copyright infringement

This morning I was surprised by an email in my inbox from the Associate Creative Director of Yahoo Singapore.
That was awesome!
She wrote me a mail saying that they recently came across an image of mine on Flickr and they “would very much like to feature it in a Facebook and Twitter post going live next Monday, and hope that you will give us permission to do so. The post will appear on the following pages:

  • https://www.facebook.com/yahoosingaporenewsroom
  • https://www.facebook.com/yahoomalaysia
  • https://www.facebook.com/yahoophilippines
  • https://www.facebook.com/pages/Yahoo-Vietnam/50203816661
  • https://www.facebook.com/YahooIndonesia
  • https://twitter.com/YahooSG
  • https://twitter.com/Yahoo_MY
  • https://twitter.com/Yahoo_ID
  • https://twitter.com/YahooPH


And with it there would be a funny text, and they “will add “© Arno Enzerink on Flickr” as an image credit. However, we would first need a copy of this image without the watermark.”
And “The Yahoo and Flickr teams are honoured to have you as part of the Flickr community, and your contribution would be sincerely appreciated.”

My “contribution” would be sincerely appreciated.
I bet it would.

The moment I read this, I instantly was reminded of this precious reply Mr White gave to a large multi-million dollar entertainment agency who contacted him and wanted to use his music for free because they “didn’t have a budget for music”.
You can read about that here: http://www.digitalmusicnews.com/permalink/2013/11/06/whitey

I kindly thanked the Associate Creative Director for her inquiry and told her for the use of the image in the places she indicated the fee would be US$175 and that I would provide them with an unwatermarked image and an EULA when I had received the payment.

I gotta give it to her, she wasn’t as blunt as the example in Mr White’s case.
She kindly thanked me for my prompt response and she “totally understand that you need to charge for this, since you also run an image library, but we’ll have to pass this time I’m afraid”.

She understands that I need to charge for this, since I also run an image library.
REALLY?
Does that mean that people who DON’T run an image library should NOT be compensated for their work?
I know that there are plenty of people out there who would jump a hole through the roof if they were to be contacted by Yahoo with the question if they could use their image, and that for my “no” there will be 1,000 “yes”s.
And I won’t deny that I’m honored that they contacted me (regardless of the fact that the image in question was far from my best, but it was funny, yes). But here comes in the whole misconception again that people should he happy for just the exposure and the credit.
It doesn’t work like that.
Yahoo is a famous, multi-billion dollar company. They should not abuse the power of their name to get people to do stuff for free for them.
THEIR services aren’t for free. They make money.
I have to pay my bills as well, so why shouldn’t they pay for MY services?
And also… I can’t even really claim credit for this, since I just pressed the shutter. This little piece of art was made by one of the great people in the kitchen of Camiguin Action Geckos in the Philippines.

Anyway…
They were going to put up my image wishing everyone a happy Monday next week.
Well… I’ll put up my image here – for free-, and I’ll wish you all a very happy Friday, and a magnificent weekend!

Breakfast of Kings

D800, ISO800, 1/125 sec @ f/2.8, Nikkor 50mm

Kluun, Raymond van de Klundert, is one of the most famous writers in the Netherlands.
I think he’s a funny guy, sometimes, although he can come across a bit arrogant.
Just recently he pretty much screwed up all the positive sentiments I had with him.
His website was taken down, and instead came a big notification stating the following (translated from Dutch):

Have you been the victim of an outrageous claim from a photographer for placing a photograph to accompany a piece on your blog?
Are you a blogger and have you ever received a threatening letter from a lawyer or photographer in which you were told to pay hundreds or even thousands of euros, because you ever had a photo placed with a blog post?

Let us know. Mail it to xxxxxxx@xxxxxx.nl and tell us in that mail:

  • the year in which it was on your site or on your blog
  • the year you received the threatening letter in which was announced you had infringed copyright
  • where you took the picture. Google Images or another place on the internet?
  • the photograph plus article / column / blog
  • the name of the photographer and the lawyer of the photographer
  • how did it end? Did you pay? Did you settle? Didn’t pay? Went to court?

Mail us! We plan to fight a principal battle against these practices by photographers

I’ve written before about copyright infringement. I’ve been on the infringed end of the rope. I’ve sued and settled. And I’ve sent take-down notices. And I’ve let things be.
Generally I’m ok with people using my images on PRIVATE blogs, provided they accredit the picture with my name or a link to my website. I’m NOT ok with people using my images on commercial blogs or websites. I will pursue those, if I find them.

