NY Times Advocates Theft

<p>This one is, shall we say, beyond belief. An <em>NY Times</em> blogger openly advocates stealing protected images from the 'Net and using them to decorate your home. Why didn't I think of it? The <a href="http://gadgetwise.blogs.nytimes.com/2009/06/24/flickr-as-an-interior-decorator-tool/#comment-29543">blog post</a> actually contains the following remarkable construction.</p>

<p><em>And if you’re wondering about copyright issues (after all, these aren’t my photos), the photos are being used by me for my own, private, noncommercial use. I’m not selling these things and not charging admission to my apartment, so I think I’m in the clear.</em></p>

<p>I think I will switch from photography to sculpture. Thay way my art will be too heavy to easily steal, and I will have a maul and chisel in my hands.</p>

<p>Les</p>

<p>Existing thread<br>

http://www.photo.net/business-photography-forum/00Tkln</p>

<p>I think photographers need to do a better job educating the public as to the issues of ownership regarding photographic works, especially given the current atmosphere of ubiquitous media and instantaneous information dissemination.</p>

<p>To be fair, if a photographer posts a picture on Flickr and makes it publicly available, they can't really have much reasonable expectation that their work won't be appropriated in ways that disregard their copyright. If a photographer really thought it important to safeguard their ownership rights, they would not upload their work onto Flickr for everyone to see, download, and use, Creative Commons licenses be damned.</p>

<p>That's the thing about CC: It's legally valid but just because unauthorized use is restricted by law, does not mean it will do anything to stop infringement. It's a bit like home security to stop theft. Just because trespassing and theft is illegal, does not mean everyone can now just leave their doors open and unlocked at all times.</p>

<p>But let me also point out that copyright infringement is not quite the same as theft. If you steal someone else's personal property, you have taken something from them. They no longer have it. But copyright infringment is unauthorized reproduction or duplication of an original work. If someone makes a copy, they have not taken your original. You still have it. You may be entitled to remuneration or additional damages for the presumed loss of revenue that would have been generated from the sale of that work, but that is an entirely different legal position than outright theft. That is not to say one is more acceptable than the other. It simply means that the precise term to describe the proposal put forth by the NYT blogger is "advocates copyright infringement."</p>

<p>The problem though, as described above, is that the owner of the work, by making it publicly available on Flickr, weakens his/her own claim on copyright, because the simple act of accessing the web page containing the image automatically results in the creation of a local copy on the client's machine. Furthermore, publishing the work under a CC license actually permits such "personal use" as described in the article. That is the argument the blogger is using to justify their actions.</p>

<p>Another issue arises regarding the use of Flickr and CC, which was illustrated in a still-pending case. The photographer cannot sign away the rights of people depicted in the image. So for instance, if I take an image on private property of someone who gives their verbal consent but does not sign a release granting commercial use of their image, I cannot then license that image under CC (except if tagged non-commerical use only). Here's how it works: Say I take personal images of a friend doing something embarrassing or silly while on their property. We have an implied agreement that such an image is okay for our own personal use. But then I decide to share it, publicly, with our mutual friends via Flickr, and tag it CC. This is where I've now done something wrong, because the subject has never consented to the commerical use of their image, and I have now misrepresented that fact. A company finds that image and decides to use it in an ad campaign, causing my friend serious distress and loss of privacy that was unanticipated. Who does my friend sue? The publisher, or the content creator, or CC?</p>

<p>To Peter: NO! Flickr allows you to post as CC, but also as 'All Rights Reserved'. The NYT blogger does not differentiate. She does not mention copyright, except as I quote above.</p>

<p><em>The problem though, as described above, is that the owner of the work, by making it publicly available on Flickr, weakens his/her own claim on copyright, because the simple act of accessing the web page containing the image automatically results in the creation of a local copy on the client's machine.</em></p>

<p>Categorically incorrect. I have agreed to SHARE the image on the Web, not to allow it to be printed. People sue for just this kind of use all the time, and win significant judgments.</p>

<p>I think you're taking this a bit seriously. He's not talking about claiming credit for them, selling prints, or using them to pretend he has a portfolio. He's talking about running off a print on his inkjet to put on his wall.</p>

<p>Ah, but I don't think this issue is being taken seriously enough. I actually agree with Les about this--it is a difficult issue and content creators should be more vigilant about protecting their rights. The RIAA/MPAA does a very good job of this because they have enormous financial resources. What of the self-employed, struggling photographer? The law is written to be fair, but its application is all but fair.</p>

<p>Les: I'm not saying that the arguments I presented in my previous post are what I personally believe is right or even legally valid. I am trying to illustrate that in many cases the law has not sided with content creators as a result of some of the arguments I have put forth above. As a result, there is a burden of responsibility upon content creators to ensure that they take appropriate measures to safeguard their work from infringement, and that includes the use of Flickr. I would also argue that such safeguards apply to any site that is not hosted and managed by the content creator for the specific purpose of establishing their online business. Whether such measures are overkill or not is besides the point. In this day and age, the law may still be the law, but you don't leave your car unlocked just because the law says it's illegal to steal.</p>

