NY Times Advocates Theft

Existing thread
http://photo.net/business-photography-forum/00Tkln

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

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

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

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

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

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

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

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

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

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

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

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

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

He's talking about running off a print on his inkjet to put on his wall.

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

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

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

[[Which is violating copyright law, especially on all of those marked ARR]]

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

Allow me to rephrase.

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

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

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