What Kluun is doing here is probably the most hypocritical thing I’ve seen in a long time.
He is in the business of writing. He knows everything about copyright and copyright infringement.
And yet he accuses the photographers whose pictures he steals of outrageous practices.

These claims he’s talking about? They don’t just come falling out of the sky.
These claims he’s talking about are penalties for him breaking the law.
He hides behind Freedom of Speech, but he’s got his ego so far up his ass that he’s confused with the terminology.
Freedom of Speech means (bluntly) that you’re free to say whatever you want. Freedom of Speech doesn’t mean you can say whatever you want and STEAL images to illustrate your Freedom of Speech.

First of all, I think 90% of these claims would not have even existed if he would’ve taken the common courtesy of asking permission to use the image, instead of just copying them off the internet. He, as a writer, should know that, just because it’s on the internet, it’s not for free. Had he had the decency to ASK the photographer “Hey, I saw this great image on your website (or I found this great image of yours in Google), can I use it to accompany a piece of text I wrote on my blog? I will accredit you with the image.” I think most of the photographers would’ve gladly said yes. But if you go ahead and just nick just about any picture you come across which you can use and assume that a) the chances a photographer will find it because the internet is so big are non-existent; or b) everything on the internet is public and thus for free and for grabs; or c) you are a writer and everyone has to respect YOUR copyright but there’s no need to give a shit about anyone else… Yeah, sure, then you can expect that at some point you run against a wall. And rightfully so.
And we’re not even mentioning the fact that he’s making money with his blog through Google Ads. So his website in fact is a commercial website. He was making money with stolen work.

The guy is a writer, he’s written several books. What do you think he and his lawyers would do if we were to copy his books and go about pasting that on our blogs without proper accreditation?
So he’s expecting photographers, who also have to pay their bills in a market that is already highly competitive and very hard to survive in, to shut up and give us his pictures and he’s making money on everything he does and expects others to stick to the rules and not touch his work?
Does that sound fair to you?

The law is already on its way to orphan a large part if the images, we don’t need another idiot to sue photographers for trying to make a living.

I sincerely hope, as a photographer, that Kluun will lose any lawsuit he’ll start and that he has to pay every penalty (and then some) he’s received so far.
Kluun, as a person with celebrity status in a country, should accept the fact that he has a role model function to fulfill, and don’t assume that he’s above the law.
I usually don’t wish bad to people, but he’s just an example of a hypocrite for which I don’t feel any empathy. I hope he gets to pay.

A couple of months ago I wrote a piece on one of my pictures being used without a license on the website of the Berkeley Daily Planet. It was a very sour thing, because I really wanted to pursue this due to Ms O’Malley’s outrageous attitude, but the outcome would simply not outweigh the costs I’d have to make in order to do what needed to be done for this.
I shared the link to this blog post in several groups on LinkedIn I’m a member of and got many comments on how crazy this really was. One of the members advised me to write a complaint to the State Bar of California, where all the lawyers are registered. They would be able to reprimand Ms O’Malley for her idiotic behavior in this case, IF she really was a lawyer as she claimed to be.

I took the advise, and wrote the State Bar a letter. The official complaint form on the website was only for lawyer-client situations, and didn’t offer any options for different situations, which kind of made me think that my letter would disappear in a trash bin, because it was not according to the prescribed format. But anyway… I sent off my open letter, including a screenshot of the website with my image on it and every single piece of correspondence I had with the Berkeley Daily Planet and Ms O’Malley, and I referred also to the contact I had with my attorney Mr Kinne from Kinne IP Group.
Here are the main lines of what I wrote:

I would like to file an official complaint against a lady by the name of Becky O’Malley, who claims to have been, and I quote “an intellectual property attorney and a member of the State Bar of California, a status which I could easily activate if needed”.

The issue is about a copyright infringement case. This lady is, together with a gentleman named Tom Butt, working for the Berkeley Daily Planet, an online news paper.

