The Battle over Copyright & Online Photos and Content

Dear Can of Worms……  prepare to be opened.

I have a lot of opinions when it comes to pictures of mine being used without my permission.  When your family photo suddenly shows up in a store front in Prague, that can happen.  We all know a business snatching a picture offline to use for commercial purposes is copyright infringement.

When I first wrote about our story – I received comment after comment reminding me that I had put my pictures ‘ON THE WORLD WIDE WEB, DANIELLE‘ – and that, apparently means they are public domain. You may remember that Cook’s Source Editor, Judith Griggs used the same phrasing after choosing, without permission, to publish an article written by food blogger, Monica Gaudio.

The truth is my content and Monica’s and everyone else’s is not free for the taking.  We are lucky that there are laws that protect our work and our content. Unfortunately, as was the case for both Monica and I, the people who ‘broke’ the laws – didn’t believe they were doing anything wrong.

About 9 months after the photo appeared in Prague – and the company took it down, claiming they had no idea we ‘were a real family’….  we got a call about the website you see here to the right.  Recognize the photo? Yep. EXACT SAME PICTURE USED IN PRAGUE. Naturally, I took a screen shot right away.  This company is right here in the U.S.  Since our story was fairly well publicized, (oh and since it is against copyright) I was a touch surprised.  Before I could write about it, my husband called the company.  The woman he spoke with assured him that he was WRONG….  that they (the company), in fact, have a VERY experienced legal team who’s job it is to vet pictures like this and they WERE authorized to use it.

*sigh*

My husband then listed a few of the media outlets that had covered the story.  *pause*  She apologized and promised the president of the company would call him back that afternoon.

We didn’t get a call.

But the picture was down within the hour.

Here’s the thing….

Last night, I found out another one of my pictures was being used on another website.

But this situation is different – though they didn’t ask permission, this website linked to me.  So, it got me thinking…. (and asking)

Are you ok with people using photos from your sites as long as they link back to you? (and I don’t mean through Creative Commons on Flickr when you authorize use for links)

I asked on Facebook and the greatest percentage said “YES, AS LONG AS THERE IS A LINK BACK.”

Now, it could be that I’m a little sensitive – not just because of the whole Prague thing, but also about this particular picture.  It is intensely personal.  This photo is from a post I did about the origin of this site.  This picture, my totaled car, represents a shift in my life – a moment that a) I could have died and b) one that put me on my current life path. So seeing it used in a generic post makes me uncomfortable.

So, you are wondering….  ‘Why, Danielle, are you writing about this and NOT emailing the blog owner to take it down?”

Because -I’m not mad, I’m not stomping my feet.  I don’t like to be a poor sport. And because so many people I respect (YOU) say you are ok with unauthorized use as long as there is a link back. So, I’m truly introspective about the whole thing…. Here is what I would really like to know from you:

1) Are you ok with people using your content as long as they link back to you  (without permission)?

2) And if you are….  (since copyright laws do protect against the use of content without permission) are we setting a precedent that allows people to skirt the laws in the name of traffic to our sites?

I intentionally did not link to this latest website as I am NOT, in any way, trying to slam them specifically, but rather to start a conversation.

  • http://www.CarolRoth.com Carol Roth

    If a band records a song and puts it on the radio (public domain), can you re-use it for commercial purposes without paying? Absolutely not.

    There is a cost to creating content; time and opportunity cost. If we allow people to take content without permission, it discourages people from producing it.

    There is a difference, though, in using content for editorial purposes vs. commercial purposes. My litmus test online is:
    1- The link back/attribution is fine for editorial and journalistic purposes;
    2-However, if you are using it in a commercial way (such as your advertisement example), then it should be paid for.

    Not to mention that you are a personality, and it can be construed as an endorsement.

    I have your back on this one.

    C

  • http://3kidsandus.com Cat Davis

    I suppose I could be seen as a bit sensitive as well because I would be fuming mad if someone stole a photo or graphic work from my blog without permission — link back or not. Sadly, it happens all the time, even from competing bloggers that know what they’re doing.

