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badice.com ~ travel musings for the masses

I think we have all done it, at least once, I know I have. Use an image on a website, blog, etc. without the permission or consent of the photographer. A quick search through this site shows an instance or two where I have done exactly that (they’re noted and will be dealt with). In my own experience it’s been about speed and ease of finding the images on search engines that make this such an attractive method of putting images on my blog. But, it’s wrong.

I’ve mulled over this post for the past few weeks and have actually rewritten it a number of times. My perspective is two-fold, as an (amateur) photographer I take pride in my photographs and want to see them well represented, but as a blogger I want an easy route to getting perfect images for my site. After a recent case of unauthorized image use, I thought it was appropriate to speak up on what I am beginning to see trend into a bigger and bigger issue.

Around January 19, 2011 I noticed this tweet by Twitter user Kyle Nielsen. I follow Kyle for his quick hits of Houston news and info and this particular tweet caught my eye because it involved Hubcap Grill, a local place I frequent. When I looked at the image, I immediately realized that it was the picture of Hubcap owner Ricky Craig that I had taken for a Loop Scoop article. At first, I was a little dumbfounded. The image had clearly been edited, as the original on The Loop Scoop has a green border. I contacted Paul at The Loop Scoop to ask if he knew anything about it, to which he replied that he did not. CultureMap had taken the picture without my consent or Paul’s.

My Image on CultureMap's Website

Maybe my immediate response on Twitter was a little over the top. I let loose, asking others why CultureMap would do such a thing. They have a team of photographers, writers, and editors, why would they need to take an image from another website? The responses I received were from a few people who had similar experiences with CultureMap. Some were more vocal than others. As the night drew on, I decided that per my friend Patrick’s advice, the next morning would see me drafting a DMCA takedown notice.

While I was sleeping I received a couple of messages from CultureMap. One asking if I wanted the image removed and another saying the image had been removed from the article. I also had an e-mail in my inbox from Clifford Pugh, Editor-in-Chief of CultureMap. It read as follows:

Dear Mr. Segraves,

Your Twitter thread from last night was forwarded to me, so I wanted to reply to you. I was a bit taken aback by the tone of the comments and hope if this ever happens in the future — which I sincerely hope it doesn’t — we can have a civil discussion on the subject.
Since CultureMap launched in 2009, we have posted 50,000 photos and I can honestly recall only two or three times  that a photographer asked us to remove a photo. So the comment that this happens all the time just isn’t true.
I’m proud of the fact that we make every effort to give credit where credit is due. We will continue to do our best to make sure we give credit and if we mess up, we will immediately address the situation.
Your photo was very nice. I wish you the best in your future photography endeavors.

Clifford Pugh
Editor-in-Chief

Since they had removed the photograph I decided to not send a DMCA take-down notice and just go about my day, but I could not help but dwell on the above e-mail. Mr. Pugh seems to think that my comments on Twitter were uncivil. I am sorry he feels that way, I thought my photograph  being used without my consent was uncivil and reacted accordingly. The two other paragraphs in his e-mail are very important as well. The second, stating that CultureMap has 50,000 photos and has only been asked to remove a photo a few times, is completely misleading. “Having” something means it’s yours. And the fact that only a few people have asked to have their photos removed could also mean a lot of people have no clue their photographs are on your website. The third paragraph is also unsettling. “We will continue to do our best to make sure we give credit …”, great, I am glad you are crediting photographers but what if the photo was sold to the original person using it? What if it was licensed (take a look around their website, there seem to be a lot of AP/Reuters images)? More than credit is necessary in those cases. As well as credit, is CultureMap paying the photographer for their work? Did they even ask if they could use an image? Had I not seen a tweet about the image, I would have never seen that CultureMap had used it. How many other photographers have not noticed their work being used on sites that had not requested permission?

The core problem in this entire situation is that it is implied that it’s the onus of the photographer to protect their work. That notion is utterly ridiculous. Sure, some responsibility of ownership does fall on the photographer but if every photographer completely protected their work then all you would see on the internet is pictures with giant watermarks through the middle of them. The key is for websites, bloggers, etc. to use images that they have either created themselves or those that they have permission to use. That allows photographers to focus on the image thieves.

Had CultureMap taken a few minutes to send a note to The Loop Scoop to ask who took the photograph and for that person’s e-mail, I could have denied permission and they could have moved on. Instead, they searched Google, got an image they liked, edited it, and used it. What this takes is honest people doing honest work. If we are going to stand up against things like SOPA and PIPA then we need to be willing to look at our own websites and say, “everything on here is what I’ve created or asked for permission to use”.

Just like I am sure CultureMap does not want their words used by someone else on a different publication, I do not want my images used places I have not explicitly given permission. Certain things do not fall under Fair Use, images is one. Looking at my tweets and thinking about my response, maybe it was not over the top what I did. Something was stolen from me. Sure, credit was given (though to the website I took the photo for), but I surely was not compensated and I’m guessing CultureMap makes money from the ads they serve on their website. My photograph had a cost associated to it. It took coordination with Ricky, time to take multiple shots and  more time to edit the photographs that would be used. CultureMap bypassed that. The work was already done for them.

