Copyright 101

I was pretty pissed off when I wrote my previous post (maybe you could tell?)

Writing a follow-up is not easy.  Trying to stay calm. I can already see the commentary: “You are milking the subject, yesterday’s news, oh just quit whining, blah, blah, blah…”

Yet, it needs to be done.

I have  read the commentary on my previous blogpost – plus the discussion in numerous websites in Finland (and elsewhere) – plus the emails….

No, I am not going to comment back to “The-Danish-photographer-Kari-Kuuk-had-his-picture-stolen…” and “quite(meaning “quit” I guess…?)-whining-and-you-cannot-be-taken-seriously-as-you-can’t-spell (either Finnish or English)…” and “don’t-you-understand-how-hard-it-is-to-create-a-computer-games-and-Steve-Jobs-had-nothing-to-do-with-it…”

You get my drift? :-) Not worth it.

But: there are two repeating themes which need addressing: “Bullshit! It’s always about the money” and “You put it in the net: thus, it’s there for everybody to take”.

“Bullshit! It’s always about the money” 

The first one is pretty easy: yes, the criticism is partly correct. Yes, it is about money. It’s about the money a person should receive for the work he/she created. That person should get a compensation – shall we call it – the normal way:  as a payment for goods purchased.

The default M.O should not be: you take what you want and hope you don’t get caught (and your past experience has taught you that normally you don’t). And if you do, the payment is thru threats, lawyers and litigation. Yes, it might be 3 times the “market price”  (standard procedure in Finland) but if the market price is peanuts to start with, it does not really matter. Besides, if you get caught less than every fourth time, you actually save money building your business model this way.

In this case LATimes did get caught – apologized (and pleaded mea culpa) immediately. It’s what we call “damage control” – minimize the harm done to the brand.

Their true character was revealed with the action: “ok, we put his name there and pay him 50 USD”.

That’s what we call an insult.

But: some of the commentary have been implying that photographer  (Matti Matikainen) is just trying make money by bringing this out in the open.

Now let’s just stop that one right there: Matti called me immediately when he saw those comments – and  when he was interviewed in the radio – and further quoted on national TV  -each time repeating the same thing: if he eventually gets any financial compensation on this – which most probably will be peanuts – it will be given to charity(to be determined later).

So please, cut the BS and show some respect.

___________

The second one is much more serious an issue – and the actual topic of this post: seems like there are loads of people who have no idea of what copyright (or IPR intellectual/immaterial property rights) mean. Or don’t care.

And seems like many of those people have found their way into the offices of these once respected media corporations.  Call themselves “media professionals” these days.

“You put it into the web  – thus it’s free for anyone to take”

No, no and no. Actually, almost all of the content in the web is protected: movies, music, pictures, etc.

As someone (Tim) said in the comments“Publishing an image, even for free, does NOT release the image into the public domain. In fact it’s challenging to ever release something into the public domain, even intentionally.”

Absolutely true, as Tony Sleep further continues in his commentary “Just about everything on the internet is created by someone and they, or their employer, automatically owns copyright.”

Copyright 101

Copyright is based on the Berne Convention and that forms the basis of legislation for almost every country in the world.

There are some national differences etc. – but the underlying principle is very simple and common to all: when you create something, it is yours. This process is automatic and occurs at the moment creation (be it photograph, piece of music, film, whatever).

It does not matter if somebody else could have done it, how great a piece it is – or how bad – or  what value  you or anybody else consider it to have  etc. – it’s simply yours because you did it. Nobody should take it from you without permission.

Regardless if you – or somebody you work for – present it publicly in e.g. the web or elsewhere.

Right to Quote

It should be added: there is something which is called “right to quote” or “citation right” (- I hope that is the correct term in English). Meaning:  to illustrate a point you might use a fraction/sample of somebody’s work even without their permission – say a piece of poetry or prose – to show e.g. how great/personal the writer in question is etc. – and naturally giving full credit and reference to the original work. Same is allowed for quoting somebody’s work as scientific reference.

But when multimillion dollar media corporations rip off somebody’s work in order to make more profit themselves, they can hardly hide behind “It’s simply a quote” -excuse.

