Online Jobs: Copyright

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Saturday, November 28, 2015

PicScout - Rights, Wrongs, and Facts

What a difference a day makes makes in this 24-hour world. One day after we published, in a criticism of PicScout:

PicScout is supposed to be looking out for photographers, and previously, it seemed that they were putting their great technology to use for good. This blog post, full of misinformation about Orphan Works gives every indication that PicScout has re-charted their course into dangerous waters, and they are now intent upon lulling photographers into believing that the previous versions of Orphan Works bills would have been good for them. This is an unfortunate change of strategy at PicScout, and will harm, rather than help, individual photographers and the photography industry at large.

In response to negative reaction to their blog post on the orphan works act, PicScout has made two public statements on the issue. First, the same author who wrote the original piece we were critical of, PicScout's Vice President of Marketing, (Dan Heller Update..., 5/28/09), wrote "The OWA is not relevant to PicScout. PicScout has no financial or other interest in seeing OWA pass or fail. Am I back-peddling? Absolutely not.", and then, in a personnel matter in the same post, he writes, "On an entirely unrelated matter, here’s another bit of news. When I first started working with PicScout, it was on contract. Things evolved to a point where it seemed to make sense that I join the company. But as the weeks wore on, but the reality of day-to-day logistics such as split between the time zones, made it clear that there was too much to do under the unusual conditions of a small and innovative company. So we’ve decided to return our relationship back to the consulting role we originally had."

Then, later that same day, the CEO of PicScout put out a press release:

(Continued after the Jump)

"Earlier this month PicScout announced the appointment of Dan Heller as Vice President of Marketing. After several seeks together, Dan and I have concluded that the fit just isn’t right. So we’re starting fresh. Dan will return to consulting after a brief transition period."

"We wish Dan all the best, and we will continue to be in touch with him in his capacity as an industry analyst.

Offir Gutelzon,
CEO
PicScout

As was noted on the PDN blog (Dan Heller Goes Through Revolving Door at Picscout, 5/28/09), we too believe he meant to write "weeks" and not "seeks" in his press release.

Its hard to reconcile PicScout’s statements yesterday with the recent PicScout blog posts.

Yesterday, PicScout states that "The OWA is not relevant to PicScout. PicScout has no financial or other interest in seeing OWA pass or fail. Am I back-peddling? Absolutely not.”

But on the PicScout blog PicScout states that the outcome of the orphan works act will be “very very beneficial for copyright holders,” and that ” the opportunities for the creation of the OWA database far exceed the downsides,” and that “if people genuinely care about those billions of images, then supporting the OWA will get the database built.” PicScout has publically stated that the photography industry should support the orphan works act. Huh?

Then we see why. PicScout goes on to state that if the OWA passes, web crawlers (such as picscout) will mine” every record of the copyright office database, and that if an infringement case goes to court, the” judge then hears from the copyright holder who says, “Your honor, I simply used the PicScout search-once-takes-a-second engine I the image is right there.”

For a company focused on copyright protection and enforcement, PicScout is sadly misinformed about the orphan works act, copyright law and copyright office regulations. PicScout’s statements are so outlandish, so incorrect and so dangerous to rights holders that I don’t know what else to do, other than to let their statements and my brief replies speak for themselves:

PicScout:
“Once the Orphan Works bill passes, the Copyright Office will create a database so your works can be found”

Wrong. The copyright office has no intention of creating a database for use in finding works (as evidenced by our previous Q&A with them, which appeared in PicScout - Delusions of Grandeur?, 5/27/09), and the Orphan Works Act has no provision requiring that they do so. The copyright office would prefer not to be involved in the process of certification of third party databases, but would do so if required by law.

PicScout:
“ The CO will, as specified by the OWA, create a “certification process”, which means that it will create the specifications for one to be created. Third parties will apply for certification based on those specs. Contractors that are selected will be paid to create the database itself, at which point, the Copyright Office will put it into operation (including populating it with content and administering it).”

