copyright or wrong.

Last night, someone graciously messaged me through my business page that they had seen my daughter's photo somewhere else facebook - where it didnt belong. I went to the page and sure enough! there it was.

It was a silly photo of my oldest daughter, making a hilarious face, that is probably about a year old or so. She pasted it with some quote she made up and it had been *shared* dozens of times. It had been shared by those pages who shared the original... dozens of times. And onward and onward.

After asking my friends on facebook to report her, it seemed to blow up a bit. I have a lot of photographers on my personal FB page and they were angry simply thinking about easily this could happen to them or their children. Or their clients. After that, it was shared - several people came on both sides to debate about a few things -- copyright and fair use.

Some of the (ridiculous and totally wrong) things I read last night and this morning were:

1. if you dont want people to steal your images - dont post them on the internet. 
 This is so ridiculous, I can't stand it. There are LAWS for a reason. Some people choose to follow them and some don't. This is the age of the internet -- of showing family members far away photos of your kids via your blog, where facebook has become a verb - and something you do every day, etc. There are laws for internet usage for this reason. People should not have to worry that someone is right clicking their images and using them how they see fit (positively or negatively). You take the risk of posting in hopes that the benefit of showing those images outweighs the "it could happen" of someone's theft. You don't sit at home to make sure you don't get hit by a car running a red light, right?


2. "but it was on Google images!"
Ok one thing that seems to confuse people is that Google has crawlers for those images -- people do not submit them there. When you Google "wedding cakes" and click on images, those arent there for you to take - they are there because Google decided that they matched your search when crawling the web. So you can look at those photos as per your search requests. Google also makes it very clear where it says "IMAGES MAY BE SUBJECT TO COPYRIGHT" on the right hand side after you click on a photo to enlarge it.

That warning doesn't mean "so disregard if you'd like". It means "so be careful on what images you choose".


3. you cant own a photo that you take.
Yes. You can.

From www.copyright.gov

"When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.”

So, while I do have the copyright on the image - I would need to register it to bring a lawsuit against someone. That does NOT MEAN that until its registered that it's up for the snatching.


4. "you should be happy she used your photo for good quotes!"
No. I would have been happy if it had not happened. No one should have to see their daughter's face where the photographer did not put it. End of story.


5. if you get the photo off another site that ripped your photo then you dont have to worry about copyright.
This comes down to the main point - that YOU SPECIFICALLY need permission to use images. Unless you get them from a stock image website (those are for the taking! have fun!), then you need to figure out who the image belongs to, ask them if you can use it, or find a new image. I could give everyone else permission to use my image, but *you* still need that a-okay.



In the end, though, it's all about fair use.
http://en.wikipedia.org/wiki/Fair_use

Now that we can't argue whether that is my photo or not for her to post - we need to talk about whether is public domain for her to use how she wants.

Apply the 4 part test to this case:
1. Purpose and character - Is it derivative or transformative? I don't think any reasonable person could claim the "creations" does anything for "enrichment of the general public". Seems clearly derivative to me. Yes, she has added text but the value of this addition is humor, not education or really even parody, arguably. Fail.

2. Nature of the copied work - It was published online, in several places (by myself, not talking about other sites that lifted it, too.) It's not harming me in that it's a picture nobody has seen yet that this woman is depriving me of the means to control the first (or any) public revelation. Pass.

3. Amount and substantiality - She used most (basically all) of my photo. Big Fail.

4. Effect upon the work's value - The market value of the original work is arguably in its ability to draw more customers to my business. The new "creation" is crude. It's in stark contrast to the beauty of the original photograph, depicting an innocent girl, and not the kind of way I'd promote it for my business. However, courts have said this isn't really the kind of harm fair use seeks to prevent (see Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).  On the other hand, even though I might have not planned to make these sort of  "creations", the market existed - that this woman now deprived me of.  *see Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)*. (refs from here fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html). Fail.

here are a few more links if you want to read more about Fair Use:
http://copyright.lib.utexas.edu/copypol2.html
http://rising.blackstar.com/understanding-fair-use.html

But how can we protect ourselves? Over and over people defending this woman kept saying "you should have watermarked it, then". But the problem is that I did. This woman said she got my images from another site that had already cropped and editing my watermark out of the photo. Regardless of who did it, the point is that it was done. The watermark didn't help. It was simply removed so they could use it without guilt. The woman who took my photo also put her own watermark on the quote/photo storyboard she made - which made it look as if she took the photo. On a similar post on her page, she actually put her own watermark OVER a photographer's. She misled her fans by saying everything was original work. Simply put - she lied.

But a watermark didn't/doesn't fix things. Getting rid of it is just one more step that someone has to do to use your photo - and unless you mark up the face, a close crop can fix that in 2 seconds.

What we can do is be aware, help each other out, and keep our eyes open for things that look suspicious on certain pages, websites, etc. I am very grateful to the girl who originally messaged me. She noticed that I may have not given this page permission and alerted me of its use - something we all should do if we see something like this. I am also grateful to my photographer friends for getting just as riled up as myself ;)

As a client, you may have noticed that you received "print rights" from your photographer, but *not* copyrights -- they may have also written usage "how-to's" down for you (aka do not crop, do not edit, do not alter in any way) because even though you are receiving a digital file - its not yours to do what you want from it :) but yours to print!

Just because this isn't some sort of hurtful or violet crime doesn't make it right. I am not naive. I know that these kinds of things happen all the time, but without educating people about it -- how will anyone ever learn? We have to stand up for the small stuff, too.