You’d think there’s enough evidence by now that stealing other people’s images is only for the truly dumb. Whether it’s one of the world’s largest news agencies facing a $123M copyright suit, a hipster freetard heisting a veteran photographer’s best-known image, or a British Labour government sabotaging their own election campaign, the sad and expensive results of photo theft are there for all to see.
But no, you just can’t help some people: and so last week two master copyright crooks simultaneously did an excellent job of proving Einstein’s First Theory of Stupidity.
In Arkansas USA wedding photographer and “lover of Jesus” Meagan Kunert had a nice little business going: or at least she did until Canadian wedding photographer Amber Hughes discovered her work on Kunert’s website. Hughes hit twitter, and soon other photographers were reporting that they too had been ripped off by Kunert. The story was picked up by David “Strobist” Hobby’s 65,000 followers, and within hours #fauxtographer was trending and an angry mob with torches and pitchforks were laying siege to every Internet property associated with Kunert, who promptly packed her bags and got out of cyberspace.
Her twitter feed was first to go, rapidly followed by her website, probably sunk under the weight of DMCA takedown notices. Kunert attempted a last stand at Facebook; after pulling her page for few hours she took a revivalist approach, relaunching it with the kind of apology associated with southern preachers who’ve been caught evangelising away from home:
“I hate that I have tarnished the name of Jesus in doing this, and I have got some serious soul searching to do over the coming days, weeks, and months. I know that God does not approve of my choices and that he hates hypocrites such as myself. I also know that God can take my brokenness and turn it around for His glory, which is what I intend to do. If you are the praying folk, I would like to ask you to pay [sic] for me and my family.”
But the Internet is not the deep south and the congregation at Facebook turned out not to be the praying kind: hundreds of comments later it was Kunert who had to pay, as her Facebook page disappeared again, this time probably for good.
Across the pond, just as the Internet was preparing the last rites for Kunert’s business, VoucherDigg set about digging their own grave. One of a myriad of UK companies offering vouchers for package holidays, VoucherDigg was advertising a cheap deal in Portugal from Low Cost Holidays. Naturally they wanted an appropriate image: it had to be from Portugal, and preferably close to the resort they were offering. Ideally it would also need to appeal to families with young children.
And so with impeccable logic VoucherDigg stole the last known photograph of Madeleine McCann, the three year old girl who five years ago disappeared only 25 miles from the holiday resort they were advertising, and the subject of one of the biggest UK and Portuguese news stories of recent times. What could possibly go wrong?
Retribution was public, swift and relentless. The story of VoucherDigg’s use of the McCann photo was rapidly plastered across the world’s media and Low Cost Holidays immediately disowned them. Worse, M’Learned Friends at the world’s scariest law firm announced that they would be handling the matter for the distraught parents. Within a day VoucherDigg shared Kunert’s fate. First their website groaned under the weight of traffic they had probably always dreamed of; then it disappeared as they discovered the reason for their newfound popularity. Finally the site, registered at the University of East Anglia campus in Norwich – presumably at the English As A Foreign Language Department – was replaced by a grovelling apology:
“We were sorry!
Our editing team made the mistake, that Madeleine McCann’s image was linked to the discount holidays to Portugal. We are sorry for the serious wrongdoing that occurred. We unreservedly apologise for the hurt suffered by Mr. and Mrs. McCann.
We regret our not acting faster to sort things out because of our editing team and management overseas not being concerned about the British social news and not realizing the wrongdoing. We realise that this explanation and simply apologising are not enough, because the hurt and damage are irretrievable. In the coming days, we shut down voucherdigg.co.uk to show our sincere apology.
We deeply apologies to Mr. and Mrs. McCann. We deeply apologies to the society. We also apologies to the lowcostholidays for the negative brand affect, who has nothing to do with this issue.”
