Facebook Doesn't Own Photos You Post (But They Might As Well.)

This one comes from a viral email that is apparently circulating stating the Facebook owns the photos you post to that site.

No.  Facebook does not gain ownership of photos posted to their site.  Ownership remains with the original owner.

But posting to Facebook does have ramifications when it comes to copyright.

Facebook's TOS state that posting images to their site grants Facebook a license to use that image.  The actually language states "you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook."

It's the "tansferable" and "sub-licensable" parts that are important here.

Those terms allow Facebook to allow other people to use the images posted to Facebook without seeking permission from the person that originally posted it.

While you don't lose ownership of images posted to Facebook, you do lose a great deal of control.   The only way to regain that control is to delete the images from Facebook, and that won't do anything to address the existence of copies elsewhere. 

If you want to retain control of an image (including the right to license it for a fee) do not post it to Facebook.

Rod Stewart Sued for Copyright Infringement

Hat Tip: SLR Lounge

Celebrity Photographer Bonnie Schiffman has filed a copyright infringement lawsuit against Rod Stewart seeking $2.5 Million in damages.

Stewart wanted to use one of the photographs the Schiffman had taken of him for a billboard ad, and offered to pay Schiffman to license the photo.  Schiffman refused the amount offered.  (Apparently wanting more money)

Stewart then had a photo taken by another photographer and used that photo in the ad.

The Problem?


The photo basically recreated the original photograph and Schiffman is suing based on "substantial similarity."


She'll probably win the lawsuit, but I doubt she'll get anything near the $2.5 Million she's asking.  She may not even get enough to cover her legal fees.

Personally, I suspect the problem may stem from an Schiffman placing an unreasonable valuation on the image in question.  She apparently turned down $1,500 for the image being used on a single billboard, and the only reason I can see fo Stewart taking the actions he took is if Schiffman's counter-offer was unreasonably high.

The only reason I can see Stewart risking a potential copyright lawsuit is if the amount being asked by Schiffman dwarfed the legal fees and penalties he would face if he lost a lawsuit.

Otherwise, he would have just paid the licensing fee being asked by Schiffman.


Granted, this is speculation on my part.  Schiffman may have acted in a completely reasonable manner and have been willing to license the image at a reasonable price.  But I can't see this happening if that was the case.

Update on Getty Lawsuit vs. Microsoft

A brief update on yesterday's post on Getty suing Microsoft for copyright violation based on Microsoft's embedded image widget.

I thought I'd try the widget out and see how it actually works.

Here's the result of the basic embed code:

The widget results in a frame that displays the results of performing a Bing Image search using the search terms specified when the widget is created.  The term used in the sample provided by Bing is "volcanos" which is why you're seeing a bunch of those in Bing's widget.

Clicking on the widget takes you to Bing's search engine page.

A short description of how this works:

1)  Someone visits a website that includes the embed code.
2)  That website sends the search terms to Bing's search engine.
3)  Bing does an image search using those terms and sends the result to the website's server.
4)  The website uses the search results provided by Bing to display images in the widget.

The images displayed seem to be the thumbnails that Bing displays as part of its search results.  These are low resolution copies that are solely designed to provide viewers an idea of what the actual image looks like.

Viewing the full-sized image requires visiting the Bing search page.  (Clicking on the widget takes you there.)


My Take:

First, I'd thought it might be worth comparing Gety's embed tool.

Getty's embed tool:

#460875031 / gettyimages.com

I'm happy to say that Getty has addressed a major issue with their tool that I pointed out when it was first released.  They have disabled right click on the image frame.  No more copy and paste of the embedded image. 

They have also managed to prevent tools like Download Them All! from working on the image.  (I suspect that's because the image isn't technically "on" the web page hosting the image.)

They have not addresses the issue of screen capture.  Doing a screen capture with the above image displayed enabled me to obtain an image roughly 600 x 380 pixels.  That is large enough for certain web site uses.  (I deleted the image after determining the image size.)

I find it ironic that the company that uses an embed tool that facilitates copyright theft is complaining about one that produces thumbnails unsuited for any use beyond displaying image search results.


