Photographer Loses Copyright Infringement Lawsuit Against Mapmaker That Used His Photo With His Explicit Permission
from the but-I-didn't-think-anyone-would-do-the-thing-I-told-them-they-could-do! dept
A far-too-common story of alleged copyright infringement by a corporation comes to an unexpected resolution. Photographer Art Dragulis took a photo of a rather rustic Maryland scene and uploaded it to Flickr. (from the filing)
Roughly four years later, he discovered Kappa Map Group was using his photo for the cover of its Montgomery County atlas, unbeknownst to him, and as such, also unrecompensed.
Lawsuit-filing ensued. Dragulis claimed Kappa Map Group had no right to use his photo commericially. Seems an almost open-and-shut case, what with any number of entities deciding “anything showing up in a Google image search” = “royalty-free stock photography.” And in most cases, this would have been rather straightforward if the photographer himself hadn’t undermined his infringement claims years before he ever raised them.
As the opinion notes, any copyright protections Dragulis might have enjoyed were explicitly waived by his choice of licensing back in 2008.
Plaintiff alleges that defendant infringed his copyright in the photograph because it “copied Plaintiff’s work and made derivatives of the work without Plaintiff’s authorization in violation of 17 U.S.C. § 501.” Id. ¶ 22. But plaintiff uploaded the photograph to a public photo-sharing website, where he did not assert exclusive rights to his copyrighted image, and he instead opted to license the work and make it available for use by others without compensation.
Dragulis chose to license this picture under Creative Commons BY-SA-2.0, which allows commercial use of the photo in exchange for attribution. As Kappa pointed out in its initial response to Dragulis’ filing, it followed the terms of the license explicitly.
Kappa used the image in the Kappa Map in good faith based upon the representations that the image was licensed for use in commercial applications. On the back cover of the map, Kappa provided the “Attribution” and “ShareAlike” data for the Work dictated by the CC BY-SA-2.0 license: “Photo: Swain’s Lock, Montgomery Co., MD; Photographer: Carly Lesser & Art Drauglis, Creative Commons, CC-BY-SA-2.0.”
So, everything was exactly what Dragulis wanted, except that he apparently never expected a commercial company to take him up on his CC offer. When one did, it was time to sue. The final opinion notes that Dragulis seems upset with what happened but can’t really blame anyone but himself for the outcome.
Plaintiff repeatedly voices consternation in his pleadings about defendant’s distribution of the publication that displayed his work on its cover for profit, but of the many licenses available to choose from, plaintiff selected the one that specifically authorized commercial use. So the only issue before the Court in Count I is whether defendant – which gave plaintiff full credit for the work it displayed on the cover of its publication – complied with the technical terms of the license under which plaintiff published the work. The Court finds that it did.
Dragulis heads a little further into the weeds with his arguments, claiming that the “share-alike” portion of the CC license demanded Kappa Map Groups offer its atlas under similar terms — i.e., for free and with a similar license attached. The court finds this unpersuasive, pointing out the CC license terminology Dragulis invoked only refers to “derivative works,” which KGM’s atlas isn’t. Instead, the court finds the atlas to be a “collective work,” one that incorporates the photo “in its entirety in unmodified form.”
Dragulis loses on all counts, even with the court entertaining his very belatedly-raised argument that the minimal cropping of his original photo by Kappa somehow made the use of his photo a “derivative work.”
If there’s a moral to this legal incident, it’s this: know the terms of your licensing before you agree to use it. If you want to use a more altruistic licensing form like those offered by Creative Commons, by all means, do so. But don’t act like a commercial entity owes you something for complying with the terms you expressly agreed to. Licensor’s remorse isn’t a legally-recognized tort.
Filed Under: art dragulis, copyright, licenses, photographs, share alike
Companies: creative commons, flickr, kappa map group
Comments on “Photographer Loses Copyright Infringement Lawsuit Against Mapmaker That Used His Photo With His Explicit Permission”
Wasted Free Advertising
The worst thing is the photographer wasted a perfectly good opportunity.
