Are Flickr Photos Fair Game

The New York Times intellectual property dust-up continues (my response here). Ms.Zjawinski’s original article received about 9 pages of comments before they were closed, I’d estimate about 9-1 criticizing her for a lack of respect of copyright, and lack of respect for photographers.

Her response to her critics boils down to claiming Fair Use.

In order to get the legal perspective on this I talked to Anthony Falzone, a law professor at Stanford and the executive director of the Fair Use Project there. He said that an “All rights reserved” label on a photo did not necessarily give the photographer total control.

“When you say ‘All rights reserved,’ that simply means you’re reserving all the rights the law gives you,” Mr. Falzone said. “But that begs the question: What are the limits on the rights the law gives you?”

That is where the doctrine of fair use comes into play. Mr. Falzone pointed to the 1984 Supreme Court decision in Sony Corporation of America v. Universal City Studios, which said that it was legal to use a VCR to record copyrighted content from broadcast television for personal viewing.

“There are a lot of parallels with what’s going on with Flickr,” Mr. Falzone said. “People are posting photographs and know very well that they are going to be viewed by people on a computer, and if someone wants to print a photo out that they see on Flickr to enjoy some other time and in some other place, that seems fairly analogous to what people did with the VCR.”

From that legal angle, if someone decides to download an “All rights reserved” image from Flickr and put it on their PC desktop or print it at home, they should be covered under fair use. But the law has not fully caught up with the digital era, leaving lots of gray areas.

“The real core question is, is this a fair use or not?” said Corynne McSherry, a senior staff attorney at the Electronic Frontier Foundation, a digital rights group. “Frankly the answer is, we don’t know.” Ms. McSherry suggests playing it safe and always asking.

[Click to continue reading  Are Flickr Photos Fair Game for Home Printing? – Gadgetwise Blog – NYTimes.com]

Fair Use is different for an image than, say for example, text. For text, you can copy three paragraphs from an article, or pull ten sentences to Fisk them. Film, capture a scene or two to make a point (Ebert, for instance), music, a few bars, a chorus¹.

An image is not divisible – either you take it in its entirety, or you don’t. Much harder to refer to an image in the abstract, or as I understand Fair Use doctrine, it depends upon the amount of the portion used in relation to the copyrighted work as a whole.

Wikipedia defines Fair Use:

Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test.

The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. § 107, reprinted here:

“ Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

and the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

[Click to continue reading Fair use – Wikipedia, the free encyclopedia]

Thomas Hawk, never one to avoid controversial topics, sarcastically² celebrates The New York Times for advocating theft of intellectual property, thereby acknowledging there is a new model of copyright for a new digital century.

W00T! THE NEW YORK TIMES FINALLY ADVOCATES STEALING INTELLECTUAL PROPERTY
Posted on June 26, 2009, 12:26 pm, by Thomas Hawk, under Copyright, Flickr.
Sonia Zjawinski has an interesting article out over at the NY Times’ Gadgetwise blog entitled “Flickr as an Interior Decorating Tool,” where she basically advocates stealing other people’s photographs off of Flickr

[Click to continue reading w00t! The New York Times Finally Advocates Stealing Intellectual Property | Thomas Hawk Digital Connection]

Thomas Hawk claims that because most photographers probably have stolen music on their computers, they shouldn’t complain when others steal from them. I’m not sure how Thomas Hawk knows that photographers have stolen MP3s, or use a TiVo, but maybe he has access to some TIA database that we don’t.

The Metafilter community reacted by laughing at photographers who upload images to the web and expect courtesy and copyright law to be adhered to.

Getting smart about personal technology. NYTimes publishes Sonia Zjawinski’s assertion that other peoples’ images on Flickr are probably OK to download, blow up and use to decorate her house: And if you’re wondering about copyright issues (after all, these aren’t my photos), the photos are being used by me for my own, private, noncommercial use. I’m not selling these things and not charging admission to my apartment, so I think I’m in the clear.

Other people think it’s more complicated, and some are just pissed.

[Click to read for yourself Confidential to NY Times: Free as in speech | MetaFilter]

I’d say the majority of the comments at Metafilter are strongly in favor of Ms. Zjawinski’s technique, most using a variation of the same argument: hey, the photo is there, why wouldn’t I take it? These same folk probably steal a lot of other digital media, bittorrents, MP3s, etc. and consider nothing of it.

Personally, I usually release my Flickr photos under a Creative Commons Attributuion/share-alike license, downsample them to 90 pixels and somewhere around 15″x10″ before uploading to Flickr, and have started to use a small watermark of my name³. I haven’t tried, but I assume they would look ok printed at 3″x5″, or even 4″x7″, but any larger size would look increasingly pixelated. I would hope that if some anonymous person wished to print out my photo, they would have the courtesy to ask me first. For instance, recently, an artist based in LA asked me if she could have a copy of a photo I took of her mural. Instead, I gave her the much higher resolution Photoshop file, uploaded it to Drop.io, and gave her the link. She sent me a check for $5, but I never cashed it. All in all, I have gotten close to $2,000 selling prints of my work, not quite enough to purchase an island next to Johnny Depp’s island in the Caribbean Ocean, but more than nothing. In other words, I am simply a hobbyist photographer, so bear that in mind.

1. sampling is a little bit of a grey area too, actually [↩]
2. at least that’s how I read it [↩]
3. written in my own handwriting [↩]