Archive for the ‘Law’ Category
A Fairy Tale Of New York …
August 22nd, 2012
by Gwyn Headley
Managing Director
… and Pennsylvania, and Indonesia …
Once upon a time (early this morning, actually) there was a photographer who came across a lovely website called fotoLibra.
“Gosh,” he thought. “If I sign up I can upload my pictures to fotoLibra and if they sell I’ll make some money.” So he uploaded two pictures for nothing.
This very same morning a nice lady in New York found the same lovely website.
“Gee willikins,” she thought. “I’ll sign up, and what I’d like to do tonight is buy a photograph of some guitar strings, for 5000 corporate CDs in Europe.”
Within minutes another nice lady in Pennsylvania also discovered fotoLibra and signed up. “Now, let me see,” she mused, “I think tonight I’ll have a photo of some guitar strings on my commercial internet site for a year. Ah! Here we are! The very thing!”
And both ladies, by fortunate happenstance, had hit upon the same photograph, uploaded by our lucky new member in Indonesia only moments before.
What joy! Two satisfied customers and one happy photographer! And they all signed up within 30 minutes of each other! The picture was uploaded and sold twice before it had been online for half an hour. Job done by fotoLibra!
But then, far away on the other side of the world, a new day dawned, and deep in her feculent pit the great JACQUI NORMAN stirred. She pointed one terrible eye at the computer screen and in an instant spotted the improbability of such transactions.
“FF RR AA UU DD !!” she bellowed slowly and heavily, shaking the sere and devastated land around her lair.
As I write, there is no happy ending. The money — a fair amount, paid by credit card — will be deposited in the fotoLibra account by close of play tomorrow. In 30 days we have to pay the photographer.
And in four or five months HSBC will slowly realise there has been a fraudulent transaction and will remove the entire amount from our account without informing us first.
So maybe we won’t be paying this gentleman from Indonesia in 30 days. We’ll just hold on to the money for a little while, and see what happens.
We could be wrong.
But we don’t think so.
Policing Illegal Image Usage: What You Can Do
May 14th, 2012
by Gwyn Headley
Managing Director
We have come across websites which are using fotoLibra images without paying for them. They are using watermarked Preview images, which anyone is at liberty to drag off the site, but not for commercial use.
I’ve borrowed the following piece in its entirety from Jacqui Norman’s May fotoLibra Newsletter because I think an important function of a picture library is not only to sell but also to guard and protect our photographers’ assets, and if we come across any unauthorised image usage it is our duty to harry and beset the perpetrators as best we can. In Britain we have the Small Claims Court which we will unhesitatingly use — overseas it’s more difficult, but there are ways and means — one of which Jacqui proposes at the end of her article.
The benefit for fotoLibra photographers is that a complaint from a company will usually carry more weight then a complaint from an individual. A company is generally perceived to have deeper pockets and better legal support than most individuals, and will usually be prepared to pursue trivial debts which a sole person may not be able to afford, in time or money.
We’re mainly talking here about image sales in the region of £25 / $40. This is not going to rescue Greece’s economy, but if our photographers are losing money through illegal usage, then so are we. We are going to do something about it — but you have to help us by following this procedure. Over to Jacqui:
fotoLibra Member Bob Crook alerted us when he found one of his images with a large fotoLibra watermark being used on somebody’s blog. He asked if we’d made the sale, and we hadn’t — the thief had simply stolen the lo-res watermarked Preview and posted it on her blog.
But Do Not Panic. Your original images are safe. They cannot be downloaded from the fotoLibra site without our knowledge. But anyone can drag Thumbnails and Previews off any website, which is why in our case they are protected with embedded metadata and, in the case of Previews, with embedded watermarks too. We don’t mind students using such images for free in dissertations and essays. If they want to use an unwatermarked version they have to pay, which of course outrages them because they think everything on the internet should be free.
If it’s not for student use, we charge. But how do you track down unauthorised usage of your images?
Here’s how Bob does it, slightly adapted to suit all fotoLibra members:
Open Google Images in one browser.
In another browser, go to your Portfolio in the fotoLibra Control Centre. Choose one of your images. Double click to enlarge it into a watermarked Preview image.
Highlight the image, and slide it onto the bar on the Google page.
It will take only a few seconds to search.
