In The Flickr

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Clueless Copying

Copyright

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TEAMEDITOR IN CHIEF CREATIVE DIRECTOR

ART DIRECTOR

EDITOR

WRITERS

GRAPHIC DESIGNERS

WEB DESIGNER

SOFTWARE DEVELOPER

SYSTEMS ADMINISTRATOR

DIRECTOR OF HUMAN RESOURCES

Randy Taylor

Alec Timerman

Kellie Davis

Marie J. Pellegrino

Jonathan BaileyShawn Ingram

Aaron LenzaAaron Voight

Nikole Zelneronok

Chris LaneAmanda Vinci

Anne Marie Denton

Evan Frohlich

Kevin Borchers

Dagmar Fabricius

ON THE COVER :: Photograph by Milton H. Greene

Disclaimer: The opinions expressed in Creators Circle Magazine do not necessarily reflect those of the editor, staff, publisher(s) or their agent(s). Creators Circle Magazine makes no representation or warranty, express or implied, as to the qualifications of those whose opin-ions are expressed herein, or with respect to the accuracy or completeness of information published. Creators Circle Magazine is a publication of StockPhotoFinder.com, Inc., 10 E. 23rd Street, New York, NY 10010. Phone (212) 929-6965. Reproduction in whole or in part without express written permission of Creators Circle Magazine is prohibited. For editorial review of the magazine or articles, up to one paragraph per article may be quoted for publi-cation provided that appropriate attribution and a link or reference to CreatorsCircle.com is included, and a page in its entirety may be reproduced as an image to illustrate a sample of the magazine. Creators Circle Magazine assumes no responsibility for the return of unsolic-ited manuscripts, art or photos. Creators Circle is a trademark of StockPhotoFinder.com, Inc. Copyright 2009 StockPhotoFinder.com, Inc.. All Right Reserved.

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© Burton Berinksly/Omni-Photo Communications, Inc.

Foreward Vision

Obama Flickrs

Clueless Copying

As Easy As Pie

As Easy As Pi

Multiples of Marilyn

And the Survey Says!

Interview :: Randy Taylor

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This is the premiere issue of Creators Circle Magazine, which launches June 3rd, 2009 at the CEPIC International Congress in Dresden, Ger-many. Our mission is to raise awareness and to educate about copyright, orphan works, online

infringements of intel-lectual property and related trends. As the

publisher, we desire to share our knowledge and experience on these important subjects in part because our parent company, StockPhotoFind-er.com, Inc., offers relevant solutions to these industry challenges. Beyond that, it is our ongo-ing intent and effort to defend and enhance cre-ativity and creative works to the benefit of cre-ators, their agents and for the good of society on a global scale. We welcome the opportunity to communicate and collaborate with other citizens of the creative community.

FOREWORD VISION

Randy TaylorEditor-in-Chief

Dieses ist die Erstausgabe der Zeitschrift “Cre-ators Circle Magazine”, die am 3. Juni 2009 auf dem CEPIC Internationalen Kongreß in

Dresden erscheinen wird. Unser Mandat ist, das Bewusstsein über Copyright, “Orphan Works”, on-line-Verletzungen des intellektuellen Eigen-

tums und andere Tendenzen zu wecken. Als Herausgeber, wollen wir das Wissen zu diesen wichtigen Themen teilen, da unsere Mutterge-

sellschaft StockPhotoFinder.com, Inc., relevante Lösungen und Erfahrungen zu dieser Branchen-

herausforderungen anbietet. Über dies hinaus, bemühen wir uns, Kreativität und kreative Lö-

sungen zum Vorteil des Urhebers, deren Ver-treter und für das Nutzen der Allgemeinheit auf globalem Umfang anzubieten und zu verbessern.

Wir begrüßen die Chance, mit allen beteiligten Personen der kreativen Gemeinschaft zusam-

menzuarbeiten und uns zu verständigen.

Obama FlickrsThinking Outside the Frame

The winds of change that brought President Obama to the White House have also changed how of-ficial images of his presidency are distributed. The popular social media website Flickr has become a key distribution channel for the daily coverage by White House staff photographers. To enable global access to these official, hi-res images, Flickr added a new category of rights grant to supple-ment its standard Creative Com-mons licenses.

The White House Photostream was first put online on April 27, 2009. It featured a set of 291 photos documenting President Obama’s first 100 days as the first upload. It was greeted by news re-ports from newspaper and blogs nationwide that it existed. There was a small snag, however – clari-fying the grant of rights to proper-ly satisfy U.S. Copyright Law and Flickr policy.

The White House Photostream was originally limited to the stan-dard Flickr license options. Flickr offers a variety of CONTINUED...

By Shawn Ingram

Official White House Photo by Pete Souza

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licenses including straight out copyright, and a myriad of Creative Commons licenses with varying degrees of Commercial/Non-commer-cial use, Attribution and so forth. The photos in the White House Photostream originally were put under a Creative Commons Non-commer-cial Attribution license. The license would allow anyone to use the photos in non-commercial en-deavors as long as attribution was provided.