There are a few lessons in all this for image thieves. For one, Jesus won’t save you: your business is going straight to hell. For another, brush up on your language skills so you can at least produce the literate apology you’re inevitably going to need. But most important of all, join the Meagan Kunert Bible Study Group Inc™ and brush up on your knowledge of the Eighth Commandment: because if you ignore that one the Internet will kick your ass.
Charles Swan is one of the UK’s top intellectual property lawyers. His opinions on copyright and court judgements are to be taken seriously. Cory Doctorow…well, perhaps not so much.
Recently His Honour Judge Birss QC found in favour of Justin Fielder and Temple Island in the company’s claim that Nicholas Houghton and New English Teas had breached copyright in production and publication of a photograph [above right] of a London bus that had been Schindlered to within an inch of its life. Temple Island’s case was that the New English image was an obvious copy of their own Schindlerfest [above left] from a few years before. But although similar in many ways the two are entirely separate images: so where was the infringement?
Swan described the ruling as “ perhaps surprising”, a phrase that can have myriad meanings coming from a lawyer. But for the Interweb it meant just one thing: the sky was falling. “Photographers Face Copyright Threat After Shock Ruling”, screamed Amateur Photographer. “Create A Similarly Composed Photo In The UK And Risk Copyright Infringement”, howled Petapixel. According to these and others, anyone in the UK taking a photograph similar to an existing photograph now risked ending up in court for breach of copyright. To the most deranged, “taking a photo in the same place where someone else took a photo can now be a crime.”
None of this was true, but with crashing inevitability the most misleading and hysterical analysis came from Doctorow at Boing Boing. Eager not to let the facts get in the way of a good story, or perhaps because he’d neglected to actually read the judgement he was commenting on, Doctorow took aim at the “insane” and “bizarre” ruling and let rip:
“If a Reuters and an AP photographer are standing next to each other shooting the Prime Minister as he walks out of a summit with the US President, their photos will be nearly identical. Will the slightly faster shutter on the AP shooter’s camera give him the exclusive right to publish a photo of the scene from the press-scrum?”
“The judge here ruled that the idea of the image was the copyright, not the image itself.”
“This creates a situation where anyone who owns a large library of photos — a stock photography outfit – can go through its catalog and start suing anyone with deep pockets: ‘We own the copyright to “two guys drinking beer with the bottoms of the mugs aimed skyward!”’It’s an apocalyptically bad ruling, and an utter disaster in the making.”
Doctorow’s hysteria is of course unfounded. Just one paragraph from Birss’ ruling comprehensively demolishes Corky’s claims:
“The defendants went to rather elaborate lengths to produce their image when it seems to me that it did not need to be so complicated. Mr. Houghton could have simply instructed an independent photographer to go to Westminster and take a picture which includes at least a London bus, Big Ben and the Houses of Parliament. Such an image would not infringe.”
So why did the defendants go to such “elaborate lengths” and why did Birss rule the way he did? Simple: the combatants had history. New English had previously infringed a Temple Island image and settled in court. Temple Island offered to license an image to New English, but the latter declined. Instead they set out to produce their own image based on that of Temple Island: make it as close as possible, went the thinking, but just different enough to avoid infringing. That’s a judgement call, and New English got it wrong.
Helpfully Birss even spelled out exactly how they’d got it wrong. If New English had never seen the Temple Island image and had produced even an identical image independently they would have been in the clear. If New English had scoured the web for similar images for inspiration and produced the image they actually did, they still would probably have been ok. But instead they were interested only in the Temple Island image, copying it as closely as they – wrongly – felt safe to do. And in so doing they breached Temple Island’s original expression of an idea.
Note the “original expression” bit. Contrary to what Doctorow, Techdirt and numerous others tried to claim, Temple Island hadn’t suddenly claimed copyright of London landmarks, Schindlered or not. They simply objected to another company – whose products incidentally sell alongside theirs in tourist outlets – studying one of their most marketable images, then setting out to replicate it as closely as possible.