When it has finished you will see the image at the top of the page and a list underneath of where it is being used.It also attempts to show you similar images by matching the colours. Sometimes this is impressive. Sometimes it makes you realise how alien a computer’s “intelligence” can be.
If you have some curiosity and spare time, please check through some of your images this way. If you do find evidence that one or more of your images is being used without your knowledge or consent, this is what we want you to do: Email me [that’s jacqui (dot) norman (at) fotoLibra (dot) com] with a) the FOT number of your image, and b) the precise, full URL of where you saw that image being used.
We will contact the abusers and demand payment on your behalf. We can never guarantee success, particularly in overseas jurisdictions, but we can certainly frighten them, and we can name and shame them.
In fact — here’s a thought — if people don’t pay up, I might publish a regular Cheat List, where we can publicise URLs where any unpaid for fotoLibra Preview images appear, and fotoLibra members and friends can then comment on the probity and honesty (or otherwise) of the offending sites. What do you think?
Well Jacqui, I think it’s a good idea. Not a great one, because at heart I’m not confrontational, but if I sit down and think about this I can work myself up into quite a state of indignation. These people — I don’t know how many of them there are — are thieves. Bob Crook has found two, and checking through ten of my underwhelming images I have already found two which are currently being used illegally. That’s 20%. Admittedly I did choose ten images I thought might lend themselves most readily to theft. Tineye is another good way of uncovering shady image use.
I’m happy to name and shame any site which uses a fotoLibra watermarked image without permission. However I won’t rush straight in whirling my bat around my head because I’ve stepped up to the plate for young Bob before, when he claimed some publisher had used a fotoLibra image without permission. We investigated and discovered the image had been uploaded to fotoLibra three weeks after the book had been published — Bob had sold it through another picture library and had forgotten all about it. We had our ears torn off by a slider from the publisher and I don’t think we’ll be selling them any images for a while.
So we’ll tread softly. And carry a big stick.
An Obnoxious Vanguard?
April 25th, 2012
by Gwyn Headley
Managing Director
We’re busy with our final preparations for fotoFringe London 2012, the picture buyers’ fair which is being held tomorrow in King’s Place, a newish office block and conference centre where The Guardian have their offices, near King’s Cross.
And it’s an article in The Guardian that I want to write about. A friend in Euskadi alerted me to this one (thank you Peta) because it’s one of my favourite topics — the freedom of photographers to use their cameras.
Stonehenge, Trafalgar Square, National Trust properties, a whole bunch of places in the USA — the list of places where photography is banned or restricted lengthens daily. Now, unsurprisingly, we can add the Olympic park in East London to the list.
I’ll never get to see this place because all my ticket applications have proved unsuccessful. However I am permitted to contribute substantially towards it through a hike in my London rates over the next ten years. So I’d like to see some pictures of it.
The Olympic venues are technically private property (purchased using our money, but when did that ever restrain our dear leaders?) so control can be asserted over what can and can’t be photographed within the precincts. But not on the public spaces surrounding the venue, of course.
The Guardian thought this could be interesting, so they sent a couple of photographers and a video to test the temperature of the waters. They struck lucky straight away when they ran into an incompetently and incompletely briefed security guard whose debating skills and command of English were no match for the fiercely well prepared Guardian hacks. He simply attempted to stop them filming in a public place. They refused. Reinforcements arrived.
And here — well, you know I’m on the side of the photographers, but this was outright provocation and harassment. The Guardian hacks were milling around, pushing for a reaction. But they came up against an intelligent, articulate and reasonable security supervisor who conceded they had a right to photograph on public land but as this was a sensitive area — the Olympic Park’s security centre — it would be most awfully kind of them if they could possibly desist.
The Guardianistas hectored and interrupted. They tried to photograph the armband name badge of an old fart security guard who looked worryingly like me, and he tore it off to prevent them. Bad move. The hacks loved it.
I want photographers to be able to photograph what they want when they want where they want, within reason and without causing offence, upset or danger. Yes, there are security concerns. Yes, there are privacy issues. I’m less impressed by the “we own it, therefore we should profit from it” brigade. I personally find papparazzis distasteful, and I believe they were the major contributing factor in the death of Princess Diana.
