Introduction Wow – who owns all these pretty pictures?
Net Photog’s See me, feel me, touch me, pay me.
Net Agencies Service with a click of a mouse.
Net Publishers All is fair in love, war and publishing.
Net Users Free ride!
If Francesca were alive today she could track her lover’s photos from his homepage instead of schlepping to the Piggly Wiggly to purchase the latest National Geographic. Even if you are stuck in Peoria,1 the family can gather around the key board, open up your Happy Meals and view some of the Best Photography in the world.
You want pictures? Boy do we have pictures, click onto the Photo Net Index for a inventory of photographers portfolios, galleries, and museums. Who owns the copyrights to all these cool Net photos? This paper presents a sampling of opinions and predictions about the application of copyright law to Net photos in relation to contemporary photographers; stock photo agencies; publishers; and Net users.
THE NET PHOTOG ENTREPRENEUR
Contemporary Photographers are creating homepages to display portfolios on the Net to advertise for jobs, learn new skills, network with colleagues, and provide pleasure to the viewing public. Stacy Rosenstock’s portfolio is an example of the excellent photo art available for viewing on the Net.
Photographer/author/adventurer Philip Greenspun uses photos to accompany text in Travels With Samantha Mr. Greenspun says that viewer response is one of the rewards for publishing on the Net.2
The Net is a unique medium for photographers, offering one-on-one feedback from viewers, fellow photographers and critics on a scale not available from the typical art gallery or magazine venue. The scale is larger in terms of the number of potential viewers and the boarderless international viewing audience who may choose to browse.
A computer savvy photographer may create a homepage portfolio or seek display with one of the on-line galleries such as that Digital Wave Gallery, or that On Line Gallery.
A photographer choosing the Net as a display venue can also use the net to learn about copyrights. The American Society for media Photographers offers easy to read copyright information in the that Copyright Guide for Photographers .
When a photographer discovers a photo has been published without authorization, the photographer maybe able to secure an injunction, recover actual damages and lost profits.3 Mr. Weisgrau and Mr. Remer point out the legal advantage to writing a copyright notice on the photograph consisting of (c)1995 Artist’s Name.4 That advantage is possible elimination of the innocent infringer defense.5 Innocent infringers may only be liable for a fair licensing fee.6
An order to sue an infringer the copyright holder must register the photo.7 In order to register the photo, the photographer must possess the photo. Traditionally this is not a problem because the photographer would have a negative, or a print or a slide or some tangible object as a photo. If the photographer has scanned the photo onto a home page or provided the photo to a gallery then there would be no problem if the photographer retains the original. See Philip Greenspun’s FAQ on photo scanning. Similarly a CD disk photo would also be tangible to register. However when a photographer uses a filmless camera this projects images directly onto a computer for real-time adjustment.8 If a photographer were to upload this kind of photo, some tangible print would still be required for registration.9
The problem of ”fixation” as it relates to photo’s on the Net will usually arise in the context of whether or not a photograph was ”copied” by an infringer.10 Certain ephemeral artworks like the type produced by Christo, have been the subject of controversy in terms of the fixation requirement for copyright protection.11
In the context of copyright protection for computer programs the Ninth Circuit held in MAI Systems Corp. v. Peak Computer Inc., that ”copying for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer’s RAM random access memory.”12 The court described fixation as ”sufficiently permanent or stable to permit them to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”13 This decision as it relates to photos on the net may be a practical problem of proof. Net photos, like Christo’s sculptures, may be here today, gone tomorrow. Consequently the problem will be a whether a ”copyright claimant will be able to provide a court documentary evidence of the copyrightable subject matter.”14