From a copyright standpoint, I think the Microsoft embed tool can easily be defended under "fair use".  It only provides a very limited example of the full-scale image.  This is similar to providing a short snippet of a book in a book review.

The problem occurs on the Bing page.

Someone that performs an image search can view full-sized images in the search results.  This requires Microsoft to copy the full-sized image and store it on their servers.

This is where the potential for copyright violations to occur, not the embed tool. 

Microsoft creates full-sized copies of images on the Internet and makes those copies available to those that use its search engine.  I'm not sure this can be defended.

(The same goes for Google that does the same with image searches.  Google, Bing and any other search engine that stores full-sized images and makes those copies available as part of an image search might be on shaky ground when it comes to copyright law.)

Pot Meet Kettle Moment for Getty

Hat Tip: re/code

For those of you that missed it, Microsoft recently announced a photo widget for its Bing search engine that allows web sites to embed image search results on their web sites.

Getty has decided to sue Microsoft for copyright violation.


That leaves me dumbfounded.

This is the company that recently decided to allow embedding of images from its library.  Images that don't belong to Getty, but instead belong to those that contributed them to Getty's library.

Getty allows embedding images free of charge, Getty gets to collect information it can make money off of as a result of that embedding, and the actual copyright holder gets the shaft.  (They have updated their agreement so that the contributor get part of advertising revenue, but the program started with Getty giving the images away without compensating the owner.  Plus there is no sharing of revenue created using the information collected.  Getty keeps all that.)


And now they're suing Microsoft for allowing web sites to embed search results?

I'd say "Pot Meet Kettle", but that implies equivalence between the actions of the two companies.  I don't think they are equivalent.

I think Getty's behavior is far worse than Microsoft's.

Microsoft is just allowing web sites to put publicly available information on their web sites.  They have no control over whether or not the image being displayed is owned by the person that posted it.

Getty, itself, is the one doing the posting.  They are arguably guilty of violating the rights of the owners of the images that they allow to be embedded.  (And for those that want to point to Getty's contract for contributors, look up "adhesion contract".)


Pot vs. kettle?

It's more like pot meet stainless steel skillet.


I suspect Getty's embedded image project may be the reason Getty has decided to sue.  The ability to embed Bing image search results means there is no reason to use Getty's embed program.

It's not about protecting copyright.  Getty has proven itself to not care about that.  (Far too often lately.)

It's about protecting Getty's bottom line.

Quentin Tarantino's Lawsuit Against Gawker for Contributory Copyright Infringement Dismissed

Hat Tip: Hollywood Reporter

This is a little off topic as it involves a screen play script instead of photography, but the Copyright law applies the same way to both.

The judge in Taratino's contributory copyright infringement case against Gawker has granted the defense motion to dismiss the lawsuit.  The judge ruled that Tarantino's filing failed to allege facts that would give rise to damages if proven true in court. 

The dismissal was "without prejudice", meaning Tarantino's lawyers have an opportunity to amend the filing.  The question yet to be answered is whether Tarantino's team have the information necessary to meet the requirements set by the judge in the dismissal.


The judge rules that Tarantino had to allege a copyright violation by a specific person as a result of Gawker posting the download link.  This means that Tarantino needs to amend the complaint to 1) cite a specific person that downloaded a copy of the script and 2) link that download back to Gawker.

The largest hurdle facing Tarantino at this point may be accumulating the necessary information in the period of time allowed to amend the filing.



It seemed odd to me that Tarantino failed to sue the web site that uploaded the script.  That decision may come back to nite him.  He needed to name them as a party to the suit in order to get the information needed to sue Gawker.  His failure to sue the actual infringing party may prevent him from suing Gawker for contributory infringement.


Suing the site that hosted the script would have enabled Tarantino to obtain the IP addresses of all those people that downloaded the script.  He then could have obtained referral information from that site.  (Web sites can track the web page that someone was on before landing on their web site.)

This would have given him a list of IP addresses that downloaded the script immediately after visiting Gawker.