Our cause isn’t helped by photographers manufacturing an incident where none existed. But every movement needs an obnoxious vanguard.
Doesn’t it? What do you think?
http://www.guardian.co.uk/sport/2012/apr/23/olympic-park-security-guards-journalists-photos
More photography banned
March 8th, 2012
by Gwyn Headley
Managing Director
Tags: animal rights, ban, banned, human rights, legislation, photography
This is getting ridiculous.
Utah, the American state founded by Mormons, is banning the photography of farms and farm animals.
The bill is called HB187, and the Utah Senate passed it on a 24-5 vote. Then the Utah House approved the Senate amendments 62-13. The bill goes to Governor Gary Herbert for his signature of approval today.
No doubt it will pass, and become law, and we’ll have another of those quaint old statutes such as a Welshman caught on the streets in Chester after midnight can be hanged, London cabbies must carry a bale of hay in their boots, and you’re not allowed to photograph Trafalgar Square.
Now every rational human — and quite a few irrational ones — will be scratching their heads and asking, “What is that all about?”
Well, as far as I can ascertain, farmers in Utah are fed up with rogue photographers snapping images of their appalling, brutal, barbarous, inhumane and mediaeval practices. Of course, I could be wrong, but that’s the way it looks from this Atlantic shore. By depriving humans of their rights, the Utah legislature is allowing unscrupulous people to go about depriving animals of their rights.
Talking about mediaeval, those Mormons would have been denounced as heretics by the Spanish Inquisition. And everyone knows what happened to heretics. It was appalling, brutal, barbarous and inhumane. And nobody expects the Spanish Inquisition.
Those Americans, eh? What are they like? They describe their country as the home of the brave and the land of the free. Not in Utah, it isn’t. What jolly japes will they get up to next? In the words of Cerys Matthews, longtime resident of the USA, “Every day, when I wake up, I thank the Lord I’m Welsh.”
And I’m not planning to visit Utah any time soon.
Or Chester, come to think of it.
Proposals to change the UK’s copyright system — make your voice heard
February 6th, 2012
by Gwyn Headley
Managing Director
Whatever one may think about the UK Government, it cannot be faulted for its inclusive approach to pre-legislation consultation. fotoLibra, along with other parties interested or affected by changes in copyright legislation, has been offered the chance to comment on a working document of proposals to change the UK’s copyright system.
In fotoLibra’s case this directly affects our livelihood, and, by extension, not just the income but also the rights of our member photographers. We have to make our views known, whether or not we feel it will have any effect.
First, some practical considerations. The consultation document is over 50,000 words long, about the length of a novel, though not as pacily written. Then comes the consultation response form. This has 113 questions, each of which demands a full written response — no multiple choice options here.
So we can’t fault the process. We are being given every opportunity to have our voice heard, and in depth. My only quibble is my own indolence and my lifelong fear of exams. This looks like an exam paper to me. But I’ll have to buckle down to it.
If any fotoLibra members want points to be raised within the framework of the consultation document, we will be happy to include them in our response. It would be invidious of me to summarise the consultation here, so I’ll simply give you this link to it. I will be happy to include your opinions in our formal response, which we will have completed by March 14th.
Please send your responses to me by March 7th. They must contain the relevant question number from the Consultation response form. Here is a sample question from the form:
63. What do you consider the process and threshold for non-compliance should be? For example, should Government test compliance on a regular basis (say by following Ombudsman’s reports) or on an ad-hoc basis? What evidence would be appropriate to demonstrate non-compliance? Please give reasons for your response.
Any response without its relevant question number and any responses received after March 7th will not be included in our submission, and that includes comments on this blog. UK subjects only, please.
We get more questions about copyright from fotoLibra members than almost anything else, and we are no position to answer them definitively. Copyright law is complex and difficult to interpret without expensive legal assistance. Although lawyers and other people (such as us) may offer views on the meaning of the law, only the courts can set precedents through their judgements; and as we all know, the law means great expense. However well-meaning and fair-minded the new law intends to be, justice will go to those with the deepest pockets.
There’s no cloud without a silver lining. The pathetically low fees now being paid by picture buyers mean that few people are making enough money from their image sales to attract the attention of predatory lawyers. So for the time being this copyright law, such as it is or will be, probably may not be troubling us unduly.
