Copyright

All posts tagged Copyright

An Update To My Post on Twitter’s Terms of Service

Posted by scottbourne on October 22, 2010
Posted in: Opinion, Technique & Tutorials. Tagged: , , .

I apologize in advance for the long post.

As usual, anytime I write about anything remotely related to Copyright, the kids go crazy. And this post on Twitter’s TOS was no exception.

The mob has attacked me. This is nothing new. It also won’t deter me. Pretty much every time I write about something like this, I am the recipient of nasty hate mail. Yet, I keep doing it. I’m either a glutton for punishment or I have a sincere desire to make sure my audience is paying attention to things that I think they need to know about. I assure you the latter is true.

A semi-popular photo blog (a competitor – no doubt trying to piggy back off my traffic) attacked my reasoning in the Twitter TOS post using a highly-trained expert to diagnose my position. Well okay. They interviewed a cool kid, fellow blogger and part-time video game designer who isn’t an attorney: But he plays on one the Internet and was willing to disagree with me so I guess that was criteria enough for his “expertise.” In any event, I think there has been some misunderstanding about my original post and because I want to do the best I can to inform my audience I have an update.

First, to those of you who wrote to me asking for advice on this subject: I apologize but I can’t give legal advice. Hire an attorney. I said what I said based on what my attorney told me. Granted, my attorney isn’t in his 20s. He is a real attorney. He thinks Copyright is a good thing. He doesn’t design video games or websites. He doesn’t listen to any of the new popular bands. He doesn’t own a skate board. So in short, HE is not cool. But his opinions are and he does a darn good job of representing me in court – so I take his advice and opinions seriously. You may be able to get help from Legal Aide offices, law schools or paralegals if you are not able to retain a private attorney. If you’re a serious professional photographer in my opinion, you should have some sort of relationship with an attorney so you can investigate these matters for yourself. Back to the post…

The fine points of the original post that many seemed to miss need to be re-stated.

1. I plainly said that not everyone needs to worry about the Twitter TOS – simply those who hope to sell their photos.

2. I plainly said I don’t think Twitter is evil. They are just doing what their lawyers told them to do. I personally think their lawyers were a bit lazy in writing such a broad TOS, but that’s just my opinion and I am fine with people disagreeing with that opinion. It would be nice if they had some basis for that disagreement other than they don’t like fat guys – but that’s life.

3. My primary goal was to simply get my audience to read the Twitter TOS and to think about this. That’s it. That’s all. Nothing more – nothing less. My crime is asking my readers to be aware of the possibilities. I merely want photographers to know what they are agreeing to when they use Twitter and to decide if the service they provide is worth the potential risk. For most of you – it is. For some of you – it may not be.

Several attorneys contacted me about the article. Most thought I was pretty spot on. One or two had questions here and there. One disagreed more vigorously. (More on that below.) I am surprised that my post stirred up so much controversy. Perhaps it’s because it was often misrepresented by those with an agenda (and yes – I am talking about you folks who think all Copyright is evil.) Perhaps it’s because some people didn’t read the post as carefully as others. Perhaps it’s because some people didn’t read the post at all but jumped into the fray because they followed a comment thread somewhere else. I’m willing to admit that I may just not have done a good job of writing down my thoughts. Frankly, I don’t know the answer. One of the things that I still haven’t figured out, even after writing about photo-related stuff on the Internet since 1998, is why people get their panties in a bunch so often.

When I wrote a similar post about Facebook I didn’t get nearly as much blowback. Sure the anti-Copyright crowd chimed in but that was it. Is it because there more Twitter fanboys than Facebook fanboys? While I am clearly being a bit snarky here – you hopefully get my point.

Perhaps some people just had legitimate disagreements with my position. If those disagreements are based on a different interpretation of the law by someone qualified to make such a determination, then I welcome the discourse. I entered into such a discussion with Eric Reagan – a lawyer – and photographer over at Photography Bay. While we disagree, his approach was informed, friendly, respectful and even helpful. He had one line in our email exchange that I really liked – and I am paraphrasing – “In every legal case there is at least one lawyer who is wrong.”

Eric wrote a thoughtful rebuttal to my piece here.  Keep in mind he is writing from a legal (not business) point of view and as he says, he is a lawyer – but not YOUR lawyer. In an email to me he admitted that if he were MY lawyer, he would advise me to take a similar position (but for different reasons) than my own lawyer did. I know this is getting very confusing and long-winded so I’ll finish up. I just wanted to point out that there is a way to have real discussions with people you disagree with without name calling. Thanks Eric.