Tarantino only has until May 1 to amend the complaint.  That may not be enough time to obtain that information.

No Piracy Software Anti-Piracy Organization Caught Pirating

What is it with groups or companies involved with enforcing intellectual property rights themselves violating copyright?

First it was Getty Images pirating images relating to the earthquake in Haiti.

Now, it's the No Piracy Software Anti-Piracy organization.

The group ran a facebook ad where they featured a pot of gold.  The tag was that individuals that turned in their employer for software piracy could get a "pot of gold" in return.  The pot of gold image the group used in the ad was lifted from a website dedicated to baking and decorating.  (Cake Central.)



Here's a Newsflash:

Putting an image on a website does not make it public domain.  The photographer still retains the intellectual property rights to that image.

You would hope that people working for companies involved in enforcing intellectual property rights would understand that.  Apparently they don't know that or worse, just don't care.


The problem is that not only do these groups undermine their own credibility with this behavior, they undermine the concept of intellectual property rights.  One of the justifications for theft of intellectual property is "everybody does it."

Having groups involved in enforcing intellectual property rights engage in theft themselves will just enforce that mentality.


Thank you, Getty and No Piracy.

Appeals Court Upholds Copyright Protection for Image Collections

Hat Tip: Photo District News Online

An Appeals Court has reinstated a lawsuit against a textbook publisher that was thrown out by a lower court on the grounds of improper copyright registration.

Alaska Stock sued textbook publisher Houghton Mifflin after the textbook company (allegedly) violated the licensing agreement with the company, including exceeding the print run allowed by the agreement.  Houghton Mifflin argued in court that the stock company's Federal Copyright application was invalid on the grounds that it didn't include a description of every work that the company was registering for protection.

Alaska Stock followed the procedure set out by the Copyright Office for registering collective works.  This allows for registering in bulk by describing the general nature of the work being registered.  It has been in place for 30 years and, as the appeals court points out, has been used by the publishing industry to file for copyright protection for things like magazines and newspapers.  (More to the point, works like Houghton Mifflin's textbooks.)

According to he Court of Appeals, the registration for a collective work only needs the title of the collective work and the name of the collective work's author.  (Here, that would be "Alaska Stock CD catalog 4"with Alaska Stock as the author.)  Alaska Stock included both of those in its registration application.  The names and titles of the including works were additional information not needed to make the application valid.


Allowing this type of bulk registration makes sense when you consider the purpose behind registration.

Registration is not done to put individuals on notice that a work has been copyrighted.  Copyright protection is automatic. 

Registration for Federal Copyright protection is done for the benefit of the Federal Government.  One of the requirements is that the copyright holder provide the Government a copy of the work being registered.  This allows the Government a way to procure works without having to pay for them.  It also provides a way for the Government to determine what is subject to protection in case of a lawsuit.  In exchange, the Government provides a cause of action for copyright violation beyond what is available absent registration.

Copyright law provides the Copyright Office the authority to determine how works are registered.  It developed the method for bulk registration followed by Alaska Stock and there is no legal reason to deny them the benefit of registration.  The registration process in question allows the Government to determine that the works involved (both the catalog and individual images) were included in Alaska Stock's application.

This is all that is needed as far as the Government is concerned.


Copyright registration is not required to put the infringing party on notice that the work in question is subject to Copyright protection.  Protection is automatic.  It only impacts the penalty for violating protection.

In this case, the Appeals Court basically held that registration was effective for the collection as a whole and for the individual works in the collection.  That means Houghton Mifflin could face fines for every single image it used not just a single fine for violating the copyright on the catalog.  Multiple willful violations could result in a penalty running into the millions.


This case does provide some good news for photographers.  It means that any photographer that engages in the bulk registration of photographs should have a Federal cause of action for the copyright violation of any image registered by this method.

Getty Has a Terminal Case of Google Envy

Recently, Getty announced that it will allow free use of images on social media sites through the use of embedded images.  (See my original post on this here.)