Wrong: The OWA has no provision requiring the CO to select contractors to create a database for the CO. The OWA provides that the CO will be a certifying authority for third party databases which will be operated independently of the copyright office, without further CO involvement, management or supervision. The CO will not operate, populate or administer a database under the OWA.

PicScout:
“If you register your works “there is no downside to the Orphan Work Act….If you never register your photos with the copyright office, then all this hoopla about the OWA is entirely irrelevant… The OWA only affects statutory damages, so only registered works are affected.”

Wrong. Under the proposed language of the OWA, whether you register or not, an infringer may use your work for any purpose without your prior knowledge, and if you ever happen to learn about the infringement, you have no right to stop the infringement, even if it conflicts with exclusive licenses that you have issued, and even if it is objectionable to you, and even if it harms or destroys the market for your image.

PicScout:
"copyright law currently states that no one whatsoever can access records within the copyright office without a specific court order"

Wrong. There is no provision in copyright law limiting access to records within the copyright office, and there is no court order required to access copyright office records. Section 705 of the Copyright Act states that all copyright office records including deposits, registrations, recordations and other actions, including copies of copyright deposits “shall be open for public inspection.” Section 201.2(b)1 of the Copyright Office Regulations further provides that the copyright office shall provide the public with access to registrations and deposits. There is no requirement for court orders or other qualifications.

PicScout:
“Fair use is hard to codify into exact language that everyone can agree on, but that hasn’t prevented it from being applied for decades."

There is unfortunately little similarity between the OWA and the Fair Use provisions of copyright law. Fair Use allows usage for very limited purposes (criticism of the work, comment on the work, news reporting on the work, teaching about the work, scholarship related to the work, or research on the work), and only where the use has no negative effect on the rights holders ability to profit from his work. In contrast, the OWA allows usage of the work for any purpose, even purposes that harm or entirely wipe out the owner’s ability to market for the photograph.

PicScout:
“ if there is a dispute about someone’s use of a work, and they happen to gamble on the bet that they can convince a judge that they did a “diligent search”, then like any other judge looking at facts and circumstances, he or she will assess whether it’s apropos…the onus of proof is on the defense, not the copyright holder. All a photographer has to do is come forward with a claim, and the defense has a big decision to make: will a judge really determine that his search was diligent? I would be hard-pressed to believe that any publisher is ever going to take that risk.”

Wrong. Under the OWA, the rights holder bears most or all of the risk when filing a claim of copyright infringement. With the determination of diligence left to the court, a photographer takes a huge risk in filing an infringement claim. In the event that the court finds that the search was diligent, the photographer’s damages will be limited to the fee that both the photographer and the infringer would have agreed upon before the infringement occurred. The fee could be quite low, if for example the infringer can demonstrate that he typically licenses microstock for $1 for unlimited worldwide usage. This would leave the photographer with $1 in damages and tens of thousands of dollars in court costs. An unacceptable risk for most photographers. Pursuing claims of copyright infringement will be nearly impossible under the OWA.

PicScout:
“If so, the OWA could affect some claims made by copyright holders. However, only a tiny fraction of image uses are ever directly linked to profits anyway.”

Wrong. Under existing copyright law, a photographer need only show evidence of the gross revenues of the infringer. The infringer must then prove to the court all revenues that are not attributable to their infringing use of the image. Any profits that the infringer can’t prove unattributable will be awarded to the photographer. The burden of proof is on the infringer, no the photographer, and profits can be directly or indirectly attributable to the use of the image.

PicScout:
“Since the only images that are affected by provisions of the OWA are registered works, then one or both of these will be true: (1) all databases will have a complete set of CO records, and/or (2) web crawlers (such as picscout) will mine every single one of them, fingerprint the images, and still provide the same search-once-takes-a-second methodology.

Wrong, wrong and wrong. Both registered and unregistered works would be significantly impacted by the OWA. There are no plans to allow third parties to mine the CO database.

PicScout:
“The only people who would truly be protected are certain kinds of non-profit educational institutions and uses that are considered education or for the public interest.”