Just recently I discovered that they had been using since early 2010 one of my images, without my consent, without the proper licenses, and even with Mr Tom Butt’s name as accreditation with the image (screenshot of the web page attached).
At first I tried to settle the matter with them directly (correspondence attached), but things soon got so bold that I asked my attorney if there was any way to pursue this matter officially.
He gave me an outline of the possibilities, and I decided not to pursue the matter, because in the end it would cost me more money and grievance than I was willing to put into it.
The fact that I am residing in Finland and that I only have a raw file, i.e. the file is not registered at the US copyright office, to prove I’m the creator of the piece was part of the decision.
However, when Ms O’Malley so blatantly and shamelessly threw in my face that I should let go of the matter and that I would get nothing out of it, this turned more into a principle matter for me.
The fact that she is, or claims to be, a former Intellectual Property Attorney and a member of the State Bar of California makes this case all the more outrageous. Tom Butt, the journalist in question, has purposefully and knowlingly used one of my images and accredited it to himself, but when I confronted the paper, and Ms O’Malley, with all her knowledge of Intellectual Property and copyright infringement, about it she had absolutely no right to justify it like she did and slam the door in my face.
With the way she behaved, knowingly and purposefully defending, acknowledging, and approving copyright infringement, she has no business being a (former) Intellectual Property Attorney and member of the State Bar of California.

I sent it, and pretty much forgot about it. A month went by, then another month in which I was abroad.
But then, when I came home from my trip, I actually found an envelope from the State Bar of California.

Response letter from the State Bar of California

Response letter from the State Bar of California

I’ll pick out the piece that matters:

Based on our evaluation of the information provided, we are closing your file. Before the imposition of attorney discipline can be obtained the State Bar must present clear and convincing evidence of willful misconduct. We have concluded that there is insufficient evidence of willful misconduct that would warrant disciplinary action. Ms O’Malley was not your attorney and owed no fiduciary duty to you. In fact, she was not acting as an attorney in said matter, but could activate her membership status if she needed to. Moreover, the circumstances you described are civil in nature. As such, the more appropriate forum in which to address your claim would be through appropriate civil action.

Ok, so I agree that the circumstances I described are civil in nature. But they have concluded that there is insufficient evidence of willful misconduct?
She may have not owed fiduciary duty to me, but with her supposed background in Intellectual Property it was her civil AND professional duty to properly pay for an image that they were using. And also her conduct in the correspondence afterward was in my eyes a very willful misconduct.

So what is wrong with the juridical system of today?
The system seems to be protecting the wrong people…

If you put it in the search box over on the upper right, you’ll find a number of posts on copyright infringement and stealing images on this blog.
The other day I did another quick search, and I ran into one of my images being all over the place.

Satellite dish on an overcast day

D200, ISO200, 1/320 sec @ f/9, Sigma 28-200mm

I checked with Google Chrome reverse image search, and it came up with about 10 pages of results with this image. A lot of corporate websites, but also a few royalty free stock sites. I went to check the stock sites and was stunned to find the image used in a medium large resolution uploaded and offered as royalty free by to different individuals. WTF???
A few of the websites were based in China. I contacted them, but -surprise, surprise- no sign of life. Those f***ing, annoying, thieving little bastards!!! (you’ll have to pardon my grossly and bluntly overgeneralization here, it’s the frustration talking).
The other one was bigstockphoto.com. Back in the day when I was still naive and thought I wanted to hook up with the microstock sites I actually considered uploading my stuff with them. I never actually ended up doing it, but I was familiar with them. So I log onto live chat, spoke with a very agreeable Liz, who directed me to send an email to support, so they had everything in official writing. I did that. Almost a week went by, and I didn’t even get a (automated) response.
I check back on the website and go through the portfolio of this person, “appropriately” named painkiller009. I do a reverse search on a good number of images in the portfolio, thinking that if he stole one image, he probably stole a good number more. And lo and behold: about 90% of the images that returned with concrete information had a different name with it. Or two. Or three.

It’s getting elaborate. There were a few images that I checked which had a different name on each website that they were posted on. Of course there is the possibility that someone’s using a different username on every single website, but from a marketing perspective that would be a terribly foolish thing to do when you want to market yourself as a photographer.

I have no idea how this person came into possession of my image in a larger resolution, because I always plaster my images with a big fat watermark dead center. I do remember having this image up on a microstock website (before I came to my senses and deleted my account there), but there was no sale or download recorded for this image. What I otherwise think is going on is that people download an image for a few credits and then upload it somewhere else under their own name and try to make some profit out of it.

With all the corporate websites I found this image of mine on I estimate I lost about 3.000-4.000€ worth of licenses. If I could nail the bastard who’s responsible for this, I maybe able to sue for say 10.000-12.000€. But will I ever see any of that money? Of course not. Unless of course someone can point me to a Chinese copyright lawyer who knows how to deal with these cases. I think I’d be willing to spend some money on this if I knew I’d come out good on the other side. But I guess this is another case of someone who gets away with theft…

Awhile ago I wrote a little piece about how you can find your pictures in the weirdest places. A few of my self portraits were used on other people’s Facebook profiles and a few of the portraits I did of other people were also used as Facebook and Twitter profile pictures. After getting no response from the people in question I contacted Facebook and Twitter and those images have been removed. Other pictures I found have been traced back and were sold by one of my agents’ sublicensors. Not fully according to the rules they were bound by, but in any case I’m getting paid for those images.