Instead of companies seeing that his work was good enough to be used commercially, they’ll now see him as someone who is willing to frivolously attack anyone who does more than look at his work.
Re: Wasted Free Advertising
Yeah, he sued them for doing the very thing he said that they could do, someone would have to be insane to want to do business with him at this point.
Re: Wasted Free Advertising
Well, except for KMG which was needlessly dragged into court for doing what the photographer expressly requested. The judge, I hope, had some fairly scathing opinions for the photog’s lawyer. This never should’ve wound up in court. I suspect the photog was just hoping to shakedown KMG and they didn’t fall for it. Good for them. They had competent legal advice.
While I agree that Dragulis was tying to throw anything at the wall to see what sticks, I’m not sure I agree with the court’s interpretation on this one. If I modify a CC-BY-SA-2.0 image I have to publish it under the same licence, but if I use it whole and unmodified I can apply copyright to it? Sounds… iffy, and not at all what the CC SA licence intended.
A more reasonable interpretation would be that the company must allow just the cover of the Atlas to used under the CC SA license.
Re: Re:
but if I use it whole and unmodified I can apply copyright to it?
No, the court just said they don’t have to offer the whole atlas under the CC license just because they used a CC-SA image on the cover. The atlas company still couldn’t prevent someone else from publishing the same photo – they don’t hold any copyright interest in it.
Re: Re:
That was my read as well. I get why the entire atlas didn’t need to be made available and shared alike” but the cover they made with his image probably needed to be. I don’t think that was what Dragulis was asserting but i do think it’s a supportable part of the CC license he chose.
No excuse
The photographer has no excuse.
The CC BY NC licence was available – and would have done what (it seems) he actually wanted.
Next time read the small print.
Re: No excuse
Or any print…
What an idiot
Most of my photos are released under CC-BY, a decision I didn’t take lightly. And some of them have been used in commercial settings (there’s a webshop selling fridge magnets of photos of mine, and several have appeared in magazines and online articles (including one in a cracked.com article)).
It just makes for a more interesting line on my resume: “Internationally published photographer” instead of “Hobbyist fool with a camera”.
I’d love to have one of my photos used as the cover of a book/map. I’d buy a copy of that, instantly, or at first ask if I could get one for free.
Re: What an idiot
Trust me, there is nothing like the feeling of being paid properly for your work.
Re: Re: What an idiot
there is nothing like the feeling of being paid properly for your work.
That’s kind of a sad statement.
Re: Re: Re: What an idiot
No, it’s true. Nothing in the Techdirt/sharing philosophy contradicts this home truth, or needs to.
Re: Re: Re:2 What an idiot
Nothing in the Techdirt/sharing philosophy contradicts this home truth, or needs to.
If the statement is taken as “there is nothing as good as the feeling of being paid properly for your work” then I still find it sad. If he just meant that literally it’s a unique feeling then I have no problem with it, though it’s not a very interesting statement then.
Re: Re: Re: What an idiot
I don’t find it sad and neither does my bank manager.
Re: Re: What an idiot
I agree completely. There’s also nothing quite like the feeling of getting recognition for a hobby.
Re: Re: What an idiot
Yes there is, being appreciated for the works that you produce.
Re: Re: What an idiot
I don’t mind if people want to pay for my photography. But if you choose a license that allows for the relatively free usage of your work, you have no right to complain if someone takes you up on your offer and complies to the license completely.
Re: Re: What an idiot
Sure there is: seeing your work used by others is far more satisfying than being paid for it. For me, anyway.
Different people are motivated by different things.
Interpretations...
So…does this mean if you combine a BY-SA work with _anything else_ that’s non-SA, you no longer have to SA the result?
I’d always assumed SA was “kind of like” the GPL — if you include something with SA, it trips the licence for the whole. That would be my literal interpretation of the text too (http://creativecommons.org/licenses/by-sa/4.0/legalcode), but maybe it’s in lawyer-speak and doesn’t say what I think it says?