Wrong: the OWA is structured to provide comprehensive legal shelter from copyright infringement remedies for anyone who wishes to use a photograph but can’t find the owner. Not just non-profits, but also publishers, ad agencies, design firms, special interest groups --- anyone. Provided that they complete a diligent search and fail to find the owner, the infringer may use the photograph for any purpose without permission of the owner, and is only liable for a fee that the infringer agrees is reasonable. Further, the owner has no right to stop an infringement once it begins, even if the owner surfaces and objects to the usage because it competes directly with the owner, or because it is otherwise objectionable to the owner.

PicScout:
“No matter how you look at this, the mere existence of a database is a good thing.

I must point out that we can enjoy the benefit of databases without the horror of the orphan works amendments as they were proposed in the last session of Congress, and which will be a likely starting point whenever they return to the legislative scene.

I have so much respect for the fireman who comes to the rescue and saves people from a burning building. I have contempt for the fireman who hopes for a fire so he can come to my rescue. Prior to PicScout telling everyone to "Relax" and misinforming everyone with "If you never register your photos...You already have very little protection (or recourse) against infringers, and OWA doesn’t make it worse..." I saw PicScout as that former fireman who was coming to the rescue of a lot of photographers and doing good. When PicScout took the relax, don't worry position, when every photo trade organization has said OWA is bad for photographers in one way or another, that was a cause for alarm and concern that they might have been the latter fireman.

Well, it seems, PicScout has heard the alarm, and reacted to the smoke in their own firehouse. Let's hope they don't make another mistake, because, frankly, when OWA passes, PicScout, Idee's TinEye, Digimarc, and others yet unannounced, will likely be, in one form or another, parts of the solution. I just don't want them cheering for photographers to need them like that, it's bad karma, if nothing else.

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.

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.

If readers of this blog found me promoting (or having) a photo contest, and in the T&C was language akin to "you grant perpetually all rights for free when you enter..." or some variation thereof, not a single person would believe me if my excuse was "oh, the lawyers wrote that up, I didn't see it, I'll change it now...". And, you should fully doubt that mea culpa. Why? Because rights and contracts and the analysis thereof is what I do when I am not making pictures.

On a comparative note, if someone were a chronic car thief, should we applaud when he just steals from department stores? The argument would be "oh, but he's so much better now..." when what he is doing is still theft.

So, it is with the perspective of the above to scenarios that the changes that C-Registry has made are dubious. The people who run C-Registry have been around a long time in this business. A LONG TIME. The notion that they didn't know what they were doing or, as they note in their own words as citied in an AMSP Member Update - "In retrospect, we were overly zealous with our marketing language" is just not passing muster. I submit that they knew EXACTLY what they were doing with that language, and are only now pulling back because they were called out on it. Further, it has been suggested that they have made changes to their offering to answer the concerns put forth, yet there are many other points of serious concern that remain.

So, let's continue the discourse. If C-Registry is truly committed to helping photographers, rather than lining their own pockets, straight-forward and complete answers to the following questions need to be answered.

Question 1

Until recently, your terms and conditions included express provisions allowing you to license registered images at your discretion. You have explained elsewhere that this was a mistake and that you regret including those provisions. You have removed the provisions but left in provisions that allow you to add those terms back into your terms & conditions and any other terms at any time, at your sole discretion. Setting that aside, please explain the intended purpose of those licensing provisions clearly and succinctly.

(Continued after the Jump)

Question 2

Just to set the record straight, please answer these yes or no. After answering each of the questions yes or no, you can provide as much detail as you wish.
In the event that c-registry identifies an instance of a registered photograph appearing on a web site, are there any circumstances under which c-registry would require a fee, royalty, special paid subscription/membership level or other compensation to c-registry for:
The act of discovering the use? Yes or No.
The act of informing the rights holder of any of the details of the use? Yes or no.
The act of mediating a dispute between the rights holder and the image user. Yes or No.
The act of billing or invoicing for the image user a fee or other payment related to the use of the image. Yes or No.
The act of facilitating a grant of license between the rights holder and the image user. Yes or No.
The granting of a license on behalf of the rights holder? Yes or No.
If you answered yes to any of the above, please describe.

