Saturday, May 31, 2014

Copyright? Copyright me arse!

A profanity?  Yes.  I'm a little sensitive about the topic of people abusing copyright.

To set the scene and put it into perspective, I don't have dozens of copyright infringements on my pictures at any time.  In fact I can't remember one.  Then again my memory banks are full and I suspect there is an overworked little being in my skull busily dumping seldom-accessed bits of information into a bin in a somewhat similar fashion that Microsoft does when it identifies 'unused icons' on my desktop etc.

My infringements fall into the "thoughtless, rude, insensitive or arrogant" people category who I have made an agreement with to supply finished images without watermarks 'free, gratis and for nothing' in return for a credit usually on Facebook.  This in some cases is after they have asked to pay for the pictures and I have, for logical reasons, declined and just asked for a credit where they are used.

I can't be certain where the attitude originates but I hold a theory that it is because of the proliferation of digital cameras.  I mentioned in a previous post how even photographers who have been taking photographs for years will question why *I* need to bring additional equipment with me into a studio.  Yet some of these will be the ones who don't understand how I can get pictures they can't.  Hmmmmm.

So ...... recently I was asked by another photographer to assist him taking photos at an event which was essentially a non-profit organisation to promote women.  I agreed to help on the understanding that we would get credit for our pictures.  There was to be a fashion show.  I knew three of the girls so - bonus!
I drove down to the venue, a round trip of 120km, to see the layout of the place to see any pitfalls and plan what needed to be done to provide successful pictures.  The following week I drove down again and set up two speedlites  to light the fashion show in combination with a third speedlite on my camera.  This was in addition to taking photographs of speakers, MUAs at work and stall holders.  I brought two cameras and three lenses.  The other photographer brought almost as much equipment and took as many photographs around the venue as I did.

So, between us we had reasonably quality photographs because of our equipment and experience.  We were asked by a number of the people there if they could buy photos from us.  We said that since we were donating our services free to the organisation we couldn't in all faith charge others so we asked that any photographs they used would be credited.  Exuberant affirmations that they would do that combined with equally exuberant "Thank you so much.  You're very kind." were the responses.  Cool?  Yes?  No?

We followed up on a few of the people and we had to remind them about they agreement they had made. We were almost made to feel as though we were being unreasonable.  I suppose if your friends pop along with a digital camera, take a shot and post it on Facebook without any fuss then it is probably expected of us too.

I used to do quite a bit of theatre photography.  Mostly opera and musicals.  At the time I was a newbie to Facebook and used to get a huge influx of friend requests from the casts after I posted some of the photos on Facebook.  I was flattered.  I thought it was because my photographs had merit.  It was more like the cast saw the opportunity for free photographs that couldn't be sourced anywhere else.  Some saw the work that I had put into producing those photographs but they were few.  After a while I became selective about whose friend requests I accepted.  Later I created my Facebook photography page  and kept my private Facebook private and for people that I have some sort of relationship with be it social or otherwise.  I even put a big warning notice on the front page that read:

"If you know me, you know me.
If you don't then chances are you
Otherwise send me a message"

Do they read it?  Do they heck!  I still get lots of friend requests with no explanation as to why.

I've also had requests from 'friends' for photos from old performances to use as promotional material.  I supply them.  The photographs appear on Facebook.  I see them and the comments about how wonderful the dress is, the lighting, the words "stunning" and "awesome" may be used and who gets the credit?  The MUA.

Moving on ....
Since this is more about copyright and less about my unfortunate encounters with unappreciative people...
A photographer I met recently told me a story of copyright abuse.  Now I may not have the facts absolutely correct but the gist of the story was that he had taken photos years ago of a certain girl who had subsequently come more into the public eye.  One of the newspapers had written up an article and used his photographs of her to accompany it.  The article was the first he knew of it so he wrote to them advising a breach of copyright since they had neither asked him for permission nor paid him.
"We'll give you €20."
"How about €20,000?" he asked.
"Sue us!"
End of conversation.