Regarding the legitimate confusion some people felt after reading my post, I want to update my post a bit for the purposes of clarification.

a. Twitter is planning to allow photographers to embed images directly within the Twitter service – not relying on a third party application. This will cause more concern than anything currently being done on the service. I should have made this point clear in the original post.

b. There’s already at least one federal court case being litigated regarding this very issue. Read about it here
http://www.bjp-online.com/british-journal-of-photography/blog-post/1735505/afp-morel-the-debate-rage
s and here.
http://www.bjp-online.com/british-journal-of-photography/blog-post/1740373/afp-morel-questions

c. At least one other prominent blogger who covers the business side of photography agrees with me – in fact goes further than I do with regard to the Twitter TOS – John Harrington chimes in at
http://photobusinessforum.blogspot.com/2010/10/morel-v-afp-afp-v-morel-which-way-blows.html
.

To wrap up – the fact that there is actual on-point litigation regarding the very thing I talked about in my post isn’t exactly confirmation that my post was “Much Ado About Nothing.” This is real. It’s not a faux controversy. This isn’t something I just dreamed up. There’s no reason for me to do that.

I am taking the approach that this is all untested water. Why risk the chance to score big bucks down the road in an exclusive image licensing contract only to find out it’s void because you shared something on Twitter? I guess I am making more of a BUSINESS case than a legal one and hopefully those who have a sincere interest in this topic will understand the difference.

My only goal was to get everyone reading the terms of service that companies in the social media space use. This way everyone can know what they are actually agreeing to. I have no agenda other than trying to inform.

If you’re at all interested in becoming a professional photographer, don’t rely on the mob for your legal advice. Contact an attorney and make up your own mind. Read the TOS for each service you use. Make informed choices. Don’t just assume everything is groovy.

I hope this post illuminates further for those who were confused. And for the record..I LOVE Twitter. I think it’s the coolest thing on the Internet. I just won’t use it to share my photos unless the TOS changes. I’m moving on now.

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This post sponsored by the Digital SLR Store

Photos On Twitter – What You Should Know

Posted by scottbourne on October 12, 2010
Posted in: Opinion, Technique & Tutorials. Tagged: , , .

Photos on Twitter are a reality and will soon be more closely tied to the service. Right now, many photographers use services like TwitPics to do that. The photo above from an iPhone 4 is representative of many of these photos. And for most of us, that’s not a problem. But what about the pros?

There’s something every professional or aspiring professional photographer should know – unless Twitter changes its current Terms of Service (TOS) every photo you share on Twitter can be sub-licensed by Twitter, or worse. From the Twitter TOS…

“By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).”

Gulp…

“You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.”

Double Gulp…

Ask a real lawyer (not some guy named Larry who plays one on your local camera club forum) what this means. I did. My lawyer says it means that Twitter can do pretty much anything it wants with my photos (other than claim actual Copyright to them) and there’s nothing I can do about that. Is that an issue for you personally? Maybe not. It’s unlikely it will impact you if you aren’t trying to sell your photos. But if you are, read on.

As a professional photographer, I can’t sell “exclusive” rights to any image I decide to publish on Twitter. The reason is that once it is published on Twitter, there is no exclusivity left. That could be expensive. As professionals, we need to decide whether the exposure we get via Twitter is worth that trade off. For some of us the answer is yes – for others the answer is no. The purpose of this post is to get you to understand that you will have to make some hard choices. I am hoping they are informed choices, no matter what you decide.

By the way, many of the third party services like TwitPic have equally concerning terms of service. Don’t think that by using these services you’re avoiding the potential issues I’m describing over at Twitter.

In closing, let me say that I don’t think Twitter is evil. Just the opposite. I think they are doing what their lawyers told them they have to do to stay safe. I have no problem with that. They don’t assume any Copyright over your images. THAT would be evil. I appreciate the fact that they didn’t take that step. Twitter just asks you to license your content in a way that could (if you are a pro or want to go pro) be financially harmful to you later on. That’s important to know and is in no way a “values” judgment against Twitter.

When all is said and done, the power of Twitter and other social networking sites to share images is too great to ignore. I may never share an image directly on Twitter. I have used TwitPic to send iPhone pictures (a few times) and I do post a few images on Flickr. I’ve stopped using Facebook at all. All of these social networks require you to diligently read through the TOS. Yes it will hurt your brain, but no – it won’t make you go blind. In the end, there is no free lunch. Decide if the service they provide is worth the potential risk.

I hope you find this information helpful when making your decision.

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This post sponsored by Rogue Flash Benders – distributed by Expo Imaging

The Case For Watermarks

Posted by scottbourne on September 29, 2010
Posted in: Technique & Tutorials. Tagged: , .