In that same search I also found another of my images used, and that was a bit of a nasty surprise. It wasn’t the best image, and even if paid for, it wouldn’t have been the golden goose. Or turkey in this case

Traffic sign which warns for crossing turkeys

The image in question

I found the image on the website of the Berkeley Daily Planet. An online news paper. It was used in an article written by Tom Butt on April Fool’s Day in 2010, so it had been online for about 2,5 years when I found it.

Screenshot of the article on the Berkeley Daily Planet website

Screenshot of the article on the Berkeley Daily Planet website. All copyright lies with the respective authors / copyright holders (source: www.berkeleydailyplanet.com). Except for the Turkey image. That’s mine!

See… I’m a guy of principles. I get it if a company uses your image and tries to get away with the excuse that they thought everything on the internet is public domain and free to use for everyone. It’s a shit excuse, and they try to pull it every time when I contact a company which has used one of my images, but I pretend that they don’t know any better and I explain to them how it works, even if I know that in most cases they know exactly how it works. It’s kind of a game. They try. I patiently laugh about the joke, and in most cases we come to an agreement.
And in most cases I’m very reasonable (I think). I don’t charge them tenfold (even if -according to copyright infringement cases the penalty for each case could be 10x the original value of the image- I’d be legally entitled to do so). I may up the price slightly from its original level, just as a slap on the wrist, but we’re not talking thousands of euros/dollars.
But in this case it was different. This is a news paper. This is an institute that deals with copyrighted material on a structural basis and they know EXACTLY how things work. They can’t hide behind the “I thought everything on the internet belonged to the public and was free”, and if I’d rip an article from their website, they’d come at me faster than I can say news paper. So…

I wrote a mail to an email address I found on their website: opinion@berkeleydailyplanet.com:. And guess what? No reply.
A week went by and I sent a copy of the email again to opinion@berkeleydailyplanet.com and to another address I found on the website: news@berkeleydailyplanet.com.

Dear Sir, Madam,

I recently came across an image of mine on your website.
The image I’m referring to is the image of the turkey sign in this article http://www.berkeleydailyplanet.com/issue/2010-04-01/article/34956?headline=Point-Richmond-Turkeys-Headed-for-the-Soup–By-Tom-Butt-Special-to-the-Planet by Tom Butt.
The image is credited to Tom Butt.

Now I realize there are probably tons of images out there with a sign of a turkey crossing on it, but I would say it’s extremely unlikely that Tom Butt and I would’ve been on exactly the same spot at exactly the same time to see that car coming out of the street from the right behind the sign.
My image is here: http://arnoenzerink.photoshelter.com/gallery-image/Signs/G0000O8NK4Y4iCz0/I0000k0Dl9iMVLO8
I’m not sure where Mr Butt has obtained this image, but seeing the low resolution quality of the image, and that I haven’t got a license for the use of this image archived to either Mr Butt or the Berkeley Daily Planet I believe we may have a slight problem here.

The fact that you, the Berkeley Daily Planet, are a news source which handles copyright protected material on a daily basis, makes this all the more a very awkward situation. I realize you are not a national paper, although with the coming of the internet everything’s gone worldwide, and I do believe a compensation for the use of this image from April 1st 2010 until now seems very reasonable to me.

I would gladly hear your opinion on this.

Kind regards,

Arno Enzerink

So Mr Tom Butt wrote the article, snatched a thumbnail of my image (the quality of the image was so bad that it was clearly not a hi-res image) from my website or from one of my agent’s websites, blew it up, added his name to it as credit and uploaded the article to the Berkeley Daily Planet.
There would’ve still been a slight hint of my understanding if he at least put MY name under the picture instead of his own. But that was too much to ask…

Honestly, I didn’t expect a reply. But I did get one. A few days later the following message waited for me in my inbox:

It was given to me by Mr. Butt– he says he got if from somewhere on the internet but can’t remember where.  I’d be glad to change the attribution if you wish, or to pull the photo if you prefer.

[Mr. Butt, Tom Butt, was the writer of the article and his name was put as a credit under the image]

No “Hi”, no “Bye”, nothing. Just these three lines.