International copyright protection is of special importance to Net photogs. The Berne Convention and the Universal Copyright Convention address copyright in the international market.15 Mr. Cinque outlines the three policies supporting copyright protection: incentive/dissemination; morality/fairness; natural law.16 Incentive/dissemination is the tradeoff that society benefits from the work of creative artists while the artist may reap economic benefits.17 Morality/fairness is the commercial aspect of rewarding the worker and punishing unauthorized appropriations.18 Natural law embodies the concept that the author owns her work and may do with it as she sees fit.19
Considering these policies, Mr. Cinque argues that under the Berne Convention a copyright may be infringed when a work is copied or stored into a computer system because it is considered a reproduction.20 The Berne Convention provides a minimum of 25 years protection for photographic works and member states may provide additional protection.21 Mr. Cinque presents the case for and against increasing global enforcement of copyright protections in the digital world and concludes that international enforcement is necessary to continue to encourage artists to share work on-line.22
Mr. Cinque’s view supports the widely held assumption that artists require broad copyrights with strong enforcement in order to motivate the production of new, copyrightable works. The copyright act is aimed at protecting an artists’ economic rights.23 Economic theory is based on the concept that individuals are ”rational, profit-maximizing creatures.”24 But economic theory when applied to artists doesn’t explain their full range of motivation. ”It would be difficult to explain why intelligent, presumably rational people ever become artists, a word more often associated with the adjective ‘starving’ than with ‘wealthy.”25
Net photogs appear generous with fellow internetters when it comes to non-commercial use of photographs. On the other hand, no one likes someone else making money of their work. Photographer Philip Greenspun describes his frustration with unauthorized use of his pictures in, The Somewhat Nasty Copyright Notice . As an artist he not only wants to get paid, but desires a certain quality level for his photos. On the other hand, Mr. Greenspun embraces the camaraderie of ”fellow internetters” by authorizing redistribution of his text for non commercial purposes and requesting a source attribution and hyperlink for photos.
The camaraderie among photographers is further evidenced by the wellspring of resources for photographers on the Net. The Michigan Press Photographers Association brings photographers together to share information, as does the Atlanta Photo Journalism Seminar and numerous other resources.
One suggestion to assist photographers in protecting copyrights and collecting royalties is a centralized photo bank. Mr. Franklin presents the case for creating a centralized service to license photos, collect and distribute royalties, and engage in license enforcement. 26 The centralized service would include a copyright notice and computer code with the photo in order to track use.27 A similar system was recently established and is called United Image Royalties.28
A special note to photographers establishing homepages from work. Two authors warn of creating works using an employer’s Internet connection because work-related products may be determined to be the property of the employer.29 For example, Allen Rose, Ordinary Photographer is employed by the Fort Worth Star-Telegram. Mr. Rose’s weekly photo series is copyrighted to the newspaper. In a related matter, notice that Mr. Rose chose the location ”arose” rather than something like ”telestar” for his homepage locator. Employees should be careful in choosing web locators so as to avoid trademark problems similar to MTV v. Curry, see Trademarks Along the Infobahn.
STOCK PHOTO AGENCIES
Many photographers use stock photo agencies to sell photos. News magazines purchase a tremendous amount of published photos from stock agencies.30 For example in 1980 Time purchased 56.88% of their published photos from stock agencies and freelance photographers.31
A traditional stock photo agency publishes catalogues with thumbprint photos which customers view and then purchase camera ready prints.32 Stock agencies publicize photos and also negotiate licenses in exchange for royalties.33 See the STOCKPHOTO web site to learn about stock agencies. One advantage of an on-line agency may be the capacity to for customers to download photos immediately. Another advantage to on-line agencies may be enhanced research resources for locating the right kind of photo among the thousands in stock.
