Another Copyright Infringement Ends In Charity Donation, Good PR For Infringer

A friend tipped Theron Humphrey that So Delicious had used one of his images without permission or credit.

A friend informed Theron Humphrey that So Delicious had used one of his images on Facebook without permission or credit.

For the second time in a week a photographer has settled a copyright dispute by getting the infringing corporation to make a donation to charity. Yesterday So Delicious, a maker of dairy-free foods, agreed to make a $10,000 donation to an animal shelter as a mea culpa for using one of photographer Theron Humphrey’s images without permission in a post on their Facebook page.

Earlier this week, street photographer Brandon Stanton discovered that clothing retailer DKNY had used his images without permission in a window display at their Bangkok store. Stanton called the company out on Facebook and got them to agree to donate $25,000 to his local YMCA.

In comments made to PDN, both photographers cited the cost and tediousness of pursuing infringements through the courts as reasons for pursuing what they view as a more positive approach to dealing with infringements.

Humphrey found out through a friend that his image of his dog, Maddie, sitting in a diner booth had been lifted by So Delicious and used on their Facebook page. The company had even Photoshopped one of their products into the image. They made no attempt to credit Humphrey or seek permission.

Humphrey shared a screen-grab of the So Delicious infringement via Twitter, and encouraged people to write messages to So Delicious asking them to make a donation to an animal shelter. By the end of the day the company had apologized, writing on their Facebook page that they had “used some poor judgment in terms of aligning [a photo they found on Facebook] with our brand without identifying the photographer and first seeking out his approval.” In a later post they said they would make a $10,000 donation to a worthy animal shelter at Humphrey’s suggestion, and solicited shelter suggestions from their followers.

While the violations proved expensive for So Delicious and DKNY, the companies certainly haven’t suffered much negative publicity, if the reactions from their respective social media audiences are any indication. So Delicious received more than 800 suggestions for shelters to support, and more than 900 likes from people in response to their post announcing the donation.

But are these situations “win-win,” or do they perpetuate the overwhelming lack of respect the general public has for photographic authorship?

“There are dozens of people commenting [on So Delicious’s Facebook page] that I’m being a jerk and it’s not a big deal,” Humphrey notes in an email to PDN. “Those same comments often have 30-plus likes. That in itself is an interesting glimpse into the minds of a lot of folks.”

Humphrey, who was inspired by how Stanton handled his dispute with DKNY, says he’d rather “be a part of the dialog and pathway to creating change versus using the heavy hand of the law and courts.”

“Brandon Stanton had a solid approach that helped a ton of kids,” Humphrey notes. “It felt right. It felt connected. And a lot of good came from it. I’m not sure if So Delicious feels the same way, but I think they got an amazing deal! They got a ton of love [yesterday]. And maybe when I’m out in Oregon we can collaborate.”

After seeing what progressed yesterday, Humphrey says, a lot of individuals who had used his images without permission wrote and apologized. “I would never go after an individual,” he explains. “I want to make connections and foster community. But when a bigger company with a full-time marketing department steals work, that becomes a rad opportunity to dialog about intellectual property. A lot of people learned [from what happened], all for the better!

Humphrey says he’s constantly discovering people using images from his “Maddie on Things” Tumblr, which features photographs of his coonhound Maddie standing on odd structures in locations all over the United States. Humphrey is currently on a tour of the country to promote a new book based on the Tumblr, and to create images and tell the stories of people who have rescued animals for a documentary project called “Why We Rescue.”

In some instances in which people have used his work without permission, Humphrey’s simply asked them to create a mention of his book and tour rather than demanding they remove his image from their sites or add credit to an image that’s already been shared several thousand times without credit.

“Educating folks to respect images and give them proper credit or ask for permission” is “way more interesting” than “slamming people with DMCAs,” Humphrey says.

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21 Responses to “Another Copyright Infringement Ends In Charity Donation, Good PR For Infringer”

  1. Poppy Says:

    How could he sue if the company found the image on Facebook?

    Doesn’t that make the image property of Facebook and not the phtoographer’s per Facebook’s Terms of Use?

  2. Robert Hold Says:

    Just because a photo is on facebook does not mean it belongs to facebook, it does not mean it is open season for wide use either.. it would be like saying that because your propetty is on your lawn for the world to see, I have right to come up and take it. Theft is theft no matter how you shade or color it to fit within the view you hold on the world.

  3. Luc Says:

    I think there is actually a (controversial) law that says once your image is on FB it “belongs” to both you and FB – I guess that’s what Poppy was referring to. But I’m not 100% sure that is actually right.