So I write her back (and sign with my name ;) ):

Dear Ms O’Malley,

I don’t mean to sound blunt and impolite, but both you and Mr Butt are in the publishing industry and you are (or at least SHOULD be) very well aware of the copyright rules on used images. You don’t just “pull an image off the internet” (and “not remember from where”), and then attribute it to someone you know for a fact is not the creator of the work. It has been online for 2,5 years. You make money with your job, Mr Butt makes money with his job, and I’m a professional photographer, which is supposed to pay my bills. Just changing the attribute or pulling the image off the site after it’s been used for 2,5 years is not going to make this go away.

I’m still very much willing to settle this nicely (but properly), but I am asking you a financial compensation for the used image, next to changing the attribute to the used image.

If I would just let everyone “change the attribute” or “pull it off the site” without further consequences I would be a naive and bankrupt professional photographer.

I sincerely hope you understand my point of view and that we can come to an agreement which is satisfying to both of us.

Kind regards,

That went unnoticed. No reply whatsoever, not a sign of life. So after a week (the week I spent in the US shooting pictures in the Rocky Mountains) I figured I could start poking a bit and write Ms O’Malley the following:

Dear Ms O’Mally,

A week has passed since I sent you my last correspondence (10/13/2012). I haven’t heard back from you since then.
I take that silence as a sign of unwillingness to solve this with me directly.
If I haven’t heard from you in a week from now I will contact my attorney and let him settle this with your attorney.

Usually when you start bringing in the attorneys they will get back to you pretty quick. But nothing happens. I go back to check on the website and I noticed they’ve actually taken down the image. I’ll be damned.

I shoot another email to Ms O’Malley:

Dear Ms O’Malley,

I see you have taken down the image. Let me stress again that that is not going to solve the issue.

Aside from the fact that your website is stored online in many edited versions, I have a screenshot of the website with tie image on it, and the correspondence between you and me in which you admit to the use of the image.

I’m still hoping we can settle this in an agreeable way, but if you continue to ignore me I will contact my attorney.

And yes… There we go. Promptly a reply follows:

The Berkeley Daily Planet is no longer published in print. The commercial corporation Berkeley Daily Planet LLC has been abandoned because the tax preparer stole the money he was supposed to give to the government and the government is pursuing a criminal case against him–its funds are totally depleted except what the Internal Revenue Service has a claim on.  The current website is completely non-commercial, created by volunteers working for free.  We neither spend nor collect any money of any kind.You can certainly be paid the same as everyone else for your contribution: nothing.

Please do consult your lawyer,  who will tell you that there’s no point in pursuing this matter, because you and he or she will not make a penny from it, except perhaps what you will pay the attorney to tell you this.  I will not have to pay legal fees myself because for most of my career I was an intellectual property attorney and a member of the State Bar of California, a status which I could easily activate if needed.  Don’t waste your time and money on this pointless quest.

Wow… just wow… All kinds of excuses for why they can’t properly license an image.

Two things that stung me the most and that made me ACTUALLY contact my attorney: “you can certainly be paid the same as everyone else for your contribution: nothing.” and “Don’t waste your time and money on this pointless quest.”

So I kindly write Ms O’Malley a mail back (I fail to write a “Hi” and a “Bye” myself this time):

So that makes it all ok for you to steal images?

As an intellectual property attorney and member of the State Bar of California you do show the right moral attitude…

I will cross-reference this with my attorney and I would be very sorry if you are right and he confirms what you’re saying.

Only once before in my professional career as a photographer did I have to fall back on the help of an attorney. He did so very successfully (and I can warmly recommend him to anyone who needs help in copyright infringement cases based in the US) and I contacted him again on this matter and asked him for advise on what to do. He generously offered his time to look into the matter and see if there was any use to pursue it and he did so without any costs for me.
In the end he laid out all the possibilities, the extremes when it would go ok, but also the extremes if things would get really ugly, and I’m sorry to say that the initial amount of money involved (the license for an image in that particular use would be around 120$, slap a bit of penalty fee on it and it would be maybe 200$) was not worth the head ache and the risk to me.
So I’m  -again- sorry to say that I backed out of this one.

I guess sometimes it does pay off to steal an image. But I hope this post (and I usually don’t wish people bad things, but I sometimes am willing to make an exception) will be spread all over the internet and that it would give the Berkeley Daily Planet, with volunteers Becky O’Malley and Tom Butt, such a bad name that they will have to find another volunteer job to fill up their time. Or maybe Ms O’Malley can pick up her Intellectual Property job again at the State Bar of California.

