Wednesday, January 7, 2009

Copyright Infringement?

We regularily read the gadget blog Gizmodo, along with EnGadget, Consumerist, and countless others. About two years ago, we wrote about how Consumerist just published a Getty Images photo with the watermark - (Getty Infringement, 2/27/07) which, to me, is a sure sign that you didn't download the image with permission. Now, we find that Gizmodo has taken a generic shot of the Las Vegas Convention Center, as a part of their CES coverage, and co-opted one of Jill Greenberg's crying babies images to make an editorial comment about CES -(Gizmodo's Guide to CES, 1/7/09). Note that the comment isn't about Greenberg, so this is highly likely to be an infringement.

(Continued after the Jump)

Note that we did a bit of research and couldn't locate a place where Greenburg's crying baby images were being licensed as stock, and they surely are not a part of a subscription model at any stock agency, so Gizmodo would have had to specifically license the image either through Greenberg, or through wherever they might be individually licensed as stock.

Further, it is reasonable to assume that Greenberg would require photo credit, and further, she would require sign-off on a montage of her images with others, and I am not making a major leap here to believe she wouldn't sign off on the above montage.

This would be where a service like TinEye, PicScout, or others would be of great service in locating infringements of your work, or atleast places where your work appears so you can confirm it's authorized, or not. We showed you how TinEye found one of my images within a montage of others last July (TinEye - Oh My!, 7/18/08). Becoming aware of and comfortable with, image search/recognition technologies will be important, and likely something you should do once a day (if you're doing it manually), or set up a solution to search for your images and report all appearances of your images via e-mails.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.


Anonymous said...

It appears to have been replaced already...

Matt Dial said...

John -- I saw that this morning and thought the same thing. How many of these blogs, who wish to be reputable, use images freely as content.

I guess my question is, do sites like Engadget, Gizmodo, actually license images, subscribe to news image feeds, etc.???

Robert Green said...

hey guys

much to gizmodo's discredit they did this in the first place. jill NEVER licenses these images--they are her art and it would diminish the images to have them used in such a manner in jill's opinion.

to gizmodo/gawker's credit, they immediately took the image down when they were asked to without a second's hesitation.

but the bigger question is still there: from my experience watching jill's work get abused by corporations large and magazines large and small, i think there is an enormous issue of copyright abuse that is constant in the business.

my guess is that if a large agency has two choices, 1) get in touch with photographer for additional usage in exotic locale (japan, extra 6 months print or duty free, europe, say) or 2) figure fuck it, the photographer won't see them, then 2) is pretty much the norm. there is a world traveller in our family and that person sees and sends back to us numerous examples of infringements that fit example 1)

as for bloggers, they give not a single shit about copyright ever as far as i can tell. but then i'm a blogger ( and i'm sure there are infringements there. since i don't make a penny off of my blog i guess i assume no one would care one way or the other.

may i suggest someone more clever than i come up with some kind of DRM for images? stat?

J said...

Excellent post John...I just think people are mainly ignorant to the idea of copyright(or willfully ignorant).

Anonymous said...

"to gizmodo/gawker's credit, they immediately took the image down when they were asked to without a second's hesitation."

Okay, let's rewrite that sentence in a different context:

"to the car thief's credit, he immediately returned my vehicle to me without a second's hesitation"

The crime was still committed. Did they license the image? No. Did they publish it, even for a few hours? Yes.

I don't like that the internet gets held to a different standard. If an electronics magazine had put the image on newsstands, people would feel differently, but the ability to change things when the crime has been committed seems to make people give online publishers more leeway. In this day and age of quick publishing and RSS feeds, who knows how many hundreds of thousands of people saw the unlicensed image before the change was made. Yes, it's not sitting on our coffee table, but our minds still saw the montage that was not authorized. So the damage was done. IT WAS STILL USED!

These sites can't even hide behind the DMCA user-generated BS. Yet many of the gossip sites toss up disclaimers saying that "if you see a photo that's yours notify us and we'll take it down." That's like a burglar opening up his house and saying he'll return anything if you can prove it's yours. It's BS.

Anonymous said...

Image and Video Terms of Use

Gawker Media sites typically display images, audio, and video (the "Material") as part of blog posts written by our editors. The types of Material editors are authorized to use on Gawker Media sites include:

Material licensed from photographic archive and video vendors
Material supplied to our editors or released into the public domain by public relations and marketing companies for press purposes
Reader-submitted Material, with the implied representation that the person submitting the material owns the copyright in the material and the right to give it to us for use on our site(s)
Material published on Flickr or other public photo / video sites with licenses granted under Creative Commons, with attribution in accordance with the CC license granted in each case
Material commissioned by Gawker Media
Material that we believe to be covered by the Fair Use Doctrine, taking into account factors such as:
The purpose and character of the use (i.e. transformation from the original, use for criticism, satire or parody
The nature of the copyrighted work (i.e. factual or newsworthy vs creative works)
The amount and substantiality of the portion used in relation to the whole (i.e. use of cropped, reduced, low-resolution Material used for no more than to convey the point made)
The effect on the potential market for the copyrighted work (e.g. use that is not substitutive for the original, or would never be licensed in any event)
If Gawker Media receives notice that Material posted is not in keeping with these terms and conditions or the intended use of the Comments section where it is posted, we reserve to right to remove the material.

If you think we have published Material that infringes your copyright, we will address your concerns; however, if the material falls into one of the categories listed above, we believe that our use is legitimate and we will not remove it from the site.