Bottom line, let’s get back to creating and publishing our own content and then we can work together to take-out the spammers and image thieves that bottom feed. I should not have to worry about my work being used on a legitimate and well-staffed website, I should be able to focus on the places that are selling my images illegally and other shenanigans.

What’s your take?

I would like to thank Patrick O’Keefe and Jonathan Bailey for helping me during this fiasco. Their understanding of the DMCA, plagiarism, and Fair Use was a tremendous help.

[Addendum]

There have been some Tweets put out by the CultureMap team but these two caught my eye:

@jaylee @groovehouse @sensestorm @mikerastiello @reiswigphoto We apologize for any mistakes we’ve made in the past. We’re learning! – link to tweet

And then this gem:

@MikeRastiello @jaylee @groovehouse @sensestorm @reiswigphoto For some photogs, credit is enough. Clearly not for all. #lessonlearned – link to tweet

The notion that CultureMap is “learning” and that’s why these mistakes were made is a poor excuse. Even if they have only been “asked a few times to remove photographs” then that to me would be a red flag that maybe I should consult with an attorney and figure out what the correct way of going forward is.

Jay Lee, who takes some amazing photographs has a great commentary going on Twitter and he gave me permission to repost the tweets here. They are posted in reverse chronological order and each one is linked to the tweet itself.

It’s important to note that entities like @culturemap are businesses out to make money. When they profit from our labor, it’s offensive.

It should also be noted that more and more photographers are waking up to the realization that their work has value.

To be fair to @culturemap, they do credit the photogs on many or most occasions. But they are not licensing the photos. That is the issue

Photographers unite! Occupy @culturemap! We are the 99%! Sadly, @culturemap’s not the only offender. But they are a big player in Htown

@donjuanc I don’t want to live in an Internet filled with watermaked images. But it may be the only way.

@culturemap Your learning at OUR expense.

I recently used one of my own photos in a blog post on the @houstonchron. And yes, I asked myself for permission first.

Saying you’ll remove a photo after you have used it is like asking the tow truck driver to unhook your car after you have parked illegally

@culturemap @groovehouse @sensestorm @mikerastiello @reiswigphoto Removal is not the remedy. You have benefitted from our work commericially

Obviously this is my fault for taking so many pictures of Houston and Houstonians.

@Bitspitter @wynkoutloud Is there such a thing as a class action invoice? Or an invoice flash mob?

@wynkoutloud Your house wasn’t locked so I invited myself in. And I made a sandwhich and drank the last of your milk.

Providing a photo credit to the photographer is not the same thing as being granted license to use copyrighted material cc @culturemap

It seems that @culturemap makes an editorial habit of using photos without permission. I have found no less than 3 posts using my photos.

Comments

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  1. Brian Poirier #
    February 1, 2012

    Wow, sounds from the tone of Culturemap’s note to you that they regularly steal images and only react when they get caught.

    Unfortunately that happens to often.

    If I was you I’d send them an invoice for the use of the image for the time they did use it, with a big “x3 ” added for “unlicensed and unpermitted use”

    Great source for fighting back: Photoattorney.com

  2. Jeff #
    February 1, 2012

    Question: Did you send the take-down notice to CultureMap or Twitter’s DMCA agent? Obviously, Twitter falls within the safeharbor provisions of the DMCA, subject to the take-down procedures. However, I’m not so sure CultureMap is similarly insulated from liability. They are the infringer, after all. Did you look at whether they fall within the definition of an online service provider under the DMCA?

    • Stephan Segraves #
      February 1, 2012

      Jeff, I never sent the take-down notice. Originally I was going to send it to CultureMap’s web host as Twitter was not involved in this instance, they were merely the instrument through which I found the image.

  3. Jeff #
    February 1, 2012

    I agree with Brian. Send them an invoice. Doesn’t matter that they took the image down. The damage was already done.

  4. February 1, 2012

    The most insulting part of the situation is that the boss seems to think the practice is OK because people haven’t complained. That’s just stupid.

    You would definitely be within your rights to invoice them for the publication of your image. The real question is just how much effort you want to put into pursuing the issue with their legal team.

  5. February 1, 2012

    Hey Stephan,

    I appreciate you sharing your experience and was happy to help however I did. I agree with the sentiments you express here.

    I am pretty surprised by the tone of that CultureMap email. I mean, I know they apologized on Twitter, but how could there be no apology in the email? Secondly, to say that you “make every effort” when you have just been caught not making every effort, is pretty condescending. If every effort had been made, then the image would never have been run in the first place. Making every effort means you know exactly where the image comes from and under what license it has been released.

    At this time, it isn’t that hard to find images you can use on websites that seek to generate a profit. I use the PhotoDropper WordPress plugin, myself (see: http://wordpress.org/extend/plugins/photo-dropper/). There are also sites like Morguefile and stock.xchng that offer free, cleared images. Fotoglif allows you to embed more newsy images to your blog legally. And there are other services that help you display legitimately obtained photographic content on your blog.