So a couple of days ago I wrote about someone using my picture as their profile picture on Facebook. I dropped the person a few messages, to no avail (of course).
But that wasn’t the end of it. I wasn’t done with my reverse search, and lo and behold, I ran into another profile on Facebook that was using another picture of me as their profile picture.
I put a status update about it on Facebook, after which a whole number of my dear friends reported the particular person and the profile. As did I myself (since I didn’t get any reply to my messages from this guy either).

Facebook profile

The Facebook profile which is using my picture

I thought that Facebook had already removed the other account (the one I wrote about in the previous blog post) and I praised Facebook for its effectiveness. However, after today’s mail from Facebook I started doubting if it was really Facebook who removed the other profile, or if it was the person himself who deleted it or took it offline after my message(s).

Here’s the mail I got from Facebook. It’s called “Follow-up about your recent report to Facebook”:

Hi,

Recently you reported a profile on Facebook. We did not take action on the profile you reported because it did not violate Facebook’s Statement of Rights and Responsibilities.

If, after reviewing the Facebook Community Standards (https://www.facebook.com/communitystandards), you think we’ve made a mistake, you can request that we review the profile again here: http://www.facebook.com/report/appeal.php?report_andthensome….

Please note: If the profile does not violate our policies, your ability to report may be limited in the future.

Thanks,
The Facebook Team

Give us feedback to let us know how we are doing:
http://www.facebook.com/survey/take.php?survey_id=130787177018977&cid=139834556156963

I sent a few reports yesterday, not only about these two profiles, but also about something else (which I’ll tell a bit further on) so I wasn’t quite sure which report this was. So I clicked the appeal link and came to this:

Facebook's appeal page for denied reports

Facebook’s appeal page for denied reports

So there you go. They wouldn’t take any action on my report (or any of the reports my friends did?), because it didn’t violate Facebook’s Statements of Rights and Responsibilities.
I mean… WTF???
Of course it doesn’t violate FACEBOOK’s Rights and Responsibilities. It’s not f***king Mark Zuckerberg in the picture. It’s ME in the picture, so it violates MY rights!
And since when is it allowed to
1) use someone’s picture without that person’s consent?
2) use a picture of which you don’t own the copyright without the consent of the rightful copyright owner?
So how does this not violate Rights and Responsibilities?

So I will appeal with exactly the text above and see what Facebook says to that. They may limit my ability to report if they still think it’s no violation.

And then the other thing…
When I did the RMSP photography course in the US in 2008, we had a great class (RMSP2008 forever!!! :) ). We had so much fun together!
One of the courses we did was studio lighting and we stood model for each other when we did portraits.
One of the guys modeling for me at that time is probably one of the most hearty, friendliest, radiant and goodlooking guys I’ve ever met and he’s got a smile like no other. I swear, if I hadn’t been heterosexual, I would’ve jumped him *LOL*
Anyway… The portraits I took of him came out really nicely, and he was nice enough to sign a model release for me, so I could use the images. One of the images is in my portfolio:

Portrait of a handsome young man

The portrait

When I found another one of my pictures used as a profile picture on Facebook, I decided to check all the people I shot images from and which are in my portfolio. And guess what (can’t really blame them, in the end, but still), this image came up on two different Facebook profiles and on one corresponding Twitter page.

The Facebook profile of Jacob Mems with the portrait I shot as a profile picture

The Facebook profile of Jacob with the portrait I shot as a profile picture

The Facebook profile of Matt with the portrait I shot as a profile picture

The Facebook profile of Matt with the portrait I shot as a profile picture

Coincidence wants that my friend is also called Matt, but unless he has changed his last name and went from the most peaceful guy in the world to a streetfighter, these two Matts are not the same (if they are, then I sincerely apologize). And I know Jacob isn’t Matt, because according to Jacob’s profile, he’s studied in the UK and Matt hasn’t.
I sent both of these guys a message asking them to take down the profile picture, because it’s not them and they have no right to use the image without my consent and I left a tweet with the latter. I haven’t received any reaction, any sign of life from either.
I filed a report on both profiles with Facebook, but the problem with that is, that Matt isn’t on Facebook to my knowledge, and the only way to report an impersonation is if you can refer to the person on Facebook. So I had to go through the process of reporting abuse of intellectual property. That came up empty-handed sofar, but if the idiots at Facebook won’t even acknowledge a report by me and by a bunch of my friends of an impersonation of me than I don’t think they will go for the intellectual property thing.

So what I want to do now is make this go viral. And prove once again that Facebook only SAYS that they have privacy as priority number one, but really they don’t give a shit.

Read this, share this and put it out there.