What does “adapted” mean in 3b? I would have thought using it in another work is an adaptation…this ruling suggests not?
Re: Interpretations...
I’d always assumed SA was “kind of like” the GPL
— if you include something with SA, it trips the licence for the whole. That would be my literal interpretation of the text too (http://creativecommons.org/licenses/by-sa/4.0/legalcode), but maybe it’s in lawyer-speak and doesn’t say what I think it says?
You’re reading more into it than it actually says. As far as I remember it, the Share-Alike provision says that if you alter a licensed work, then you must at least license your adaptation under the same or similar terms, not whatever work that adaptation may be attached to as well. The GPL works the way it does because it was created for software, an entirely different beast.
I would have thought using it in another work is an adaptation… this ruling suggests not?
Common sense also says it. ‘Adaptation’ is just another way of saying ‘alteration’, not just in CC licences, but also in copyright statutes. So if the atlas publisher had Warholed the image, that would be adaptation, whereas publishing it the way they did isn’t.
Re: Re: Interpretations...
So is there a CC-type licence that says “feel free to reuse and share…but don’t try and lock this up behind a paywall or some other restriction greater than what I’ve licensed it to you”?
For some reason that what I thought the purpose of the CC scheme was…
Re: Re: Re: Interpretations...
Any CC licence with the Share-Alike provision, which states the following: If you alter, transform, or build upon this work, you may distribute the resulting work only under the same, similar or a compatible license.
Re: Re: Re: Interpretations...
Isn’t that CC-BY-SA? It does prohibit people from adding (some) restrictions.
Re: Re: Re:2 Interpretations...
Not just the CC-BY-SA, any CC licence with the Share-Alike provision, as I said six minutes before you.
Re: Interpretations...
“kind of like” the GPL — if you include something with SA, it trips the licence for the whole.
That isn’t even strictly true of the GPL. Aggregation of GPL programs with other programs doesn’t bring the other programs under the GPL. It all depends on how closely linked together they are.
Re: Re: Interpretations...
Not that I disagree with the judge’s final verdict, but I don’t see how putting an image on the cover of a book does not make it not closely linked to the book.
As a layperson I also thought that CC SA licenses worked as a sort of GPL for media; as in you had to offer any work that includes the original piece under the same license.
In fact I’ve seen commercial indie games get the book thrown at them for using CC-BY-SA music or graphics.
Maybe it’s not the same thing?
Re: Re: Re: Interpretations...
The GPL doesn’t really work like that, e.g., Debian includes GPL’ed stuff but doesn’t have to be GPL’ed itself. If the photo were retouched, edited, etc., those changes would be available under CC-SA. But if you look at the ad, the photo is basically unchanged and independent of the rest.
Re: music, it may be a gray area with synchronization rights. For graphics, it’s much harder to claim the graphics are independent of the rest of the game. Maybe if it were a painting on a virtual wall it would be OK. For something like chararcter art, it would be legally risky. I’m not aware of precedent.
Re: Re: Re: Interpretations...
I see how: because if you removed the image from the cover, it would not change a reader’s understanding of the book in any meaningful way.
I own that map
I know, I’m weird, I still have paper maps, even some that are new. I don’t buy them as often, even though there are new roads, they don’t wear out as fast because they don’t get as much use, I remember before mapquest and turn by turn gps, I’d wear out those county ADC page maps in a year or two! Many fire departments around here still dispatch based on their page and grid numbers.
Anyway, I have the map with that cover. It is kind of weird as it isn’t exactly representative of the county, it doesn’t even show an actual road, what you see is the C&O canal tow path, where the mules that pulled the canal boats would walk, but is now used for biking and hiking (I do that a lot too).
Re: I own that map
[The atlas] is kind of weird as it isn’t exactly representative of the county, it doesn’t even show an actual road, what you see is the C&O canal tow path, where the mules that pulled the canal boats would walk, but is now used for biking and hiking (I do that a lot too).
I understand what you’re saying, but wouldn’t the towpath also be shown on the maps, albeit as part of the canal?
