Getting away with infringement doesn’t mean it’s cool.

Photo by Max Dubler. Used by permission.

Last week, while I was writing my last post about photographer David Slater, a story on PetaPixel was making the rounds.  Written by photographer Max Dubler, the title is a refrain of an all-too-familiar theme.  No You Can’t Use My Photos on Your Brand’s Instagram for Free, says Dubler.

Dubler has carved out a niche photographing the world of downhill skateboarding and reports, “A few days ago an established, successful small longboard brand downloaded one of my pictures from an event in Canada and posted it to their Instagram account.”  It seems as though I see a story just like this posted by photographers at least once a week. Corporate entities use images without permission to promote their brands on social media, but without the slightest awareness that they need permission from the photogrpaphers.  Not only do these appropriations themselves reveal a core dysfunction among business operators, but the smugness with which some of these parties respond shows the extent to which these platforms and the anti-copyright agenda have warped common sense.

Dubler allows riders to share the photos he takes on social media but asks that any business entities that wish to use his images to contact him for permission.  When he wrote to the longboard company to tell them that he charges $25 for social media use of his images (a tiny fee by the way), the company representative wrote, “Seriously? We don’t pay for Instagram shares, and we always give proper credit, I mean, who pays for Instagram shares lol. I will take it off if you wish Max.”  This fairly represents many attitudes out there.  The exchange goes on a bit further with Dubler explaining that the use had already been made and the $25 needed to be remitted; but the company representative ultimately wrote, “Go extort someone else.”

In response to that attitude, here’s a traditional scenario:

If a photograph is registered with the Copyright Office and the photographer is, for instance, represented by a stock company with some legal muscle, the smug business owner—instead of receiving a demand for the pocket-change of $25—might get a bill for like $3,000 along with a letter stating that if the company doesn’t pay that fee, it will be sued for $150,000 in statutory damages for copyright infringement.  At this point, the cocky idiot who wrote the rude “extortion” response would then find out from his own attorney that his company’s infringement is indefensible, and the harsh, $3,000 lesson would be richly deserved. The managers of this company would never use another photo without first thinking “Dude, maybe we need permission.”

Unfortunately, most independent rights holders like Dubler have no practical means for enforcement because the cost of filing a federal lawsuit is extraordinarily high.  This is why it is important for independent creators—perhaps visual artists most of all—to endorse current proposals to create a copyright small claims system.  Without this remedy, it is simply too easy for corporate entities in particular to appropriate work they should be paying for. And some people only ever learn when they feel a little pain for making bad decisions.

Keeping in mind that authors of copyrighted works are also entrepreneurs (usually very small businesses), any other business operator should recognize that using the product of an authors’ labor without permission is both uncool and illegal.  Anyone who runs a business knows what expenses look like and knows that marketing materials are usually an expense. One should assume, therefore, that if the source or legal status of an image is unknown, that it is not just there for the taking.

As Khloe Kardashian’s Instagram infringement story makes clear—and businesses everywhere should note—posting a copyrighted photograph to social media without permission infringes the photographer’s right to reproduce the work and his right to publicly display the work. And if the user removes the rights information from the image, as Kardashian is alleged to have done, that’s another violation of a separate statute.

I understand that social media is a fast-moving, free-wheeling environment where infringements happen all day long; and I sympathize with individuals (not businesses) who inadvertently commit infringements based on well-intended, but false, assessments of fair uses.  I wrote about one friend running into this kind of problem with her blog. In that post and others, I have laid some of the blame on the voices of the anti-copyright agenda for promoting misunderstanding about fair use, which can get independent creators into trouble.

Far too often, though, when creators do enforce their rights, this is characterized by bloggers and the press as an unreasonable imposition on small businesses—thus justifying in one guy’s mind the use of the word extort.  But not only are these loose appropriations frequently committed by companies of every size, it is awfully hard to imagine the same hew and cry ringing out if a company is expected to pay for office supplies or internet access or to advertise with Google. Yet, somehow creative works are assumed to be different. They’re not.

Millions of creative professionals today encounter assumptions that their work should be performed free of charge and/or that work already created should be “shareable” on the internet without permission or compensation.  It is a dysfunctional attitude that devalues human labor, and we are already seeing signs of this corrupt notion manifest in business sectors beyond the creative industries.  In light of some of the predicted effects that automation may have on employment, how we value human labor is one of the existential questions facing the generation called “digital natives.”  In the meantime, any company that just takes without asking really does deserve to get sued. It’s the only way some people learn.

© 2017, David Newhoff. All rights reserved.

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