The consensus analysis seems to be this is just Getty acknowledging it can't prevent pirating of the images it licenses to media outlets for use on the Internet.  This is merely a way for Getty to get something out of those sites, when they are just going to use the images anyway.

The problems with that analysis is that the embed program does nothing to address image piracy by bloggers or other social media outlets.  The piracy occurs when someone sees a news article on a media outlet.  That person then performs a cut and paste operation on the image licensed by that site.

The individuals pirating Getty images don't get them from sites that will be using the embed tool.  They get them from sites that official license the image.  That means that the image pirates are not going to be re-posting the embed images.


The original piracy is not going to involve an embedded image.  That means this program will do nothing to address piracy.

The fact that this does nothing to address piracy suggest that Getty has a different goal.  That goal seems to be leveraging its image library in order to become an information technology company.  (For some needed background I suggest Getty did What? at the DAM Book.  That's "Digital Asset Management" for Photographers.)


Why this Goal?

As the article above points out, Getty was recently acquired by the Carlyle Group.

They paid $3.3 Billion for the company.  They have a $1.2 Billion loan payment due in 2016.

Getty had $900 Million in Revenue.  A typical profit rate is around 10%.  That would mean Getty had roughly $90 Billion in profits.

There is absolutely no way for the Carlyle Group to make that loan payment using Getty's current revenue stream.  Carlyle has two choices.

  1)  Increase the revenue stream by a factor of 10, and do so over a two year period of time.  (How realistic is a goal of 50% revenue increase per year for a mature company like Getty?)

  2) Increase the revenue/profits enough to sell the company for far more than they paid for it.  Carlyle is in for $3.3 Billion plus whatever the interest in on the loan when they pay it back.  A conservative estimate would put interest at a minimum of another $300 Million by the time that first payment is due.  They probably have to sell for at least $4 Billion to make the sell worth while.

The problem for Carlyle?  There is no way to increase revue/profitability to the extent needed while Getty's core business is that of a Stock agency.

The Carlyle Group needs to change Getty's business model, and that seems to be the motive behind the move to offer embedded images.


What Embedded Images Do for Getty

To understand what Getty gets out of embedded images you need to understand a little about how they (and web sites) work.

Briefly, a web page is nothing more than a special kind of text file.  The text file tells the web browser what should be displayed on the screen and gives the browser the location of any files it will need.  (Modern browsers will allow you the view the source code for a web page.  Look under "Web Developer" or "Developer Tools" if you want to see what you browser actually uses to display a web page.)

Embedding adds code to the web page telling the browser to contact a computer run by Getty in order to display the embedded image.

Among other things, this allows Getty to determine the site visited by the person viewing the embedded image.  They can determine which image is being viewed.  They can also determine the context in which the image is displayed and may even be able to track the browsing habits of the people visiting sites that have embedded images.

This type of information is Internet Gold.

It is how Google makes oodles of money.  The people running Getty have apparently decided they want to make Google type money (Goodles?) and are attempting to do so by leveraging Getty's image library.


Getty's Problem

Getty has a fundamental problem when it comes to using its image library this way: Getty does not own the images in its library.  It sells them on behalf of the owners.

Check out the first sentence from the press release sent out when Getty was purchased by the Carlyle Group/Getty Management:

  Washington, DC and Seattle, WA – Global alternative asset manager The Carlyle Group (NASDAQ: CG) and Getty Images management announced today they have formed a partnership to acquire Getty Images, Inc., a global creator and distributor of still imagery, video and multimedia products, from Hellman & Friedman for $3.3 billion.

Followed in then next paragraph with:

 Getty Images consistently demonstrates growth, leadership and prominence as one of the world’s leading media companies.

Read those carefully.  Creator of imagery?  Media company?

Do you notice anything about Getty being a Stock Agency?

Getty has apparently forgotten who is actually responsible for creating the images in its library.  Getty does not own the content it sells, it licenses it on behalf of the owner.

That makes them an Agency, not a "content creator" or a "media company", and the difference is extremely important.  Getty does not have the right to use property belonging to someone else in whatever manner they see fit.

(And before you cite the license agreement I suggest you look up "Adhesion Contract.")

