Posted by Mitch Mitchell on Aug 12, 2010
Following up on my post yesterday titled The Quest For Legitimate Images, I was able to convince my friend Scott Thomas to write this post explaining his position on the topic as well as giving us some insight into the issue.
Scott Thomas Photography
Mitch and I were discussing the use of photos on this blog a couple of weeks ago. I told him he should find the person who took any photo he uses on his blogs to ask permission to use it. What he said disturbed me and I find it is a prevalent attitude found around blogs, websites and even in advertising and other media. He said if he can not find the person who created the photo and sees it in other locations, he saw no reason not to use it.
As an amateur photographer with aspirations to sell my work on a regular basis, I find such statements very upsetting. I countered saying if someone took one of his articles or published works and posted it or republished it under their name without asking permission, giving credit or payment, what would be his reaction? What would be yours?
Copyright infringement is rampant on the Internet. People feel if it is found on the Internet, it must be free to use. It hurts established professional artists, photographers, writers, musicians and other creative artists who are trying or are making a living from their hard work, investment in education and equipment and talent. Yes, things are changing. Are they changing for the good?
The Copyright Law of the United States protects a creator from others using his creations without his permission. It goes on to say, at the time of creation, the creator copyrights his creations. Be it a shutter click on a camera or keystrokes on to a screen, the photograph or text is copyrighted and given all the protection of the Copyright Law, whether it is published publicly or not. If people are to use something created by another, they must ask and receive permission before doing so. Permission may be just a simple verbal agreement or a written contact which may or may not include the exchange of funds. For photographs, people agree to a use of a photo and scope of that use. Usually it is for a one-time use. If its for advertising, the money can be substantial and the rights to the photo may be purchased outright. In essence, the photographer gives up his copyright “rights” to the buyer. However, he still owns the copyright to the photo.
How does this work in real life? The photo used to illustrate this article is a prime example. At the time I took the photograph and the image was saved to my camera’s memory card, I owned the copyright. My camera even embeds the copyright notice into the photo’s metadata as part of the file. The photo is a creation of mine and is a whole work of art. If someone was to use it without my permission in any way, I could go to court. Would I? That depends on how it was used. Usually, when this happens, I simply inform the person and they either stop using it or we negotiate fair use of the photo.
There are the buzz words you probably have had in the back of your mind while reading thus far. Fair Use is a part of the Copyright Law. It is there not to hinder but to help people wishing to use other’s creative work in exhibiting their own work. A prime example is reviews of books, movies, concerts, and art exhibitions. The reviewer will quote or show examples of the work being reviewed. This is allowed under Fair Use. When I review books on my blog, I will quote the author and use a photo of the book’s cover. I do not replicate word for word long passages of the book and call them my own. That would be against the law. Another part of Fair Use is to give credit to the person or persons who created the work. Again, for my book reviews, I find the author’s blog or website to link to. Fair Use is a win-win if used under the spirit in which the law was written.
If you are familiar with Flickr, the popular Internet photo sharing community website, you will see the term Creative Common license. In short, the photographer who puts a Creative Commons license on a photo is allowing its use under certain conditions without having to directly ask for permission. Those conditions are spelled out in icons under the photo. They range from unconditional use to restrictive use of a photo for only personal use, derivative uses or not and commercial use or not. All Creative Common licenses require a link back to the location of the photo being used. Make sure you understand what you can and can not do under a Creative Commons license. The photographer is being nice enough to allow use of the photo without negotiation or payment, please, don’t abuse it so, like Fair Use, Creative Commons licensing stays a win-win.
Getting back to my photo. What would constitute Fair Use of it? If someone asked me if they could use it on their blog about ice hockey, I would ask for a credit and a link back to my blog or website. My “payment” if you will. That is a common practice among bloggers, photographers and other media outlets. If the photo was part of a book I produced or in my Flickr photostream, someone may use the photo as an example of my work in a review of my photography. Fair Use has been taken many ways in the U. S. courts over the years. For a layman’s explanation, visit Tim Wu’s excellent article on what constitutes Fair Use.
I know it is easy to Google photos and download them for your use. Someone created the photo; it is their photo. Not yours to use, duplicate, render it in another form (crop, print, change, etc.), publish and certainly nothing you can use to sell without permission of the person who created it whether or not you know who that is. You’ll find reports of people finding others using their photos or other artwork and suing them for monetary damages. The law gives fines in the hundreds of thousands of dollars or more to people who are found to have infringed on another’s copyright. Sounds silly for a personal blog I know but is no reason to simply ignore it. Just because something is on the Internet, does not mean it is free to use.
I hope this sheds some light on why people should seek out and ask permission to use someone else’s photograph or images on your blogs, websites and other electronic media outlets.
I thank Scott for his article here, and I know it’s an interesting and controversial topic across the board. We’d both welcome hearing from you and your thoughts on the issue. If you’re interested in learning more about photography and seeing some great shots check out Scott’s blog Views Infinitum.