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December 21st, 2012

Bowing to Pressure from Users, Instagram Retracts New Terms of Use

Under a continuing barrage of negative feedback, account cancellations, and defections by its users to other photo sharing services, Instagram has withdrawn the most controversial changes to its terms of service agreement. The about-face means that Instagram will not assume the legal right to license users’ photos to third parties without permission.

“Because of the feedback we have heard from you, we are reverting this advertising section to the original version that has been in effect since we launched the service in October 2010,” said Instagram co-founder Kevin Systrom in a statement posted on a company blog late yesterday.

Among the most objectionable terms of service changes proposed by Instagram was a clause allowing the company to license photos to third parties, and also use the photos in advertising, without the knowledge or permission of the Instagram user who posted those images in the first place.

A number of professional photographers, as well as some high profile users of Instagram including National Geographic, announced that they intended to stop using the service because of the proposed changes to the terms of service. Instagram said earlier this week by announcing it had no intention of selling their photos, but that apparently wasn’t enough to calm upset subscribers to the service.

In the meantime, subscriptions to competing services have spiked, according to a report in the New York Times. Flickr’s mobile app has jumped in popularity on the Apple iTunes app chart, and subscriptions to the photo sharing service Pheed have quadrupled in the past week, the Times reported.

Systrom explained in last night’s announcement that after introducing changes to Instagram’s terms of service and privacy policy earlier this week, “it became clear that we failed to fulfill what I consider one of our most important responsibilities – to communicate our intentions clearly. I am sorry for that, and I am focused on making it right.”

So once again Instagram has modified its privacy policy and terms of service. When the latest versions take effect–on January 16, 2013 and January 19, respectively–Instagram will have broad rights to use photos, but only with permission from the contributors.

“You hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy,” says the latest TOS agreement, which goes into effect January 19. It adds, “You can choose who can view your Content and activities, including your photos, as described in the Privacy Policy.”

The privacy policy that takes effect January 16 says that Instagram “will not rent or sell your information to third parties outside Instagram (or the group of companies of which Instagram is a part) without your consent, except as noted in this Policy.” The exceptions are service providers who “will be given access to your information as is reasonably necessary to provide the Service under reasonable confidentiality terms.”

Instagrama also says in the new privacy policy, “We may also share certain information such as cookie data with third-party advertising partners” to deliver targeted advertising.

Users can control who sees the content they post by adjusting privacy settings on their account.

Instagram’s user policies are still subject to change, however, and Systrom hints that there will be more changes to come. Instagram company–which is owned by Facebook, a publicly traded company–is under pressure to earn money.

“Going forward, rather than obtain permission from you to introduce possible advertising products we have not yet developed, we are going to take the time to complete our plans, and then come back to our users and explain how we would like for our advertising business to work,” Systrom told users.

Related:
Photographers Balk at Instagram’s New Terms of Use
Now That We Know Instagram Isn’t a Charity, What Would You Be Willing to Pay?

December 19th, 2012

Now That We Know Instagram Isn’t a Charity, What Would You Be Willing to Pay?

In the wake of a hue and cry over Instagram‘s proposed changes to its terms of service, the company has announced it will remove language that would have given Instagram rights to use photos in advertisements. Yet the protests continue, with some high profile users suspending their use of the service or shutting down their accounts altogether.

It’s worth asking what, if anything, individual photographers (and big publishers such as Time, National Geographic, and others) are willing to pay to use Instagram. $10 per year? $25? $100? Even more? And what would photo editors, curators, art directors and others pay for their use of the service to scout talent and review work?

Instagram announced changes to its terms of service on Friday so it can monetize the service by using the pictures and personal data of users to generate advertising dollars. Presumably Instagram would use the content and data to deliver audience and eyeballs to advertisers.

The details of how that would work are opaque, but their push to monetize the service isn’t irrational: they’re looking for a return on their investment, and for compensation for their creativity, risk, and operating costs, just like any other business.

It is hard to argue that they would be exploiting Instagram users by doing away with free service. After all, Instagram provides users with undeniable benefits: a compelling service, with innovative features, the opportunity for a creative outlet, the benefits of community, and bandwidth–all free of charge.

Rather than charge usage fees, though, Instagram is effectively trying to barter its services for its users’ data and intellectual property. It obviously made the mistake of pressing for too much.

But there’s almost certainly a level of exchange that most Instagram users would be comfortable with. Facebook’s popularity suggests that users–including many photographers–are willing to barter personal data and intellectual property for a
desirable service. And flickr, a service that some Instagram defectors are considering, charges $25 per year for pro accounts (regular accounts are free, but bandwidth is restricted).