They also have a duty not to facilitate image piracy.  Their embed code implementation does the opposite.  It actually facilitates copyright theft.  If you visit a site with an embedded image, all you have to do to steal the image is right click on it then "save as".

Before the embedded image program, photographers were guaranteed that the image would be licensed at least once before being pirated.  Now, they don't even have that guarantee, and that is due to Getty's behavior.

At the very least, Getty has a duty not to lower the value of the image to the copyright holder.  That copyright holder is the photographer, not Getty.  Couple Getty basically giving someone else's Intellectual Property away for free with the Morel Copyright Lawsuit, and it seems clear that the people running Getty have no regard for the Intellectual Property Rights of individual photographers.

Getty's core business is selling content created by someone else.  Getty's attempts to leverage its library in order to become an information gathering company undermines its core business.

Right now, photographers looking for an agent to represent them when it comes to licensing their images have no reason to choose Getty.  They don't see themselves as the photographer's agent.  

If you are a photographer, why would you use a Stock Image site that does not view itself as your agent?


The photographers that loaded images to Getty's site agreed to allow Getty to license the image.  They did not transfer property rights to Getty.  Getty is now licensing those images in a way that benefits Getty, not the photographer.  (In my opinion, that is a violation of the photographer's Intellectual Property Rights, and could very well result in lawsuits.)

It should, at the very least, result in mass defections.

How long will Getty last as a content provider if it loses the content it provides?


(As a footnote, I'd like to add that the problems at Getty seem to predate any involvement on part of the Carlyle Group and they may in fact wind up being harmed as a result of this "the images are our property" mentality that seems to permeate Getty right now.  The current actions by Getty are very likely to result in enough problems that Carlyle may have difficulty in recouping their initial investment, let alone making a profit.)

As to Getty being an Agent: the company accepts Intellectual Property from the creator.  In return, they agree to market the property and share the fee collected from the person purchasing the right to use it.  That is, by definition, what an agent does.

Getty may not think of itself as an agent.  They may deny an agent/client relationship exist.  But a court will probably disagree with them if the issue ever becomes part of a lawsuit.


They have voluntarily taken on the duties of an agent.  That makes them an agent.

That creates certain legal duties for Getty.  They appear to be ignoring those duties.

Off Topic Post: Quentin Tarantino Sues Gawker for Copyright Infringement

 Hat Tip: Hollywood Reporter

This does have some relevance when discussing photography.  Copyright law covers photography the same way it covers things like movie scripts.

The complaint filed by Tarantino's lawyers can be viewed on the Hollywood Reporter web site in .pdf form.  I find some of the language used amusing.  I especially like the accusation of "predatory journalism" and "violating people's right to make a buck."

That is not language used by a professional attorney.  That is language used by a Drama Queen.

I get the distinct impression that Tarantino was heavily involved in drafting the complaint.

The complaint basically boils down to Tarantino complaining that Gawker had the audacity to include a link to the script that someone else had posted online in their online article about the script being leaked.


Script leaks happen all the time in Hollywood.  They usually result in creating interest in the film.

So Tarantino scraps the film after the script for his film is leaked?


Sounds like he didn't like the response he was getting from the people that read it and is now looking for a way to make money off of it that doesn't involve actually shooting the movie.

He apparently has reached the conclusion that the movie would be a money looser.


Why Does This Matter?

The cause of action against Gawker is something called "contributory infringement."  Gawker itself did not engage in copying or disseminating the script.  No copying on their part means no copyright violation.

They're being accused of something akin to aiding and abetting.  Photographers should keep this in mind when dealing with cases involving unauthorized use of their material.  The person copying and disseminating the material may not be the only party subject to a suit for damages.

The problem I see Tarantino having is that he hasn't named the actual party responsible for the copyright violation and he's going to have problem showing damages.

The movie script only has value to Tarantino if he makes the movie.  He chose not to do so.  His actions are why the script lost it's value, not Gawker's actions in linking to the upload.  And any argument that leaking the script harmed Tarantino will face a large uphill struggle.

