Category: Photography

Digital-Age Copyright:  Photographs and the News

You might think that among the most straightforward relationships between a user and a creator of a copyrighted work would be that of a news organization and a photographer—namely that the news organization should license the photographs it uses for any of its stories.  It is also common-sensical that whenever a news organization displays a photograph in a manner that either disseminates news under its brand and/or promotes its brand, that the organization is deriving commercial benefit from its display of the photographer’s work.  As such, it should not matter—in fact the nature of the web demands that it must not matter—where the image is actually hosted.  Unfortunately, that’s not necessarily how the law works right now.

This article in Above the Law by attorney Scott Alan Burroughs alludes to a case that exemplifies how the current copyright law underserves creators in the digital age. At issue is a photograph of athlete Tom Brady, taken by photographer Justin Goldman in 2016, and used without permission, first by Breitbart News and then by ten other news organizations.  Goldman alleges infringement of his exclusive right to display his work and seeks relief in the form of damages and attorney fees from all eleven news organizations.

The EFF filed an amicus brief (10/5/17) on behalf of the defendants, asserting the precedent established by the 9th Circuit in Perfect 10 v. Amazon.com (a.k.a Perfect 10 v. Google) (2007), in which the plaintiff argued that Google violated the display right by making full-size images available via the Google Image Search tool. The court held that because these full-size images were hosted in various places around the web and not on Google’s servers, that Google was not in possession of “copies” according to the plain language of the law (Sec. 101) and could not, therefore, infringe the display right.

The decision in Perfect 10 provided a precedent known as the “server test,” and the EFF may be correct that it will be the standard applied in the Goldman case.  But it shouldn’t be because it represents an easy end-run around the public display right that effectively obliterates the right in cyberspace.  It is also important to note that linking to pages (what is sometimes called “deep-linking”) should not be viewed as infringing, but this kind of “in-line linking” whereby a site embeds code to cause an image to appear on its page while the image is hosted by another party’s server, is the problem. (Meanwhile, note that Playboy is suing BoingBoing for displaying centerfold images in exactly the same manner.)**

The Server Test Doesn’t Make Sense

To maintain the purpose of copyright with respect to the way the internet functions, the standard in a case like Goldman v. Breitbart et al should not turn on whose server hosts a copy of the photograph, but who takes action to display the photograph and for what purpose. This interpretation of the author’s right to display works would conform to any reasonable person’s understanding of the actual market experience.  “The argument [for the server test], in essence, is that for-profit sites should be able to publish whatever they want without the consent of the artist so long as the photograph or video is published via an embed. This argument has no merit, though, because the end result is exactly the same to the viewer, and the viewer is the basis for the site’s profits,” Burroughs writes.

The news corporations in this case are making use of Goldman’s photograph to generate interest in whatever story they want people to read and to promote their brands online. Clearly, they are leveraging the value created by the photographer, which is exactly what copyright is designed to protect.  As such, licensing in these instances would be consistent with the goals of copyright law, regardless of the technical means by which a user makes the display of the protected work visible to its audience.  Moreover, the photographer may be earning revenue through advertising by allowing an image to be used on Site A, but if Site B, C, and D in-line link the image to their pages, the photographer loses revenue.

Clearly, this has implications beyond news organizations. If, for instance, Johnson & Johnson, by the rationale applied in Perfect 10,  were to display photographs for marketing purposes without permission, this would demonstrably undermine copyright’s intent; and it is hard to imagine that the public would actually support this kind of corporate appropriation of individual labor without permission or compensation. Certainly, every time a site like PetaPixel shares another story in which a business uses a photographer’s work for advertising without permission, I never see anyone cheer for the corporate infringer. (Though they may privately light sparklers or something over at the EFF.)

Is Legislative Reform Needed?

Be it far from this layman to question the statutory interpretations of the 9th Circuit Court of Appeals, but whether it’s in Goldman or another case, a few attorney colleagues tell me that the ruling in Perfect 10 is hardly the final word.  And many of them think the 9th Circuit erred.  But if that court’s “plain reading” of the statute holds sway in future rulings, then it may be necessary to clarify any pre-digital-age, statutory vagueness pertaining to the right make works available.