  4. Melo Says:

    Poppy, how can you, as a grown adult actually believe Facebook has the right to claim ownership of something they did not create? Seriously? Do you really believe use constitutes ownership? So if you try on a dress at Macy’s does it suddenly become your property once displayed on your body?

    That is completely ignorant thinking and odd that you would defend a faceless corporation over a well intentioned person and artist.

  5. Lena Says:

    While I understand why both photographers didn’t want to go through legal channels, I hope that one day someone will sue, win a nice sum and then donate it to a charity. From them, as their money, which it is.

    Right now the companies are using the money for their own PR, not to mention a nice tax write off. DKNY especially seems to be lapping up all the compliments (for what?)

    As for So Delicious, I would love to see how “I found it on Facebook therefore I thought I could use it any way I wanted to” would hold up in court.

    Another reason that I hope more photographers will start suing is what every photographer knows and what’s already mentioned in the article. Almost a complete lack of public awareness about photography copyrights.

    Alas, educating people with discussions and articles like this one, as well as “donate the fee that you owe me for stealing my work to charity and score points for your PR” campaigns are not enough.

    What maddens me the most is not even people thinking they can use my work any way they want to but those who will argue with me that I have no rights. And there’s still plenty of those.

    We should and must keep working on changing people’s perceptions.

  6. Kim Says:

    I think that what Poppy may have been trying to say is that it is commonly believed that by posting on Facebook you as the creator are agreeing to hand off the rights of your work to them as per their terms of agreement when you sign up for a Facebook Page. Is this correct or an urban myth, I’m not sure. Educating people that everything on the internet is NOT free just because you can anonymously lift it is an ongoing headache for most of us.

  7. Allan Says:

    Marketing departments that use copyrighted material without consent aren’t ‘using poor judgement’. It seems that there is a growing trend for the marketing departments to steal images. They know that they will only be caught on a small number of these thefts. Since the penalty when they are caught is very small (usually 1x or 2x what the license fee would typically be for stock images) they come out of the game as a big winner.

  8. Photogs Offer Infringers a Charitable Way Out, Save on Court Costs in the Process Says:

    [...] found his photo (top) used in a So Delicious ad on Facebook. But rather than send out a DMCA notice and get caught up in a legal battle, his solution was to [...]

  9. An Interesting Article: Photogs Offer Infringers a Charitable Way Out, Save on Court Costs in the Process | Jeremy's (almost) Daily Musings Says:

    [...] found his photo (top) used in a So Delicious ad on Facebook. But rather than send out a DMCA notice and get caught up in a legal battle, his solution was to [...]

  10. Maddie on Things | AD454: BFA Photography Seminar Says:

    [...] Theron and his dog Maddie are good friends of my boyfriend. Theron’s project “Maddie on Things” has blown up over the last year. Today he is on the CNN Photoblog, he just shot a segment with Ellen, but the more interesting story that relates back to our first reading and response paper is this one on PDN about copy-write infringement.  [...]

  11. News – 3/5/2013 | Brooklyn Art Project Says:

    [...] Photography copyright infringers make amends through [...]

  12. Reznicki Jack Says:

    Wow, the amount of bad information about copyright and photographer’s rights on the Internet is just staggering to me. Why do people want to put out info that is not only completely wrong, but harmful. @Allen says the penalty is “1x or 2x” or say even 3x stock fees or any fees. That’s 1000% wrong. That is pure fiction. There is no “formula”. The only “formula” written anywhere is the copyright law that states “up to $150,000 per infringement” plus lawyer fees, in some judgements. Every infringement case is uniquely different, case specific, so applying one blanket for everything doesn’t work.

    If an image is properly registered, you are open to statutory damages, which in a case like this can run into 5 or 6 figures, especially with factors like stripping in a product. Ever case is case and fact specific, but a commercial use like this warrants more than a slap on the wrist, IMO. Statutory damages are there by law to discourage this type of action.

    Donating $10K for this type of commercial infringement does not discourage stealing. It’s way cheap for an infringement. Yes, suing is expensive, but the settlements are high enough to make it more than worthwhile in many cases and are in place for a reason. Rolling over with a settlement like this, in my opinion is harmful in cheapening our photos. It underminds the purpose of copyright. Better he collected $25K or more personally, then donate $10K or whatever he wanted himself, so HE, rather than the infringer, could take the tax deduction to a worthwhile charity. Letting the infringer dictate all this and take the tax advantage is amazing to me. It’s like a car thief dictating how long he should be in jail when he’s caught.

