Recently, it’s come to light that Flickr’s API allows companies to get ready access to your Copyrighted images for the purpose of redistribution. Many blogs have already commented on this, generating much discussion. To put my post into context, please go read those posts/comments and then return to hear my take.
Jim Goldstein on How Every Flickr Photo Ended up On Sale This Weekend.
Phototrade Blog with It Is Your Fault I steal Your Photos. Accept it. Please.
FocalPower wrote Who Controls Your Photos Online.
Plagiarism Today’s Is Flickr Letting Down its Users?
Myxer (the company which published all the photos in question here responds)
Now after you’ve read all this, (or even if you haven’t) you probably have some idea that people are not happy about someone trying to profit from their work without permission. And in my opinion, that’s valid.
What happened here in my opinion is that Myxer infringed on lots of photographer’s rights. It seems clear to me that Myxer didn’t intend to do this malicious manner. I do believe they were careless. And I do believe they violated my Copyrights since one (or more) of my Copyrighted (and registered) photos was used. (I have a tracking service that helps me protect my Copyrights and I immediately found out about this infringement via that service.)
Now my normal standard operating procedure is to have my attorney send a Cease & Desist letter asking that the infringer stop using my photo without permission. If the image is online, we also send a DMCA takedown notice to the host.
The letter we send to the infringer usually also asks for a licensing fee equal to whatever use was allowed by the infringement. Failure to immediately act by the infringer leads to the next step, which is filing suit in United States District Court for damages.
In this case, Myxer took the images out of play before we could even notify them. And they would probably not have the financial ability to compensate every photographer in question since they are a startup, so I won’t pursue them any further. That doesn’t mean someone else won’t.
What’s surprising to me in this case is the reaction from both sides to this issue.
The “Ethos of the Internet is free” crowd doesn’t believe in DRM or Copyright or any sort of restrictions on content. They of course DO believe in getting paid for THEIR work so to the degree that they are hypocrites, I ignore them. But a large number of that crowd simply don’t appear to understand the law or the position held by the content creators. If the Copyright holders WANT to give their stuff away for free, that’s up to THEM, not some third party. And saying that if you put something on the Internet you should expect it to get stolen is stupid and even silly. That’s like saying putting your car in a mall parking lot is begging someone to steal IT!
Photographers have a reasonable expectation that their Copyrights will be respected. Content users have a reasonable responsibility to enjoy the content within the realm of the content creator’s wishes. And companies like Myxer have an obligation to exercise care when using content that belongs to someone else. Period.
I do applaud Myxer for their openness, their swift action to disable the technology that led to this incident and their appropriate apology. What I do want to point out to them (and everyone else) that they undermined all that to some degree by saying they didn’t actually sell any of the photos, so it’s okay. IT’S NOT OKAY!
While I am not a practicing attorney and cannot give legal advice, I can re-state the advice I have received from MY attorney on this issue. It forms my opinion and how I respond to such things.
Title 17 of the United States Code governs Copyrights. Nowhere in that code does it say that infringement is limited to cases where someone sells your images. While that may impact the damage award you receive, all that’s required is a redistribution or “publishing” of those images without your WRITTEN consent. Whether or not the images were sold is irrelevant. Myxer should stop saying that there was no harm because no images were sold. The harm in my case happened when they re-distributed my photos without my written permission, even though I had clearly marked them as rights protected in Flickr. (Again with the mall analogy – I didn’t leave my car in the parking lot with the engine running, the doors unlocked, the keys in the ignition and a sign on the car that said “take me.” I left the car locked with the reasonable expectation that nobody else would try to drive off with it.)
Additionally – I would argue that Myxer DID profit, if they sold advertisements that surrounded my content, that’s the same as selling my image. In fact, I don’t ever “sell” my images. I license their use. And I have frequently licensed images for advertising-driven content. I get paid of course. Here, I didn’t get paid.
So to sum up on Myxer – in my opinion, they infringed on my Copyrights whether or not they “profited” from my images. Only I can give the permission necessary to publish those images and anyone who usurps that is in my opinion, liable. But they acted appropriately once they were informed of the infringement, so I think they showed respect (albeit after the fact.)
While most of the attention in this matter has been focused on Flickr, since it was their API that allowed this infringement, I think Myxer needs to think about this a little harder and the photo community needs to educate itself a little better about what is legal and what is not.
As for Flickr, I am very disappointed in their lack of response to this issue. We’ve had Heather Champ from Flickr on the This Week in Photography podcast as a guest. We reached out to her and informed her that we were going to write about this subject and asked her for comments or an interview. We waited four full days for a response. She didn’t respond. In my opinion, this shows a complete lack of regard for the photographers who have been harmed here. It shows a lack of respect and a lack of understanding as well.
I think Flickr should bend over backwards to make sure it doesn’t in any way help third parties infringe on Copyrights. Flickr is a big name and a big company and unlike Myxer, does have resources that might make it a target for a lawsuit.
In my case, my damages here are so insignificant that I have decided not to pursue legal action against anyone. I don’t even know if Flickr could be held liable here, although I am sure that if this had gone further, they would have at least been sued. Whether or not such suits would have been successful is anyone’s guess.
But why not address the issue head-on? Is it indifference or arrogance or simply bad business judgment? It’s not ignorance. Flickr is hearing plenty from its users about this.
I love Flickr and the potential it represents. I do not intend to stop using Flickr or call for a Flickr boycott. But I DO intend to start using it differently. I won’t be placing any of my serious work on Flickr. In fact, I have removed dozens of images from Flickr because I don’t want to see them published somewhere else without my permission.
When it comes to sharing product shots, or shots of me and my pals at a tradeshow or snapshots of a dog on a beach – Flickr is still valuable and fun for me. But this incident has reminded me that many people still don’t understand or respect Copyrights, and I want to take every step I can to protect my valuable property from infringement.
I hope Flickr eventually addresses this issue. I also hope that companies like Myxer pay more attention and care to Copyrights as they go forward trying to innovate in the photo-sharing space.
I hope that my position is cogent and well thought-out. I look forward to seeing what the rest of the TWIP community thinks about this.
NOTE: I will not allow any comments that appear to contain legal advice unless the commenter can prove to me that they are a licensed attorney practicing within the US. Also note that this issue is being covered from a USA resident’s point of view. Those in our international audience may or may not be covered by US Copyright law, depending on whether or not their country is a full signatory to the US Copyright Act.