In 2016, the U.S. Copyright Office issued guidance on the Making Available Right apropos U.S. obligation to WIPO Internet Treaties. Although the Office recommended that legislative amendment was not needed vis-a-vis the treaties, the Register did recognize various inconsistencies in court rulings where cyberspace meets the rights of distribution, public performance, and public display.  In this regard, the Office provided a few possible avenues Congress could pursue to clarify these three exclusive rights relative to the internet, but also warned against approaches that would “represent a sweeping reconfiguration of U.S. copyright law.”

In particular, the guidelines state, “Should Congress … wish to clarify that the public performance and display rights cover offers to communicate a work, it could consider amending the Transmit Clause (§101) to provide that offering to transmit or otherwise communicate a performance or display to the public satisfies the definition of performing or displaying a work ‘publicly.’”  [Emphasis added]

A statutory change like this would confirm that the display right may be infringed by a party that makes a work publicly viewable, even without hosting a copy of the work.  This would correspond with common sense and the practical realities of the digital market, though many attorneys are likely to view such an amendment as unnecessary. Displaying an image on your site, no matter how it got there, ought to implicate the display right.

With pending proposals to create a small claims process for copyright infringement, it will be important to see what the courts do in cases like Goldman v. Breitbart.  This is because visual works are by far the most frequently and casually infringed works on the internet, and visual artists like photographers theoretically have much to gain from both a small-claims process and restoration of a meaningful display right.

Yes, any change in the status quo made by either the courts or Congress would make Google et al go ballistic; and the EFF would have to sit shiva for a year.  But it is well past time to drop the whole “copyright stifles everything” rhetoric along with all the other tech-utopian nonsense that nobody seems to be buying anymore.  It is time to recognize that technicalities like the “server test” stifle authors and creators without whom this whole internet thing would be utterly useless.

**CORRECTION:  Playboy was indeed suing Boing Boing at the time of this post but not for exactly the same conduct.  See post here.

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.

“Monkey selfie” photographer reportedly broke. And for what?

Photo sources by mrbrainous & artush

This is a story about how people with self-righteous and futile agendas end up harming creators for absolutely no reason—and even end up harming society in the bargain. I’ve made light of the “monkey selfie” case in past articles because it’s hard not to. I mean, there’s a monkey in it.  But for U.K. wildlife photographer David Slater, it’s no laughing matter, especially after the organization PETA decided to sue him on the grounds that the copyright in the photograph belongs to the crested macaque depicted in the image.  The Guardian reports that Slater is now financially broke as a result of defending himself in this ridiculous case, and it’s impossible to fathom an upside to any aspect of this whole story. But let’s back up a little …

In 2011, Slater was working on the Indonesian Archipelago on the island of Sulawesi, studying a troupe of black crested macaques. These animals are endangered, hunted for meat, and it is only because of photographers like Slater than many of us even know a damn thing about black crested macaques.  According to his own statements, Slater spent three days learning to use the animals’ natural curiosities to his advantage and then purposely set up the conditions by which the macaque in the “selfie” (a female he refers to as Ella), ultimately snapped her own image while he braced the camera on a tripod.

There is nobody—other than the monkeys themselves—who can refute Slater’s description of the conditions by which the photo was made; and as this is the only evidence available, his account would seem to tilt in favor of his ownership of the so-called “monkey selfie.”  Based on American case law in photography, from the seminal case (Sarony v. Burrow Giles, 1884) to the present, I don’t believe it is farfetched to expect that a court would hold that Slater made enough creative choices in the production of this photograph to affirm his copyright.  But even if I’m wrong about that, it’s not for me or any party other than a court to really decide. As such, I personally would not use the image, even though I can get away with it.

But Wikimedia took it upon themselves to litigate that decision internally and then made the “monkey selfie” freely available to the world via Wikimedia Commons, refusing Slater’s request to have the photo taken down from the site. By the time the “monkey selfie” controversy hit social media, the dominant narrative seemed to be that Ella had randomly stolen Slater’s camera and inadvertently snapped an image of pure happenstance, which does not square with Slater’s own story.  If this were the case, however, then Slater’s claim of copyright in the image would be very weak.