Question 3

While there is currently no mention of image licensing on your site, are there any circumstances under which you might later solicit registered photographers to offer their work for stock licensing via any stock licensing platform or site? If so, describe.

Question 4

After editing the copy of your site recently, all of the references to “orphan work” were changed to “work of unknown origin.” As of today, c-registry is advising image users that “If an author has not claimed copyright for that work and is unknown by any other means, it could be considered “A Work Of Unknown Origin” at that moment in time. In this circumstance, you can and should create a verifiable, trackable report indicating that the work in question was “unclaimed in The Copyright Registry” at the time.”
What is the meaning of “work of unknown origin?”
Does the designation of “work of unknown origin” have any bearing on a user’s ability to proceed with usage of an image?
C-registry is soliciting image users to buy certificates that a photograph is a work of unknown origin because it is not registered on c-registry. What possible purpose might such a certificate serve as of today?

Question 5

In your revised terms & conditions, c-registry requires that image users agree to the following terms: “In the event that the copyright owner or creator of CONTENT are unknown or are known but can't be found an “A Work Of Unknown Origin,” YOU agree that: YOU will pay a reasonable licensing fee for your use or publication of A Work Of Unknown Origin, negotiated in good faith, should the rightsholder of that CONTENT become known to you during or after use or publication, and…” If the CONTENT is A Work Of Unknown Origin used editorially, use or publication should bear a credit line that indicates the creator name if reasonably known or source of the CONTENT if reasonably known.” While the terms also require that users obey the law,
Why do you include this provision at this time? It leaves infringers with the impression that they may proceed to use work provided that if the rights holder appears, the infringer will negotiate in good faith. Isn’t it illegal to proceed with the use of a work without the rights holder’s permission, even after a failed search at c-registry?
What is the purpose of requiring that infringers print a credit line that informs others where the work can be found?

On "Reclaiming"

On the C-Registry home page, after all the edits, their marketing language remains alarmist, and misleading, when they write - "Reclaiming your works online is critical...Take action today and begin reclaiming your works."

Reclaiming? Dictionary.com defines "reclaim" as:

Reclaim: to claim or demand the return or restoration of, as a right, possession, etc.

The problem is - there is nothing to "reclaim." While the copyright will always be yours unless you expressedly transfer it, no language in any version of the orphan works bills that have been proposed would allow a copyright holder, once a work has been deemed an "orphan", to stop the work from continuing to be used in whatever manner it was after it was deemed an "orphan." There is no mechanism to "demand the return or restoration of, as a right, possession". The use of the word "reclaim" is, at best, misleading.

Lastly....
One of the most important notes to make here, is that if C-Registry is a success and is purchased by a major stock agency or media company, the operation of the registry will fall under the control of a single stakeholder, and nothing in its charter or other language suggests that they would not do this, and that should scare people.

Your Turn
There are, no doubt, other questions out there that remain, so feel free to pose them in the comments below if I have missed something. I await full and complete answers to the above questions, without any spin.

PicScout - Delusions of Grandeur?

PicScout, one of several image search solutions, has been mis-informing people of late, and it's not sitting well with me. In their latest blog entry, dated May 25th, they have made several statements that are factually inaccurate at best, and misleading at a minimum.

PicScout suggested:

if you don’t register your photos with the US copyright office, your claim against any infringer–with or without the OWA–would be based on calculations that are unaffected by OWA.

This statement is factually inaccurate. Whether or not you registered your images, you can file a Digital Millenium Copyright Act takedown claim and get someone to stop using them if you find out. Under past OWA proposals, you cannot prevent someone from continuing to use the image they found. OWA would severely affect copyright owners regardless of registration, or a desire for money. Further, there is a huge difference between the amount that the rights-holder and infringer would reasonably agree upon (as required in past version of the OWA) as compared to what a rights-holder could have reasonably requested. When an infinger can point to tens of thousands of images selling for $1, when I suggest that I would not have licensed the image that was infringed for less than $1,000, or even $250, my position will appear unreasonable, even were I to be able to point to a history of licensing at those levels.