Ultimately, the brouhaha over Instagram’s proposed terms of service boils down to a marketplace negotiation over a fair price for a service, with both sides testing their bargaining strength to start. In the end, photographers (and other Instagram users) will have to pay something.

We’d like to hear from our readers who have used Instagram: How much would you be willing to pay per month or per year or per upload to use Instagram? Or, if you prefer that the service remains free, what new service terms would be acceptable? Would you stay with Instagram if they sold just your user data to advertisers? Would you stay if they licensed or otherwise used your photos to help their advertisers? What’s your deal breaker with Instagram?

Related story: Photographers Balk at Instagram’s New Terms of Use

November 12th, 2012

Anti-Gay Group Pleads Fair Use, Free Speech in Infringement Case

An anti-gay group sued for using a photograph of a gay couple without permission in political attack ads has asked the court to dismiss the case on fair use and free speech grounds, according to a report by The Washington Post.

Public Advocate of the United States (PAUS) was sued in federal court in September by the Southern Poverty Law Center on behalf of Brian Edwards and Tom Privitere, as well as photographer Kristina Hill. The lawsuit charged PAUS of misappropriation of the likenesses of Edwards and Privitere, a gay couple, in two attack ads distributed in Colorado. The lawsuit also charged infringement of Hill’s copyrights.

Motions to dismiss civil claims are a common legal defense strategy of first resort, and are usually unsuccessful unless the facts of a case are undisputed.

Hill, a Brooklyn-based wedding photographer, had shot engagement photos of the couple. Edwards ended up posting one of the images on his blog, with Hill’s permission. PAUS downloaded the photo, and used it last spring in campaign ads against Colorado state senator Jean White (who had voted in favor of allowing same-sex unions in Colorado) and against Jeffrey Hare, a candidate for the Colorado house of representatives. The ads were distributed as mailers.

According to the Washington Post report, PAUS said that its use of the photograph is protected speech, because the organization was expressing its political views about gay marriage. PAUS also said that the gay couple depicted in the photograph had no reasonable expectation of privacy, because they had posted the image online where anyone could see it.

In its defense against the copyright infringement claim, PAUS argued that its use of the photo was protected by fair use because it “thoroughly transformed” Hill’s photograph by changing the background before publishing it in the political mailers. Hill had photographed the couple against a New York skyline. The PAUS ads replaced that skyline with two different Colorado landscapes.

Related:
Anti-GAy Group Sued for Unauthorized Use of Photo in Attack Ads

October 8th, 2012

Facebook Copyright Takedown: Justice or Injustice?

An alleged copyright infringer appears to have gotten his just desserts from Facebook, which has summarily removed his Facebook fan page. But the story highlights the lack of transparency in Facebook’s policy regarding its handling of infringement claims.

Bill Tikos, the founder of the design and culture trend spotting site The Cool Hunter,  has complained on his Web site that his Facebook fan page was taken down for an alleged copyright infringement. A FB page and 788,000 fans “nurtured meticulously over the past five years–was gone,” Tikos wrote. “No explanation, flimsy warnings, no instructions on what to do next. None of our numerous attempts to rectify the situation and resurrect the page have worked.”

Cool Hunter–not to be confused with Cool Hunting, another trend-spotting site that remains in good standing with FB–says Facebook has refused to provide any detail about the alleged infringement. The dust-up was first reported last week by The Next Web, an online tech publication.

“We have no idea what we were infringing on. Which image/s or posts, specifically, have caused this?” Tikos wrote on the Cool Hunter Web site.

From there he goes on to say that he knows of two images posted on Cool Hunter without credit–both of them images found elsewhere on Facebook without credit, Tikos says. And then he digs himself in a little deeper:

“The other reason that could have caused the closure of our FB page is that we sometimes use images even when we do not know who has taken the picture,” he wrote. He goes on to say that everyone else–FB, Tumblr, Pinterest, and “millions of people and organizations share images – theirs and someone else’s – freely every day.” Tikos says he wants to give copyright holders credit if he can find them; his web site (and Facebook page, before it was taken down)  invite copyright owners to get in touch if they see their images on either site without credit.

As it turns out, others have had their Facebook fan pages removed without recourse or due process, The Huffington Post reported last year. Under the Digital Millennium Copyright Act, internet service providers (such as Facebook) can protect themselves from liability for infringement by their users if they act quickly to take down infringing content.