It's not like knowing the text of a script will prevent people from seeing the Movie.  How many people read the Harry Potter books before watching them on film?

Morel Suit Against Getty and AFP, Verdict Now In

Revisiting the "What the Hell Were They Thinking" file, the verdict has been released in the Morel copyright suit against Getty and AFP.

They jury found the companies guilty of willful copyright violations and awarded the maximum amount possible $1.2 Million, stating they were "outraged" over the companies' behavior.  Technically, it's $1.2 Million for the copyright violations.  There were non-copyright damages awarded, but nothing close to the damages for copyright violations.

The outcome was fairly predictable given the behavior of the two companies in this case, especially AFP.

The financial hit for AFP could be staggering.  Getty has an indemnification clause in its contract with suppliers, like AFP, which could force that company to foot the entire verdict amount.  That's on top of the millions of legal fees it has incurred over the last 3 1/2 years.


Then there's the hit to the reputation of both these companies.  Getty provides a huge amount of material to the daily print media.  They now have to wonder if Getty is providing images they have been authorized to use by the copyright owner.  News outlets might start avoiding Getty now, creating a financial hit to that company as well.

Source:
EPUK's Daily Coverage of Morel/AFP trial

Copyright Infringement Suit Against Getty Images and AFP

Here's one for the "What the Hell Were They Thinking" file.

A trial starts today against Agence France Presse (AFP) and Getty Images for the willful violation of copyright law.  They are being sued by Haitian born Daniel Morel for the unauthorized redistribution of photos he took of the 2010 Haitian earthquake.

The undisputed facts: Morel was in Haiti during the earthquake.  Took photos of the devastation and loaded those photos online.  A second individual copied those photo's and uploaded them to his online account, taking credit for them.  AFP downloaded the photos from this second account and distributed copies of them without permission from Morel, the original photographer.

When Morel contacted AFP about the unauthorized use of his material, AFP sued him for "commercial disparagement."  Morel then registered the photos with the US Copyright office and countersued AFP, the affiliates that had distributed the images and the media outlets that had used the photos.

Morel's attorneys presented electronic communication between Morel and AFP clearly indicating that AFP knew that Morel was the original photographer before they downloaded the photos from the second account.

A judge has already found in Morel's favor in regards to copyright infringement by AFP and Getty.  The issue now is whether that infringement was "willful".  Willful infringement would open AFP to damages beyond the $1.6 million in damages it currently faces for copyright and DCMA violations.  Luckily for AFP, the fact that they sued Morel despite knowing he was the actual copyright holder was ruled too prejudicial to be part of the willful infringement part of the trail.

That $1.6 million would be on top of the $7 millions AFP and Getty has spent on legal fees so far plus future legal fees (probably another $2 million.)  That's a minimum of $10.5 million as a result of their outrageous behavior.


It gets better if you read AFP's defense.  They cite Twitter's TOS as defending their use of Morel's photos.  That went over well when it was pointed out that the photos were loaded to TwitPic, not Twitter.  That's a related site with its own TOS that clearly states that copyright ownership stays with the person that loaded the images.

The only response to AFP knowingly using More's photos without permission, suing him when he complains and then using the TOS on a site that did not host the photos to begin with has to be  "What the Hell Were You Thinking".


For further reading:
Photographer takes on agency giants at copyright-trial
Morel Suit Press Release at Photo Attorney
Story on Editorial Photographers UK and Ireland
Russian Photos Blog
 and here
British Journal of Photography

On the last link, you'll need to search for articles.  Using AFP with Morel as search terms should work.  You might also want to search the Russian Photos site for additional articles.

Photographer takes on agency giants at copyright trial
Read more at http://www.amateurphotographer.co.uk/photo-news/540204/photographer-takes-on-agency-giants-at-copyright-trial#PgyKsFguAUhrBdEa.99

Photographer takes on agency giants at copyright trial
Read more at http://www.amateurphotographer.co.uk/photo-news/540204/photographer-takes-on-agency-giants-at-copyright-trial#PgyKsFguAUhrBdEa.99