Stuart Blog 2: The Martin campaign's appropriation of a photo by Jeff

Wednesday, September 20, 2006

The Martin campaign's appropriation of a photo by Jeff

Jeff (Yellow Dog Sammy) accuses the Martin campaign of misusing one of Jeff's photographs.

I'm still not sure that this is a misuse according to the terms of the license. I browsed through the (semi-official?) wiki for Creative Commons. It didn't settle the matter for me but it did address another lingering question that I've always had about Creative Commons: the licenses are irrevocable. Once you've thrown it into the commons, you can't yank it back. It may turn out that this is relevant here.

It's been said, more than once as I recall, that this episode is indicative of the deplorable, unworkable state of politics in the United States. I may agree but I think I have a different perspective. Lefty bloggers are leveling harsh accusations and doing so in broad generalizations. The stated or unstated attitude is that Republican politicians, Righty bloggers or even conservatives are scoundrels and not amenable to rational discourse. The Righty blogosphere may be a minefield of vitriol (I wouldn't know) but no individual of any ideology should let that debase their thinking. The real danger to civil society is when more and more people feel such contempt for those that they disagree with that they disengage from the dialogue.

I think that the effort expended here (by all of us) in defending his intelectual property would be better spent addressing the substance of the ad in question. The ad lies? Then explain how and tell the truth. I'm aware that this has already been done but frankly it's been completely overwhelmed by the copyright issue. As I said before, while it's clearly an author's right (which may have been abdicated in this case, but...) I think there's something unsavory about enforcing a Creative Commons license this way.

11 comments:

Jill said...

Stuart, I think you make some good points. But weren't you the person involved with trying to take pictures at Taza? Do you see any similarities or analogies there? Maybe, maybe not - but to me, the issue about the right you have to take the pictures and then who owns the pictures once taken - I don't know, seems like there might be some connection.

Sincerely curious - what do you think about this observation?

stuart_spivack said...

Jill: The only analogy that I see is that in each case I'm arguing for openness. In the case of Taza, I thought it was mistaken for the restaurant to restrict information about their food. In this case, I think it's misguided to fiercely guard the pictures. If I choose to give my work to people who agree with me then I think I should choose to share it with people who disagree with me.

Naturally, Jeff has the legal right to disagree with that position. And this is where I think the similarities between the two situations end. Taza has certain rights allowing them to restrict access to their restaurant which I think include asking me to leave if I choose not to abide by their camera policy. I have certain rights regarding my pictures which I think includes the right to keep pictures that I took in good faith in a semi-public space. Jeff certainly had the same rights regarding his pictures but the salient point is that I think that he may have given them away.

I think the original sentiment of that gift is noble and the more recent effort to reneg on it is harmful. What I'm curious about is whether or not it's legal. I think 1)that it's not and 2) that it's not well-settled law in any case. What I'd really like is an expert opinion.

rbh said...

Stuart, I read your comment on BFD and here. I am not a lawyer, but my take was the exact opposite - it is infringement.

I have not actually seen the ad, so for the sake of discussion, let's assume that Jeff's claim is true.

Here's my reasoning:

1. The photo is question copyrighted by Jeff.

2. You may use the image *without permission* if you meet three criteria:

a. Attribution
b. Non-Commercial
c. no derivatives

You have to meet all three to use the image. If you do not meet any one of the criteria you have to ask permission from the copyright owner for use.

We agree that the use is "non-commercial" hence that requirement is met. We diverge on the derivative usage, but you raise a very interesting point on whether it is a
"collective work" which I think falls under "fair use". I don't buy it though and my bet is a court wouldn't either in this particular case. But then again, you raise a valid point and would be interesting to see how it would shake out in the courts.

But I think the key here is the attribution requirement. Again, I have not seen the ad, but it my bet that nowhere can you see any attribution to Jeff. It is hard for me to imagine that in trying to get a political message across in 30 seconds to a minute that the ad would waste any time in giving credit where credit is due. If this is in fact the case, regardless of the other two requirements being met, they do not meet the terms of the license and must ask for permission to use the image. Or they are violating Jeff's copyright. Period.

Thoughts?

Jill said...

Thanks Stuart. I appreciate you explaining your position, but I share Rob's position, as a lawyer and a producer of content. Attribution is not only a courtesy, but Jeff did everything expected of him. Also, the spirit of how the photo was used is violative of the way in which Jeff provided it.

Now - if the photo had been used on an internet ad in which you could hover over the picture, as we can all do pretty much anywhere on the internet, then you'd be able to see an attribution while hovering and that, I would say, would be adequate. But in Jeff's situation, it's a TV ad. That's not possible - for the viewer to discover who took the picture.

I don't know Stuart - it just doesn't feel right at all, let alone seem to be a legally indefensible use.

stuart_spivack said...

I guess I shouldn't have spouted off without watching the ad either. I completely ignored the issue of attribution.

In all fairness (to me), I don't think that Jeff is (only) making that argument. It seems to me that he's also defending the copyright of his photo as though he can pick and choose who uses it.

Even regarding the issue of attribution, I think that the ad's creators still have a sliver of support for their case. From the license: "...You must keep intact all copyright notices for the Work and provide, reasonable to the medium or means You are utilizing: (i) the name of the Original Author..." and then "Such credit may be implemented in any reasonable manner; provided, however, that in the case of a Derivative Work or Collective Work, at a minimum such credit will appear where any other comparable authorship credit appears and in a manner at least as prominent as such other comparable authorship credit."