The problem lies in the fact that Creative Commons, while in some ways less strict, is still a form of copyright licensing. According to feder-al law, the American government cannot hold copyrights unless given “by assignment, be-quest, or otherwise.” The photos had to be re-leased into the public domain, which wasn’t pre-viously an option while using Flickr.

Both Creative Commons and the Electronic

Frontier Foundation (EFF) argued that the li-cense was not appropriate for the government, not that it should be.

On it’s blog, Creative Commons member Fred Benenson commented saying that “unlike com-munities like Wikipedia and Thingiverse, Flickr doesn’t allow their photographers to choose Pub-lic Domain as an option to release their work to the world. So the Obama team must have picked the next best option: Attribution only.”

The EFF had a much stronger view, say-ing that “the Attribution license — while useful for remixers and fair users — was still a license and not necessary or appropriate for federal government works. Federal government works

“...the American government cannot hold copyrights unless given by assignment, bequest, or otherwise.”

Flickr is working with The White House to put out a license that satisfies the need for public domain distribution of government images.

Transparency is a word thrown around a lot recently in American politics. A huge reason for that is our increasing dependence on the Internet. Through the Internet, the government can easily relay any information to the people. It’s only nat-ural that in addition to using their own web sites, the White House would use popular social web sites to communicate with the people.

With all the cameras apparently following President Obama and the First Family around the White House and the capital in general, it’s the most efficient distribution method to set up a White House Photostream. This could have been done on whitehouse.gov, but it was decided that the photos would be placed on the popular photo sharing site Flickr since it makes the most sense to put images where people already search for photos online to support this unprecedented level of transparency of White House events.

§ 105 Subject Mat-ter Of Copyright:

United States Gov-ernment Works 37

Copyright protection under this title is not

available for any work of the United States Government, but the

United States Govern-ment is not preclud-

ed from receiving and holding copyrights transferred to it by

assignment, bequest, or otherwise.

are not copyrightable, and as such should be treated as works in the public domain: free to use without restriction.”

Soon thereafter, the photos on the White House Photostream sported the new license of “United States Government Work.” Copyright.gov says only that “copyright protection un-der this title is not available for any work of the United States Government.” It is in essence a public domain release, in more legal terms. Each new photo does have a descriptor stating that the photos are purely for news publication or personal use, and not for advertising that may suggest an endorsement from the White House, President or First Family.

The new license type at Flickr makes it ob-vious that it’s not open to the public, but it does beg the question of why a new license had to be made. While it is important to most profes-sionals that their work be protected under some form of copyright, there are those who would want to release photos into the public domain.

Official White House Photo by Pete Souza

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by Nikole Zelneronok

matter. Imageshack has 20 billion images on-line. 850 million images are uploaded to Face-book each month. 76 million people visit Flickr every month. In the next year alone, users at the top four photosharing sites will probably upload more than 20 billion images. As this visual sea rises, the problem of redundant image files is also growing. Many new uploads are duplicates of the same images found elsewhere.

Erik Schonfeld of TechCrunch.com report-ed that Jack Levin, the founder of Imageshack, said there could be a 10 percent duplication within their 20 billion images. This makes a lot of sense. Think about Brooke, who has her very image heavy MySpace page. She has an image of the “Earth Girls are Easy” movie poster dis-played on her page. In order to post this image she needs the picture to have its own URL. To do this, Brooke goes through an image hosting site, like Photobucket, and she uploads her im-age so she can display it in MySpace. The host-ing site stores it in its database and provides a URL where the image can be found. She pastes that URL in the html editing section of her MySpace page and voila! the image is now dis-played. However, Brooke is not the only person who enjoys “Earth Girls are Easy” and she is not the only one who has Googled its title, found the movie poster, downloaded the image, upload-ed it on a photo hosting site and displayed it on-line. Even though it is the very same image, it’s duplicated over and over.

It’s a common thought among people, es-pecially young people like Brooke, that search-ing for an image and finding it means being able to go ahead and use it. Google “Tom Cruise” in

Brooke is like many young adults. She’s tech savvy, more than computer literate, and abso-lutely loves MySpace. Her social networking arsenal also contains a Facebook page, a Live-Journal and Twitter accounts.

Typical of age and era, Brooke is clueless that uploading images to her photosharing site to use on her other web sites probably violates copyright laws. The magnitude of this perception problem is confirmed by the large quantity of im-ages in personal photosharing accounts that are exact duplicates of images in other accounts.

There is no mistaking it. The Internet is a viable resource for images. There are sites dedi-cated to just the process of uploading and stor-ing images, such as Flickr, Photobucket, Im-ageShack and TinyPic. Myspace, Facebook and other social networking sites (that display imag-es stored at photosharing sites) have a disclaim-er before any images can be uploaded. They have pages committed to terms and conditions asking whether or not the user has the rights to display or distribute the images being uploaded.

One look at any of Brooke’s Web pages and you’re literally bombarded with images. There are photos of her favorite films: “Earth Girls are Easy” and “Freaks.” There are images from comic books, movie posters and famous photog-raphers. Viewers could spend 10 minutes just scrolling through and looking at all the thumb-nails. If this sounds all too familiar, it’s be-cause she’s just like so many others who use so-cial networking sites - she puts photographs of things and people she loves on her pages. What could be wrong with that?