    The more people who go this route, the better.

    Thanks,

    Patrick

  6. February 1, 2012

    Culturemap has used at least one of my photos without permission. Could be more, but I don’t really like to look at the site for fear of losing precious brain cells. They were responsive when I called them out, but it still irked me.

    I suspect they have many more “borrowed” images on their site. The problem is, most photographers don’t know how to police this and any with photos on their site are probably just unaware.

    Speaking of which, I use this Google Chrome plugin to search to see if my images are being used without my permission

    http://tinyurl.com/chromeimagesearch

    I search my more popular photos and have found several being used all over the place. I have contacted many web sites and most remove the photo. Others have offered to pay and that has been a bonus. But one of the more common responses I get is that they hired a web designer who claims they found the photo at a stock photography site. Some searching has shown that yes, some of my photos are being offered for sale by such sites.

    It’s frustrating. But I think the more we can educate the public, the better. Many people are just ignorant of the facts and will do the right thing once they know what the right thing is.

    • Stephan Segraves #
      February 2, 2012

      Some really great comments here. Thank you all for your input and ideas. It is refreshing to see that I am not alone in wanting this kind of behavior to end. The idea of sending invoices is a good one, my time certainly is not free and I spent a lot of time taking photographs and editing them. There are tons of people out there that would love my work for free, that doesn’t mean they get to steal it.

      Jay, I have installed the Chrome plug-in per your suggestion and it’s great.

  7. February 2, 2012

    I am going to join the people urging you, and anyone else whose work they have infringed, to bill them—and to “name and shame” them when they do this again, which they almost certainly will, since it seems to be their de facto editorial policy.

    And yes, a simple Google search revealed that—quelle surprise!—one of my shots has also been used on Culturemap without permission.

    I will be sending them an invoice today. An attribution and a disingenuous “oopsie!” and removal when they get busted are not enough.

  8. Ali #
    February 2, 2012

    This happened to my husband, too. And I threw a big fit in the comments section of the post it was in. I got backlash from some of the readers, which didn’t bother me because clearly they were getting all fanboy on the site. What really bothered me was that I received the exact same response from the editor that you did.

    “Trying” is not doing. There is no excuse for not giving credit. Even something as simple as giving the original website found on credit if you don’t know who the photog is or have time to research it.

    Many cites in Houston have used his photography and they always give him credit for it. They come across them on Flickr and link back to his profile. How hard is that? It’s not. He’s not even expecting or asking for money. He just likes that folks enjoy his photos and want to use them.

    I’ve sense cut all ties with Culturemap. I don’t read it or tweet them or give them any sort of attention for the simple fact that I don’t want them to get traffic. They need to learn that people won’t stand for how they do business.

    I do love “name and shame”, though. Others should know to boycott, too.

    -Ali

  9. Brian Poirier #
    February 2, 2012

    According to CultureMap’s logic, I guess we can steal their articles to report in our own for profit blogs and only have to give them credit (if we get caught).

    Or we can go to their house and borrow their TV, Computer, etc as long as we credit them. Hey, I need a new car!

  10. Brian Poirier #
    February 2, 2012

    Oh, and for finding infringing images, I’ve used Tineye: http://www.tineye.com/

  11. February 3, 2012

    FOLLOW-UP:

    I got a response from Clifford Pugh at Culturemap this morning; they are sending me my requested payment, and have promised to tighten their policies and “do better.”

    Very encouraging.

    • Stephan Segraves #
      February 4, 2012

      Thanks for sharing Chuck! It’s interesting, I have not received any further communication from them. I figured they would at least acknowledge the problem.

      My guess is that we’ll see some more violations in the future. They’ll wait until everyone calms down and then do it again.

      I hope I’m wrong.

  12. February 8, 2012

    I’ve heard that argument — the condescending “you should feel privileged we used your XXX” — many times. It’s amazing to me though that a content publisher used that one. I wonder if they would feel the same way if they found their entire catalog of content was copied (with a small credit) and published on another website.

    The attitude he had in his response to you would have me fuming. I am not sure of the legalities of seeking fair compensation for their use of your photograph, individually anyway. Suing is obviously too expensive to really justify. It would be incredibly expensive and time consuming.

    BUT, as you mentioned if they have 50,000 photographs on their site how many did they use without first asking permission? (I’m guessing most of them) And how many of those photographers even know about it? Even if credit was given, a lot of people aren’t in the habit of Googling themselves or their website names. It would be very interesting to contact a few photographers and see if they feel the same way you do.

    If they do… it may be a candidate for a class action lawsuit. If you figure one image used commercially is worth about $100 (average between a $10 iStock image and $500 Getty image) then that’s a potential liability of $5,000,000 (not including attorney fees, time awarded to defendants due to the time required to bring the case, etc). I’m no attorney but if I were CultureMap I’d sure be consulting one… because that much copyright infringement could prove costly one day.

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