Last year, Facebook told one site owner that it didn’t have time to judge disputes over copyright take-down requests, according to The Huffington Post report. FB said it was up to the site owner to contact the person who submitted the take-down notice–and get that person to withdraw the complaint. After The Huffington Post reported on the lack of due process given to those who lost their FB pages as a result of allegedly fraudulent DMCA complaints, Facebook issued a statement saying “Abuse of DMCA and other intellectual property notice procedures is a challenge for every major Internet service and we take it seriously.”

So are Tikos and Cool Hunter just victims of Facebook’s legal expediency?  Did Facebook overreact, as Tikos suggests, to a couple of alleged infringements without giving him due process, and a chance resolve the complaints?

The Next Web investigated, and reports that it got a statement from Facebook that said: “This [Cool Hunter] account has been disabled due to repeat copyright infringement under our terms and the account has been removed from the site accordingly. Additionally, we have thoroughly reviewed all related reports and have determined that we took the correct action in this case.”

OK, but in the name of transparency, how hard would it be for Facebook to post the evidence for everyone to see?

September 26th, 2012

Anti-Gay Group Sued for Unauthorized Use of Photo in Attack Ads

©Kristina Hill

The Southern Poverty Law Center has sued an anti-gay group for unauthorized use of a photograph of a gay couple in political attack ads in Colorado earlier this year.

SPLC sued the Virginia-based Public Advocate for the United States (PAUS) for violating the copyrights of photographer Kristina Hill of Brooklyn, New York. The suit also alleges that PAUS unlawfully appropriated the likenesses of the couple in the photograph–Brian Edwards and Tom Privitere.

Public Advocate of the United States, which SPLC classifies as a hate group because of its anti-gay propaganda, used Hill’s photo last spring in campaign ads against Colorado state senator Jean White (who had voted in favor of allowing same-sex unions in Colorado) and against Jeffrey Hare, a candidate for the Colorado house of representatives. The ads were distributed as mailers.

Hill’s image of Edwards and Privitere, shot during an engagement session, shows them kissing with a New York skyline in the background. Edwards ended up posting the image on his blog, with Hill’s permission.

PAUS downloaded the image, stripped out the background, and replaced it with backgrounds of two different Colorado landscapes for the unauthorized campaign mailers. PAUS superimposed text that read “State Senator Jean White’s idea of ‘family values?’” in one mailer and “Jeffrey Hare’s Vision for Weld County?” in the other ad.

White was defeated in her re-election race.

“I cringe every time I look at what once was one of our favorite photos,” Edwards said in a press release issued by SPLC when it filed the lawsuit today. “All I see now is the defiled image used to attack our family and our community. All we want is justice for the pain that Public Advocate has caused us. ”

An SPLC attorney said in the press release: “This was just a cheap way for Public Advocate to avoid having to pay for a stock photo to use in their hateful anti-gay attack ad. It was nothing short of theft.”

Hill, Edwards and Privitere are seeking an unspecified amount of damages.

Related stories:
Civil Rights Group Demands End to Use of Same-Sex Couple Photo in Anti-Gay Ad
Wedding Photographer Might Sue for Infringement Over Anti-Gay Attack Ad

September 7th, 2012

Shepard Fairey Sentenced on Criminal Charge in ‘Hope” Poster Case

Artist Shepard Fairey was sentenced to 300 hours of community service and fined $25,000 today in a federal courtroom in Manhattan today for destroying documents, falsifying evidence “and other misconduct” in his civil litigation two years ago against the Associated Press (AP). He had faced a maximum of six months in jail.

Fairey pled guilty to the criminal charge last February. The US District Attorney in Manhattan announced Fairey’s plea shortly after he settled his civil case with the AP over his unauthorized use of an AP image to create the “Hope” poster that became an icon of Barack Obama’s 2008 campaign for President.

“Shepard Fairey went to extreme lengths to obtain an unfair and illegal advantagein his civil litigation [against AP], creating fake documents and destroying others in an effort to subvert the civil discovery process,” US Attorney Preet Bharara said in announcing Fairey’s guilty plea.

AP claimed copyright infringement against Fairy in 2009 for unauthorized use of the image of Obama to create the Hope poster.

Fairey tried to pre-empt the claim by asking a federal court judge to declare that the Hope poster amounted to a fair use of the AP photograph. In seeking that declaration, Fairey gave “factually untrue” information about the image he had used, the US District Attorney said. Specifically, Fairey claimed that he had used part of one AP image to make the poster, when in fact had used a substantial portion of a different AP image.