When we become rich and successful, that’s when we can expect Mr Lionel Hutz to come calling.
Do Not Photograph Trafalgar Square
February 2nd, 2012
by Gwyn Headley
Managing Director
The excellent Photo Archive News has today run a piece on a proposed piece of legislation which will affect any photographers who hope to take photographs in London’s Trafalgar Square or Parliament Square Garden and upload them to a picture library such as fotoLibra.
Here’s the relevant draft legislation from The Trafalgar Square Byelaws [2012]:
5. Acts within the Square for which written permission is required
(1) Unless acting in accordance with permission given in writing by the Mayor, or any person authorised by the Mayor under section 380 of the Act to give such permission, no person shall within the Square —
(p) take photographs or film or make any other recordings of visual images for the purpose of or in connection with a business, trade, profession or employment or any activity carried on by a person or body of persons, whether corporate or unincorporate;
Effectively this means it will be illegal to photograph Nelson’s Column without written permission.
This may be impossibly difficult to enforce, but nevertheless if it gets on to the statute books it will be the law. Should some pocket Hitler of a bureaucrat decide to get nasty, he will have The Law On His Side.
So it is in all our interests to prevent this baffling and unnecessary piece of legislation becoming word of law. It is hard to see who benefits from this proposed legislation. It is much easier to see another small erosion of the freedom of photographers.
The proposed byelaws have now been signed, which means they are well on their way to becoming law. There is still a faint chance they might listen to reason, because they say:
Any objection to the confirmation of the Byelaws may be made by letter addressed to Carl Schnackenberg, Department for Culture, Media and Sport, 2-4 Cockspur Street, London SW1Y 5DH, or by email to: Carl.Schnackenberg@Culture.gsi.gov.uk.
Please write and tell Mr Schnackenberg how you feel. The deadline is February 29th.
Uploading Copyrighted Images
November 25th, 2011
by Gwyn Headley
Managing Director
Yesterday we sold an image for a large amount of money, bought off the site by credit card.
As always, we were delighted — until we saw the image. It was a very jolly and colourful cartoon in a style reminiscent of the 1970s. I thought Blimey, this photographer is talented! He can’t half draw!
And then a little shadow of suspicion crossed my mind. This cartoon looked like the work of a commercial artist from the 70s, not a talented photographer from the 20 teens. We looked at the photographer’s portfolio. As well as his photographs there were several images which demonstrated a bewildering variety of artistic talent, from etchings to cartoons. In a number of different styles.
Now fotoLibra prides itself on being an open access picture library. Anyone can upload anything as long as it passes our technical Submission Guidelines (and isn’t porn, of course) and the photographer adheres to our terms and conditions.
One paragraph reads as follows: (The Member warrants that) it owns the Intellectual Property Rights in the Images and licencing of such rights shall not infringe any third party’s right to privacy.
In our expensive lawyerspeak, this means fotoLibra members are only allowed to upload images which are their copyright, or in the public domain. In the UK, copyright persists for 70 years after the death of the creator of the work. So the work of artists who died before November 24th 1941 can be sold on fotoLibra, unless their estates have extended the copyright.
We go on to say that if someone sues, we’ll dump them faster than Gaddafi shot up a storm drain, or in more lawyerspeak: fotoLibra shall in no way be liable for any breach by the Member of the warranties and the Member hereby indemnifies fotoLibra from and against any and all claims, liabilities, damages, actions, proceedings (including reasonable legal fees and expenses) that may be suffered or incurred by fotoLibra which arise out of or in connection with such a breach.
Our chastened member has removed the offending images. In turn we have grovelled in front of the innocent purchaser, rent our garments and refunded his money. He has been more than magnanimous in his understanding, and we hope he will be buying a different (and even more legal) image from us.
How wonderful some people are.
Please please PLEASE do not upload images for which you do not hold the copyright. And immediately delete from your portfolio any such images. We’ll delete them when we find them, as well.
But it’s YOUR responsibility.
Opening Up Stonehenge
October 25th, 2010
by Gwyn Headley
Managing Director
The public reaction to my previous blog posting Stonewalling Stonehenge has been remarkable, and understandably the majority of comments have been in favour of the rights of photographers.
