September 16, 2006  ·  Lessig

Allen Sandquist is a photographer. He has a Flickr account. His photos are posted on the Flickr account under a CC Attribution-NonCommercial license. More than 8 months ago, he posted this very cool photo on his site:

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The image generated a bunch of great comments.

Two weeks ago, Allen posted a comment about this picture:

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That was published in AutoWeek on July 24, 2006. As you’ll notice, the second is a derivative of the first.

Allen wrote AutoWeek the following:

Hello Mr. Ross,

I’m a freelance photographer in Henderson, Nevada. A couple of nights ago, I was searching the web and found that a photograph that I had taken, was used by AutoWeek in the July 24, 2006 issue (“This Week’s Sign The Automotive Apocalypse Is Nigh”, see attached pictures). I was never contacted for permission to publish this picture and was not given credit as the photographer. I usually charge $250-$500 for commercially used images. I believe $250.00 would be sufficient for this example.

I am a fan of AutoWeek as my barber subscribes to the magazine. The articles are informative and the pictures are great.

AutoWeek’s Mir. Ross responded:

Mr. Sandquist, this image was obtained through the savethe76ball.com uncredited and in public domain. Our customary payment for this type of shot is $50.

A friend of Allen then tried to intervene by writing to AutoWeek. Mr. Ross again replied to Allen:

At this point I am advised that I must see a Copy Right Registration for the photo in question before any payment can be considered.

Ok, so where’s Jack Valenti when you need him?

First, as the author of “savethe76ball.com” confirmed to Allen in an email, “they didn’t get your pic off our site!”

Second, there is an almost zero chance this photo is “in the public domain.” The only possible photos of the “76 ball” that could be in the public domain (at least without a public domain dedication) are those taken before 1978. I take it few 76 stations were selling gas at $2.19/gallion before 1977.

Finally, as a photo editor at AutoWeek certainly knows, Allen’s copyright in this image does not depend upon his registering the work with the copyright office. His copyright is automatic. So the idea that AutoWeek would say in effect “we’ll pay you $50 for a photo after you spend $45 to register it” is to add insult to injury.

Mr. Ross needs some educating at least about decency, and perhaps about copyright law (though I suspect he knows well enough that what he did here was wrong). The license Allen published his photo under says (1) don’t use this for commercial purposes without asking me, and (2) give me credit. AutoWeek did neither. Perhaps others would like to help Mr. Ross understand why that’s just wrong. He’s at kross at crain dot com.

  • mac

    I agree auto-week should have attributed that photo correctly. But their use of the picture is in a grey area. The article is about the Save the Ball movement; it is reasonable to use some public image from the save-the-ball web site.

    It’s not clear what the right policy is when reporting on a topic for which it’s not possible to take a direct photograph. In this case, Auto-week could have taken such a picture. But in general, it is not possible to photograph something that only has an electronic existence. So there should be some kind of fair use policy around borrowing a single image from such a web site, if you are writing an article about the organization.

  • Ranger Rick

    Ding! Ding! Mac, did you read the article above. The man stated that (BIG IMAGINARY QUOTATION MARKS HERE)

    “First, as the author of “savethe76ball.com” confirmed to Allen in an email, “they didn’t get your pic off our site!””

    AutoWeek got their hands caught in the cookie jar and now are making excuses. As a photographer, artist, flickr user and general all around swell guy, what’s fair is fair. AutoWeek needs to admit their mistake and do what’s right.

  • http://vidiot.typepad.com Vidiot

    By what reasoning is it “reasonable to use some public image”?
    Sandquist owns the copyright, and did from the moment that the image was fixed, that is, when he clicked the shutter. He did not assign the copyright to the public domain (and thus give up all rights that he had to restrict the photo’s use.) He allowed some use under the CC license, namely noncommercial uses as long as attribution was made.

    AutoWeek is being disingenuous and slimy here, and I am not a lawyer, but I’d think that Sandquist has them over a barrel here. It would seem to me that since AutoWeek was responsible for the bad act of using a picture that they didn’t have the rights to use, they should pay more than their “customary rate” of $50.

    (Incidentally, as was noted above, the webmaster of savethe76ball.com says that it didn’t come from his site (even if Sandquist had allowed him to use the image on his site, it doesn’t mean that AutoWeek has the rights to use it.) And I just paged through all thirteen screens of posts at savethe76ball.com, and did not see this image.)