Photo by Scott Bourne

The younger you are – the more likely you are to dislike watermarks on photos. That is the result of my unscientific poll. I’ve read some articles on watermarks lately, including one at Photoshelter that caused me to think I should publish my own thoughts.

Grover Sanschagrin makes the case against watermarks here. He makes it clear that his position is his own and is NOT the official position of Photoshelter. That’s a good thing because if it was, I’d probably be recommending against using Photoshelter. That said, unlike many who opine on this issue, Grover at least has a reason for his positions. While we mostly disagree, I respect the careful way he went about making his case. Heck – I think he’s just a little bit right – particularly if you are talking about PROMINENT watermarks. But then again, who’s to say what’s prominent and what isn’t?

I watermark sometimes – and sometimes I don’t. If the image is 500 pixels or less, I typically don’t watermark because the photos are too small for anyone to use commercially in a significant manner. I am constantly evaluating this position and do reserve the right to watermark even my smaller images someday. But for now, I don’t usually do it.

When I publish images 500 pixels or greater, I typically watermark. I consider my watermark to be just right – not overly intrusive. For the selfish – cool kids who think they are ENTITLED to my images, ANY watermark is too big. As you may surmise, I won’t lose any sleep over what they think.

But to everyone else, it’s a legitimate question. Should you watermark?

I say yes – when your images are large enough to be printed or used commercially without your permission. Grover disagrees. I will dissect Grover’s post as a starting point.

Grover claims that based on Photoshelter research, photo buyers are less likely to license images that are “prominently” watermarked. I’d have to ask once again, what is “prominent?” I haven’t seen any problem selling my images that are “tastefully” watermarked. I’d like to see the data sample and size on his research before I’d believe it.

Grover also correctly says that watermarked images are less likely to be shared via social networks. For some of you reading this post, that will be a problem. You need and/or want that exposure. I don’t need OR want it. I would rather control my own work. I know that’s old fashioned, and I can live with that. The “sharing” too often turns into “stealing” in my opinion. While I know there are those out there who think they have a “right” to republish my images (or your images for that matter) without permission, Title 17 of the U.S. Code says otherwise. If sharing is important to you then Grover’s argument has a bit more merit. If protecting your Copyrights is important to you, Grover’s argument has less merit.

Grover’s weakest point (bordering on the stuff that comes out of the backend of a bull) is that using a watermark sends a subtle signal that you might be difficult to work with. Now if that’s true (and believe me it is not) then pesky things like contracts, invoices and the expectation of on-time payment will also be considered “subtle” signals of difficulty. Grover is tipping his hand a bit here. I think he may have a general bias against current Copyright laws because in this paragraph he dropped the “prominent” adjective and just said watermarks. Sorry Grover…but the “buyers” you might be talking about aren’t the kind I want to work with. I have been licensing my work for decades, and using things like watermarks has generally been taken as a sign of professionalism – not difficulty.

Grover says watermarking your images won’t stop people from using them. He also says they are easy to remove. He’s probably right. But locking your car doesn’t stop determined thieves from stealing it either. It’s still a good idea to lock your car. In my experience, watermarks do reduce infringement. They don’t stop it anymore than locking the car stops determined thieves, but the watermark can help keep honest people honest. The old saying “Fences make good neighbors” applies here.

As for people removing watermarks, this shows “willful infringement” which means in U.S. District Court you may be able to recover additional money damages. So thank you to every infringer who has removed my watermark. I have named each of the cars you helped me buy after you. Leave the watermark and get a bigger check from the infringer.

Lastly – Grover seems to think that infringement is a good thing. His comment “If you don’t watermark your images, will they be used elsewhere without your permission? Most likely, yes. But is that really a problem – or is it an opportunity?” gives that away.

I am so tired of this argument that I could throw up. If you make a photograph YOU and ONLY YOU can determine how and where that photograph should be used to your benefit. You need not accept someone else’s idea of what’s good for you. That is the law. Any attempt to justify or excuse the acts of infringers by saying it could help you get EXPOSURE is like saying “Hey I stole your car for the afternoon, but a bunch of good looking girls saw me driving it and wanted to know where I got it – so we’re cool right?”

I guess Grover is missing the point that while you are supposed to be happy that you’re getting this new “opportunity” you may end up having your images displayed at a location you find offensive, unflatteringly edited or otherwise co-opted in a way that is actually harmful to your reputation as a photographer. I’ve had that sort of “free promotion” and want no more of it. Don’t be seduced by this argument. Your work is YOUR work. Nobody else has a right to tell you what to do with it.