When a publisher desires to purchase a photo from a stock agency there may be several contractual arrangements to weave through. These contract issues are determined by state law where as copyright law per se is the subject of federal statutes.34 Contracts may exist between the subject and the photographer, the photographer and the stock agency and perhaps a digital rights agent.35 Mr. Harrang states that a typical stock photo agency contract is a license for ”one edition only.”36 The question of what is ”one edition” has been debated in the context of CD-ROM publications. In this context some argue that an upgrade of the product would be a second edition requiring a re-license fee.37 Harring does not agree with this view and suggests that CD-ROM and on-line publishers can avoid the problem with proper electronic licensing contracts.38
An on-line stock agency such as Corbis Media should be more familiar with structuring proper electronic rights contracts.39 In terms of protecting copyrights while displaying photos on-line, Corbis puts a copyright notice in the upper left-hand corner of the photo.40 This copyright protects the digital file not the actual photo which is copyrighted to the photographer.41
PROTECTING COPYRIGHT WITH TECHNOLOGY
Additionally, when a client desires to view a larger image of a photo, the client clicks on the thumbprint photo to access the 6 x 7 inch photo.42 To protect this copyright, Corbis adds a translucent watermark on the picture.43 This method is not full-proof. CEO Doug Rowan admits that the watermark could be eliminated by a technical person and they are working toward technical improvement of the system.44 Unlike other stock agencies, Corbis on-line pictures are for preview only and are not for customer downloading.45
NET PUBLISHERS AND PHOTOJOURNALISTS
In Copyright in the New World of Electronic Publishing, See attorney William Strong reassures traditional publishers that copyright law will not be eviscerated by the Net. Copyright is grounded in the Constitution and assures a financial incentive to authors and creative persons.46 Mr. Strong takes the position that in a traditional author contract granting ”all right, title and interest in and to the work, including copyright” grants a publisher broad rights to publish electronically.47
NEW CONTRACTS FOR E-RIGHTS
When a publisher drafts new contracts, Mr. Strong recommends that to ensure that a publisher is getting the whole ball of wax that the contract should read ”the exclusive license to reproduce the work and distribute it by all means and media now known or hereafter discovered, including, without limitation, print, microfilm, and electronic media as well as the right to display and transmit the work publicly on-line.”48 This kind of ”all rights” transaction is not popular among photographers and the American Society of Media Photographers (AMSP). cautions photographers to consider limiting a license by time, geographic area or media type.49
It is interesting to note, that apparently Mr. Strong did not sign such a contract with the publisher of his article, the Journal of Electronic Publishing (JEP) ). The copyright notice indicates that the author, not JEP, controls the copyright, consequently commercial publication is prohibited in print or electronic form without permission of the author.
The tension between a publisher’s desire to license all rights to a photograph, and a photographer’s concern about ”giving away too much” may gum up negotiations on the electronic publishing frontier.50 Mr. Harrang suggests ”separating legitimate concerns about changing technologies from simple angst about unfamiliar technologies.”51 For example, an author may agree to license rights to a CD-ROM publication but hesitate to a license for on-line networks because of ”metered use” questions.52 A resolution to this problem may be ”by agreement to negotiate a fair royalty amount in the future based on the existing rates.”53
For example, Time Inc. is offering an increase in photographer’s day rate from $400 to $500 per day to compensate for electronic rights for assignment photos.54 Time also offers a royalty option offering a base fee of $75 per image plus a royalty rate that varies depending on a number of factors including English vs. foreign language distribution.55 Terms are to be reviewed in one year.56 About half the photographers have signed the new agreements and the remaining freelancers will continue to negotiate licenses for each photo.57 Time uses the photos in their on-line magazines and other products.58
There is no agreement among the Board members of the American Society of Media Photographers regarding the Time electronics rights policy.59 The value of the rights is hard to assess but ASMP board member Roger Ressmeyer believes that, ”at issue is the very survival of freelance photography into the next century.”60 Veteran photographer Douglas Kirkland sums up the situation well, ”If there wasn’t a substantial value in these rights, Time wouldn’t be asking for them.”61 On the other end of the spectrum, publisher Conde Nast has refused to pay any additional fees for electronic rights.62
INTERPRETATION OF PRE INTERNET CONTRACTS
With regard to pre-Internet contracts, Mr. Strong predicts that where a contract is silent on the issue of electronic publication, the publisher has the right to produce the entire journal in any form including electronic.63 Mr. Strong points to the Copyright Act, ”in the absence of a written agreement the copyright owner of a contribution to a periodical will be deemed to have given the periodical publisher only the right to reproduce the article as part of the issue of the periodical in which it appears and any revision of that periodical.”64 Mr. Strong says, ”While technically this is not relevant to an interpretation of an actual written contract, I believe it is fair to say that the presumptions which the statute creates here would probably be applied by any court forced to grapple with a contract that was silent on the question of electronic rights.”65
The interpretation of old contracts and electronic rights is the subject of controversy between photographers and, TIME Inc.