Re: I own that map
You’re not weird. One of my favorite things is an old school atlas. It’s older than I am. Remember Rhodesia, Ceylon, and Burma?
I too used to own those booklet roadmaps, and it was funny to look at them when they were worn out and held together with tape, when they showed open prairie where whole subdivisions had since been built.
Some of those old maps are pretty quirky. This atlas shows my “municipal district” (not even a city or town), yet it doesn’t mention the honest to goodness city just across the river from us at all! That’s got quite a few good laughs from friends.
Re: I own that map
Not much beats getting those huge paper maps out all over your best dining table, getting your friends round, putting on your silliest hatwear (I have a motley collection of berets, pith helmets, a Napoleon bicorne) and deciding where to send in your infantry, your panzers, your cavalry…
I’ll get my coat.
this is the reason why people should register to get copyright protection. There is no such thing as automatic copyright. When you make draw or paint something and display it on Flickr or DeviantArt, it’s open season for art thieves and they take your work and put it on sites like Red Bubble to sell it. It’s called an “orphan work”. Artists should stop being lazy and get their work registered. It only cost $35 to your work registered for copyright protection. Is that really expensive to you?
Re: Re:
Not only are you factually wrong regarding automatic copyright, but also off-topic. The issue before the court was not whether or not the photo was covered by copyright (it was), but what terms it was licensed under.
Re: Re:
There is no such thing as automatic copyright.
Mr. Taylor, the Berne Convention is calling.
Re: Re:
this is the reason why people should register to get copyright protection. There is no such thing as automatic copyright.
Not true. Copyright in the US is assigned the moment the work is “fixed in any tangible medium of expression” or in laymans terms, when you take the photo.
When you make draw or paint something and display it on Flickr or DeviantArt, it’s open season for art thieves and they take your work and put it on sites like Red Bubble to sell it. It’s called an “orphan work”.
Also not true. Unless you assign your copyright via a contract (possibly in the “terms of use” on the particular website) you retain your copyright. “Orphan works” is something completely different. That refers to works where the copyright holder cannot be found or determined. An example would be an author who has died without an heir and has never assigned the copyright to anyone else.
Artists should stop being lazy and get their work registered. It only cost $35 to your work registered for copyright protection. Is that really expensive to you?
You receive copyright protections whether the work is registered or not. The advantage of pre-registering is that you can sue an infringer for statutory damages and/or attorney’s fees as opposed to just actual damages and profits.
Re: Re:
At $35 a photo, a photographer would go broke rather quickly if they were putting a lot of photos on the likes of Flickr.
Re: Re: Re:
It’s not $35 per photo. It’s per batch of photos. You can register thousands of images in one registration for one fee (which is now $55).
Never should have gone to court
I’m surprised this case went to court in the first place. An intellectual property attorney should have known that a Creative Commons license made this plaintiff’s claims invalid. I wonder what the photographer’s legal fees were…
Re: Never should have gone to court
I regularly collect on CC images submitted to Geograph because infringers don’t attribute, so there is effectively no licence. But here in the UK there is a small claims court to threaten them with.
BTW I no longer post under licences such as this. One’s images end up anywhere and as the also go to a picture library there’s the risk of contamination- not knowing where an image came from. So either charge, or don’t. Best not to do both. We don’t have or need copyright registration.
My understanding of photography...
…mind you IANAP (but have friends who were professionals) is that you’re not trying to sell a given image, so much as the skill to capture a relevant topic on image. Every photo you take is not material to be defended or withheld from the public (unless it’s a crap exposure you don’t want to be associated with you) but a piece in your portfolio.
Sure, if someone hires you to take a bunch of photos and then stiffs you for the cost, then you sue him for copyright infringement if he uses the photos, but that’s after you sued him for failing to pay for services rendered. In such a case, letting others use the photos for free might be a violation of an exclusivity clause which is null and void because he didn’t pay you, and is therefore added insult to injury.