Image uploading and sharing are no small

Clueless CopyingMySpace, My Photos...Or Are They?

Photograph Neil A. Armstrong

Artisitic effect by K

ellie Davis

quotes and there are literally 1.4 million pho-tos associated with his name that can be viewed. Loving Tom Cruise and wanting to put a photo of him on a blog where you describe why and how he’s loved seems harmless, right? Many would say yes, but most if not all images of Cruise are copyrighted. Even though everyone can easily download a photo and use it as they like, legal-ly it’s probably not allowed. Anytime someone displays an image, or even alters an image, it’s probably going against copyright law. Most users

don’t realize that, or don’t think it’s fair.When images are copyrighted, no one can

legally use them without the permission of the person who copyrighted it. Most people throw a blind eye to this fact or simply don’t realize they are making a mistake. In the world outside the Internet, few would consider it OK to take some-thing from someone’s home to use it without asking. For some reason, this basic courtesy of getting permission to use someone else’s proper-ty is being lost on the Web.

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As Easy As PieThe 3 Steps of C-Registry.us

Ever wonder how many images are being used online that you don’t know about? Would you like it if users could contact you from all the copies of your creative works, including the ones that don’t have your credit?

C-Registry.us came up with a fast and sim-ple way to have your name and contact informa-tion with all your content on the web (images, music and video). The image URLs you add to the database link every copy of that content to your contact info. This can be applied to hun-dreds of thousands of images or other content at the same time.

Creators and rights holders gain an extra level of content protection once they are regis-tered at C-Registry. It’s easy, and cheap to do this (just $25 per year for unlimited URL up-loads)..

By Aaron Lenza

1 REGISTER and be authenticated. Just fill out your information, enter your credit card ($25) and proceed.

2EXPORT data in a comma-separated file (CSV), like an Excel spreadsheet. Include this info if available:

The URL path to the content onlineAn html page that contains the image An E-Commerce Link per content or one for all Creator NameCopyright OwnerU.S. Copyright Registration Number

3From the tools page at C-Registry.us, AGREE TO THE TERMS and CHOOSE one of four ways to import your data from

the menu, depending if you are the creator or not. Click CHOOSE FILE to navigate to the export file. SELECT AND SUBMIT your file.

That’s it! You’ve just uploaded URLs to include, up to about a million images at a time - to the registry database. Each URL will now link to and from all copies of these files online via C-Registry’s technology.

Difficulty: EA

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1 CREATE a new account at copyright.gov. If you already have an account, then use your user name and password to sign in

2Under the COPYRIGHT SERVICES tab, select REGISTER A NEW CLAIM to start an new registration

3To begin the registration process, click the START REGISTRATION button at the top of the screen

4Select the TYPE OF WORK from the drop down menu shown. Click NEXT to contiue with the registration process

5Next, click NEW to add the title of your work that is needing to be registered

6Choose TITLE TYPE from the drop down menu, then give your work a title. Click the TITLE TYPE link for help

7If you’re registering more than one piece of work, select NEW to add another title. Otherwise, click NEXT

8Has the piece you’re registering been pub-lished before? Select YES or NO from the drop down menu then click NEXT

9FILL IN all the required information about the work, including year of comple-tion, date of first publication, etc.

10Are you the author? If so click ADD ME. If someone else is the author select NEW

11TYPE either one individual authors name OR an organization name but NOT both

12CHECK the appropriate box(es) to indicate the author’s contribution. Click SAVE to continue

13If you have more than one author select NEW. Once you are finished entering authors click NEXT

14Identify the copyright claimants in this work. If you are the claimant click ADD ME, if not click NEW

15TYPE either an individual claimant name or an organization name but NOT both.

16When you are finished entering claimants, click NEXT to continue

17If work contains preexisting mate-rial, check appropriate boxes and fill in PREVIOUS REGISTRATION

18FILL IN the correspondence infor-mation for the copyright office to contact if there are questions

19GIVE THE NAME AND ADDRESS to which the registration certificate should be mailed.

As Easy As PiThe 39 Steps Of U.S Copyright Registration

By Kellie Davis

Difficulty: N

OT EA

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In the USA, only registration with the U.S. Copyright Office can pro-vide the significant legal benefits of registering, such as enabling statutory damages against infringers. Registration with the USCO is highly recommended. Their eCO on-line process is the best option for governmental registration.

SUPPLIES Computer,

Credit Card An endless

supply of patience

20CHECK BOX to certify that you are either the author, claimant or owner of image then select NEXT

21Review your submission carefully! If you are a frequent submitter click SAVE TEMPLATE for the future

22Have more than one registration? Click ADD MORE SERVICES or CHECKOUT to proceed to payment

23Select the payment method, either DEPOSIT ACCT or CREDIT CARD

24Option 1 is for ACH (electronic funds transfer) payment. PROVIDE INFORMATION as prompted

25Next click CONTINUE WITH ACH PAYMENT to proceed

26Option 2 is for payment via credit/debit card. PROVIDE REQUIRED INFORMATION as prompted

27Click CONTINUE WITH PLASTIC CARD PAYMENT to proceed

28Enter your email address then click SUBMIT PAYMENT to complete transaction

29After reviewing your information se-lect the PAY icon that’s under the DEPOSIT ACCOUNTS section

30Click OK to proceed. Please, only click ok ONCE!