“It’s out there, I can take it”

Somebody suggested (actually quite a lot of people did…) that as Iltalehti put it on their website, it was open game for everybody  as it was not behind a pay wall, password protected, closed website, etc.

Aaah… No. No, no and NO!!!  Read the paragraphs above. Just about everything in the web is copyrighted – if the reader/copy-paster of this material is an ignorant idiot does not alter this fact. Even if the idiot works for e.g. LA Times etc.

Copyright is not open to your personal interpretations: “Well, I don’t  think it’s that great a picture, I could have taken it…” That’s totally irrelevant.

In order for it NOT to be copyrighted, it has to specifically be put into – more or less – public domain, using licensing such as CC (Creative Commons) etc.

Let us take a simple example:

Example 1

Somebody leaves a car parked outside. That does not mean anybody can take it. I think we agree on this one?

Even if the doors are unlocked .

Even if the keys are in.

Even if the motor is humming.

Even if it is a Ferrari you really admire and would like to have…

Even if that Ferrari would make you look soooo cool…

I see – and we all see the attraction. But: I think it’s safe to say we all would agree that taking that car would be illegal. Damn easy, but still: illegal. The fact that you can nick something easily (as you can in the net) does not make it a lesser offense.

And when the nicker is  a corporation who is among the selected few in the world (such as New York Times, Washington Post, Guardian – or LATimes – or back home here in the North Pole: Helsingin Sanomat) who sets the rules as how the game is played or how the society values itself… it becomes very, very serious.

Don’t see the difference? Let’s take another one (somebody might say a naive example, but bear with me):

Example 2

What percentage of the e.g. US population would you estimate has tried pot?  It’s illegal, easy to get, no big thing and… actually, don’t care about the answer, but  – say  if e.g. Mr. Obama was found on a park bench with a joint in his hand, puffing away. I think that would cause some concern, don’t you think? Maybe even get some media attention? Maybe even some of  this concern would be justified for the whole society?

Because he stands for something. Something more than most of us.

See my point? That’s why photographers usually do not raise hell when their work gets e.g. used as a wallpaper on somebody’s screen… Yes, it’s still not legal, but let’s be real, there are bigger problems in the world, so we really do not typically shout loud about it. (EDITED 25.12.2011. I actually realize now that what I was saying is not correct – i.e. it is totally legal to make a copy for your own purposes – but only for your own. Please see the commentary in the end of the post.)

But: when publications such as Daily Mail, LaTimes, Hollywood Reporter, Tech Crunch, etc. (there were closer to 300 publications of that image in the world) does it, it is a big deal. It is a huge deal. It’s much more an issue than “stealing just one mediocre image from a website for your own personal viewing”.

“Well, they did credit him?”

That’s insulting. Yet we hear it every day. Each and every professional photographer gets those occasionally – some on a weekly basis nowadays: “we won’t pay you but we will mention your name”. Oh, please!

That’s absurd. Tony Sleep – mentioned earlier – has made a great service to all of us by creating an appropriate letter  we can always refer these people to when somebody comes suggesting this – so we don’t have to resort to foul language and four letter words.  I urge you to take a look.

Simply stated: mentioning your name in the byline justifies nothing (i.e. stealing your property and not paying)  – and my limited experience says also that mentioning your name does not pay the bills.

Try paying your credit card  with “hey, I  just got mentioned in LA Times”. I don’t think so…

Integrity and Trust are Sine Qua Non

I am happy about several really intelligent and insightful comments I’ve had the pleasure of reading. Tony, Tatu, Tim, Rita et al… you know who you are. I thank you for taking your time to comment. Highly appreciated. In the middle of all this it is wonderful to see that there are people who do care and who are not afraid nor too busy to share their views/experience/knowledge/concern with others.

But at the same time: I am horrified by the total ignorance, je m’en foutisme, malice or plain stupidity some of the comments portray – in this blog and especially elsewhere – talking here about blogs I’ve read and commentary on the national dailies news websites back home. If you speak Finnish, I urge you to read e.g. the commentary chain of Helsingin Sanomat. It’s pretty grim reading… and that’s the biggest national daily, from number one country in the world on top of the PISA charts in education.

I am quoting Tony here extensively, but I value his words very highly. “If this gets any more traction”,  he says”… well let’s just forget any hope of democracy.”