Once a month (or so) I sit down at the computer and go through my portfolio with Tineye and Google image search to back track my images on the net. It doesn’t always come up with something, but sometimes it actually does.
Yesterday and today I did my routine and at this point the counter is on 20+ non-commercial blogs and 3 commercial pages. Typically I don’t mind if people use my images on their blogs, as long as it is -indeed- non-commercial. I do require a credit line and/or a link back to my page, and if a blog doesn’t have it, I write the blog owner a mail to kindly add the credit line / link or remove the image. Usually they add the credit line. Sometimes they don’t. If they get wise on me I’ll write the host / provider a mail and then the image will be taken down in most cases by the host, but usually I don’t let it go that far, nor does the blog owner. Usually it is -still, can you believe it??- the blog owner thinking that “whatever’s on the internet I can use for free, since it’s public property”. A little bit of kindness and education goes a long way.

With the commercial ones I’m less forgiving.
Before I do anything I make screenshots of the websites / pages I find my images on, and, depending on the kind of commercial website, I check the Internet Archive to see if I can find out how long the image has been on the website. If you fail to do the first, which I did in my first few times, there’s always still the option to go through the Internet Archives, but it’s better to have a fresh screenshot of the website BEFORE they take down the pictures and start denying things.
Then I write them a mail, very friendly, very informal, to start with, asking them to kindly send me copy of the license they have on file for the image used, since I can’t find it in my archives. There’s always the possibility that they actually purchased the image through one of the agencies I’m with and that -for whatever reason- the sale never came through to me. In that case it’s not the fault of the company, but of my agent and I know I have to pull someone else’s hair.
Usually there’s a bit of tugging back and forth; denial (we didn’t do it, our web designer did, etc. etc.), ignorance (we didn’t know, we thought that [insert one of 10,000 excuses I've heard]), or just plain brutality (it’s in Google image search, so I can use it for free). In the end I mostly manage to settle. Until now (knock on wood!) I’ve only once had to step up with a lawyer, and of course, me having the raw file and all, it was a no-brainer. Can’t go into details, since they made me sign a gag-contract, but I got better off it. A lot better. And it would’ve been settled for a lot less had they not gone so idiotically Homer Simpson on me.
Anyway… After having done this for a couple of years now I thought I saw pretty much all the surprises.
But then again… Facebook hasn’t been around for THAT long.
So today I was at it again, and you can picture my surprise when one of my images, watermarked and all by one of my agencies, came up as a profile picture on a Facebook profile:

Facebook profile

Screenshot from the Facebook profile that has my picture

So this is an image that was ripped straight from Photographer’s Direct. The image here:
Man in a dark tunnel

This is a self-portrait I did a couple of years ago, so you can imagine that -even if I’m not recognizable in the picture- I don’t like it at all that someone’s using this particular image as a profile picture on Facebook. Sure, the image is for sale, but this wasn’t a sale, and the guy in question didn’t ask for permission to use this image.

So that’s the story of today…
Now I’m pondering whether I should contact the guy myself or should I ask Facebook to do the work for me…?
What say you, crowd?

I subscribed to the magazine in the past, and since a year or so I’ve been subscribing again. I really like the magazine, it’s got great articles and it’s got magnificent images. And they even allow you to submit your images for possible inclusion in the magazine. They have this “Picture of the Month” going on every month and if you get to be it (or your image, that is), you can win amazing prizes and you get to be published in the magazine. It would be a great thing for your portfolio to be featured in the magazine. I would like to, in any case.

So off I went, to the website of National Geographic, where I’m instantly prompted to subscribe. That is, sign up, give all my information (which, if you read the terms and conditions, you swear to be up to date and correct). And, paranoid as I am (and I’m probably one of the very few who actually reads these terms and conditions), I quickly scroll through the text and come to a full stop at point five. I blink. It must be lack of sleep. I blink again. The text is still there.
Actually, to be honest, this happened already quite awhile ago, and I’m not quite sure why I write about this only now, but anyway… I wrote them a mail several times in which I ask to clarify the terms set out on their website, but I didn’t get any reply. Any sign of life. Not even an automated response with “thanks for your mail, we will ignore you like the plague”.

