Sunday, 26 August 2012

A Tale of Copyright

By Howard

I make my living from photography.  Most of my income is derived from commercial and social photography (people and stuff!) and a lot of consultancy work on image restoration.  The occasional stock image or print sale is all I make from my two photographic passions, wildlife and artistic photography.  I have lost count of the number of times I have had to refuse to restore someone's treasured family portrait because they have not considered the copyright implications.

Copyright exists to protect the rights of the creator of a work to derive income from their creativity and to protect how their work is distributed and seen.  It is also universal, with China being the only major country that is not a signatory to international copyright agreements.

In the mid 1990s, as the internet was becoming more graphically rich, spotty-faced geek kids in America were constantly being pulled up for using other people's creations without permission.  Some of these kids tried to claim that once the image was on the internet it was "in the public domain" and therefore not subject to copyright.  This attempt to circumvent the legal protection of creative works was flawed, based on a poor understanding of the legal term "public domain" and doomed to fail in the courts but the myth has subsisted in the internet world ever since and continues to cause problems.  

The term "public domain" refers specifically to newsworthy information and relates to a case where one publication attempted to sue another for running a news story that they had previously published and paid the subjects for exclusivity.  The courts agreed that in the case of a news story, once the information was in the "public domain" it was no longer secret and therefore a legitimate news story for others to publish.  At no time has this been extended to creative works.

Like many photographers, I regularly use reverse image search technology to find where my photographs might be used on the internet.  I am not particularly anal about it and if a friend has used a web-sized image in their blog, personal website or Facebook page with appropriate accreditation I would not pull them up about it but occasionally I find people who take liberties and I recently discovered a mixed bag of several copyright infringements of my work, ranging from someone who simply did not understand that copyright exists on the internet, using my image on their personal website to illustrate their passion for wildlife, to someone who had taken a web-sized file of one of my art-nude shots, removed my copyright notice, added in an image of the Earth from the Moon, stolen from the NASA website and put the image up for sale as "limited edition of 50 10x8 canvas prints at $100 each".  Needless to say I was pretty mad that day and copyright infringement notices were sent out.  I also contacted the art sale company where my image was being displayed to have the image removed from their site and they suspended the user's account.  I am waiting to hear back from them with details of all sales made.  I made sure to take screen grabs of everything before it was taken down, as these will be required as evidence for the lawsuit coming her way.

So where did this lead?  Well in the case of Maria Elizabeth Giupponi it will cost her a lot of money, a huge amount more than if she had contacted me and asked to purchase a licence to use my image in a derivative work.  I have no intention of letting this thief away with anything lightly, especially as my research has shown her repeatedly being pulled up for copyright theft online and either claiming "public domain" or worse, claiming that everything is her own work!

However, in the case of the gentleman who had used a wildlife image on his personal website to illustrate his passion for the subject; he came straight back to me and apologised for using the image.  I accepted that there was no intention to breach copyright and no commercial use of the image as he simply did not realise that what he was doing was wrong.  We have settled this amicably: he agreed to make a small donation to our fundraising for Save The Elephants and in return I have sent him a licensed version of the image (without the intrusive image library logo) and as a goodwill gesture I also included another image of the same group of animals and a third of a different species.

For the record, if anyone wants to use any of the images on our blog, please contact us.  In most non-commercial cases, a token fee or a donation to our fundraising is all we will ask for and in some instances we will accept just a credit.  Our rates for commercial use are extremely low too and for any of the images on this blog, we will happily supply a commercial licence in return for a donation to our fundraising equivalent to the normal fee, which companies may then offset against tax as a charitable donation.

Thanks for listening; normal service will be resumed shortly as we arrive in Kenya in one week!

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