I could not agree more. Seriously, it is that big. Much bigger than taking a screenshot “accidentally” and plastering it on your home screen. Much bigger. Huge.

We – professional media – we should really watch our step and try to see where  our world, the professional media – our chosen field and our values – are heading and defend these to our best ability. Maybe then  we dare to look in the mirror ourselves again – and most importantly: we  owe it to our audience.

“The tail has been wagging the dog so hard and for so long it has nearly beaten it to death already. Integrity and trust are sine qua non (look out the window to see the consequences of sacrificing them for the sake of profit).”

(Tony’s commentary in the previous post.)

Sine Qua Non… Without which there is Nothing.

11 Comments

  1. Tenho Mikkolainen (@tenhophoto)
    December 11, 2011

    Spot on, nobody just don’t care.

    Reply
  2. Pauli
    December 11, 2011

    Sad but unfortunately not new. Having been involved in the newspaper industry since the 1980’s I have seen a number of writers simply copy images out of books to make there travel stories look great…
    Once the same news room used wildlife images from the same book within a short time, got spotted by the photographer but still carried on doing it as the extra fee was still less than the useage from other borrowed sources.
    Its so hard to monitior this and so wrong.
    Gee the magazine photo rates have not changed much here in 20 years, but at least back in the 1990’s you could onsell the images to other publications once the main client had published.
    Now days the magazines get you to sign over all rights and they take the cash from on selling the images, while you still get the 20 yr old session rate and meant to be happy with that…….

    Reply
    • kkuukka
      December 12, 2011

      Um-huh –

      and the worst of all: as these publishers force young talent to sign these “give-everything-away-for-peanuts-and-then-we-own-your-shit” -deals, it is naturally unjust for the photographer, but maybe even more importantly, it is devastating to the reading public. Why? Because the publisher can choose what to show and more importantly, what NOT to show.

      Last summer our biggest national daily killed a story because the photographer refused to sign an all rights grab -deal. Basically saying: “We will not publish stories unless we can be assured that we can make money with that material in the future”. Pretty scary, don’t you think?

      But when it comes to newspapers, there is a relief (sort of in a perverse way…) in knowing that they will not be that important in the future. You might have read somewhere – I have been quoting this several times – but Mikael Jungner, the former CEO of YLE corporation said it really well:

      “In five years time people still reading the newspaper are the same people now doing their daily banking affairs in actual offices of a bank”.

      “In five years time people still reading the newspaper are the same people now doing their daily banking affairs in actual offices of a bank”.

      I actually talked with him for a while on that (infamous) party (6th Dec. in the Presidential Palace) where that Angry Bird image was taken and told him I had quoted him saying that several times in public. He laughed and said: “Well here’s something else you can freely quote: in ten years time, a physical newspaper delivered at your doorstep will be considered an environmental crime”.

      “In ten years time, a physical newspaper delivered at your doorstep will be considered an environmental crime”.

      In that sense – as strange as it seems – I am not really worried about the future. The question is just more of a practical kind: how the hell survive this transition period when everybody is just trying to screw you?

      Reply
      • Jim Felt
        December 19, 2011

        The “environmental crime” line is breathtaking. And likely true though I imagine a little further out timeline wise. That said reading my iPhone 4S or my iPad is convenient but I still love the WSJ (to see what the 1% are up to) and my local morning fish wrapper while I’m waking up in a coffee shop on the way to the studio… It’s way more tactile. And, yes, lower res. which matters to me the entire rest of the work day but not at breakfast,
        Digital is the present but even our full digital portfolios are sometimes better received as great printed output. Right now we’re loving 325 gsm stock.
        From the American West Coast…

        Reply
  3. Dave Block
    December 12, 2011

    Sadly, that’s why I slap a big watermark on pretty much everything I publish. I hate the damn things, but hate having my work stolen even more.

    Reply
    • kkuukka
      December 13, 2011

      Dave –

      thanks for commenting. In this case the image was taken from a commercial publication in the web. We can hardly insist that our clients put a a large watermark in the middle of every image – when they themselves have licensed it from us legally?

      Yes, I also put a © stamp on each picture I show in a gallery, portfolio, etc.

