Tuesday, January 10, 2006

Photos, Blogging and Fair Use

February 03, 2005

By Jay DeFoore

New York photographer Naomi Harris spent her Christmas holiday redesigning her Web site and adding new pictures, only to have the site become so popular within a matter of days that the site was overwhelmed and she was forced to shut it down.

The unwanted attention came from readers of the popular soft-porn blog Fleshbot.com, which posted one of Harris's photos without her permission and linked to a documentary photo essay on Harris' site titled "Porn Star Academy."

Harris says her site received 13,000 visitors the first day the link was posted, 54,000 the next and 75,000 the next as other sites in the blogosphere picked up the link. After three days, Harris contacted her Internet service provider and asked that her site be shut down before it accrued hundreds or even thousands of dollars in overage charges.

Harris has spent the last three weeks locating another ISP with cheaper bandwidth charges and moving her site onto a different host server. Though she's taken it all with a sense of humor, it's still been a "royal pain in the ass."

"For all I know most of these [visitors] are probably perverts who were too cheap to pay for online porn," Harris says. "There could be thousands of sticky keyboards out there just from my pictures."

Like most professional photographers, Harris' Web site is her main promotional tool. Her Web site debacle has hit her directly in the pocketbook.

As blogs and photoblogs explode in popularity and become increasingly commercialized, photographers are beginning to complain about the common practice of posting photos on blogs without permission. Fleshbot, a profitable site that's part of Gawker Media, is different from political or gossip blogs in that its posts are generally commenting directly on the photo being displayed. But many blogs use copyrighted celebrity or news photos to illustrate what the blogger is talking about, much like traditional news sites.

In a recent discussion on the Digital Photography Weblog, one photographer summed up the growing sentiment among professional freelance artists: "In all fairness, you should always ask permission. If it is not granted, don't use it. Real Simple. You're skating on very thin ice if you think that you can continue using images in your blog without permission."

New York-based intellectual property lawyer Nancy E. Wolff of the firm Wolff & Godin says the fair use provision of the copyright act protects posts that analyze a photo as a work of art, but many other common uses don't qualify.

Fleshbot editor John d'Addario argues that his use of thumbnail-sized photos constitutes fair use, which is defined in section 107 of the copyright law to include "criticism, comment, news reporting, teaching, scholarship, and research." And besides, he claims, most artists whose work he's displayed appreciated the exposure.

"With more than 3,500 posts I've made since launching Fleshbot in November 2003, I've had only one or two complaints from people who didn't want their picture posted," d'Addario says.

If photographers find their photos posted online without their permission, they can ask the site's owner to take them down. If that doesn't work, ISPs are required under the Digital Millennium Copyright Act (DMCA) to take down unlawful content.

Although d'Addario says the blogging community has an internal code of ethics which prohibits such things as "bandwidth theft," or the practice of "deeplinking" to a particular jpg or gif file on someone else's server, few hard-and-fast rules exist.

PDN asked one veteran blogger about photo usage, and the response was the familiar misconception that by using thumbnails, cropped or low-res images, a blogger is exempted by the fair use provision. This argument is also seen on Gawker.com's disclaimer page, which points readers to a 9th Circuit Court's ruling on Kelly v Arriba Soft that upheld the legality of thumbnail usage of images on a search engine. But Wolff says Arriba Soft's use of thumbnail photos differed from the blogs' in that it did not harm the revenue potential of the images.

"Not every thumbnail is fair use," Wolff says. "[Arriba Soft] was not supplanting the original use of the image. ... One of the most important points of the fair use doctrine is the effect of the alleged infringing use on the value of the original use."

Photographers hoping to utilize blogs as a potential revenue source may have a while to wait. Though a few blogs do make money, very few license photos. "We use photos from stock and pay in those cases but otherwise we're using derivatives of stuff that's generically on the Web," one popular blogger says. "Images greatly improve blog readability, but since most blogs are written for free (or very little money) I think I can reasonably speculate that if most blog owners had to pay for images no one would use them unless they could be provided at very low cost."

Still, blogs are not exempt from litigation if the need should arise.

"If they are making money there's no reason they shouldn't pay for pictures," Wolff says. "Just because they're a blog they're not exempt from copyright law and they're not entitled to a free ride."

The Digital Millennium Copyright Act of 1998 (PDF)
U.S. Copyright Office - Fair Use

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