So regarding a television advertisement, I'm not sure how to properly satisfy this requirement. It may be sufficient to make a note on a website seperate from the ad or even just to provide the information only in response to inquiries.

It would have been nice for the ad's creators to have made a better effort to provide proper attribution. It also seems to me that Jeff is unhappy that his picture was used at all and wouldn't be satisfied if a reasonable effort were made to provide attribution. For reasons I specified here and in a previous post to BFD, I disagree with that. If in fact, I'm understanding his position correctly.

As for the "So sue me" response from the Republicans/Martin campaign, I think the reason of that response depends on how they were approached. If they were approached in a "I'd like attribution for my photograph and I'd like to talk with you about how you could do that" way the there response is uncalled for. But it they were approached in a "You didnt have permission to use that picture and if you don't spend lots of money redoing it then I'm going to sue you" way, I can understand why they'd want to lawyer up. Even if they're wrong, it's not unreasonable for them to be concerned for their legal liability.

Anonymous said...

Stuart,

Good discussion. Couple of additional thoughts....

First, in a post that I wrote that won't see the light of day(it will forever be hidden in the dark recesses of my harddrive), I also picked up the idea that Jeff didn't like for what it was being used. Specifically he says in the original post "Use of my photographs for campaign ads without my permission is not allowed." This is not, in my opinion, true. It can be used in a campaign add if it meets the requirements of the license, even without his permission(that's the point of a creative commons license). So your point here is well taken.

In point of fact, if a individual or organization uses the copyrighted material that meets the obligations of the license, he does not in fact have recourse whether he likes how it is used or not. In the United States anyway.

So it all comes down to the license, which as you correctly point out is non-revocable (unless, of course, the requirements are not met in which case the license to use the material is automatically revoked).

WRT Attribution, and just going of the deed, and not the actual legalese, the deed says: "You must attribute the work in the manner specified by the author or licensor." I have not found, nor to be honest have I actually looked that hard, any specification by Jeff as to the method of attribution. I would assume, and not being a lawyer I could be way off, that common sense would rule here, and that if in doubt you need to ask prior to use. They didn't do that, hence, they's in trouble. I do see your point that perhaps providing credit on a website may meet the criteria.

I also agree with you that the "So sue me" type quote could be interpreted differently depending on context. However, it is also hard for me to imagine that it was someone worrying about being sued. It sounds more like bravado to me.

On the other hand, if they are "worried" they should be since Jeff has posted on DailyKOS that he is preparing a copyright infringement lawsuit. At least someone posting as yellow dog sammy posted to that effect(and I have no reason to believe that it isn't yds).

One zinger. You say "It would have been nice for the ad's creators to have made a better effort to provide proper attribution." No, it is the law. Being nice has nothing to do with it - taken to the extreme of course. Once it hits the courts, nice is neither here nor there.

And now a question: in a situation like this, who actually gets sued? The organization that paid for the ad and signed off on it? The organization that made the ad and actually infringed on the copyright(assumption there, I know)? The candidate? All of the above?

I also wonder if they thought about the political ramifications when responding.

Regardless, if Jeff follows through, Stuart, we'll get your wish and get expert legal opinion on the matter. Which I must admit will be fascinating to see.

Bill said...

Stuart, some consultant or agency got paid to put that spot together and place it. That's a commercial use of YDS's graphic in clear violation of the CC license terms. (It's also pretty clearly use in a derivative work.)

Anonymous said...

Bill, good point. Didn't even consider that, doh. That's strike three in my book.

So who becomes the target of the lawsuit?s

stuart_spivack said...

Hmm... Well, now I'm really confused. It still really doesn't feel like a commercial use. You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. Maybe that means something to a lawyer but it's not clear to me.

I went to the Creative Commons site and joined a discussion list. I'm afraid that I haven't had a chance review the many months of messages for all relevant discussion (and I doubt that I will any time soon) but I did find one document that was relevant. It's a tentative set of guidelines for determining whether or not something is a commercial use. One of the many exampls that it covers is the case wherein an educational institution pays a copy store to reproduce a document which includes a CC BY-NC work. I think you could argue that this is analogous to the situation at hand, even thought the dollar figures are likely to be much different. And I can also imagine compelling arguments that that the two situations are substantially different.

Hopefully, I'll have time to do at least a little bit more investigation. In the mean time, I'd be happy to hear your thoughts.

Finally, I've chosen to use a CC license that doesn't have a NC restriction so, as you might expect from that, I still disagree with Jeff.

rbh said...

Stuart, this is how I took Bill's comment. Company xyx was hired to create a political add. They created a political ad, using the image, and charged the customer money for creating it. That's commercial usage. Neither the campaign nor Martin used it for commercial purposes, but the firm that created the ad did.

I guess it is conceivable that a campaign volunteer did it as a civic action which would then seem to indicate that across the board it was non-commercial. But I think that is a reach.

Though you are probably not interested, my cc license is attribution, non-commercial, and share alike. Although sometimes I do drop the nc.

I don't do the no-derivatives since part of the whole idea is to create reusable items(not that anywone would reuse it).
Hence the share alike condition.

I do apologize for posting such long comments!

Anonymous said...

Back to Stuart's original post in this thread...why can't we ALL rise above generalizations about R's, D's, whomever. Truth is, there are nutjobs in both parties. (which leads me to this comment-- our two party system is killing us!) Let's be positive.