But unless there is some evidence to contradict Slater’s own account of how the image was made, Wikimedia had no grounds, other than its own bully-sized weight, to assert that the photo lacked any copyright whatsoever. According to The Guardian, Techdirt followed in kind, also refusing to take down the photo, and Mike Masnick published a few articles asserting the absence of a copyright in the image as though it were a settled matter.  But it wasn’t a settled matter. Neither Masnick nor the Wikimedia Foundation had any right to declare that Slater’s claim of copyright in the image was invalid, which amounted to these parties—along with every other entity that used the image thanks to Wikimedia—essentially saying, “So, sue me.”

Many who rail against the enforcement of copyright in the digital age, suffer from the delusion that they are always defending the little guy against corporate or state power.  Sometimes, this is true, but not nearly so often as they like to think.  In fact, many self-appointed defenders of “digital rights” trample little guys all the time, and without in any way acknowledging that they’re doing so. The point I want to stress here is that Wikimedia, Masnick, and others were standing on their own notion of principle; and it would not occur to any of these parties to consider a) the standard of “originality” in copyright is subtle; b) there may be more nuance to the author’s claim than they think; or c) when in doubt, some basic respect for the presumptive author of a work might be accorded.

That last thought about respect seems entirely anathema to the opponents of copyright, which is part of what makes this story so egregious. Wikimedia and Masnick were both making a point that served no purpose other than to advance a maximalist (yeah, I said it) anti-copyright view. And society did not benefit from any of this nonsense.  Instead of Slater licensing the photo and using the revenue to pay his bills and then set off on another expedition, he’s now deprived of revenue, and society actually loses whatever photographs he is now not capturing.  “If everybody gave me a pound for every time they used [the photograph], I’d probably have £40m in my pocket. The proceeds from these photographs should have me comfortable now, and I’m not,” says Slater for The Guardian.

Enter PETA

It is at least likely—though we probably can never know—that it was Wikimedia’s initial refusal to consider Slater’s copyright that ultimately brought the “monkey selfie” to the attention of PETA. In a certain sense, this might have been like PETA’s too-good-to-pass-up “Dancing Baby” moment.  A monkey took a selfie, and the story went viral?  How could they not seize such a golden opportunity for anthropomorphic evangelism and fundraising? Of course they had to assert that the monkey owns the copyright.  All they had to do was sue the photographer.  Sure, he might go broke defending himself, but screw him because PETA is opposed to humans “exploiting” animals by taking pictures of them in the first place.  (Spoiler: I don’t have any love for PETA).

Now, don’t get me wrong, I think the humane treatment of animals is important.  But if this organization is going to spend federal-lawsuit money arguing that an animal can own a copyright, this only proves that they neither understand copyright law nor really give a damn about the welfare of the animals themselves. In fact, if they just spent the litigation money on the macaques’ behalf, they’d do more good; but that isn’t what PETA seems to care about. What they seem to care about is evangelizing a maximalist view of animal rights and bringing attention to themselves. David Slater is just collateral damage in their agenda, never mind that he’s the only party in this whole fiasco who has actually done anything positive for this endangered species.

Some of the reporting about this story, like this article in The New Yorker by Jay Caspian Kang, places too much emphasis on button-pushing with regard to copyright in photography.  Even the photograph that affirmed the copyrightability of photographic works in the U.S. in 1884 was not captured by the owner pushing the proverbial button. The standard for consideration begins with the question of who made the creative choices—and this can be quite minimal—to produce the resulting image.  So, without much deliberation, the courts ought to be able to glance at precedent and conclude that unless a monkey, or any other fauna, can minimally express the choices or steps she took to produce the image created, there are no grounds for her owning a copyright.  Unsurprisingly, intellectual property is not available to creatures that have not developed a capacity for communicating complex concepts through language.

Still, as the PETA lawsuit now burns time and money at the Ninth Circuit Court of Appeals, what social interest can anyone say has been served by either the digital rights or the animal rights activists deciding that David Slater is not the owner of this photograph?  Slater is now looking for work other than photography to pay his legal fees; the macaques get nothing out of all this grandstanding; and zero progress is made in copyright law in any useful context.  I guess people can feel free to make Ella-the-Macaque memes on Facebook?  Right, they’ll do that anyway.

Yeah, this whole story is a joke. But it isn’t actually funny.