31Click SUBMIT OUR WORK to up-load copies of your work as digital files or to print out a shipping slip

32Click SEND BY MAIL if you intend to send hard copies of you work

33OR click UPLOAD DEPOSIT if you intend to upload digital copies of your work

34CLICK to browse and select files to be uploaded. Enter a name for each file uploaded

35Select the shipping document under the ATTACHMENTS headline to generate a shipping slip

36Be sure to print and attach a ship-ping slip to each work being submit-ted for registration

37FOLLOW THE SHIPPING IN-STRUCTIONS provided on the printed lable

38Click DONE after uploading deposit or printing shipping slip

39CONGRATULATIONS! You just filled out your copyright registra-tion claim

16©2009 Joshua Greene www.legends.licensing.com

Photograph by Milton H. Greene

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Perhaps one of the most iconic and stunning im-ages of Marilyn Monroe taken during her tragi-cally short life shows Monroe seated, wearing a ballerina’s tutu, staring at the camera with her trademark blonde hair, classic face and an ex-pression that defies emotion and description. It is a simple photograph that managed to capture a complex human being very intimately.

However, the photograph was almost lost. Taken by Milton H. Greene during a four-year partnership between him and Monroe during the 50s, one of over 50 sets taken during that time, the image suffered severe deterioration due to the quality of color film during that era.

It was only in 1991 when Greene’s son, Joshua Greene, now the copyright holder of the work, used advancements in digital restoration to restore the photo and publish a book entitled “Milton’s Marilyn,” which included over 150 previously unreleased photos.

The image is now everywhere. A simple Google Image Search for “Marilyn Monroe Greene” turns up over 30 versions of the image on the first three pages alone and finds doz-ens more on other sites, such as Photobucket, an image sharing service owned by News Corp. Worst of all, this only covers attributed uses, another search for “Marilyn Monroe ballerina” turns up many more.

Though it is the dream of every photogra-pher to have a photograph become as iconic as the Monroe ballerina image, it comes with a new set of challenges in terms of copyright en-forcement; challenges that are made exponen-tially worse in the digital age.

Prior to the rise of the Internet, there was very little reason for most people to worry

about copyright laws. Though individuals might have infringed copyright, the infringements were relatively minor and were unlikely to do much harm or attract the attention of copyright holders.

Instead, copyright was largely the realm of those actively involved with media: artists, mu-sicians, journalists, etc. They were the ones with the audience and the copyrighted works that forced them to understand the law.

However, on the Web, everyone is a publish-er. Blogs can reach thousands of people every day, social networking sites can spread content across millions of users and social news sites, such as Digg and Reddit, can send content out to tremendous audiences in a matter of minutes.

The problem is that, of the people wield-ing this new publishing power, only a fraction of a percent are truly familiar with media law, in-cluding copyright. The layperson has been forced to get a crash course in copyright law and the lessons have not always gotten through.

For example, Internet users seem to find nothing wrong with taking a photo, without per-mission, and using it on their personal site. In addition to that, sharing images via email, IM and other means are incredibly common, result-ing in the sharing of copyrighted works in a way that cannot be tracked or prevented.

Copyrighted works are passed around at the speed of light with little regard for their creators and rights holders. This problem only grows, the more popular a work becomes and, as is the case with the Milton Greene photos, can develop into a challenge of epic proportions.

Of all the types of media available on the Web, artists and photographers have the great-est challenge.

Iconic Images Lost and Found

CREATORS CIRCLE

Writers can easily search for their work. Search engines are designed to find duplicated text and a few simple queries in Google can help track a work across the web. Video and audio, both backed strongly by major lobbying orga-nizations, the MPAA and the RIAA respective-ly, have a slew of detection tools built for them. Hosts that work with such multimedia often go out of their way to filter out infringing content, including the use of filters on Google’s YouTube and a “takedown stay down” system on News Corps’ Myspace Video that prevents removed videos from being reuploaded.

Photographs, on the other hand, are works that are easily passed around, difficult to track and lack the push from providers to prevent their infringement. This passing around not only causes licensing opportunities to be missed, but also potentially turns these images into orphan works, works for which the copyright holder is unknown or can’t be contacted, due to the lack of attribution, which is very often left off of copied work.

This orphan works problem is especially dangerous since the U.S. Congress is likely to take up another orphan works bill sometime in the next year, possibly making the use of orphan works, under some circumstances, legal, even without copyright holder permission.

To photographers of all varieties, this is the single greatest threat to their business and one that they have to start dealing with if they are not already.

The good news for photographers is that most of this infringement is innocent. These are not plagiarists or scammers seeking to build a career or earn money while devaluing another’s work. Instead, they are people who enjoy a work and infringe upon it, often without realizing it.

The other item of good news is that there are laws that can help defend your work, with-out suing these individuals, and technology is starting to catch up with the problem.