Recently, Time republished some Life cover photos for a CD compilation. Time associate counsel Laury Frieber maintains that the company need not pay the photographers a reuse fee.66 Instead the company sent a letter stating, ”While as a legal matter we are not obliged to make any additional payments to reproduce our covers, in the spirit of this project we decided to make a payment to all non-staffers whose images graced Life’s cover.”67 The letter was accompanied by a $30.00 check.68 Ben Chapnick of the Black Star picture agency disagrees with Time’s interpretation of the license which he says was for one time use.69
Both Mr. Strong and Mr. Chapnick agree that litigation could take years.70 And Mr. Chapnick predicts in the Time situation, litigation could cost as much as $500,000.”71 In any event, says Mr. Strong, each publisher can weigh the financial risks of a copyright violation or breach of contract suit against the gains of electronic publishing.72 Of course an individual photographer is unlikely to have the financial resources to litigate a law suit.
HOW ONE PUBLISHER SEEKS TO PROTECT COPYRIGHTED WORKS
Michael Rogers managing editor of Newsweek Interactive an on-line publication with Prodigy has integrated the photographs with the text rather than in separate files as a way to combat copyright infringement.73 ”That way, users can’t export the pictures for other uses without special software,” says Mr.Rogers.”74
ALTERATION OF NEWS PHOTOS
New on-line technology makes it easier to edit and alter photographs. Visit Digital Imaging photographers and editors can learn new ways to improve and change photographs. But using technology to create art is one thing, using it to doctor news photos is another. Copyright protection for computer art, including photographs is an emerging issue.75 But whereas copyright protection for art photos focuses on the value of the piece as art, the value of a news photo is accuracy.76
The ethics of doctoring news photos 77 is discussed on the Michigan Press Photographer’s Association (MPPA) home page. This discussion is about the LIFE magazine May, 1995 photo of the Kent State shootings wherein the photo was altered from the original shot by photographer, John Filo on May 4, 1970. The alteration eliminated a pole in the center of the photograph. David Friend, Life’s Director of Photography says it was a done unbeknownst to the editors. MPPA member Brian Masck responds, saying that credibility in the source of a photo is critical to photojournalism.
Whether or not photographer John Filo has a cause of action against LIFE for printing the altered photo may be an issue of whether the terms of the print license were exceeded.78 This type of alteration is distinguished from the traditional cropping and centering that a photo editor might do because it is a change in the substance of the photograph. In the future, photographers are advised to safeguard against copyright infringement by including in the license the amount of digital manipulation allowed.79
However, copyright may not be the best or even the only issue regarding authenticity of news photographs.80 Again, the chain of contracts between publisher, photographer, stock agency and photo subject may present legal issues such as false light or misappropriation.81 The news photographer is again advised, to keep original photos to protect against actions like this and to be especially careful if photographing with filmless cameras where a photographer will not possess a negative.82
Alteration of news photos is not a new issue. But new copyright issues pop up in the context of on-line news photo alteration. On the one hand, alterations can be ”subtle pixel-by-pixel changes” that are difficult to detect.83 This capacity makes it easy to steal on-line photos in toto or in part.84 The problem here is a photographer’s burden of proof as it relates to the ”ordinary observer” approach in proving substantial similarity in an infringement action.85
Photojournalism reviewer Ken Kobre examines The Long Tradition of Doctoring Photos.