  • James Day

    What original creative input in to the 76ball physical and visual design did Allen have? What’s the critically important content being used in AutoWeek?

    To me the answers appear to be none and the 76ball into which Allen had no creative input. And hence no copyright interest.

    Now, the background, the price, the specific lighting of the 76ball are all factors. But they don’t appear to be critical here. The whole focus is on the ball. Is there any sign of ConocoPhillips, the rights owner for the most substantial content being used, objecting?

    For Allen my question is really, what was your creative input into the key aspects of the picture being used? Beyond that it gets more philosophical about rights afforded by backgrounts that are irrelevant in the news (rather than artistic) context and such.

    To those accusing AutoWeek of “stealing”, do try to remember that Allen “stole” the 76ball and signage works as part of his picture. AutoWeek did behave wrongly in my opinion, but since Allen’s own work was a derivative work of the primary rights owner here – ConocoPhillips – I have my doubts about just how strongly he should be seeking the full rate for a non-derivative work. The reduced $50 does sound more reasonable to me, since he isn’t the main rights holder involved.

    Perhaps AutoWeek should instead contact ConocoPhillips and see if they want to send Flickr a takedown notice because of Allen’s infringment of their work? I don’t want that, of course – it’s unhelpful. But at least ConocoPhillips actually do own the most important part of the work involved and would be in a far better moral position than Allen. Or did Allen contact ConocoPhillips and get a license from them for his comercial use of their work? I wonder…

    What’s good for Allen appears good for AutoWeek. Assuming he obtained no license from ConocoPhillips, I suggest that Allen seeks to act himself as he would like others to act.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    The point of a creative commons is to escape this litigation mentality.

    If art’s published, it belongs to the public and can be freely used for any purpose (as long as truth is preserved and privacy respected).

    The point of using a license to reinforce the creative commons is not to charge people for access, but to prevent people repossessing anything within it.

    In this case, a CC license would prevent Autoweek suing anyone who used the 76 photo they copied from Autoweel.

    Unfortunately, someone in their infinite wisdom thought it would be a good idea to create a plethora of CC licesnses, only one of which was actually conducive to a creative commons – presumbly in the expectation that the wisdom of crowds would quickly figure out which one it was…

  • http://www.thecell.com digitalized

    From everything I’ve seen and read, the photographer owns the copyright the moment the shutter is clicked, assuming that the photo was taken in a public area, doesn’t invade privacy, and isn’t derived from an original artwork (i.e. taking a photo of an original painting, and publishing the work as original). Although $50 is what they probably normally pay for a user submission, the photo wasn’t submitted — it was taken from somewhere.

    My understanding using things like this is there’s definitely a grey area when it comes to making money and public editorial. The digital photo world is probably getting to the point where watermarks are going to be required in some shape or form… but that really spoils the freedom of self expression that we seem to be losing everyday to reduce the risk of being exploited.

  • http://www.flickr.com/photos/muzzlehatch/ Muzzlehatch

    Autoweek is sleazy? Why is that not a surprise. I’ve worked in magazine publishing forever and we all know right from wrong in this area, due diligence, and the principle of covering your butt.

    Shrug. Autoweek is sleazy, that’s all.

  • Allen

    I’m Allen, the guy who shot the above photograph. Thank you all for your input on this issue.

    I’d like to address some of the comments made by John Day. No, I did not contact ConocoPhillips for their permission to photograph their sign. As long as I am on public property, I don’t need their permission. I used to photograph businesses for a living and know that as long as the property being photographed is in public view, it can be photographed, with exceptions (e.g. nuclear facilities, government buildings, some military installations, etc.).

    I shot the Unocal 76 sign for personal use on my website and consider it historically significant, as they’re being replaced by a new, flat red/blue logoed sign. Many people have photographed service stations, fast food establishments, etc., through the years. Heck, go to Flickr and type in McDonald’s and you’ll find 9,881 images. I’ll bet you that not one of those people asked for permission.

    AutoWeek could have easily asked for my permission to use the picture and I would have been more than happy to let them, as long as it was credited to me.

    Maybe Mr. Ross decided they’d save a few bucks if they just copied pictures from the web, rather than paying a photographer for their work.