<p>Furthermore, what is substantively different from viewing a shared image on the web, and printing it? These days, the line is quite blurred. There are such things as digital picture frames that display images directly from the web. Like I said, it may not be "right." But technology moves fast and there are ways in which original works may be used that were not previously anticipated.</p>

<p><em>He's talking about running off a print on his inkjet to put on his wall.</em></p>

<p>Which is violating copyright law, especially on all of those marked ARR. Many professionals post samples on Flickr and other sites as a way of being seen. They also sell prints of these same photos. Yes Andrew, it is serious. And if you read the article, the author updated it with one of the most arrogant statements I've ever seen with regard to this subject, stating examples which are ALSO illegal.</p>

<p>I <em>sell </em> prints. I do not give them away. Yes, I do 'take it a bit seriously' when a major news organization tells thousands of people, "Don't pay for prints. Just steal them. It's so easy." How am I to make a living then? Wouldn't a normal, moral human being at least ask permission first? And thank the photographers for allowing her to use their work?</p>

<p>It is true that posting an image makes it available to anyone. Leaving my door unlocked means someone can steal my cameras. That's okay with you? I just <em>love</em> moral relativism.</p>

<p>[[Which is violating copyright law, especially on all of those marked ARR]]</p>

<p>Are you claiming that printing a work released under "CC Attribution Non-Commercial No Derivatives" is a violation of copyright? </p>

<p> </p>

<p>Allow me to rephrase.</p>

<p>I post a photograph on Flickr, in high resolution. I check off the appropriate boxes and retain all my rights.</p>

<p>By the act of uploading the image to a public place (not even my own server) I have implicitly agreed that members of the public may download it and have a copy on their hard drive. Why? Because I'm not a moron and I know that's how web browsers work.</p>

<p>However, I now expect that members of the public, who are not legal scholars, will not interpret their right to view my image on a screen, and to have a copy on their computer, as also being a right to have and view a copy the image on paper. Am I being reasonable? Probably not. In fact, I'm 50% sure I've just convinced myself that the guy who prints it is legally justified.</p>

<blockquote>

<p>Many professionals post samples on Flickr and other sites as a way of being seen.</p>

</blockquote>

<p>Which, due to the general public's complete ignorance of copyright law, as so aptly demonstrated by the NYT blogger, is why I argue that using Flickr as publicity is a really poor idea. At the very least, if a photographer is going to do such a thing, the samples should never be full size and should always be clearly and indelibly watermarked.</p>

<p>To use the personal property analogy yet again: Not uploading to Flickr at all = not leaving valuables in your car to be stolen. Uploading a small thumbnail = leaving a mockup or facsimile of a valuable (e.g., fake jewelry). Uploading images encapsulated in a Flash program = locking the door. Okay, so it's not a perfect analogy. But the point is that there are many ways to prevent people from casual unauthorized use of your images.</p>

<p><em>Are you claiming that printing a work released under "CC Attribution Non-Commercial No Derivatives" is a violation of copyright?</em></p>

<p>No, I'm not, where did you get that???</p>

<p>There are plenty of nuances to this discussion, but the real issue is cultural. We're now dealing with an entire generation that thinks <em>found on internet = free</em>, and they're applying it to studio recordings, films, stock photos for web content, and (it seems!) wall art.<br /><br />This is just one facet of a much larger juggernaut-sized sense of entertainment entitlement that is going to be hell to straighten out. Just like all entitlements, real or imagined, there's huge inertia involved. Photographers, writers, musicians, composers, film producers, actors - they all need to make educational efforts in this area, to help straighten people out on the topic.</p>

<p>Les: I started as a sculptor and had to switch to painting & photography because the sculpture takes up too much space, and moving the marble blocks and carvings becomes hard as you get older. </p>

<p>If you are worried about your photos be stolen then just watermark your work. Better yet don't put the best ones up on the website, just put 3 or 4 star ones and save <br>

the good ones for your web page.</p>

<p>He's right with respect to Patents, but wrong with respect to Copyright.</p>

 

<p>There is now a followup article. Seems the NYT has enlisted the help of a law professor and flickr itself in defending the original article. Basic gist seems to be it's ok to lift even the ARR photos, as long as you ask, or at least feel contrite, because the law is so grey in color. Yeah, kinda twisted like a lawyer wrote it.</p>

<p>It would be interesting to hear photo.net's take on this subject and whether the admins and management think the same holds true for us. (I think I already know the answer, but maybe best for everyone to hear it :))</p>