Creative Commons Licenses
This issue shows clearly – from the viewpoint of a professional photographer – the limits of a CC license. To be clear, this is not because the CC license itself is limited, but rather because many CC users don’t recognize that the legal basis of CC is entirely linked to Federal copyright law, and are not aware how that might affect the usage of an image, their legal rights, and how this might affect their income.
In addition, many clients also are not clear about copyright law, either, and part of being a professional is being able to describe how that works without pissing off clients – I find this a constant challenge. I don’t know any working, full-time professionals who use CC licenses as a basis for their contracts, because our contracts require more detail than the basic CC license, not because there is anything inherently wrong with CC licenses.
I believe CC licensing is great for non-professionals, as it simplifies what is admittedly a confusing and overly complicated process. Even the Copyright Office recognizes this, and is in the midst of trying to change how it does business.
Anyone who wants to learn the basics of the law and how to register (it’s not that bad!) can go to http://www.asmp.org and click on: Business Resources > Tutorials & Guides > Copyright Tutorial. This is free, and open even to non-members, and the registration tutorial will walk you through step-by-step (I use it myself).
ASMP is a trade association with a formal relationship with the Copyright Office, and a long history of working with these issues. ASMP also produced two day-long Symposiums in recent years, one of which includes Lawrence Lessig, in many respects the “inventor” of CC – a bright guy.
I Don't Think This Headline is Entirely Accurate
I get that there’s some wiggle room here, but I think the headline was far insulting to the photographer than was warranted.
The license, at least on its face, appears to require forbid companies charging to his photographs. At least that’s probably how most people would read it, and most people aren’t attorneys (thank goodness).
I believe that he did the right thing. You have to keep companies honest, especially in the USA, and I think the judges erred.
I settled out of court with a company I sued. They took one of my tweeted photos and attributed it, verbatim, to Twitter. I see news channels doing this all the time, attributing videos “Courtesy of YouTube”. That’s just inexcusable, and 9 out of 10 times, the plaintiff will prevail in an attribution case because the companies don’t know what they’re doing when they’re racing to rip off content. In this instance, the defendant actually chopped off my copyright from the bottom. It was a large company, but I didn’t get much, a few grand, but it was better than nothing.
People think photos on the Internet are free for them to use, and if someone takes the time and trouble to fight, we all owe them a debt of gratitude, because regardless of our online chest-pounding, most of us would take it laying down.
At the very least, the headline was insulting to the photographer, and it was more critical than warranted. It’s easy to criticize, but it’s hard to actually see things, such as a court case through.
The Internet has shifted the doer/gawker ratio far in the favor of gawkers. Instead of doing things, 99% of people appear to spend their days judging what other’s do. My hat’s off to anyone that gets off their ass and makes a go of it, and this suit wasn’t as silly as indicated. He could have legitimately prevailed.
Much respect to those who take risks instead of choosing the safety and security of judging behind anonymous screen names.
Re: I Don't Think This Headline is Entirely Accurate
The license, at least on its face, appears to require forbid companies charging to his photographs.
“You are free to:
Share — copy and redistribute the material in any medium or format
Adapt — remix, transform, and build upon the material
for any purpose, even commercially.”
https://creativecommons.org/licenses/by-sa/4.0/
If you go through the legally-binding version of the license, there is no mention of any restriction on commercial use. That would be the CC-BY-NC license, which he didn’t use.
At least that’s probably how most people would read it, and most people aren’t attorneys (thank goodness).
When you see that license deed that explicitly allows commercial use, you read that as forbidding charging for the photograph? Why? Or is there some part of the actual license that you think looks like it forbids charging money?
You have to keep companies honest, especially in the USA, and I think the judges erred.
The company was being perfectly honest. In what way do you think the court erred?
People think photos on the Internet are free for them to use
In this case, it actually was – as long as the license terms were followed, which they were.
At the very least, the headline was insulting to the photographer, and it was more critical than warranted.
It described exactly what happened.
Instead of doing things, 99% of people appear to spend their days judging what other’s do… Much respect to those who take risks instead of choosing the safety and security of judging behind anonymous screen names.
Now that is ironic.