Grover is absolutely right about one thing – extensive, large, distracting watermarks may be something you want to avoid. Each person reading this will have to decide which watermarks are extensive, large and distracting. But his thesis took on a disturbing tone when he seemed to be trying to defend the infringers. Don’t be fooled. You can subtly watermark your work and do just fine. Don’t be bullied into doing something different. Now if you just don’t care who uses your images, or you want to encourage sharing for business or artistic reasons, then go for it and forget the watermark. There are certainly cases where it’s not needed. But when it is needed, don’t hold back. Watermark away. That’s my two cents and I just wanted to express my opinion for your consideration.

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This post sponsored by LEDZ – LED lights for photography and video.

New Service Lets Photographers Recover Money From Copyright Infringers

Posted by scottbourne on September 9, 2010
Posted in: News. Tagged: .

Those who follow this site regularly know that I am a strong proponent of Copyright protection from photographers. If you’re someone who doesn’t care if people use your work without your permission, this information won’t be valuable to you. But if you do care about it, you need to know about ImageRights and their new recovery service. As far as I know this is the first service of its kind that allows you to actually recover damages from infringers.

ImageRights International launched its ImageRights Recovery service today. ImageRights works with photographers to recover settlement fees from websites that have published images without a license. You can sign up for their Basic Recovery service for free and receive 50% of any revenue they collect.  Paid accounts receive as much as 65%.  They also search more than 80 million web pages a month monitoring for use of your photos and then notify you when they find copies or derivatives of them.

To strengthen your case against future infringers, they’ll register your images with the US Copyright Office for you for a reasonable fee if you find that you are too busy to hassle with it yourself.  Registration is critical to effectively recover settlement fees from those who steal your images.  You can read more about their services at www.imagerights.com.

If you’re already an ImageRights customer you can contact them to sign up for this service.

Oh one more thing. If you’re an infringer, this news should make you nervous :)

Disclosure: Scott Bourne sits on the Image Rights Board of Advisors

Giving Up Control of Your Images

Posted by scottbourne on August 27, 2010
Posted in: Technique & Tutorials. Tagged: , , , .

NOTE: This was cross – posted at GoingPro2010.com

Do you actually read the Terms of Service Agreements and EULAs that you sign or click “OK” on? I bet you don’t – but you should. Especially if you are a photographer who worries about people taking your images and profiting by them without your permission or without sharing those profits with you.

By posting images to some of the “sharing” sites —– you’re sharing all right —– you’re sharing a free license that allows most of these sites to profit from your work in return for hosting the images. That’s a pretty bad deal in my opinion, considering the fact that you can also build a blog for free that would allow you to avoid giving up control.

Sites like Facebook for instance are particularly tricky. I got quite a response when I posted the following Tweet two days ago…

“You realize you’re granting worldwide, transferable, sub-licensable, royalty-free license to Facebook by posting images there?”

I was merely trying to make people aware of FB’s general approach. I am not saying that they do anything evil with your photos. I am saying they COULD if they want to, and that alone makes me run for the hills. To some people, i.e., those who have zero commercial aspirations and who couldn’t care less if someone else profits from their photos, this is no big deal. To those folks I say great. You need not worry about this. If you’re in the category of photographers who just shoots for fun, doesn’t plan to sell your images, doesn’t care if someone else does, doesn’t care if you get left out of the loop when it comes time to get a check, then you should ignore this post. It’s not relevant to you. There’s no problem posting your images anywhere and everywhere.

But if you hope to go pro some day. . . or you are a pro. . . or if you just feel like it’s not fair that someone else should be able to financially profit from your hard work, pay attention. Start reading the fine print. At least you then know what you’re getting yourself into.

People responded to that tweet with everything from outrage to fanboyism. But the important responses were questions like: “Where should we put our images?”

The safest answer is: Post photos on your own website or blog. Then you set your own Terms of Service. My TOS is simple – I never steal from myself!

If you use your own site, you never have to worry about a third party’s privacy or intellectual property policy changing.

Here is a link to Facebook’s TOS. Paragraph two contains the language above. It also contains the following sentence regarding your photos:

“…you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).”

I have no problem with this. I simply don’t post anything to Facebook. They are free to engage in any business model they like and as photographers, we are free to post there or not. This post isn’t intended to talk you out of using Facebook. It’s intended to let you know what you are agreeing to in case you are like 99% of the folks who don’t read the fine print.

Some of the responses I saw on Twitter incorrectly assumed that this is simply going to be the case no matter where you post your photos. They assume you’ll have to give up a license for others to profit from your work no matter what. That’s not true. I haven’t read every single TOS out there. But I have read the Pictage TOS, SmugMug TOS and the PhotoShelter TOS and I am very comfortable posting my images on those sites. They don’t have provisions in their TOS (as of the date of this writing) that cause you to license the images in such a potentially aggressive manner.