  • http://www.crazyadventuresinparenting.com/ Lisa @ Crazy Adventures in Parenting

    I agree with Carol wholeheartedly.

    I’m gobsmacked your family picture was used AGAIN somewhere else. Stop being so dang beautiful, Smith family! :) (Lame attempt to make you smile, did it work?)

    I’m okay with linking. I’d prefer forewarning, head’s up, or even a post-comment saying “Hey, I love this, going to share this on my blog…” or something. But blatantly taking it without even so much as attribution is definitely wrong in my book.

  • Derek

    It’s hard to know about how I’d feel about my family photo being used like that. My first instinct is to laugh it off. But these photos have a way of taking on a life of their own. I’ve seen this first hand, and it is, after all, your family. I certainly think you’re well within your rights to make an attempt to get the pictures taken down if they were used in a manner not in line with how you had them set up permission-wise.

    Unfortunately, I think that no matter what is done in terms of creative commons or other controls (short of watermarking every single photo…but what can you do with the written word?), this sort of thing will continue to happen because of the prevailing attitude you allude to: “it was on the internet, so…”.

    Moreover, it is undeniable that the deeper our dependency upon and engagement with the web, the lazier we become about things like due diligence and, in this case, making sure we’re allowed to use and repurpose content created by someone else, attribution or not.

    Accountability is made to seem distant and limited, and we, the appropriators anonymous. It’s so easy to just grab a photo, check off the box on your to-do list, and get on with your day.

    There’s so much to do, after all.

  • http://area224.com Dave Van de Walle

    I think Carol’s commercial vs. journalistic approach makes sense…in theory…but I could see that line being crossed, too.

    I’m now making it a point to do one of two things:
    1 – go to Creative Commons and use only imagery that has a CC share license or
    2 – take out the Sharpies, print something, scan it, crop it, and use that as my imagery.

    Seriously.

    Great stuff – I remember your Prague issue and hope you and your gorgeous family can eat and drink free next time you’re there. Is there a Czech Oprah who can have you on her show?

  • http://www.gwhataconcept.com Greg Clark

    This one is so easy for me. (I do commercial design AND photography.)

    1. Not okay to use without an explicit agreement (PRIOR TO USAGE).
    2. See #1

    The link back is only okay IF … yes the big IF, they had permission AHEAD of time. I once inadvertently (it was an honest confusion) used an image from Getty Images in a newsletter. Turns out one of their compliance officers saw the newsletter … did some digging and I got a really nice bill. For thousands and thousands of dollars ABOVE and BEYOND what that image use would have cost if correctly used. Stealing is Stealing. It is a lesson that I like to tell my clients about when they suggest that I “just find that on the internet.”

    I would fire up a large invoice from your “billing” department. Protect your copyright … EVERYDAY.

    G

  • http://www.savingforsomeday.com Sara at Saving For Someday

    Danielle,

    I’m am exceedingly passionate about copyright. Since my first class in law school it was something that really stuck with me. It wasn’t until the interwebz that I really got excited.

    I’d have to say that the company that used your family photo was lucky to get a call. I’ve taken down sites for just that same thing. No prior notice! It’s OK to be nice, but the law doesn’t require it and when it’s a large company with a sophisticated legal team they don’t get my sympathy.

    I venture to say that the person you were speaking with knows nothing about the law or what actually their legal department consists of. Few companies actually have intellectual property lawyers on staff or on retainer, unless they are in the business of protecting their own intellectual property.

    I speak and write on this issue of copyright and am trying to educate the blogging community NOT to ‘give a shout out’. Attribution is only required if the copyright holder requires it when offering a license or usage under CC. In addition, you should check to see if they are hyperlinking to your image source. That’s a no-no too!

    The more we allow others to dilute our copyright the less power we have when we really need it. Few people actually register their copyrights so they’re not left with much protection. And allowing usage without an appropriate license/permission erodes a claim of copyright.

