The Endless Assault of Copyright Infringement

[UPDATE 8/21/14] The artist finally contacted me. She removed the image from her site and asked that I remove this post, which I declined to do. The lawyer sent me to his site's designer. They have agreed to pay to license the image, but I have yest to receive payment.

A little over two years ago, Gary Crabbe, a photographer friend of mine, published a post about someone who had appropriated his iconic photo of a bird soaring in front of El Capitan for use in a painting that they then sold on the Internet.

Yesterday, I found myself in an almost identical position.

I was doing a reverse Google image search - where you select an image of yours and search the web for images that match it - when I came across this page (hopefully, by the time you read this that link will no longer work), featuring an oak tree on a hillside, with a fence, golden grass, a purple sunset sky... and a flock of geese...

Only $403 for a framed print!

Unfortunately, this image was not created by the credited artist - Donna Schellack - but was an image taken by me on July 7, 2002 at 8:10 PM at this location, at the north end of the Sutter Buttes in Northern California.

Her painting

My photograph

Ms. Schellack has taken a few relatively minor liberties with my work. In addition to the aforementioned flock of geese, she changed the hills in the background (God only knows why), and added a couple of very cute bunnies in the foreground (awwwww).

Couple of quick changes and bada bang bada bing... the image is now hers! Let the Benjamins roll in!

Wait. Not so fast.

Anyone who knows anything about Copyright law knows that this isn't right. You can't just take an Ansel Adams photo, change a couple of minor details and then sell it as your own masterpiece (if that were the case, I wouldn't have wasted thousands of dollars on camera equipment. I'd just slap my name on Adams' photos!). In the Copyright world, this is known as a "derivative work". In the regular world, this is known as "stealing".

How much does it take to make something a derivative and not an original work? As Gary points out in his blog post, it isn't about how much of the original work was copied, "what matters is whether your creative process began with an existing image."

In Gary's case, the "artist" used a different color scheme and relatively poor artistic skill in copying the original. In my case, I think we can go ahead and say that Ms. Schellack just stole my image wholesale and tacked on some bunnies and birds in Photoshop. And her result is clearly superior to the "artist" who was forced to rely on their own limited painting skills (and an inferior original image - just kidding Gary!).

There are, of course, some fair use exceptions to derivative works, as Gary points out in his post. But as in his case, those exceptions clearly don't apply here.

So, I sent the "artist" a very tersely worded email telling her that I had the legal right to do all sorts of horrible things to her, but that all I really wanted was for her to KNOCK IT OFF. Having just the day before spent a couple of hours in a lawyer's office going over wills, trusts, and powers of attorney for my wife and myself, I was in full legal prose in my email to Ms. Schellack. So far, she hasn't responded.

I probably scared the holy bejesus out of her. Which I almost feel bad about. I'm sure that's she's a very nice lady and not some evil intellectual property stealing Auric Goldfinger. But based on the selection of her "works" on the ImageKind site, I have a feeling that she's not clear on the concept that taking someone's else's image, applying a few tweaks and a Photoshop filter, calling it your own, and then selling it on the Internet - is illegal.

But hopefully, she at least understands that it's dishonest to claim someone else's work as her own and profit off of it. Hopefully. But I actually doubt it. The standard morality today is that if it's on the Internet, anyone can claim it as their own and do whatever they want with it.

We'll see if/how she responds, but the bigger issue here is that professional photographers (people who pay their mortgage by using their camera) deal with this sort of theft every day.

It really is an endless assault, as anyone who reads the Photo Attorney's blog knows. Any simple reverse Google image search reveals that my images are being used without permission all over. Here's a lawyer, for Christ's sake, using my image of the Sutter Buttes without a license (I sent him a nice message saying please license this and all will be forgiven.).

I could probably spend all my days just finding and pursuing copyright infringements... but what's the point? It might end up bringing in some much needed money, but it might also turn me into an insufferable uptight dick - and an emotional wreck.

There's a tiny cab company in Elk Grove (south of Sacramento) using one of my images illegally. Should I pursue them like a rabid chihuahua? Or just shine it on?

That's a really tough call for a photographer who lives and dies on making money on the use of their creative efforts. And that's me. I make about 70% of my photography income from licensing the use of my work. The rest of my income comes from assignment shoots, prints, and book sales. Licensing is my bread and butter... and mortgage payment.

I don't know how this all ends for professional photographers. I do know there are a lot of idiots on the Internet who have no respect for the skill, knowledge, and expertise of professional photographers, and who think they are 'pros' because they once took a selfie with an Instagram filter that got published (for free) on someone's blog.

Maybe I sound bitter, and just need to adapt to the changing world. Could be. I get it that paradigms are undergoing major shifts in the photography world. Buggy whip makers... they all got jobs doing something else. Or starved. Maybe professional photographers need to learn how to use a leaf blower.

Or maybe people should have respect for the laws of the land. Copyright, you might not be aware, is provided for in the US Constitution (Article I, Section 8). If the founding fathers felt it important enough to provide for it in our nation's constitution, maybe copyright provides a real value that we are losing in the rush to "information wants to be free".

And what is that value? Perhaps that's difficult to know any more. The common concept has been that by protecting the right to copy and use works of content creators, it provides those creators an incentive to continue to create, which has been seen as a societal good.

But today, the sheer number of photos uploaded to Flickr exceeds 1.6 million every day. That doesn't even take into consideration Facebook, Twitter, Instagram, or SnapChat. There doesn't seem to be any shortage of creativity.

So maybe we don't need copyright laws any more. But I doubt there would be anywhere near the investment in research (e.g., non-fiction books) and production (e.g., movies) if creators had no reasonable expectation that they would be able to profit from their own efforts.

But even at that, photography is a bit different from books or movies. No one is taking Avatar and selling it as their own creation. Yes, people are pirating it and profiting off of selling copies, but they aren't claiming they created it. And yes, people plagiarize written works all the time, but typically not entire books. With photography, a simple right click, "Save as...", and bang, you have the entire work. It's just too easy to grab a photo and claim it as your own, with no one being the wiser. Until, that is, someone like me finds it.

Copyright - or respect for Copyright - may be waning, but as long as it exists I will use its protections to prevent people from profiting from my effort. You want to steal my image to use on your cab company website? You're probably not making any extra money from that incidental use, so I'm unlikely to pursue you. You sell prints of my work as your own? That's wrong. Every 7 year old knows that wrong. And I will come after you.