On the legal side, the Digital Millennium Copyright Act (DMCA) and European Directive on Electronic Commerce (EDEC) offer a system by which a photographer, or any copyright hold-er, can demand the removal of a work from a host and have it taken down. For most infringe-ments, it only takes a few moments of research and a templated letter to secure removal of a work from a website. No lawyers need to be in-volved and no lawsuits are required to be filed.

On the technology side, though professional solutions such as Digimarc and PicScout have existed for some time, newer tools, such as The Copyright Registry, are targeting a broader au-dience. This promises to make them more useful not just as copy detection systems, but also as databases to find the owners of orphaned works. Likewise, visual search engines such as Tineye are making it possible for photographers to do the same kind of searching for images that writ-ers have been able to do for years.

But where technology and the law can pro-vide a large part of the solution, they cannot solve the problem alone, especially when dealing with iconic photographs that are spread well be-yond what can easily be tracked and stopped.

A much larger solution is clearly needed for this problem. Though the movie and music stu-

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dios have not been able to completely cap shar-ing of their content via p2p networks, they have been able to do a reasonable job with handling infringements and misuse on the Web.

First, photographers and artists need to work with the larger image hosts such as Image-shack, PhotoBucket, Flickr, Facebook and more to ensure that infringing works are not uploaded. Where filtering is common on video sites and even some Bittorrent sites provide a filtering system,

no image host provides such a feature nor do they offer “takedown stay down” functional-ity. Without that, many times, each takedown

simply results in two more being uploaded.Though the relationship between the stu-

dios and Web hosts has often been rocky, such as with the recent billion-dollar lawsuit between Viacom and YouTube, overall, the level of coop-eration has been much higher recently.

Second, there is a need for truly simple li-censing. Where the licensing scheme most photo agencies use was developed in the pre-Internet age, there is a need for licensing that can be un-derstood by anyone. A recent study by iCopy-right found that the vast majority of Internet users were confused by “article tools” found on Web sites, these are tools used to print, email, share content, and that they often mistake these tools for permission to go well beyond what the tool was designed to do; for example, using an “email” tool to send it to many thousands over a mailing list.

Third, there is a need for legitimate alter-natives to piracy. Hulu, for example, has done a great deal to keep copyright infringing video off of YouTube by not only providing a legal al-ternative but also by providing a superior one. Likewise, many TV networks have begun offer-ing their videos online at higher quality, with

their own ads, in an attempt to capitalize on this market.

On this front, services such as PicApp, GumGum and Voxant Newsroom may be a hint as to the direction these services could go for photographers, illustrators and other creators.

Finally, and most importantly, there will be a need for education and information about these services. The truth is that most people, even nearly a decade after Napster was shut down, are still woefully unaware of the nature of copyright on the Web and, without intending to, are violating rights.

Until that is stopped, it is unlikely any other solution will be able to have an impact.

Photographers, illustrators and artists face what is almost certainly the greatest challenge in enforcing their rights of any rights group. The nature of their work, combined with the legal climate on the Web, works against them and, the more popular and iconic their creative works become, the worse the problem grows.

However, there are ways to fight back at this and steps that photographs and their rights holders can and should take to protect their work.

There are no easy answers to this problem, but by looking to other industries and seeing the solutions that have worked for them, as opposed to the ones that have only brought additional problems, we can begin to develop a strategy that will keep images as safe as possible.

In the end, piracy and other forms of copy-right infringement will always be a problem for photographers, as they will be for any other copyright holder, but by minimizing infringe-ments and enforcing rights effectively, the prob-lem can be minimized and the Web can become a great business opportunity, even for those iconic photographers that have the largest prob-lems with infringement.

Jonathan Bailey is the Webmaster of Plagiarism Today (plagiarismtoday.com) and

works as a copyright and plagiarism consultant, helping copyright holders of all varieties best

protect and exploit their works on the Web.

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Most users think it should be OK to copy im-ages from web sites for personal use. That’s the conclusion of an informal poll conducted by Cre-ators Circle Magazine. Aside from picture pro-fessionals, most content consumers perceive that online images should be free for the taking.

Two venues were used for the May 2009 poll. In New York City, people were asked face-to-face in a park and on a busy street corner, “Should it be illegal to copy an image from a web site for your personal use?” 74.3 percent of 144 respondents said “no,” it should not be ille-gal to take web images for personal use.

Whereas the street poll was completely ran-dom, the same question was posed online on the home page of four stock photo web sites. Be-cause these users are much more familiar with stock photography and copyright, the response was even more surprising. Of 59 respondents, 45.8 percent also said “no,” taking images for personal use should not be illegal.

Many people gave a quick and emphat-ic “no” response. A 47-year-old man shouted, “Never!” In spontaneous discussions that often followed the one word answer to the survey ques-tion, the reasons given why it should not be ille-gal ranged from the belief that personal use does not gain money to the notion that images are in the public domain by default.

The smaller percentage who believe unauthor-ized copying should be illegal (25.7% on the street, 54.2% online, and 34% on average) declared that taking credit for another’s work is stealing. One young artist resoundingly indicated it should be ille-gal, saying “Yes, because I make images.”