I am not a licensed attorney and you should certainly consult with one before making any legal decisions. I can’t tell you what every single photo sharing/hosting site’s TOS might say – nor can I tell you which nuances such as linking or posting make a difference. I did consult my attorney before writing this post and came to the conclusion that as a working professional, I shouldn’t post images on Facebook. (I deleted my FB account last month but had never posted any photos there anyway.) My conclusion was that it was okay to post on Pictage, SmugMug and/or PhotoShelter. You have to decide for yourself how you want to handle this. But at least do one thing – read the Terms of Service before you click to accept. Sometimes the thing you’re getting in return for posting is worth it and sometimes it’s not. Only you can make that decision. My goal here is to make sure you are informed. I have no dog in this hunt. Whatever you decide is right for you is fine by me. I just want to make sure that you go into it with your eyes open. Good luck to us all!

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This post sponsored by X-Rite Color and the ColorChecker Passport

Educating Your Photography Clients About Copyrights

Posted by scottbourne on February 25, 2010
Posted in: Technique & Tutorials. Tagged: .


Since I often write about photography and Copyright I am painfully aware that not only do most people not understand the notion of Copyright protection, most photographers don’t even know much about it.

So it stands to reason that having some additional tools will help both groups.

When a client buys a print from me, I make sure it is accompanied by a Copyright Notice – and I am not talking about a little watermark on the print. Rather, I provide a document with the photo that explains it is protected by Copyright.

I am posting a copy of the notice I use below. I print this on nice paper and provide it with the print. If you wish to use the same notice, feel free. I don’t warrant that this notice will in any way protect you. Contact an attorney to protect your legal rights. Also, note that I am a US citizen and this notice is written from that perspective.

——————————

COPYRIGHT NOTICE

Please read this very important note about Copyright protection. The U.S. Copyright Act (Title 17, United States Code) is designed to protect photographers and other artists by granting them the exclusive right to distribute, copy, edit and publish their photography by license, transfer or sale.

This is important because the Copyright Act prohibits anyone from copying, scanning, editing or sharing photographic prints, images or media without the written permission of the photographer.

Violation of the Copyright Act may subject the infringer to both civil and criminal penalties.

Because this photograph is a work of art that we want you to cherish, we wanted you to know about this important Copyright protection. Respecting the Copyright Act not only protects the rights of the photographer and prevents you from being subjected to prosecution, it helps to make sure that this photographic print retains its original value as a work of art.

Please feel free to contact the studio to discuss any questions, comments or concerns you have about Copyright.

If you need additional copies of this print, would like the right to scan it and post it to your online or social media accounts, etc., please contact us immediately. All reasonable requests will be accommodated. In some cases, this may require payment of an additional fee.

For more information on photographic Copyrights, please visit
http://www.kodak.com/cluster/global/en/consumer/doingMore/copyright.shtml

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This post sponsored by the Digital SLR Store

Are You in Stealth Mode?

Posted by scottbourne on January 19, 2010
Posted in: Technique & Tutorials. Tagged: .

Tampa Skyline - Copyright Scott Bourne 2010 - All Rights Reserved

There are some great photographers who we will never hear about. There are some great images we will never see. Why? Because there are those among us who are in stealth mode. They are so afraid of Copyright infringement that they never, ever show their pictures in public.

It’s a shame.

These photographers are right to worry about the infringement. The world is full of people who will steal your photos. It happens to me every week. But there are remedies for that. And there are other steps you can take if you want to avoid infringement.

(This post is written from a USA bias. If you live outside the USA, consult legal counsel in your area for more information to see how this applies to you.)

1. Register your Copyrights with the Library of Congress. This allows you to sue (for money) the infringers. I do this regularly. I am aggressive about it. It creates a nice income stream for me, and often provides more income that the images would have made if they were legally licensed. Do I wish that I didn’t have to sue people? Sure. But I’m not going to let them keep me from showing my work. WHERE I show my work and HOW I show my work may be controlled, but I WILL show my work.

2. If you don’t have time or money or interest in protecting your Copyrights, then make your images unappealing to the infringers. Keep your images to 400 pixels on the longest side. Put a watermark on the images. Keep your resolution to 72PPI. Be careful where you post your images. Use file names that are easily traceable to you so you can do searches to find unauthorized use. Issue DMCA takedown notices to service providers that host infringers. You do have the power.

While your images will still be stolen for web use, nobody’s going to be able to use them in editorial reproduction or print. And placing them in a lockbox where nobody will ever see them is worse than having them stolen.

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This post sponsored by the Digital SLR Store