Next story involves a friend of mine who is herself a photographer.  She attended a commercial event for kids.  Like all the proud parents who were there she took photos of her kids along with other kids and later posted them in a private - note that word "private" - folder on Facebook.  She was surprised, therefore, to find out that one of photographs was being used on the company's website to promote future events.  She wrote to them and explained that since she had not given permission for the photos to be used and that the photo being used on their website had not been linked to but had been downloaded and stolen; she wanted the photograph removed.

That's not an unreasonable request I would have thought.  Obviously, someone, who was probably a Facebook 'friend',  had either tagged someone in the photo that might have given them access or downloaded it themselves and re-posted it.  It might have been then that an over-enthusiastic employee had used the photo on the website without considering the copyright implications.  But no.  They responded very aggressively.  They told her all the photographs taken on the day by anyone were copyrighted by them.  I won't go into details of the rest of the very aggressive correspondence between them but it was not pleasant.

I offered to help resolve this situation.  I thought I could be of use.  I was pretty sure that a copyright infringement had taken place and that the photographer was in the right.  I also knew another photographer who had contacted a solicitor regarding the unlawful use of his photographs so I thought I would ask him who he had dealt with.  And also, I contacted a solicitor who had visited Dublin Camera Club and given a presentation on photography and our rights.

Feeling buoyed up with my plan of action I gave hope to my friend but it was short-lived. I wrote to the solicitor who had given the presentation outlining what had happened and supplied her with copies of the email correspondence.  I also contacted the photographer who had sorted out his own copyright issues.  After an initial agreement to provide me with the name and details of his solicitor he did not follow up despite a 'gentle reminder'.  So one down.

The solicitor I had written to came back with a resounding reply that was very comprehensive.  She quoted chapter and verse about copyright.  She included links so I could check for myself.  She also provided a solicitor's name and email address who she said specialises in copyright infringements.  Buoyed up once more I wrote to the company who had contested my friend's claim of copyright infringement, explaining who I was and I outlined the law as it was related to me and asked for the photo to be removed, an apology be given to my friend and a goodwill gesture of €150 remuneration.  I gave them two weeks to respond and they didn't.

So I contacted the 'copyright solicitor' who came back to me with a disturbing reply.  Firstly he showed concern and doubt about the case because it involved Facebook and he suggested we look at the implications of their copyright agreement with users.  I thought that was very strange since the issue wasn't with Facebook but with a company that had stolen and used a photograph to promote their commercial events. But I was annoyed that a so-called copyright expert was suggesting I would need to check out how Facebook's copyright policy related to this situation.  Then he gave his charges which were €300 an hour.  It took me a while to get over the shock.  Then the realism of the situation started to make itself apparent to me.

  • This was a trivial case for them so they didn't really want it.
  • I was being diverted away from the real case with the red herring of Facebook's copyright policy
  • The upfront mention of hourly rates for both him (an associate) and others was probably to scare me.
  • He didn't once mention that he thought we had a case.
So what did I come away with after all this?  You can be correct in the eyes of the law but unless you have the money to hire a legal team who will fight your corner you have nothing.  I think most people faced with the prospect of €300 an hour legal fees without any idea of how many hours will be involved to win a case over a pithy amount like €100 would never take the risk.  So there can be no justice - only law and money.
That means the people who infringe copyright are laughing at us.  That gets my back up!!!  I can be very stubborn.  :-)

By the way....... As far as the free photos are concerned, I have issued notice that there will be no more freebies.  Most times I do a shoot, the value of the equipment I have in the car is worth several times the value of the car.  So next time they want a freebie I'll ask for a loan of their BMW or Land Rover or whatever for the weekend. That's not unreasonable is it?

1 comment:

  1. Interesting account of your experiences. Regarding your last point, the same applies to patents. You can write a "cease and desist" letter , but if the infringer ignores this, then your patent is only as good as your ability to pay legal costs to defend it. Potentially millions of Euros.