There was a tiny percentage on the fence,

And The Survey Says...!CC’s Street and Cyber Pollsters Weigh In by Marie J. Pellegrino

conveying that there needs to be a limit as to how far personal use can be taken. Many of those who felt this way said that images in the public domain should be free to use. To this point, someone said, “It depends on how general the information is,” so a famous artwork, like “Starry Starry Night” by Van Gogh, should be freely available for personal use. Although, one declared that if it is copyright-ed, then it should not be used.

Some respondents questioned the definition of personal use in the survey. Those polled seemed to view personal use as hanging a picture on a bed-room wall, utilizing an image for a school project or using it at their web site or blog. A graduate student, who said it should be legal to use web im-ages for personal use, explained, “If I had to pay for images for my presentations, then my presen-tations would be less effective.”

Responses also indicated that it is unclear in the minds of users where the lines are drawn. What is copyrighted and what isn’t? According to the U.S. 1976 Copyright Act, a work is copy-righted upon creation. Many respondents seem to think the line is thin and in the distance. Al-though the percentage of those who don’t know the rules or who would prefer to ignore them would seem to be significant, most who said “no” in the street poll also mentioned that if someone published and received money for using another’s image without permission, then that should be il-legal. To this group, receiving money is not per-sonal use. Most agreed with a 25-year-old female social worker, “To use it for profit, I think that’s not right. Not for profit would be okay.” Many seemed to believe that if money were not gained for the personal use, then there is nothing illegal

NOT ILLEGAL 74.3%

ILLEGAL 25.7%

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creator of the image when someone, especially a student, uses an image from a web site to show that he or she is not the creator and to separate it from his or her work.

In summary, this poll, which has a large margin of error, shows that most people (66% in the survey) feel it is OK to take images from a web site for their personal use provided they are not making money from the images or taking credit for the creation. Users feel it is important to make sure that others know the image belongs to someone else, too.

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“Should it be illegal to copy an image from a Website for your personal use?about it. While others found it to be completely illegal, especially to one person who responded that someone copied and used her image.

Besides the issue of money, another aspect raised in several responses is who gets credit for the image? Most agreed that no one should take credit for someone else’s creative work. Many who said it should be legal to copy images from web sites for personal use explained that as long as a person did not say he or she created the im-age, there is nothing wrong with using it for per-sonal use. Some suggested it is best to cite the

ILLEGAL 54.2%

NOT ILLEGAL 45.8%

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CREATIVE CIRCLE :: What made you decide to be a photojournalist? RANDY TAYLOR :: Photojournalism is where the action was. It was a way to change the world, or at least, I believed it was. I could go cover a story in a foreign land, immerse my-self in languages and cultures and come back with pictures that were seen by lots of people, sometimes hundreds of millions of people. It was quite a rush. How many images have you produced in your career? It’s really hard to say. In the eighties, I traveled about six months out of the year. One year, I went 18 times to Cen-tral America. I was buying and shipping a lot of film, keeping Fuji in business it seemed. The total of images created in my life would cer-tainly be in the hundreds of thousands, maybe even the millions. The number of published im-ages is in the tens of thousands. Having been with both the AP and Sygma, these were two really big distribution channels. That spread my images far and wide at the time. As a photog-rapher, has your work ever been infringed upon that you know of? Absolutely, every

Randy TaylorThe Road to C-Registry

photographer’s work has been infringed on. Of-ten there is a great success where the photog-rapher wins and it ends up being worth a lot of money. Especially if the copyright has been registered with the U.S. Copyright Office and statutory damages can apply. In my particu-lar case it was most often for books or some-thing where somebody had gotten the photo-graph thinking they had the rights to it, but in fact they had not. Actually one that immediate-ly comes to mind is a self help book by a well known guru at the time, on how to make money. He ended up paying a higher price for the cover photograph then he would have had he negoti-ated the fair use up front, but in the end it was a very handsome price that was paid for the cover of the book. Has your career as a photo-journalist influenced your new company? From the earliest age, I understood the value of own-ing one’s own images and not signing away the rights to those images. Photojournalism has been an evolution that led us to stock photogra-

By Aaron Lenza

After more than twenty years of photojournalism under his belt, his contributions to the creative world began changing in 1999, when Taylor co-founded Stock Media Corp., a technology for granting rights and e-commerce for photographers and photo agencies. By 2004, Randy co-created StockPho-toFinder.com, a search engine exclusively designed to find stock photography. Recently, Taylor’s eight-month-old newborn, C-Registry.us, is a direct response to global changes in copyright legislation along with the internet’s grueling growth rate and resulting challenges.