In other words, the judge reached his conclusion by employing a commodity clearly lacking at Boing Boing, Techdirt and elsewhere: common sense.
The Shop Till You Drop Award [sponsored by Adobe]
The Robotog Award For Photography And The Law
The Uncle Bob Award For Wedding Photography
The Susan Sontag Award For Writing On Photography
Photo Caption Of The Year
The Enron Award For Business Management
Quote Of The Year
Photo Product Of The Year
The Remix Award For Plagiarism
Grand Prix de Folie Photographie
Question: what do you call someone who campaigns for anyone to be allowed to publish a photographer’s work without permission, and then complains when someone publishes his wife’s photographs without permission? Answer: Cory Doctorow.
Our old friends Irony and Schadenfreude had a field day last week when writer and wannabe copyright reformer Doctorow mounted the Boing Boing barricades to rant against “the awful Daily Mail, a hateful right-wing tabloid that keeps finding new bottoms to scrape.”
That’s an interesting image, but what was the reason for his ire? Apparently his wife Alice snapped an anorexic mannequin in Gap and uploaded the image to TwitPic; Doctorow then published the photo at Boing Boing accusing Gap of “death camp chic”. The Mail, ever on the lookout for a good scandal, picked up on the story and called asking to use the image.
Despite their reservations about the Mail the Doctorows, after due consideration of, oh, a few seconds or so, decided the hateful right-wing tabloid could have the snap for a charity donation of £250. The Mail [part of Associated Newspapers, with 2010 operating profits of £42M] countered that was beyond their budget. Then the Mail did what the Mail does, and lifted the photo anyway – along with a few juicy quotes into the bargain.
Unsurprisingly the Doctorows were outraged, hence the Cory vent in which he accused the Mail of “ripping off” the picture, ending with a demand for £2,000 for two infringed images and the vaguely threatening words “updates to come, I’m sure”. But could this be the same Cory Doctorow that has spent most of his adult life campaigning for the weakening of copyright laws? The Doctorow that tours as a poster boy for Creative Commons licenses that allow photographers’ work to be used without permission? The one that “rips off” photographs for his own articles?
Well, er, yes; which is why a few of the responses to his article were less than kind, accusing him of hypocrisy. However the Doctorow fan boys, like Cory usually very much in favour of redistributing photographers’ work without permission, felt his pain and the comments were largely filled with suggestions that the Doctorows should call M’ Learned Friends. Although it would be highly entertaining to watch the Doctorows sue the Mail for copyright infringement that’s sadly not going to happen; or at the very least they’ll have to get in line.
For what the Doctorows overlooked is that in uploading the image to TwitPic they had already given away their image distribution rights long before the Mail came calling. As the rest of the Internet already knows, TwitPic signed a highly contentious deal with the World Entertainment News Network in May that gives WENN distribution rights to any images uploaded to TwitPic, and without any payment to the image owner. So if anyone is going to be suing the Mail it will be WENN, not the Doctorows. Interestingly the story disappeared from the Mail site over the weekend without the Doctorows’ knowledge, so it may be that WENN have already contacted the paper.
The final irony is that only hours after his Mail bitch-fest, Doctorow was busy ripping off photographs himself. On August 16th, the day of Doctorow’s rant, the Guardian ran a story from the Edinburgh Festival with a photograph by Murdo Macleod. And the following day there was a story about the Edinburgh Festival on Boing Boing, filed by Cory Doctorow and with that very same Murdo Macleod image. Doubtless Doctorow took time off from discussing the Mail with his lawyers to ask Macleod’s permission to use the image. If not he will have already calculated what he owes Macleod for “ripping off” the photo: his own going rate of £1,000 per image.
It’s clear that Doctorow, despite his carefully constructed image as a cutting-edge thinker on intellectual property matters, has a lot to learn when it comes to copyright. But last week should have provided a lesson simple enough for even Doctorow to grasp: when it comes to intellectual property and ripping off other people’s photographs, what goes around comes around.