    Also, with regards to social media TOSs. They, the sites, need to have some license from the copyright holders (the photographers) in order to have the images on their servers. The problem becomes when the corporate lawyers then over reach with rights in their language for more than they need. But the TOS does not give third parties a free hand to use images they see on social media.

    Sorry for the length of this, but this “make a charity donation” to me is so wrong. It sounds good and is very “feel good” but is so harmful in the long run establishing yet another cut in the true value of our work. He could have collected more and made his own personal contribution.

  13. Edward C. Greenberg Says:

    Obviously I second everything Jack Reznicki says above. “Settlement” approaches like these keep Mr. Reznicki and I busy giving seminars, lectures and writing books and columns. We guess that photographers who may be entitled to tens of thousands of dollars (or more) simply are so rich that neither they, their spouses or children need the money.

    Imagine a carpenter, plumber, architect, accountant or landscaper letting a non-paying dead beat customer to make a charitable donation (receive the tax deduction) in lieu of paying for services rendered and/or materials supplied? Doesn’t happen because those people are business people who run their businesses like businesses. The thought would never occur to them nor would their customers be so dumb as to propose it.

    Only photographers who have constitutional rights to their intellectual property give up those rights to those who (typically) intentionally steal from them. As we have said and written countless times, these thieves KNOW that photographers are risk averse, do not know their rights, often act like sheep and are prone to seemingly warm and fuzzy “dispute resolutions”. This process hastens the extinction of the profession, encourages theft and won’t substitute for a real check owed to your landlord or for your kid’s school tuition.

    Photographers are being duped yet again and many of you come away with a warm feeling in the process. The lawyers, your clients and the ad agencies on the other side laugh at you and do high fives every time one of these “settlements” comes to pass. The more publicity the better for the infringing company. You just can’t make it up. Yet another reason why jurors who have regular jobs or businesses are baffled at the manner in which many photographers “do business”.

  14. Edward C. Greenberg Says:

    I just received an e mail from one of my art buyer clients. He/she works for a large agency. I have permission to use his/her quote:

    Dear Ed: I remembered your article on the concept of “duping delight” – the joy of tricking people when seeing these charity cases. Ad agencies exist and thrive when we dupe, trick, mislead or induce people to do things or buy stuff they would not otherwise do or buy. Photographers actively participate in that process and know that we are in essence, in the deception business. That is why we are so delighted when we succeed in ‘duping them’”. I fully get the concept and am going to miss it when I retire”.

    Draw your own conclusions.

  15. You Gotta be Kidding Me « Says:

    [...] got a link today from Katrin Eismann, pointing us to David Walker’s article in PDN regarding a second photographer finding an infringement and allowing the infringing company to make [...]

  16. Cherry Says:

    Some of there quotes are quite shocking. I always suspected that there is a deliberate pilfering going on

  17. Paul Spinelli Says:

    I agree with the comments made by Jack Reznicki and Edward C. Greenberg. Only when photographers value their work like other professionals while standing up for their rights and demanding copyright infringement payments commensurate with U.S. Copyright laws will individuals and industries stop stealing our work. Photographers pay tens of thousands of dollars on professional lenses, cameras, computers, hardware, software, insurance, etc. A professional photography business is very expensive to run profitably. The “photographs” taken by professional photographers should not be devalued by or associated with the “snapshots” taken by individuals with cell phone cameras or point and shoot cameras while sharing them for free on the Internet. Photographers should copyright their photographs and sue infringers to the full extent of the law. Only then will individuals and corporations realize they cannot steal what they do not own just because they happened to stumble on it via the Internet.

  18. Maddie on Tour (8 Photos) | Photopins Says:

    [...] Last week PDN posted this article about Humphrey’s successful settlement resulting in a $10,000 donation to an animal [...]

  19. Nick Says:

    Jack Reznick is so right. Why is it that photographers are made to feel they’re recompensed by having their money donated to charities – and not even on their behalf!! You can bet the donating companies take a nice tax write off on that donation. Photographers need get a backbone when dealing with OTHER BUSINESSES. Win/win?? They STOLE from you and you just gave them a great story and lots of positive PR – for STEALING FROM YOU!!

  20. Open Your Creative Eye » Maddie on Tour (8 Photos) » Page: 1 | Open Your Creative Eye Says:

    [...] Last week PDN posted this article about Humphrey’s successful settlement resulting in a $ 10,000 donation to an animal [...]

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