Fairey admitted the discrepancy in 2010, saying he had made a mistake about which image he had used. He said he then tried to cover up the mistake. (His fair use defense was arguably stronger with the image he originally claimed to have used.)

The US Attorney began a criminal investigation after Fairey’s admission, and concluded that he had created “multiple false and fraudulent documents” which he presented to AP during the discover process in the civil litigation.

The US Attorney also said Fairey tried to get one of his employees to mislead investigators.

Prior to pleading guilty to the criminal charges, Fairey had settled his civil litigation with AP on mostly undisclosed terms (the two sides did agree to share proceeds from licensing of the Hope poster image, however).

August 17th, 2012

Photographers Can Now Use FBI Anti-Piracy Seal. But Should They?

Anyone who has ever rented a movie has probably read the riot act on copyright infringement, which appears under a colorful FBI anti-piracy seal (shown at right) and says this:

“The unauthorized reproduction or distribution of a copyrighted work is illegal. 
Criminal copyright infringement, including infringement without monetary gain
is investigated by the FBI and is punishable by fines and federal imprisonment.”

Now that FBI seal and warning are available for use by any copyright holder–including photographers–who wants to use it to deter would-be infringers. Until earlier this week, it was legal only for members of five entertainment and software industry members to use the seal and warning. Those included big movie studios and video game producers.

In making the seal and warning available for use by all copyright holders, the FBI has eliminated fees and administrative requirements. Users can download the seal and post the warning free-of-charge, provided they follow the FBI rules for its use. One rule is that the seal and warning language must appear together. The seal also must be downloaded from this FBI Web page. The seal may not be animated, although it may be rendered in outline, grayscale, or black and white. And the seal and warning must not be used to imply the FBI’s endorsement of any photos, videos or other communications. (Complete rules and guidelines are available on the FBI’s Web site.)

It’s worth noting that just because a copyright holder posts the FBI’s anti-piracy notice doesn’t mean he or she can expect the FBI to investigate suspected infringements. Criminal infringement is defined in copyright law as primarily–though not exclusively–those infringements whereby someone undercuts the market for a movie or music recording by distributing bootleg copies before the official release.

For photographers, then, the benefit of the new FBI rule is that it offers an official law enforcement tool for warning people against infringement. And it does so by instilling an element of fear about dire consequences, like a sign on a chain link fence that says “Warning–premises protected by attack dogs,” even if there don’t happen to be any attack dogs actually present.

But that raises some question: Is the FBI warning overkill for photographers? Is the deterrent effect worth the risk of scaring off customers with a message that signals a certain level of unfriendliness? Or has copyright infringement become such a problem that more dire warnings are in order?

August 16th, 2012

Photo Montage Artist Settles with Mountain Light; Muench Drops Copyright Suit

Mountain Light Photography has accepted a $2,600 settlement offer from Thomas Barbèy, and Muench Photography has withdrawn its infringement claim against the photo montage artist, according to court records in the case.

Muench and Mountain Light filed a joint claim of copyright infringement against the Las Vegas-based artist, alleging unauthorized use of two separate photographs. The case was filed in US District Court in Los Angeles.

Barbèy created an image that he titled “Rhinal Congestion” (it shows multiple rhinos in a snowscape), allegedly using parts of an image owned by Muench called “El Capitan in Winter, Yosemite National Park.” Barbèy was also accused of using a photograph called “Quadruple Falls at Dawn, Glacier National Park,” shot by the late Galen Rowell of Mountain Light Photography, to create a photo montage titled “Pitcher Books.” (Photos here).

Mountain Light accepted Barbèy’s settlement offer of $2,600–including $1,600 in damages and $1,000 for attorney’s fees–along with Barbèy’s promise to stop marketing the “Pitcher Books” image. (Mountain Light had no possibility of winning statutory damages in court because it had not registered the “Quadruple Falls” image prior to the alleged infringement).

Despite offering payment of $1,600 for damages, Barbèy said in court papers that his offer was not to be construed as an admission of liability for infringement, or an admission that Mountain Light had suffered any damages.

Meanwhile, Muench’s attorneys have filed notice with the court that Muench Photography was dismissing its claim against Barbèy.

Attorneys gave no explanation for dismissing the claim, and they were not immediately available for comment. Muench Photographer was also not immediately available for comment.

Barbèy has admitted use of the Muench and Mountain Light Images in comments he has posted to the PDNPulse blog. He said he created the montages “well over a decade ago.”