(Continued after the Jump)

PicScout suggested:

we start with the most specific item: the text of the bill says that if the publisher of the work has done a “diligent search,” then the OWA would provide protection from statutory damages in an infringement claim.

Here's the actual text from the House bill:

"an award for monetary relief (including actual damages, statutory damages, costs, and attorney’s fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the use of the infringed work."

In point-of-fact, the infringers protection would be much more than just statutory damages as previously proposed.

PicScout suggested:

since only about 5% of pro photographers or stock photo agencies bother to register their works with the US copyright office, 95% of the photo industry would be almost entirely unaffected by OWA.

There is so much wrong with this statement -- it is so fundamentally inaccurate I don't know where to begin. Suppose you never registered your work, yet you licensed exclusivity to a client who published your work in an ad. Someone scanned that image in, and posted it on the internet, and someone else finds it and wants to use it for an ad. They do so, and you find out about it from an irrate client who thinks you licensed the image to their competition. You contact the infringer, only to find out that they couldn't find your image on a "diligent search", and as such, used it, and now, will pay you a nominal amount which you are required to take. Your acceptance of this income places you in contractual violation with the commissioning client, and they will sue you.'

Currently, whether or not a rights-holder has registered their work before an infringement occurs, the rights-holder may recieve actual damages, disgorged profits, and may force the infringer to halt the infringing activity. Actual damages include not only the fee that the owner could have reasonably required of the infringer, but also compensation for any other damge to the owner's ability to market the work. Many rights holders who have registered their work opt to forfeit statutory damages in favor of actual damages, which would have been an available remedy even if the owner had not registered the work.

Then there is the fact that the proposed OWA would allow anyone to use any image for any purpose, including purposes that are morally or commercially objectionable to the rights-holder, such as advertisements for certain causes, or usages that directly conflict with existing exclusive licenses issued by the rights-holder, or usages that will prevent the rights-holder from monetizing their image in the future. For example, an infringer could use an image on a book cover. This would immediately destroy the rights-holder's ability to license book cover use for that image, and the rights-holder would have no right to stop the infringing activity, even after it is discovered. This is very different from the pre-OWA world, in which every rights-holder is able to prevent and stop objectionable uses of their images.

PicScout suggested:

But this confusion is because they are reading that line by itself. You can’t do that. It’s tied directly to a part of the bill that requires the copyright office to create a “certification process for the establishment of an electronic database to facilitate the search for pictorial … works that are subject to copyright protection under title 17, United States Code....there is only ONE such database!...Some have created a myth that there will be many registries and databases, each containing some subset of copyrighted works."

You're right PicScout, you can't pick and choose which lines you read, and which you ignore. H.R. 5889 includes this language:

(a) ESTABLISHMENT OF DATABASE.— (1) IN GENERAL.—The Register of Copyrights shall undertake a certification process for the establishment of an electronic database to facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection under title 17, United States Code.

S. 2913, which was approved by the Senate, had this language:

SEC. 3. DATABASES OF PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS.
The Register of Copyrights shall undertake a process to certify that there exist and are available databases that facilitate a user’s search for pictorial, graphic, and sculptural works that are subject to copyright protection under title 17, United States Code. The Register shall only certify that databases are available under this section if such databases are determined to be effective and not prohibitively expensive...

Thus, they are undertaking a "certification process" (House version), and "a process to certify" (Senate version), NOT establishing their own, and this has been stated;

HOUSE VERSION:

(b) PUBLIC AVAILABILITY.—The Register of Copyrights— (1) shall make available to the public through the Internet a list of all electronic databases that are certified in accordance with this section; and (2) may include any database so certified in a statement of best practices established under section 514(b)(5)(B) of title 17, United States Code.