<p>I reckon that anything posted on the web by the creator whether images text or video is almost certain to be copied or used by someone. Its s a fact of life and anyone publishing in this way is going to have to live with the consequences. Like it or not people are going to copy images or music; this has been an issue since the invention of the cassette recorder in the 1960s. Moves were made by the record industry to ban home recording but it never happened because it was not enforceable. <br /> The Copyright issues on the web are an issue which are very important for all photographers; artist etc. I do believe strongly that people should have the right to download and use web content for their own personal use and that includes printing. If a photographer publishes a high resolution image on the web he must accept this will happen. If you don’t want to risk it then don’t publish! <br /> Commercial and re-publication on the web is It a legal minefield ; I would hate to see the day when photographers are running the risk of being sued by all and sundry who might object to their personal property being photographed. It’s happening commercially and I am very worried about the future of photography on the web for personal and artistic purposes.</p>

<p>Les:<br>

Most images are complely worthless. Decorating a home with them would do them a favor. It's not "stealing", it's adding value to them.</p>

<p>If someone downloads a picture from my website and prints it out to hang on their wall then then this is a breach of copyright. However, if I don't know about it, I can't really care about it. </p>

<p>Copyright law does not exist to punish offenders as such, it is there to protect the rights of the originator of the work to benefit from sales, etc. Someone printing it out for their own use is not going to affect anything as far as I am concerned.</p>

<p>Surely though, printing the picture is not much different from looking at my website and having one of my images on the screen. Take it a step further and put it on a digital photo frame. Is that still ok? Where do you draw the line between acceptable and not acceptable?</p>

<p>My photographers brain says that making a copy and hanging it on a wall is wrong. However, if I hang a LCD on a wall and look at the photo on the LCD it is OK? this distinction seems meaningless. If I send out a fliers for my gallery show or make a catalog available for free there is nothing to prevent someone to hang those images on a wall and appreciate them. If a photographer uploads images for altruistic or self promotional reasons then controlling their use (as long as someone else doesn't make money off them) seems morally questionable</p>

<p>I haven't read all the responses, but I agree with Andrew - most respondents seem to be taking this a bit to seriously. Once posted on the web those bits that encode your photographs are out there - like the words I'm typing now. What if the NYT blogger uses the images he finds here, or on your photo web site, for his screen saver, is that OK? What if he freezes his screen saver on a single image so it's fixed there on his computer screen, is that OK? If not, for how many seconds can he look before you deem him in criminal violation? What if he hangs his flat screen on the wall with the on-line image displayed on it? Where do you folks draw the line with an image you've posted on the internet asking (dare I say 'hoping', 'wishing') that someone will actually look at it and like it? The only well defined line to draw is the one the original NYT blogger made, his "own personal private use". I don't want police coming into my house asking for receipts for all the stuff hanging on my walls. To everyone that's so irate, I say, don't take yourself - or your photographs - so seriously. If someone wants to print out something from my photo.net portfolio for their own personal, private use, I say, have at it. Send me an email telling me of it and I'll be flattered. The posted stuff is low res jpeg so won't look very good, and if you want a high res enlarged, matted and/or framed, I'm happy to sell that to you.</p>

<p>The lawyers quoted make interesting points. The gist isn't that if you feel bad it's okay. One lawyer says it's a gray area and she's not sure. The other argues that the precedent is the Betamax lawsuit, in which Sony was sued by broadcasters who wanted to control when and how people viewed TV shows, which was being hurt by Betamax VCRs that allowed people to record and watch later. The court ruled in Sony's favor. It makes some sense.</p>

<p>He's probably right, but the only way to find out is to find somebody who's printed out one of your photos from Flickr and sue them. That would establish precedent, which is how you clear up gray areas, but be warned, you might lose. You see a copyright violation, somebody else sees a fair use.</p>

<p>if its non-commercial use, then the blogger's intended use is fine by me.<br>

But then again i do not make a living off my photos, which is largely motivating my stance. so this issue of legality is very difficult to articulate because we cannot even resolve an ethical standard that is robust to individual perspective. <br>

http://www.flickr.com/photos/frdchang/<br /> <br /> <br /></p>

<p>There are many issues raised here, both moral and technical. On the moral side, creators of an artistic work have the right to be compensated for it, but also have a responsibility of a reasonable level of care to safeguard their asset. Talk about being ripped off, if DaVinci had access to hi-rez lithography, ran off a stack of Mona Lisas and left them on the street corner, does he have the right to wail and bitch when people take them home to hang on their walls? No. He still got ripped off by talented copy artists, but the burden of acquiring the 'ripoff' copy precluded wide-spread theft.</p>

<p>Likewise with contemporary work. Flickr was designed to promote distribution, not suppress it. Don't put your best stuff on the street corner and whine when people make off with it. Don't post high-rez images on Flickr, because most people's systems won't resolve it to full benefit to begin with, and if they do download and print a low-rez image, do you care? Use the streetcorner to generate interest in and link to your online store, and pay a web professional to lock it down. There are well-known ways to prevent downloading, print-screens, etc. but you won't find them at the 'one size fits all' website store. All you pros out there complaining about losing business to P&S wedding photogs that then try to go cheap on the tech side by DIY need to re-think that strategy-br</p>