    Photo sharing sights often create problems because the rules are not very clear. People see ‘sharing’ and take it as literally meaning you’re sharing it with the world. Sometimes, though, by uploading photos to photo sharing sites there is a mixed message and that we inadvertently provide a CC license.

    In the cases you’ve shown, at least 2 were clearly commercial. In the third, if your photo was on a photo sharing site (which I don’t know if it was) there may have been confusion as to if it was under a CC license. That doesn’t make it right by any measure though. The responsibility is on the user to verify that they have the right to use the image.

    I’m so terribly sorry this has happened to you. I hope it doesn’t happen again, but given the misconception about the difference between ‘public domain’ and ‘being in public’ I’m not optimistic.

    And, if you ever come across a brand rep saying they have a right to use your photo let them know that you’ll just start using their photos however you wish and they’ll surely change their tone.

    This is just my two cents. I’m probably more upset by this than you are because just when I think my education efforts are working I find out they’re not.

    Kindly,
    Sara

  • http://www.mommycosm.com Kim – Mommycosm

    If someone else is trying to profit from using my content, I’m NOT OK with just a link back.

    However, if someone is using it along with their content, with relevance and respect AND links back, I’m usually OK. After reading some of your comments, thinking maybe I shouldn’t be;)

  • http://www.mominthecity.com Kimberly/ Mom in the City

    Personally, I’m fine with a photo being used for non-commercial use as long as it is linked back to my site with proper credit. (I think that if I were a really great photographer/designer who sold my photos as part of my trade that I would think differently though.)

  • http://www.woojr.com Wendy Piersall

    I actually would disagree with you about copyright being 100% in favor of the copyright holder, because there is the Fair Use Doctrine. From Wikipedia:

    ” Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test. These four things are the NATURE of the copyrighted work, the PURPOSE of the use in question, the AMOUNT of the portion used in relation to the copyrighted work as a whole, and the EFFECT of the use upon the potential market for or value of the copyrighted work.”

    Now, all that being said, the nature of the use in your particular case with the totalled car photo doesn’t really fall under the uses outlined in the first part of that paragraph. This person was basically getting a free photo when they should have used a stock photo. In his case, I think he should have asked permission, though the link back is a hat tip saying he’s at least giving you something back. And I agree with some of the Facebook comments, a link is worth a LOT. And none of this applies to your stolen family photo of course, that’s a completely different case of crazy.

    I use other people’s photos all of the time on my craft blogs. It is common and customary to use each other’s photos in the craftosphere as long as the intent is to send our readers to each others’ sites, and we don’t copy each others’ written tutorials. I think this would technically fall under Fair Use, because it’s a cross between commentary and news reporting. But those are the unwritten rules the craft blogging niche, and if there is one thing I can say for certain, each blogging community has their own rules that don’t always jive with other blogging communities.

  • http://waterwatereverywhere.net MainlineMom

    As a professional photographer, this is a sensitive subject with me. I do register most of my pro photos for the proper protection…it’s easy and cheap to do. If I take photos at an event where I KNOW people are likely to want to use them, I use a CC license and ask for attribution and a link back. So far I haven’t seen anyone steal a photo of mine for commercial use, or even for a blog (other than CC images) but it would probably bug me. I’m passionate about educating people, especially bloggers about what fair use is and is not. I supposedly have a guest post coming from an IP laywer friend of mine on this subject, but she’s been busy lately so I’m still waiting.

    One of my pet peeves actually involves Facebook. On more than one occasion, bigtime bloggers or media people have taken one of my photos and put it on their FB page, even using it as their profile photo, without any attribution at all. They were CC images, but requiring attribution. That bugged me, but because they were “friends” of mine and so well known and I didn’t say anything. When it’s a company I have no problem, when it’s an individual…especially if I know them…I usually bite my tongue.

  • http://www.rawmazing.com Susan

    I love that you are writing about this topic as so many people in the general public just don’t understand copyright, especially on the web. They think that anything published on the web is free for the taking. It is not. My favorite was one woman who said, oh…I would never copy someone’s words, but I use images all the time. What’s the big deal with that?