I wanted to address each individual comment in turn, but there were simply too many for me to cope with and keep fotoLibra ticking over at the same time. So firstly I want to thank everyone who took the trouble to make their points. Over 10,000 people, among them BBC Radio 4’s PM programme, read the comments, and PM invited me on air to discuss the subject. Eddie Mair gave us four and a half minutes (the piece is about 40 minutes into the broadcast). The story was picked up and repeated (with varying degrees of accuracy) in blogs around the world.
By the way, I know some of you think Jacqui Norman wrote this, but in fact the writer is Gwyn Headley, the founder of fotoLibra. Jacqui writes the fotoLibra Newsletters and the Picture Calls. Rather than adding to the comments on the original blog, I decided to lay out my subsequent thoughts in this second posting.
In this economic climate I do feel it is ambitious of property owners to ask for a commercial photography fee from photographers upfront, unless exceptional access conditions are granted in return.
But the strength of feeling against English Heritage surprises me. I almost find myself in the invidious position of having to defend them.
First of all, English Heritage is a wonderful institution doing an amazing job with diminishing resources in the face of hostility from both the public and the Treasury. One small thing that would make a big difference to their ability to cope would be the removal of VAT on building repair and conservation work. But our politicians and tax officials are too craven, indifferent or greedy to allow that minor concession.
Like all organisations, English Heritage will have its fair share of zealots, jobsworths, and staff who are plain barking mad. They can be rigid, bureaucratic and inflexible. They will retreat behind barriers of obfuscation and legality. But behind it all their purpose is simple: to do their best to preserve the threatened, imperilled heritage of England. In Wales, we have Cadw, banished by the Welsh Assembly Government to a prefab on an industrial estate on the outskirts of Cardiff, so highly do Welsh politicians regard our heritage. Scotland has Historic Scotland, about which I know less. They all suffer the same slings and arrows.
My parents, living in a Grade I listed house, were not allowed to change their bedroom wallpaper. It was a Chinese print dating from the eighteenth century, and it needed to be preserved. We had no problems with that.
There is always the danger of the Taste Police stepping in and obstructing development, but when there is pragmatism and understanding on both sides a mutually agreeable solution can usually be thrashed out.
I remember with sadness the wonderful Art Deco Firestone Building on the Great West Road in London. It was listed by English Heritage, but being office workers they tend to go home at 6 o’clock. At 6:05 on a Friday evening, the bulldozers went in and by the time English Heritage officials were back at their desks on Monday morning the fabulous, unique Firestone Building was a pile of rubble. The slimeball developer was fined the maximum — £5,000.
But let’s get back to photography and the rights of photographers — specifically fotoLibra members — to photograph what they like. In a free country (and I don’t believe there is any such place, on this planet at least) people should be allowed to photograph what they can see. How you subsequently use that image is up for discussion.
It would be unwise, unjust and unfair to use a photograph of an innocent stranger to promote a commercial product, or to illustrate an editorial piece on the perils of drug abuse, sexual perversion, or any other rabble-rousing indiscretion. The person concerned could sue and would quite possibly — or would certainly deserve to — win.
I might think it tasteless to commandeer Stonehenge to promote some commercial service or artifact, but we’ve been worrying this bone for six days now and there doesn’t seem to be a thing anyone could actually do about it in law.
So instead of issuing poorly worded and hastily thought out decrees which have the unfortunate effect of getting up everybody’s nose and giving bureaucracy a bad name, why don’t organisations like English Heritage open a dialogue with organisations like fotoLibra and see if we can work together towards a common goal?
They want to preserve our heritage (and so do I) and we want to sell more images. I’m sure we can do a deal.
I’m picking up the phone right now.
Stonewalling Stonehenge
October 19th, 2010
by Gwyn Headley
Managing Director
We recently received the following email from English Heritage:
We are sending you an email regarding images of Stonehenge in your fotoLibra website. Please be aware that any images of Stonehenge can not be used for any commercial interest, all commercial interest to sell images must be directed to English Heritage.
It’s kind of them to think of us, but this raises a number of questions.
Firstly, what legitimacy do they have for this claim? Is there any law that states that it is illegal to use images of Stonehenge for any commercial interest? Can someone direct me to it?
