after a handful of pirates every month. The continued stabs against copyright violations. Ongoing. I think we'll do that.

And it's actually paying off: people are paying up. (So my blood is down to simmer.)
Sandra Ruttan said…
Sounds like a good plan. When there's ongoing use of a photo for marketing purposes or site design the photographer should be paid, although someone raised this recently about author photos and said that they'd had a quote that involved paying a substantially higher fee for consent to use the photo for limited marketing purposes. In that case, it seems surprising to me. When I photographed school kids one year, some of whom later died, nobody paid me to run the photos in the newspaper, and I never would have considered it a copyright violation. I was surprised some photographers do.
Those are all kind of different issues. For example, in the case of the school kids, you're talking about a work for hire agreement. Generally, a company is contracted to do the photos and they hire a photographer -- generally by the hour -- to take photos of all the kids. Though terms of copyright are generally specified somewhere on the package, it boils down to the fact that whoever is getting extra money, it isn't the person who took the pictures.

When you hire a photographer to take photos of you, that again is work for hire and you lay down the terms with said photog in advance of the shoot. You'll probably sign some type of agreement -- or the photographer will -- that specifies how the image may be used and by whom and under what conditions.

The photos we're talking about here are different still. In this instance, the photos were taken by David for January Magazine. As with all our contributors -- words and photos -- he retains copyright but gives us the right to use his work. And, in this scenario, the subject has no say in the matter: no work for hire. The images can't be used for commercial purposes (ie: David couldn't sell Margaret Atwood's image to a company wanting to use it to sell coffee. Even if he wanted to. Which he doesn't.) However, he can sell the image for editorial use by other publications or to, say, the European publisher of one of her books to promote her work or local appearances.

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