    I have a site that gets close to 200,000 hits a month. Significant traffic. It is a food site. I write recipes, talk about healthy food and also post beautiful pictures of the food. I am also professional food photographer, so the images are high quality.

    When I prepare a blog post, it often can take a day or two just to get it done. There is the recipe that has to be developed, made and then shot. It can take hours. Imagine how I feel when days after I have posted, all of a sudden my content, photo, recipe and all shows up on someone else’s blog. Usually there is a link back somewhere but sometimes not.

    I was so dismayed by this in the beginning, I asked around for people’s opinions. The first thing that I learned was that everything is copyrighted the minute you publish it. For the photography (and probably writing?), you can also register images. If there is ever a dispute, it is much easier to resolve if you have actually registered the image.

    The next thing that many people had an opinion on was link-backs and how they are great for seo. Well, link-backs from sites that have great traffic are valuable. But when you get one of those, people usually know their stuff and have asked if you would be willing to share. Honestly, I just couldn’t wrap my head around it being ok for people to take content without permission and go skipping off saying, ooo…I got a link back.

    I got so frustrated with the comment…well you will get traffic that I finally came up with this: My recipes and my photography are my intellectual property. Property being the key word here. You wouldn’t walk into Sears, take a lawnmower, not pay for it and say, ok…its ok, I will just tell people where I got it and you will get some business. Can you imagine that working? So, why is it ok for people to take my intellectual property and use the same excuse. It’s not.

    It is a really interesting problem. People who are not in the situation, have no understanding of how it feels. On the other hand, I feel like a you-know-what when I contact sites and say…hey…you didn’t have permission for that. The funny thing is that I normally give permission if someone asks (Except for the woman who wanted 35 of my images to use to build her site…) But I do have rules. They can use the image but have to link to my site for the recipe. Simple. But people don’t like that. They want the goods for free.

    Where do I stand on all of this? I am still confused as to what to do. I don’t want to have to be the police. I want people to be smart and sensitive enough not to break the law in the first place so I don’t have to be put in the position of confrontation. Like that is going to happen.

  • http://www.5minutesformom.com Janice (5 Minutes for Mom)

    A tricky issue, for sure, in some cases.
    And in other cases clear as day.

    For instance, the family of your photo on the billboard. Clear STEALING and ICK factor. The Twitter user that has stolen my daughter’s pic and is using it as their avatar and refusing to take it down. VERY wrong too. (I still have to write Twitter – I have been out of town and too busy to deal with it.)

    In a presentation powerpoint I was making last week, I used one of Angie from I Heart Faces photos from Blissdom. I credited her but also emailed and asked permission first.

    But, sometimes, post-conferences like Blissdom, in my wrap up posts on my site I will use the photos from the bloggers’ in the Flickr pool and credit them, but not personally always email them. I do this since it is about the conference for which they are providing the photos in the Flickr pool and it is usually at 2am that I am writing the post. And I am also using the photo to promote their photography. I am assuming that the CC on their Flickr and the fact that we put up our conf pics wanting and assuming that people will post and link to us is enough. But that is RARE that I would ever post a photo without permission and usually only in that post-conference context.

    Basically — if it is commercial, (which I recognize can be hard to determine sometimes) one MUST pay for the photo or at least get permission. AND when one is using a photo of someone’s CHILD good grief!!! They better have some SERIOUS written and compensated permission going on…

    Speaking of which… I need to go write Twitter. My daughter is STILL on that crazy person/spam account. It is making me REALLY upset!

  • http://www.momtrends.com Nicole Feliciano

    Here’s my question: How are you finding all these images. I think you are doing a great job protecting your brand, I’d love to know other ways beyond the google updates for Momtrends.

    Great post.

  • http://www.momblogmagazine.com Jennifer James

    I think I am overly cautious about using others’ photos particularly on Mom Blog magazine. I spend a fortune on stock photography when I could get a lot for free on the Net. And if it’s not stock then I will get permission. That said, my perspective is if someone grabbed a photo from my blog and then used it on their site, link or not, I wouldn’t be happy about it.