HOUSE VERSION:

SEC. 4. EFFECTIVE DATE. (b) PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS.—With respect to pictorial, graphic, and sculptural works, the amendments made by section 2 shall— (1) take effect on the earlier of—(A) the date on which the Copyright Office certifies under section 3 at least 2 separate and independent searchable, comprehensive, electronic databases, that allow for searches of copyrighted works that are pictorial, graphic, and sculptural works, and are available to the public through the Internet; or (B) January 1, 2013; and (2) apply to infringing uses that commence on or after that effective date.

SENATE VERSION:

(c) Effective Date- (1) IN GENERAL- The amendments made by this section shall--(A) take effect on the later of--
(i) January 1, 2009; or
(ii) the date which is the earlier of--
(I) 30 days after the date on which the Copyright Office publishes notice in the Federal Register that it has certified under section 3 that there exist and are available at least 2 separate and independent searchable, electronic databases, that allow for searches of copyrighted works that are pictorial, graphic, and sculptural works, and are available to the public; or
(II) January 1, 2013;

What part of that language in either the House or the Senate versions, that suggests there will be fewer than TWO? In point-of-fact, the bill would go into effect once " at least 2 separate and independent searchable, comprehensive, electronic databases" or, the "later of" the above (as cited from the Senate version). Let's highlight the word "at least", since PicScout seems to think that it is "a myth that there will be many registries and databases".

However, perhaps I, and everyone else I know who knows what they're talking about on this got it wrong, and PicScout got it right. So, we put the following questions to Maria Pallante, Associate Register, Policy and International Affairs, for the Copyright Office today, and she stipulates "our answers relate to the language that passed the Senate in 2008." (As you can see above, the language on this issue between the House and Senate versions is essentially identical.)

Q: Does the Copyright Office intend, or are they planning, to create, establish, run, or manage, either internally, or with oversight by any contractor, a single database to facilitate searches for pictorial images, in the event that Orphan Works legislation is enacted?

M.P.: "No."

Q: Does the Copyright Office intend to certify more than one electronic database for searches of copyrighted works that contain pictorial images?

M.P.: "we either have to certify two databases or no databases. In other words, the legislation either becomes effective by a date certain or it becomes effective earlier than the date certain because we have certified that the defined databases exist. The certification process is linked only to the effective date. It is not a separate or ongoing function."

That's pretty clear.

Thus, in order to make the legislation active prior to the start date they would have to certify a minimum of two, however, the Copyright Office could and likely will certify dozens or even hundreds of databases before the start date, not just two. Further, PicScout's assertion that "contractors that are selected will be paid to create the database itself, at which point, the Copyright Office will put it into operation (including populating it with content and administering it)" is misinformed - if we are to believe the Associate Register for Policy and International Affairs, and I would believe her over the hopes-stated-in-the-form-of-expectation from a potential contractor candidate like PicScout.

Further, the legislation does not place any caps on the number of databases that can be certified. So, if a bill passes the Senate (again) with the same, or similar language, these certified databases - databases that satisfy the requirements set forth by the Copyright Office - will be approved. Further, once certified, there is no language that requires that any particular database, or a set number of databases, must be included in a diligent search. Thus, an infringer would be able to pick and choose the databases that they wish to search as a part of a diligent search, resulting in rights-holders in effect having to register with every database, since they must, as the Senate legislation stipulated be "independent." Further, since the statutory requirement would be to have two, it would be reasonable, at least at the outset could include only those two databases. While there has been discussion of allowing trade associations and others to create "guidelines" for diligent search, these would at most be guidelines, not legal requirements for a diligent search.

Thus, with a high degree of likelihood, as the number of certified databases grow, infringers will search the least populated, most poorly designed - yet certified - databases to "complete" their diligent search, and thus be allowed to infringe with immunity under the OWA. Further, I have heard of plans for "themed" databases and databases pertaining only to certain categories of works. The Senate and House versions of the bill both allowed for infringements to begin after only two databases were approved, without any consideration as to whether those databases were photography, film, sculpture, painting, poetry, etc. So, for example, even if there were no approved photography databases, if a sculpture and film database were to be approved, the minimum quantity of 2 would be satisfied, and the infringement floodgates would open.