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phy, to the portal, the knowledge of key word-ing and distribution, and ultimately the monitor-ing of online use and marketing of one’s brand, which is assisted by C-Registry.us. With the internet being around for so little time in his-tory and it is only getting larger by the minute, how does this affect photographers’ copyrights? Since Al Gore invented the Internet, nobody re-ally envisioned the magnitude of this problem. It is a problem that is very large and accelerating. Everybody perceives that content online is free. The reality is that almost all content on-line is not free. Some-body owns it. Some people don’t object to other people using their content, at the same time, a lot of people make their livelihood from receiving payments for their creative efforts. This is true whether we are talking about pho-tography, illustrations, art, or big copyrighted properties like movies and TV shows. The solu-tion to the problem is to be able to convenient-ly find the rights holders to the content and for the rights holders to be able to find the uses of their content. With threetrillion images on-line, photography is the area that is abused the

most and has the greatest potential for a fair solution. Every month a handful of top photo sharing sites upload more than 1 billion new images. The quantity of new imagery being up-loaded is mind-boggling. How is C-Registry a solution to the problem of copyright infringe-ment for global artists? C-registry is all about the web, where the problem of unidentified and unauthorized use is much bigger than in print. What C-Registry does is it enables everyone to

find the owner of content from any website, as long as that web content has been claimed in the database. This is fairly significant because there are about three trillion images online and the vast majority of these have no credit, so to be able to find a photographer or creator of any content and contact that person, to ask permis-sion to use that content is a pretty big capabil-ity How long has it taken you to develop your ideas into a tangible piece of work? In some re-spects this is the culmination of a lifetime

Taylor’s first Kodak Instamatic 104, complete with flash cube, was the beginning to his career as a photographer

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of interest in photography. As a small child I had a Kodak Instamatic 104 with a flash cube. The real idea for C-Registry came when I read the senate and house version of the Orphan Works Act and realized the legislature calls for a reg-istry. We had all the capabilities for creating that registry. Beyond Orphan Works, the need to

identify the owners of content is a real need that spans all users today both professional and per-sonal. C-Registry is a direct result of global legis-lation that is moving forward for Orphan Works. That is the compelling reason for doing C-Regis-try, at its heart, it is designed to protect the cre-ators and rights holders as copyright laws change around the world.

What else is being done to protect artists in the world? There are a number of initiatives that are going to help creators and the industry in gen-eral. One that is very dear to me is the PLUS coalition, at Useplus.org. We created the under-lying numbering system for the PLUS licensing matrix. PLUS is an open source solution that

automates the licens-ing of images. It is a critical component in the streamlining of publishing work flows and the tracking of us-age rights for images.

This will be a major plus, pun intended, for the in-dustry. Other organizations like PACA, ASPP, the MILE project and others are also driving aware-ness and education as well as supporting the tools that support the creators and their agents.

“I would like for every photographer in Flickr, Facebook, or Photobucket to know

where their pictures are being used.”

Photograph by Dagmar Fabricius

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In 1919, Duchamp drew a moustache on the Mona Lisa. Andy Warhol has famously applied ar-tistic effects to trademarks. Applying art to art is an artistic expression of itself by many standards of society. But what happens when the commer-cial value soars of a combined creative work? When success is applied to the tug of war of ar-tistic expression, whose art should prevail? Copy-right is a key ingredient in deciding that answer.

A recent and prevalent dispute with regards to the use of a manipulated image used with-out the consent of the rights holder is that of the Barrack Obama graphic used by artist Sheppard Fairey. The image, which is the original photo-graph of Associated Press photographer Man-nie Garcia, and owned by the AP, was allegedly cropped from an image of Obama and George Clooney in attendance at a panel discussing the genocide issues of Darfur in 2006, and stylisti-cally altered. (Some point out that the pose of Obama in the poster image also matches anoth-er Garcia image of Obama alone.) The graph-ic done by Fairey quickly gained attention, and was an overnight sensation that resulted in the Obama campaign working in conjunction with the LA based artist to produce several other simi-lar graphics for the campaign (with permission of the photographer). With all of the hype of the original graphic, the origins of the image were learned, and as a result, settlement discussions began between the AP and Fairey. Though both parties agreed to take no legal action while dis-cussions were taking place, Fairey filed a surprise lawsuit on the AP in early February.

Fairey has expressed his reasoning for the lawsuit on his personal website, obeygiant.com.

Copious DisputesIn Art vs. Art, Who’s the Artist?

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Photograph by Mannie Garcia/AP

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He states, “I am fighting the AP to protect the rights of all artists, especially those with a de-sire to make art with social commentary. This is about artistic freedom and basic rights of free expression, which need to be available to all...” He goes on to say that he stated from the begin-ning that the graphic was referenced from a pho-to and that he “think(s) reference is an important part of communication, and it has been common practice in the art world.”

In the lawsuit with the AP, Fairey is using the fair use doctrine as means for defending his actions. Fairey argues that he did not make the image for financial gain, but instead to further Obama in the presidential election, and that the money earned from the graphic was reinvested in the campaign. He also states that the value of the original photograph has increased immensely with copies of the original photograph selling for $1200 a piece at a New York City gallery. In re-gards to the first and third factor of the balancing test, namely the purpose and level of distinction of the copied image, Fairey says, “The illustra-tion transforms it aesthetically in its stylization and idealization, and the poster has an altogeth-er different purpose than the photograph does.” He goes on to say “It’s a political statement. My Obama poster does not compete with the intent of, or the market for the reference photo.”