I re-read the text, just to make sure I read what I read. I quote point five to you below (courtesy of the Terms and Conditions on http://www.nationalgeographic.com/community/terms/

For clarity, you retain all of your ownership rights in material you upload, comments you post, or other content you provide to the Site (“User Content”). By uploading User Content, you grant National Geographic (which includes its subsidiaries, affiliates, joint venturers, and licensees) the following rights: a royalty-free, worldwide, perpetual license to display, distribute, reproduce, and create derivatives of the User Content, in whole or in part, without further review or participation from you, in any medium now existing or subsequently developed, in editorial, commercial, promotional, and trade uses in connection with NG Products. National Geographic may license or sublicense, in whole or in part, to third parties rights in User Content as appropriate to distribute, market, or promote such NG Products. An NG Product is defined as “a product of National Geographic, a subsidiary, affiliate, joint venturer, or licensee of National Geographic, in any language, over which National Geographic has “Editorial Control.” For the purposes of this Agreement, “Editorial Control” means the right to review, consult regarding, formulate standards for, or to exercise a veto over the appearance, text, use, or promotion of the NG Product. You also agree that National Geographic may make User Content available to users of the Site who may display and redistribute it in the same way that National Geographic makes all other Content available.

So… In any case I retain all of my ownership rights in material that I upload. But…
And it’s a big But (big bones, can’t help it!):
Upon accepting the Terms and Conditions I grant National Geographic (which includes its subsidiaries, affiliates, joint venturers, and licensees) the following rights: a royalty-free, worldwide, perpetual license to display, distribute, reproduce, and create derivatives of the User Content, in whole or in part, without further review or participation from you, in any medium now existing or subsequently developed, in editorial, commercial, promotional, and trade uses in connection with NG Products.

And the following sentence, equally disturbing:
Upon accepting the Terms and Conditions I allow National Geographic to license or sublicense, in whole or in part, to third parties rights in User Content as appropriate to distribute, market, or promote such NG Products.

And the one that’s screaming injustice in my face:
Upon accepting the Terms and Conditions I also agree that National Geographic may make User Content available to users of the Site who may display and redistribute it in the same way that National Geographic makes all other Content available.

So summarized: I’m fucked if I agree to the Terms and Conditions, because regardless of the fact that they let me retain all my ownership to what I upload, National Geographic can do whatever the hell they please with my stuff, but National Geographic makes me agree that they allow Users of the Site to do whatever the hell they please with my stuff. That’s in any case how I read the “may make User Content available to users of the site who may display and redistribute it in the same way that National Geographic makes all other Content available”.
So National Geographic may sell User Content as prints or stock (of which profits the User in question doesn’t see a penny of commission), but since National Geographic makes Content available in this way users of the Site may also sell that same Content according to the rules stated by National Geographic.

So how does that sound fair to you? It kinda means that I now co-own my images with National Geographic and every other user of the National Geographic website.
I invite everyone, National Geographic employees included, to explain to me how and where -if I am- I am misunderstanding these rules.

I wrote about hi-contrast black and white late last year, when I shot a picture from the window of my apartment.

I shot a bunch of images from this window (all posted here on the blog), which I figured I could turn into a series I named “Between the corner of the street and the sixth floor” (or in Finnish “Kadun kulman ja kuudennen kerroksen välissä”). Don’t ask… ;)
Anyway… I was missing one image still, and I had some idea about it. And I thought I could implement one of the most cliché things in photography. It was kind of inspired by that court case about copyright infringement which has just been in the news in the UK about the black and white image with the red British bus and the Big Ben in the background (totally stupid, something so moron-ish I thought it could only happen in the US with their farce of a justice system, and all of us photographers could just as well pack up our photography bags and hang them in the trees with an outcome like that, but let’s not get me going, that’ll just ruin my day).

I was looking for people crossing that same pedestrian’s crossing, but in winter, with snow, and dressed (partly) in red.
It’s surprising how many of those are walking around here, I must say. It wasn’t at all hard to get. Hence I ended up with a good number of pictures in just like half an hour or so. Now I’m considering making this a whole new series in itself :D

Crossing

D700, ISO200, 1/60 sec @ f/8, Nikkor 70-200mm

Crossing

D700, ISO200, 1/125 sec @ f/8, Nikkor 70-200mm

Crossing

D700, ISO200, 1/125 sec @ f/8, Nikkor 70-200mm

Crossing

D700, ISO800, 1/180 sec @ f/8, Nikkor 70-200mm

Now I just have to keep my fingers crossed and hope I won’t be hauled to a UK prison and be dragged into court for copyright infringement. Because that church in the background (which is just outside the visible area) does look a lot like Big Ben. And I gotta say that some of the people in these pictures really do look like a British bus…
But owwell… Let’s see.

Oh, and if you happen to recognize yourself in the picture do drop me a line and I’ll send you a print for free. I didn’t think it was a good idea to yell six floors down and ask if it was ok to take the picture while you were standing in the middle of the road… ;)