PicScout suggested:

Relax. The bill doesn’t define a “diligent search” because it doesn’t need to: There is only one copyright database. You only need to search “the one.”

This is like the musicians playing on the deck of the Titanic - lulling people into a false sense that all will be okay. There will not be "only one", there will be "atleast two", and almost certainly dozens of certified databases.

PicScout suggested:

The elephant in the middle of the room is, “Who’s going to index the copyright office’s database?” Since it’d be public, anyone could. And obviously, PicScout could.

Fortunately, the OW bill from last session includes this language:

"...security measures that reasonably protect against unauthorized access to, or copying of, the information and content of the electronic database."

So, technically, if the Copyright Office had a database (which they state above they would not), then perhaps they might employ, say, a contractor to do it? Again, fortunately, when asked if that would be happening, they said "no." It seems, perhaps, that PicScout would like to be that contractor (the one that won't exist), and be awarded a contract that would grant them the right to index all of the content that might be in the hands of the Copyright Office?

Is it possible, that the Congress, or the Copyright Office, would require the company that was awarded that contract to be, say, American? That would certainly put PicScout, and Israeli company and Idee, a Canadian company out of the running. Digimarc is a possible solution and is US-headquartered, and Google, which currently has the ability to search for content by typing, say "bicycle" into a search and finding images with that in them, likely also has comparable (or better) image-matching capabilities they just need to flip the switch on, and they too, are not only US-headquartered, but they also have existing relationships with the Library of Congress, even being a presenter at a technology expo (across the room from PicScout) that took place on Capitol Hill a year or so ago. While this type of protectionist approach to being awarded the contract to index all of the CD's and DVD's (and analog content) that is in the hands of the Copyright Office isn't fair, it was done for the steel industry in the economic recovery act, and other examples abound.

PicScout Suggested:

Once online, your photos can exist anywhere and everywhere in the whole big, fat, wide world. And if someone gets their hands on one, and wants to publish it in a way that would require paying you a license fee, the OWA would compel them to do a “diligent search,” which would instantly lead them directly to you - swoosh! Took all of one second....Big money comes your way.

I return to my previous quote:

"an award for monetary relief (including actual damages, statutory damages, costs, and attorney’s fees) may not be made other than an order requiring the infringer to pay reasonable compensation to the legal or beneficial owner of the exclusive right under the infringed copyright for the use of the infringed work."

Where in there do you see "big money." In point-of-fact, "big money" and "reasonable compensation" are not even close to one another. In an era of $1 microstock, what judge is going to award much more than that, when the infringer can point to tens of thousands of images available for unlimited use for $1. This, even when that rights-holder could demonstrate that typically license similar uses for $10,000. The OWA contained no mechanism for arriving at the reasonable compensation. As such, you can expect a deadlock in almost every instance, and if the infringer delivers what they believe to be a reasonable payment, the infringer wins because the owner is prevented by law and by circumstance from pursuing the infringement.

Further, PicScout, you left out the part where you are responsible for posting all of your images into these databases if they are not registered - in effect, having to "re-register" your images a second time for ALL your past registrations.

PicScout is supposed to be looking out for photographers, and previously, it seemed that they were putting their great technology to use for good. This blog post, full of misinformation about Orphan Works gives every indication that PicScout has re-charted their course into dangerous waters, and they are now intent upon lulling photographers into believing that the previous versions of Orphan Works bills would have been good for them. This is an unfortunate change of strategy at PicScout, and will harm, rather than help, individual photographers and the photography industry at large.

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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

9/25/07 - A Walk Through the Copyright Office
7/8/08 - Form VA being phased out

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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

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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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Photography As Art: Sotheby's Auction Listings

In a sign that photography is being accepted by the art world as, well, art, Sotheby's is holding an auction of an amazing collection of photographs, with details and an online catalog available for browsing here.

