Rewinding the Clocks back 15 Years
Should we wind our clocks back about 15 years to a time before the phenomenal popularity of home based computers and the internet, there was a general widespread knowledge or understanding that it was illegal to lift a picture from a book and re-use it in some fashion without the author’s permission.
But really, how would one misuse the image: photocopy it and paste the picture on the office wall? That really was a time of print media and the avenues for misuse were quite limited.
Let’s move forward to about a decade ago and the infusion of the digital age. Gone were the days of a stock photographer shooting in-camera duplicates and huge FedEx bills to supply clients with overnight deliveries of image requests. Digital capture and ftp delivery were rapidly becoming the norm. At the same time agency print catalogs were giving way to on line image marketing and automated image licensing.
Unfortunately for the photographers of the world who earn a livelihood from their work, it also meant images could be right clicked and saved to a desktop without license or authorization.
Introduce in the last five years, or so, the whole social media craze and picture sharing portals. What has evolved is not only a platform for families to share images with other family members, but it has also developed a breed of web users who, quite frankly, believe an image on the internet is public domain. Attitudes have become very cavalier and self-patronizing with barely a thought given to copyright and how repurposing that image might affect the copyright owner.
What hasn’t changed, at least in Canada, and I also assume in other countries as well, is the copyright act.
Although I am not a lawyer I certainly do understand its most basic premise that in most cases the copyright in a work resides with the author for his or her life plus fifty years. There are a few exceptions, but for all intents and purposes when a photographer releases the shutter on a camera they own the copyright by default.
Specifically Section 13.(1) of the Canadian Copyright Act, and I suspect most western countries that subscribed to the Berne Convention have similar provisions, reads: “
Subject to this Act, the author of a work shall be the first owner of the copyright therein.”
The Act further goes on to clarify that only the owner of the work shall have the right to license or assign that work. I always thought this was very cut and dry. Not so.
Now introduce the Digital Millennium Copyright Act (DMCA), a piece of law from the United States of America that has far reaching implications. While I certainly will never suggest understanding the laws of my own country, let alone those of another, what I do know is this one piece of legislation has opened a Pandora’s Box for photographers. In essence the DMCA has provided immunity to ISP’s and requires the photographer to request a takedown notice should they feel their copyright has been breached. To my mind, that is like closing the barn door after the horse has escaped.
Allow me to use a real case example as a point of clarification and concern. But first, it is important for readers to know that a stock photographer earns their income by way of licensing their images to corporate or editorial clients. This can be done individually or by way of a commissioned agency.
Generally the more an image has been licensed and ultimately seen the less its value (due to over-exposure), and most certainly that over-exposure will certainly limit the potential to be licensed exclusively within a certain corporate or editorial sector. For example, an image of the Loch Ness Monster would be worth a small fortune to an advertising executive who wanted exclusive rights to the image; however, should that same image appear in every newspaper in the English speaking world the commercial value would be greatly diminished. Regardless of ultimate use, it remains the sole privilege and right of the photographer how they could best take advantage of that image and they alone saw fit.
Now let’s move forward to that real time incident that has me thinking of the long term consequences of the DCMA and internet picture sharing portals. In December 2012 a prestigious travel magazine licensed one of my images for the cover of its web based magazine. No problem here, my agency negotiated the license fee and the magazine was certainly within their rights to use the image as was licensed.
But this is where the complications start: a viewer of that website obviously liked the picture also as they lifted the image from the magazines page and re-posted it on an image sharing site.
From my school of thought, this act alone is a contravention of my copyright as they had not sought a license from me or my agency of reference. The image sharing site stands under the notice that they are immune due to the DMCA, as does the person who lifted it. Both are saying I could ask to have the image removed and have to fill out the required reporting form.
Excuse me, but shouldn’t the person who lifted the image have asked for permission first? By their logic, and apparently by United States law, am I also to request the other 237 users who have re-posted the image from the image sharing site to have those users remove the picture from their respective websites as well?
I can only imagine how long that will take: 15-minutes multiplied by 237 times, excluding follow-up enquiries. More so, why is an American law being dictated to a non-American, and especially so when the person who lifted the image is also not American? Hopefully an intellectual property lawyer can answer that question.
Unfortunately what no one can answer is this: Have I lost potential income from over exposure of this image? I really don’t know, but I can suggest this incident certainly hasn’t done me any favours.
Before those on the internet decide to “lift” images I do hope they consider the photographers point of view. Not all images on the internet are public domain; in fact most aren’t. Is there not an ethical question, if not copyright considerations, to be answered first?
By innocently sharing that image is the act of re-purposing the image potentially depriving the photographer of income, income that we use to feed, house and clothe our families?
These are questions that should concern all photographers from all stripes and skill levels.
Let’s Discuss It
I am hoping this editorial will encourage a POLITE discussion so I can get a better sense of feel just what the global interpretations of web based images are. Are they there for the taking or does this appear to be a North American issue?
Thanks in advance for your participation by responding with your thoughts.