The Associated Press feels very different-ly about the issue, indicating Fairey’s use of the poster is commercial, and filed a countersuit claiming copyright infringement as a result of Fairey’s lawsuit filing. Paul Colford, Director of Media Relations at the AP, stated “The Associat-ed Press is disappointed by the CONTINUED...

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by Shepard Fairey and his company, and by Mr. Fairey’s failure to recognize the rights of pho-tographers in their works. He went on to say the, “AP believes it is crucial to protect photogra-phers, who are creators and artists. Their work should not be misappropriated by others. The photograph used in the poster is an AP photo, and its use required per-mission from AP.” The AP also has made a point to mention that a settlement would have gone towards the AP Emergency Relief Fund, a fund helping those AP journalists who have had personal loss due to nat-ural disasters.

It should be noted that one of the exclusive rights of a copyright owner is the right to autho-rize an adaptation of an original work to create a derivative, such as a painting from a photograph. This is a right that is licensed by the AP.

The Fairey poster is reminiscent of the fa-mous graphic of the infamous Che Guevara, cre-ated by Irish artist Jim Fitzpatrick from the orig-inal taken by Fidel Castro’s photographer at the time, Alberto Korda. Though these cases differ due to the fact that the Guevara image and artis-tic effects were created outside the USA deals, the concept, and purpose for both are relatively similar. As it stands the Sheppard Fairy v. The As-sociated Press lawsuit is still in it’s pretrial phase, so the outcome of the matter is still very much up in the air. As fair use is hard to predict, it will be interesting to see if the court finds Fairey’s use, transformative or infringing. No matter the out-come of the legal dispute, the ramifications could impact the future of the artistic world immensely. Artistic effect is often meant to provoke. There is increasing awareness that art can provoke legal dis-putes as well as emotional response to the art itself.

With the current copyright laws in place, the use of another’s image without permission from

the rights holder, for any purpose is deemed il-legal under United States law with few excep-tions. These laws were established to protect the creative rights and business opportunities of art-ists and companies alike. Violating U.S. Copy-right Law can result in statutory damages up to $150,000 per infringement, paid to the rights

holder as compensation for loss of potential prof-its from the stolen image, in part. An exception (loophole to some) though in this copyright law is the concept of fair use. Fair use is a doctrine in copyright law that effectively waves the need for permission from the rights holder before use of his or her image for purposes of criticism, commentary, news reporting, teaching, scholar-ship and the like. To determine whether or not fair use is applicable, U.S. courts employ a four-part test that balances the following factors: the purpose for which the copyrighted image was used (commercial or non-profit), the nature of the copied work, level of distinction from the original image the amount taken, and the effect the manipulated or copied image’s use had on the value of the original. There are no rules as to what is fair use or not, and each case must be examined according to the guidelines that make up the factors.

The purpose for which the copyrighted image was used is the first factor for de-ciding the validity of the fair use doctrine. To justify this factor of the test, one must show that the original copyrighted image was truly transformed with the intention of enriching society, instead of for the sole purpose of profit. A common defense artists

Artistic effect is often meant to provoke

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use in regards to this factor is parody. Thomas Forsythe successfully used the parody defense in 2000 in Mattel v. Walking Mountain Productions. In this case, Mattel claimed among other things that Forsythe had committed copyright infringe-ment with the use of Barbie’s image in his pho-tography series “Food Chain Barbie”. The courts decided in favor of Forsythe stating that the pho-tographer successfully transformed the icon into an entirely different meaning with the intentions of stimulating the creative mind in society.

The second factor in the balancing test judg-es the nature of the copied work. This refers to the way in which the copyrighted work is being used. Exceptions such as using copyrighted works for educational purposes is an example of a vi-able exception in regards to this factor in the balancing test. Courts in the past have also been known to grant fair use for copyrighted works if the usefulness by society outweighs the right to the protected works.

The third factor in deciding the validity of a fair use defense is the amount of the taking level of distinction the copied work has from the origi-nal. This factor relates more towards the expres-sive rights of artists in using iconic images, and manipulating them in a way as to create an en-tirely new and separate meaning from the origi-nal work. In most cases, the less the person uses

of the original work, the more likely the courts will decide the fair use doctrine applies. There are instances though in which courts have decid-ed in favor of the rights holder when only a very minute amount of the copyrighted content was used, due to the importance of that content in re-gards to the original work. For instance, a graph-ic designer could use only the silhouette of a per-son in an image, and the courts could deem this as an infringement if they felt that the silhouette embodied the meaning of the original image.

The final factor in the balancing test used by courts to decide the validity of the application of the fair use doctrine is the effect the manipulated image had on the value of the original work. This factor was set into place to protect rights holders from exploitation of their images. If the courts de-cide that the manipulated image has burdened the financial potential for the original work, then they are more likely to deem the use of the image as an infringement on the owner of the image’s rights.

[Editors Note: Under the assumption that Sheppard Fairey and AP cannot discuss the issue due to pending litigation, neither party was contacted for this story. All information is derived from previous public statements and news coverage.]

L.H.O.O.Q. Mona Lisaby Marcell Duchamp 1919

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Photograph by Milton H. Greene