      But you touch something important here: hypothetically, the original client licenses our property for their own use. If they lose the property (i.e. do not protect it), maybe one could argue they are the culprits?

      In practice though, I don’t see how one could defend against screen capture…

      Reply
  4. hopper stone
    December 16, 2011

    The term you are looking for is “fair use”; and it is one of the most abused terms out there…almost as bad as “derivative work”. For example, Shepard Fairey claimed “fair use” when using an AP photograph of candidate Obama in order to create his “derivative work”; the ever ubiquitous Hope poster. I believe they finally settled on something with the AP. But to this day, there are people who feel that if you run a photoshop filter on a photo that you stole, then it’s a brand new work.

    Reply
  5. J. Kaakinen
    December 18, 2011

    Good stuff, as always. I’ve taught media education for kids and youngsters (and to parents & teachers as well) and there are huge misconceptions about IPR & copyright laws among everyone – sadly indeed even among so called media professionals. As a producer, I believe that it’s extremely important to educate everyone on these issues, so big thanks to Kari Kuukka for keeping these issues in the spotlight.

    One little thing though: According to Finnish copyright law, it is in fact legal to use any legally published photo you can find from the net as a wallpaper on your personal computer. (Tekijänoikeuslaki 12 §) Personal use is legal, but (re-)publishing is not. Naturally this right for personal use applies only to work that has been published by the actual copyright owner, not pirated/illegally published stuff. (“Laillisen lähteen vaatimus”)

    Reply
    • kkuukka
      December 18, 2011

      Thank you –

      appreciate your taking the time to comment. No, I was not aware of Tekijänoikeuslaki 12§ – thanks for sharing that.
      This case has been very interesting – and it might produce some interesting spin offs still. E.g. did you know, that copyright is judged (internationally) according to the law where the crime was committed – in this case it means Finland, as the servers are in Finland, so even though the culprit is e.g. american company, our national law is applied.

      Suppose there’d be a country (Luxembourg, Andorra, etc. – one of the small ones anyway…) and they manage to cook up legislation that a copyright infringement is e.g. say million dollars? The only thing this country would have to do to become very, very affluent is to rent out servers to the rest of the world and hire a bunch good lawyers.. :-)

      Theoretically, at least.

      Also, as in the US copyright is not given in the moment of creation as in the rest of the world basically (but you have to register it) so I can browse any site where the server is on the US soil – and I would not be doing anything wrong by just screen grabbing any material I could get my hands to.

      But I will not argue this further, I am not a lawyer; but been hearing several of them during the past couple of weeks – and basically this is what I’ve been told.
      But I tell you this: we will be hearing more and more of similar cases, and there will actually be legions of lawyers making money with this in the future – as more and more of what we do nowadays is immaterial and just begging to be abused.

      Reply
      • Tuomas
        December 20, 2011

        Copyright act 12 § is something people don’t know about judging from the reaction and the disbelief that they express when I mention that, e.g. copying songs for private use is perfectly legal in Finland as long the requirements are met:
        The work has been lawfully made available to the public e.g. album is published and (with music) that the person getting the copy makes the copy.

        To oversimplify, the legal problem with P2P networks isn’t that people end up making copies but by whom and how the work is published and how the copies are made.

        This isn’t really what you were talking about per se but I wanted to say that I agree whole-hearted that copyright knowledge should be taught more and should be viewed more a basic skillset for living in an information society. Letting copyright holders’ lobby groups do the teaching (e.g. Tekijänoikeuden tiedotus- ja valvonta keskus ry) is in my opinion a bit like the Finnish saying about the goat guarding the cabbage field. They care only about minimizing copying and promoting about its illegality. I am not saying that is wrong, they are a lobby group afterall.

        If people grow up in a culture where they copy stuff and think it is always illegal but do it anyway, that will just mean that they get used to not caring about copyright and to certain extent about the law. If they however know what is legal and what isn’t and how to achieve legal copying, maybe they’ll end up respecting copyright a bit more. I mean, the reality is that public mindset is blase about illegal copying. And in my opinion trying to change it tomorrow is starting to be too late.

        Reply
      • kkuukka
        December 26, 2011

        tuomas –

        thanks for your commentary. This is why I love keeping a blog: I learn myself along the way.

        K

        Reply

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