Secondly, if an image of Stonehenge is so used, how could they possibly police the usage? A quick browse through a number of rights-managed and royalty-free online picture libraries produced the following:
iStockPhoto (a US owned company) has 513 images of Stonehenge
Fotolia (US) has 648 images of Stonehenge
Dreamstime (US) has 670 images of Stonehenge
Shutterstock (US) has 737 images of Stonehenge
All the above sites sell images on a royalty free, unrestricted usage basis. If anyone buys a royalty free image from one of these suppliers then he’ll be using it as, where and when he likes, without asking English Heritage’s permission. How will they stop that?
Alamy (UK) has 1130 images of Stonehenge
GettyImages (US) has 860 images of Stonehenge
Corbis (US) has 426 images of Stonehenge
fotoLibra (UK) has 223 images of Stonehenge
Photo 12 (FR) has 114 images of Stonehenge
These are mainly rights managed. Rights managed images are essentially designed for a specific and time limited usage, and they’re more controlled and controllable than RF images.
Has every picture library with images of Stonehenge received this email? If we really are breaking the law by selling images of Stonehenge to be used for any commercial interest, then of course we will cease and desist immediately. However nothing in the National Heritage Acts (1983, 2002) which brought English Heritage into existence refers to their right to prevent the sale of images of any of their properties. In any case it must be legal to display them for sale if we intend to sell them for non-commercial (i.e. editorial) rights-managed usage.
If English Heritage wants to stamp out the unlicensed, unregulated, unlimited usage of RF images of Stonehenge they will have to talk to the people who hold those sorts of images for sale. In a large number of cases they will find that the picture libraries or stock agencies who hold these images are owned by foreign nationals who are not subject to British jurisdiction, who are based overseas, who have no connection, emotional attachment or even necessarily fondness for the United Kingdom.
Why the hell should they listen to a powerless quango which wants a slice of their profits? English Heritage is the current custodian of Stonehenge. It has been their responsibility for 27 of the monument’s 4,500 year old history. And they want to own the image rights to the site. (BTW It’s well known in the Headley family that our great x 170 – grandfather Elfis carved the stones for Stonehenge out of the Presley mountains in Wales, so our claim to the site is far longer than English Heritage’s nano-ownership (o.oo6% of the lifetime of the henge)).
In a recent blog post I noted the plight of a property owner in San Francisco who took the HSBC Bank to court for using a photograph of his house in a promotional leaflet without his permission. He lost, seven times over. That doesn’t set a strong precedent for EH or the National Trust or indeed any owner whose property can be seen from public land. Google Earth and Google Maps have pretty clear images of the place, as well.
OK, English Heritage’s email did not ask us to remove the images of Stonehenge from fotoLibra. But they did use imperative, urgent words like ‘can not’ and ‘must be’. I am ready to be proved wrong, but I don’t believe there is any legal substance behind the request. How can there be? Look at this:
Photo © Clive Morgan / fotoLibra
What if we photograph the place from the air? What law can we possibly be breaking here?
While we’re looking at Clive‘s photograph, who built that ugly tarmac footpath cutting through the sacred ring?
Quis custodiet ipsos custodes?
Curious
July 1st, 2010
by Gwyn Headley
Managing Director
Man joins fotoLibra as a Seller at 12:45 and uploads four photographs.
Another man in another country on another continent joins fotoLibra as a Buyer at 17:15 and immediately buys one of the new seller’s photographs for £140, paying by credit card.
Why am I suspicious?
Nobody has joined and made such a quick sale as this since last year, when a Brazilian signed up and uploaded five photographs, all of which were bought within two hours for comfortably large sums of money by another Brazilian who had just signed up the same day. He too paid by credit card. 89 days later the bank snatched back the money, all of it.
Have I the right to be suspicious?
Last week my credit card was refused (I was trying to buy several litres of Pimms). We contacted the card issuers and found a payment of £10 had been made a couple of days earlier to Oxfam. Not by me it hadn’t been. This was followed up by an attempt to pay a large Southern Electricity bill with the card, which had been rejected. We don’t have Southern Electricity. So the credit card was compromised — how? — and quickly cancelled. A replacement arrived yesterday.
If this transaction turns out to be fraudulent, we stand to lose £70. It’s not a huge amount of money, though God knows we could all do with it. If they are fraudsters — and how can I tell? — they’d have to do it many times over to make a living out of it.