Please note that we will respond only to notices of alleged infringement that comply with the Digital Millennium Copyright Act. The text of the Act can be found at the U.S. Copyright Office Web Site,

To file a notice of infringement with us, you must provide a written communication (by email with an attached and signed PDF or by fax) that sets forth the items specified below. Please do not send us regular mail, as we may not receive it in a timely fashion. In all cases, if you do not hear a response from us within 10 days of submitting a complaint, please telephone us at (212) 655-9524 x8007 to confirm that we received your original complaint. Spam blockers sometimes devour important emails from strangers!

To enable us to address your concerns, please provide the following information:
For each allegedly infringing image, video or piece of text that you wish to have removed from one of our sites, provide the exact permanent URL for the page containing the material.
Provide information reasonably sufficient to permit us to contact you: an email address is preferred, as well as a telephone contact number.
For images, provide the following information detailing your claim to ownership of the copyright in the allegedly infringing image:

* Proof of copyright in the image concerned, namely proof of registration of the Image under the DMCA,

OR, absent such registration,
a detailed description of where the photograph was taken, by whom, who or what the subject of the image is, AND
Evidence to support your claim that you own the copyright in the image.
We will not comply with requests to remove an image where the complainant cannot prove that they own the copyright in the image in question.
Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
Sign the document and fax it to:
(917) 591-7090, Attn: Gawker Legal / DMCA Complaints

OR email it to:

legal AT gawker DOT com

Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that any material on our sites is infringing your copyrights.

Indeed, in a recent case a company that sent an infringement notification seeking removal of online materials that were protected by the Fair Use doctrine was ordered to pay such costs and attorneys` fees. The company agreed to pay over $100,000. Accordingly, if you are not sure whether material available online infringes your copyright, we suggest that you first contact an attorney.

Please note that a copy of each legal notice we receive will be sent (with your personal information removed) to Chilling Effects for publication.

You can see an example of such a publication at

We also reserve the right to publish your letter on the site(s).

Anonymous said...

Ian: "to the car thief's credit, he immediately returned my vehicle to me without a second's hesitation" ... "I don't like that the internet gets held to a different standard."

It's not held to a different standard. Greenberg is allowed to sue for copyright infringement if she so chooses.

DRM for images, Robert?!? What a frightening idea. DRM cannot account for fair use, and images are the media -- next to text -- that is easiest for most people to work with. Why in the world would we want to limit those potential fair uses?

Unknown said...

There's no need to contact Gizmodo and ask for removal. If it were my image, I'd utterly ignore their BS regarding what I "must" do to get them to remove my image from their site. I'd just sue them in U.S. District Court for Copyright infringement, include that stupid little clause from their website about what I "must" do to get them to remove an image as an attachment to the Complaint, and ask for (and no doubt receive) treble damages for the infringement.

Photographers need to start doing more than just complain about being infringed. They need to sue. And in the cases where the infringement is really over the top, contact US Attorneys and ask for criminal enforcement under Title 17 of the US Code.

I don't think this case is cause for criminal action - not at least at this point, but it seems obvious to me that these folks need an education.

Once the infringers start routinely being forced to pay large damage awards, and a few thieves get sent to jail, we'll see the infringement stop.

Robert Green said...

guys, you are being incredibly naive. jill would love to sue every time her copyright is infringed. we'd be in court 24/7. also, without naming names i will say that a worldwide ad agency flat out stole one of jill's images for a campaign in a large foreign country. a website like this one caught it and flagged it. we had a lawyer call said worldwide agency. agency agreed to pay a decent sum of money immediately by way of avoiding litigation (litigation which frankly they knew we would win).

we were polite and temperate in our language and discussions with them, as was our lawyer. they had done the bad thing and we just wanted to get it dealt with.

after they paid up, they sent out an internal e-mail to all of their art buyers worldwide stating "never hire jill greenberg again".

so, to summarize: jill's rights were infringed blatantly, the agency that did so was called on it, we asked for them to make it right, they pretended to and then screwed us massively.

the upshot? don't ever say anything to anyone. as some of you may know, that's not jill's style, but it does NOT help your career at all.

Anonymous said...

@ Robert Green:

Apologies in advance if I misunderstand:
"agency agreed to pay a decent sum of money immediately " and soon afterward "they ... screwed us massively" with "never hire Jill ... again".

If the agency paid the decent sum of money and then blacklisted Jill, Jill was better off planning for that contingency, by demanding *more* money for the infringement or a guarantee of future work. Jill may have anticipated that and tried to balance risk/reward. If so, I admire her for taking the risk. Thanks for the helpful lesson.

Anonymous said...

w. norton said...

"It's not held to a different standard. Greenberg is allowed to sue for copyright infringement if she so chooses."

I realize that, I just meant to say that many of the online publishers act differently like removing the photo from their site somehow magically removes the legal issue. "It's gone now, what's your problem?" type of attitude.

Over on they were discussing a startup that allows people to upload celebrity photos and then tag the merchandise they were wearing. I commented that it would be yet another place for me to watch for my work and a commenter responded that I could just file DMCA complaints to get them removed. I responded that I was sick of these 2.0 companies hiding behind DMCA disclaimers "we don't know what's being uploaded" while actively soliciting photos that they know aren't going to be the uploaders.


Anonymous said...

GAwker has had a history of thumbing their noses at copyright claims. I'd be curious about the child model's rights as well here. Stealing a picture can expose them to claim's from the model as well.

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Anonymous said...

fair use, get over it.

Anonymous said...







Anonymous said...


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