  • Peter

    Dear Mr. Ross

    As a fellow journalist and a person who makes a living writing and taking pictures for commercial publications, I was astonished to read what you had to say to a fellow photographer who claims your publication published his work without authorisation. In times when copyright and it’s violation by normal consumers through “piracy” are a major subject of the entertainment and the publishing industry, I think we, the journalists, should take a clear stand for the protection of our work. If there’s reason for Big business to go after students and grandparents who alledgedly violated copyrights by stealing content through the internet, there certainly is reason for the holder of individual coyprights to ask for payment when their work is commercially exploited by publishers without permission and credit.

    I am a guest of this country and not completely savvy with it’s legal system, but as a journalist, I made sure I have a basic understanding of intellectual property and the way it works in the US. I am, therefore, shocked to read your answer to Allen Sandquist after he – in a very polite manner, by the way – asked for payment for a picture your magazine obviously printed without permission, without crediting the author and without paying him.

    It shocks me, because it shows you are either lacking the basic knowledge of how copyright works (as an art director? I doubt it) or you are trying to bully a freelancing journalist after you have ben caught in what appears to be the act of copright infringement, also known as piracy, also known as stealing.

  • James Day

    Allen, I’m glad to hear that a photo credit would have been sufficient. I suspect that your speculation about motive is correct.

  • http://rrdphoto.com Ryan

    With regard to James’ comments on Allen “stealing” the image for commercial purposes, it should be noted that there is a significant difference between commercial use and editorial use of a photo. This is an example of the latter, which is perfectly acceptable. Had it been the former (say, if it were used in an advertising brocure for something) then the owner of the “76″ trademark would have to provide a release prior to printing.

    There is no question that Allen should have been compensated for the use of his image & AutoWeek only offering $50 after getting busted is insulting. Unfortunately, although it is his copyrighted work, he’s unable to go after them in court (all costs aside) unless his image is registered at the copyright office. Allen is in a hard place; he’ll probably just have to take the $50. I’d like to hear LL weigh in on that specifically, since IANAL. It’s my understanding that the copyright office allows you to submit many images at one time by submitting a CD/DVD and a contact sheet (and only pay a $45 fee). Also, I’d recommend Allen take a look at some of the articles on the ASMP’s legal resources page: http://www.asmp.org/commerce/legal.php

    It’s also a good idea to include a copywrite watermark with your name and date on it in the photo. Although this can be cropped out, it often is not when people misuse images (more often on the web rather than in print). At least in this case your name is out there which could lead to some potential clients, even though you’ve gotten ripped off.

    As far as Allen suggesting that he’d be happy with just a photo credit: while that’s certainly his perogative, working for free just makes it seem “more okay” to steal other photographs. He should be proud of and get paid for his work.

  • Allen

    Hello again,

    I’m pleased to say that this issue has been settled and I’d like to thank Ken Ross at AutoWeek, for his cooperation. I’d also like everyone to know that it was not he who used my photo, but an intern who has now been schooled on the correct way to obtain images for the magazine.

    Thanks to all for your remarks, and a very special thanks to Professor Lessig for your help!

  • http://www.flickr.com/people/yorkie yorkie

    This is great to see. It’s also heartening to know that thanks to our developing and growing internet communities, us little guys aren’t so little any more and can’t be so easily ignored when individually we get stomped on.

    And kudos to Allen for pursusing this so effectively and reasonably!

  • tde

    The picture is sort of crappy to begin with.

    It looks like something anybody with a 3 megapixel digital could take.

    Why such a mundane image is subject to “ownership” in the first place is sort of odd.

  • http://vidiot.typepad.com Vidiot

    tde, could you explain exactly at what resolution and level of artistic skill makes a photo worthy of being subject to ownership?

    I don’t think it’s crappy — it shows its subject well, in a documentary style. (AutoWeek‘s crop, on the other hand, is lame.) But even crappy artworks and forms of expression are covered by copyright. If you’re a Kurosawa fan, for instance, does that mean that M. Night Shyamalan’s works are OK to pirate? Because they don’t meet your subjective threshhold of artistic merit?

  • http://criticalassumption.blogspot.com Arnie

    Great article and great comments!! But (everyone has one of those)…

    My internal alarm bell went off when Allen mentioned “an intern” found the photo and had not been “schooled” in proper journalistic due diligence. That’s great, but what does that say about the intern and their previous education? If they are of college age, what does that say about their college education? This is both a professional and ethical problem – and not to lump many of the “sub-25″ set into this mix, but they have a different view from those of us that are “slightly” older.

  • Anonymous

    Why just ask for $250? I think we should press for criminal charges for copyright infringement. Once some business owners start getting fined $100 000 and spending one year in prison, maybe the law will change.