His attorney told PDN last week that the claims against Barbèy were without merit. The attorney said Barbèy would successfully defend against them on fair use grounds, and by invoking the statute of limitations for copyright claims.

Related story:
Self-Proclaimed Photo Montage Virtuoso Is Sued for Stealing Photos

August 13th, 2012

Google Changes Search Engine to Penalize Copyright Infringers

Starting this week, web sites that have received high numbers of removal notices for unauthorized use of copyrighted content will rank lower in Google’s search results, the search engine giant announced on its Inside Search blog on Friday.

Because Google is the number one search engine, this could result in lower traffic for sites that regularly post copyrighted material without authorization. “Sites with high numbers of removal notices may appear lower in our results,” according to the post by Amit Singhal, Google Fellow and the Senior VP of Engineering.

As The New York Times Media Decoder column notes, Google’s new ranking system will only take into account valid copyright-removal notices sent to Google by copyright holders themselves.

To learn how to inform Google about a copyright infringement on any Google product (including its image search, web search, Google + and YouTube), visit the Google support page titled Removing Content from Google.

Google’s blog also reports that the company now receives copyright removal notices for over 4.3 million URLs a month. That’s as many notices as it received in all of 2009.  However, these notices come from just 1,636 copyright owners (check out this chart on Search Engine Journal). Most of the notices are coming from large media companies holding many copyrights.

August 13th, 2012

Self-Proclaimed Photo Montage Virtuoso Is Sued for Stealing Photos

©Thomas Barbèy. “Rhinal Congestion”

Muench Photography and Mountain Light Photography have filed a copyright infringement claim against a Las Vegas-based photomontage artist for unauthorized use of two of their photographs.

The artist, Thomas Barbèy, creates surrealistic photomontages. According to his Tumblr page, he uses  images that he shoots on his travels all over the world. He claims inspiration from René Magritte, M.C. Escher, and Roger Dean, and says, “I’m constantly asked about how I do [the montages], I would like to think that the pictures can be appreciated without any real knowledge of their technical virtuosity. The visionary inspiration and imagination is not a technical skill learned in school but rather to my personal belief a gift from God.”

And theft of other people’s photographs, allegedly.

©Muench Photography. “El Capitan in Winter, Yosemite National Park”

“He claimed he took all of these images himself, and he clearly doesn’t,” says Marc Muench, one of the plaintiffs, who is suing Barbèy in a federal court in Los Angeles.

“The claims in this lawsuit have no merit whatsoever,” says Barbèy’s attorney, Charles Harder.

According to the lawsuit, Barbèy created an image that he titled “Rhinal Congestion” (it shows multiple rhinos in a snowscape) using an image by Muench called “El Capitan in Winter, Yosemite National Park.” Muench’s image appeared in 1993 in a book called National Parks of America (Graphic Arts Center Publishing Company). He also registered the image with the US Copyright Office that same year.

The lawsuit also alleges that Barbèy used a photograph called “Quadruple Falls at Dawn, Glacier National Park,” shot by the late Galen Rowell of Mountain Light Photography, to create a photo montage titled “Pitcher Books.” Rowell’s “Quadruple Falls” image was first published in 1997. Mountain Light registered the image with the US Copyright Office in 2009.

Barbèy sells his prints through his own gallery in Hawaii, as well as through an online retailer called Artifacts Gallery. “Pitcher Books” and “Rhinal Congestion” are priced at $1500 each on the Artifacts Gallery Web site.

Charles Harder says that his client’s use of the Muench and Mountain Light images is protected by “the legal doctrine of transformative use, as well as the doctrines of fair use and de minimis use.” The lawsuit tries to pre-empt a fair use defense by saying that Barbèy’s images do not “criticize, comment on, or otherwise refer the viewer to” the Muench  and Mountain Light photographs.

©Thomas Barbèy. “Pitcher Books”

Harder also says that the statute of limitations applies in this case. He is suggesting, in other words, that Muench and Mountain Light didn’t bring their claim to court soon enough, so it will be dismissed.

Harder says there were “very minimal sale of the works at issue, so even if there was liability (which there is not), damages would be nominal.”

That might be the case for the Mountain Light image, which was registered after the alleged infringement, making Mountain Light eligible for actual damages only. But the Muench image was registered prior to the alleged infringement. So if a court holds Barbèy liable for infringement, Muench would be eligible for statutory damages.

Mountain Light’s operations manager was not immediately available for comment.

©Mountain Light Photography. “Quadruple Falls at Dawn, Glacier National Park, Montana”