  • http://www.elena-adams.com Elena Adams

    I agree there’s a line between fair use and full copyright, but as soon as some financial gain has entered into the picture, the person using it should be paying you. It sound like your photo got uploaded to a stock photo website, so the second company may have completely believed they were purchasing something authentic. Put your image in TinEye.com and see if anything else comes up.

    I have images and content ripped off my site all the time. The worst offenders are the sites that are part of link farms that are set up to sell affiliate products. There’s never any contact info, so you can scream yourself blue in the face on their comments and nothing happens.

    I find it incredibly frustrating that people still think anything online is fair game. There needs to be a serious reeducation campaign about web copyright.

  • http://movingonfromthedrama.blogspot.com Amy

    I don’t care whether there is a link back, I think you should always receive permission from the blog author.

  • http://www.lookwhatmomfound.com Melinda

    Depending on the person’s motives would determine how upset I would be. I never knew about your incident, how crazy was that.

  • http://frogblog.biz Fred H Schlegel

    It’s wrong to use somebody’s property without their permission. Can’t borrow a car, shouldn’t borrow a photo.

    Legally, copyright law, with the small exception of fair use, gives the person who created the work (or who owns the copyright) control over how their work is used. If a photo is used without permission it doesn’t matter if they link to your site or if they send you a check for a hundred dollars — you get to decide if they are allowed to use your photo period.

    If you license a photo using the creative commons then you give up that control and the image can be used without your permission but with attribution. The important distinction here is that you are giving permission ahead of time to use your work in that way.

    It’s an important issue – not only for professional photographers – but for anybody who creates anything. Yes there are business reasons to allow free replication all over the web, but it’s up to the person who owns the content or image to make that call, not the individuals who want to use it.

  • http://kweenmama.wordpress.com/ Kweenmama

    A travel website emailed me and asked me for permission to use part of one of my posts on their site. I was more than happy to give permission–it created more traffic for me. BUT, they asked permission first, which I appreciated. I think if anyone is going to use another’s creative property, whether it be a photo, drawing, or prose, permission should be sought first. Don’t just take! And if they are using it for commercial purposes, I think I would want to be compensated in some way, even if it is just a free sample of the product.

  • http://www.becomingsarah.com Sarah @ BecomingSarah.com

    No, my answer is NO. I am not okay with it. I have a very clear-cut copyright policy on my website that explains that my content – all of it – belongs to me. I think it even has links to copyright law? I can’t remember. Anyway, it’s mine.

    Sometimes people rip off my photos or my content and I always contact them individually to discuss it. I try to be lax about it if people are just trying to show their readers that they love my site or whatever and there’s links and it’s clearly a friendly situation that wasn’t meant to be copyright infringement. I also try to be lax about quotations and the like, things that are meant as part of a discussion but not an attempt to rip me off. I am not lax about some other instances, such as profits or exploitation of my daughter’s image or claiming my pictures are their own, etc, but it’s all a very arbitrary line in the sand for me.

    I wish stuff like this didn’t happen. Good luck figuring out what you believe and how you want to move forward from here!

  • http://www.momentsthatdefinelife.com Nicole @MTDLBlog

    The use of my pictures without knowledge would upset me and give me the creeps. Especially in the instance where yours was on a storefront! I would love to know how you find out that your photo has been used! I’m a novice blogger and would like to keep tabs on things like that. I have some professional photos on my blog of myself and my family – I don’t think I changed the resolution either, so they could certainly take them if they wanted them and that concerns me.

  • http://www.sippycupmom.com Melissa

    I agree with you! If someone took a picture from my blog or content I would be so mad! Especially a picture! Link or not, it’s not right!

  • Dwmatty

    It depends on “how” they are using my photos or content. Using one of my pictures in a distasteful manner, but then giving me credit in a link back doesn’t negate the poor use of the picture. I would rather have them ask for permission first, and if I agree, then they credit me with a link back.