Below are the details, and it's an interesting browse, as well as what the valuations are estimated to be. Click on the individual photograph to see the dollar figures.

Sotheby's NYC
Fri, 9 Oct 09, 10:00AM (Lots 1-102) & 2:00PM (Lots 103-243)

Sotheby's October 2009 sale of Photographs features an exciting selection of masterworks by some of the most important and innovative of 20th-Century photographers. Paul Outerbridge's Nude with Sculpture Head combines the photographer's technical rigor with his distinctive, frequently Surreal, aesthetic. Man Ray's Lee Miller and Friend links the Surreal with the sensual. In Eleanor, Harry Callahan creates a multi-layered double-exposure study of his wife and muse. Work by László Moholy-Nagy, Edward Weston, Ansel Adams, and Pierre Dubreuil illustrates the range and diversity of the Modernist impulse in photography. Contemporary work includes images by Cindy Sherman, Chuck Close, Hiroshi Sugimoto, Peter Beard, Robert Mapplethorpe, and Helmut Newton. Also on offer is the complete set of fine books and portfolios published by 21st Editions, each illustrated with original photographs and photogravures by a variety of contemporary photographers.

Nineteenth-century offerings include a daguerreotype of Maungwudaus, a chief of the Ojibwa tribe, who performed Native American dances in Europe and the United States in the 1840s. Masterful landscapes by Carleton Watkins and Henry P. Bosse, as well as a rare and early Lincoln portrait, are featured as well.

Remember, folks, you can't sell your work as art if you gave away the copyright, but the people you sold it to can.

(Comments, if any, after the Jump)

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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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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:

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."
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.
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:

"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.

"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.

"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.

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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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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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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Copyright Infringements - Then and Now

Between Shepard Fairey, the Associated Press, TMZ and TechCrunch, the copyright lawyers must be busy indeed.

TMZ isn't infringing, but they are reporting on an infringement of the iconic 1978 poster of Farrah Fawcett from the 1970's (at right), by Bruce McBoom. The story goes that a small poster company called Pro Arts, Inc wanted Fawcett to pose in a bikini, and she instead insisted on the red one-piece, but it was apparently a chilly day that day, which is one of the things that made this poster stand out and become one of the best-selling posters of all time.

So, what's the problem? According to TMZ "Fawcett is suing Bio-Graphics inc., Pie International Inc. and author T.N. Trikilis, claiming that Trikilis "has falsely asserted to third parties that [Fawcett] does not own any rights in the photographs." , and that allegation has the potential to diminish Fawcett's ability to continue to license the image in the future, should people become confused about who to write the reprint/relicense/reuse checks to, so, she's suing for $100,000 or more. Maybe Bio-Graphics someone came into possession of the assets of Pro-Arts when they filed for bankruptcy at the end of 1981, or maybe not. But they're saying they have exclusivity, she's saying they don't. Maybe the author of the book about Pro Arts, T.N. Trikilis is just trying to promote his book?

Further, the well-respected website TechCrunch is allegedgly infringing on a Flickr photo, according to Will Seberger over on his blog here - Is TechCrunch Listening? (2/10/09), and Seberger's been in contact with the photographer in question, who has indicated she gave no permission for the photo's use.

(Comments, if any, after the Jump)

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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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Online Jobs

Saturday, November 28, 2015

PicScout - Rights, Wrongs, and Facts

Copyright: Know it or Blow it

C-Registry - The Discourse Continues

Friday, November 27, 2015

PicScout - Delusions of Grandeur?

Tuesday, November 24, 2015

eCO Update - Group Registrations

Sunday, November 22, 2015

Peter Krogh's Rebuttal to Our Post on Lawrence Lessig

Saturday, November 21, 2015

Photography As Art: Sotheby's Auction Listings

Tuesday, November 17, 2015

NBC sued for Copyright Infringement over Fonts

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

Monday, November 16, 2015

Copyright - Enforce it Wherever possible

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

Saturday, November 14, 2015

Copyright Infringements - Then and Now

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