Mr. Kobre notes that a recent edition of The National Enquirer displayed a doctored photo of a battered Nicole Brown Simpson.86 The Enquirer noted in small type that the photo was a recreation.87 Rather than shying away from the technology and the potential abuse of altering on-line news photos, Mr. Kobre believes that increased photographic access assists in the discovery of truth. ”Totalitarian regimes have been more adept at controlling- and changing what people see precisely because those regimes control their media.” 88 In the end, ”The credibility demanded of journalism should continue to shape its uses of the computer’s capabilities.”89
Everyone agrees that Net Users, like most Americans, have little knowledge of copyright law.90 Digital works have some unique characteristics which challenge copyright law.91 Three of those characteristics include ease of replication, transmission, and alteration.92 The Net allows for quick replication and transmission of works as compared to traditional replication methods.93 Modification of Net documents may also provide some challenges to a court’s interpretation of ”fixed.”94
POSTING AND DOWNLOADING PHOTOS
With regard to replication, transmission and alteration, some Net users behave as if all Net information is up for grabs whether or not the material is copyrighted and has a copyright notice.95 Celebrity fan club postings like the Brad Pitt Web Site are examples of users posting copyrighted photos to the Net. This home page acknowledges that these photos are copyrighted so ”please be nice.” This acknowledgment confirms the Samuelson and Glushko observation that ”those who post information not authored by them on Internet bulletin boards or in electronic newsletters delivered by Internet sometimes do so with a conspicuous notice that it is being posted without copyright permission, thereby asserting the poster’s view of an appropriate scope of fair use.”96 Furthermore, ”net users generally regard it as fair to download items from the bulletin board for one’s personal use, and even to send a copy to a friend who might otherwise not see the item, it is considered bad manners (or worse) to redistribute more widely someone else’s posting without its author’s permission.”97 It goes without saying that policing user behavior as it relates to copyright is difficult at best.98
ONE PUBLISHER’S VIEW OF DOWNLOADING WORKS
Recently Time posted Sports Illustrated swimsuit issue photos for personal downloading at the Pathfinder Website that ended up on one of the Supermodel websites. Time’s legal head Harry Johnston said ”The restriction is that you can download these pictures for personal use only, but not for further distribution. That would constitute an infringement.”99 ”The idea of policing every single individual who might violate someone’s copyright has not existed for the last 30 years, with the advent of Xeroxing and videotaping. It’s just a fact of life with the technological means we have of making copies. You simply can’t catch them all, says Mr. Johnston.”100
User liability for copy right infringement in a non commercial context is a disputed issued.101 A user posting someone else’s photo to a bulletin board or a homepage raises questions of which fair use provision might be appropriate? Education, research, comment or criticism?102 Ms. O’Rourke predicts that users are infringing where a bulletin board subscriber forwards a document to a large number of non-subscribers.103 But what about home pages? In this context other Net users link to the page. Is the activity of posting Brad Pitt photos to a home page substantially different than uploading Playboy photos to a bulletin board?104 In the Playboy case the court found that a bulletin board operator ”violated Playboy’s exclusive rights to display and distribute its photos.”105 While home page authors are not charging a subscription fee like the bulletin board operator, they are offering unauthorized, copyrighted photos for public display. In the context of the homepage author, the issue is not that someone is making money off the photo, but that an individual photographer could lose the market for a great photo when someone scans it into a homepage for all the world to access.
AN AGENCY VIEW OF POSTING
Jim Roehrig, president of Outline photo agency, takes the position that ”unauthorized posting is a violation of the copyright holders’ exclusive rights to distribute and publicly display their work.”106 Outline represents fashion and celebrity photographers. Roehrig admits to being at a loss as to how to handle supermodels postings.107 Right now Roehrig says, ”I’m hoping that this is relatively small usage and won’t become a regular thing.”108
THE USER’S RIGHT TO VIEW
But what about Net user’s right to view and access information. Copyright law clearly protects the copyright holder. One of the goals of the National Information Infrastructure is free or low cost information.109 The suggestions of the Green Paper drafted by the federal government’s Information Infrastructure Task Force are controversial.110 See also a Response to NII.
Ms. Litman says that the draft recommendations would vest in copyrightowners ”control of any reproduction or transmission of their works, and thendefines reproduction and transmission to include any appearance, even afleeting one, of a protected work in any computer, and any transfer of thatwork to, from, or through any other computer, the Draft Report’srecommendations would enhance the exclusive rights in the copyright bundle sofar as to give the copyright owner the exclusive right to control reading,viewing or listening to any work in digitized form.”