Images and the WWW – Wild Wild West

A few days ago, I discovered one of my images being used on a blog. It happens.. most bloggers seem to think that images on the internet are free to use and that a ‘blog’ would be classed as ‘fair use’.

The problem with this blog however, is that the blogger should really know better than to use a copyrighted photograph without permission…. Especially as he’s Raanan Bar-Cohen, Senior Vice President for Commercial Services at Automattic inc.

In case you don’t know who they are, they are the company that own WordPress.. arguably one of, if not the biggest blogging platform in the world and, as it happens, the host of this blog….

The original blog post featuring an unlicensed thumbnail image of Jerry Seinfeld.

So you’d think the Senior Vice President of Commercial Services for such a huge social media company  would know a thing or two about business ethics and copyright, yes?

Apparently not….

See, when I discovered that he was using my photograph of Jerry Seinfeld on his blog, I was disappointed to see that he wasn’t merely ‘hot-linking’ the image – i.e. ‘syphoning’ it from the original page (where it was used in accordance with the license granted) – an act which some consider just as bad as infringement since the original host pay for the bandwidth on every visit to the their page, while the leech gets all the benefit without the overheads).
Instead he had downloaded the high resolution image and uploaded it to his own WordPress site, thereby making an unauthorised copy.

It’s quite common for this to happen, and annoying as it is, many people are under the illusion that it’s ok to take an image from one website and use it on their blog…  this is not the case – without permission, it’s copyright infringement.

Again, this guy is very near the top of the blogging world.. he should be setting examples of good blogging etiquette and enforcing the rights of other creatives.

So he takes my photo from one licensed customer and uploads it to his own site and despite my name being credited on the original page (and my full contact details embedded in the EXIF info in the image he’s stolen!), he’s not made ANY attempt to contact me for permission, or to license the image. To rub salt in the wound, he doesn’t even give a credit or display the copyright notice where it appears on his blog.   How very rude.

So.. What should I do? I’m quite within my rights to immediately file a DMCA Notice.. enforcing my legal right to have the infringing material taken down, before I even consider what action to take after that.. but wait – this guy is a top-dog at the company that I’m filing a DMCA notice to.. that might cause him some embarrassment, maybe even cost him his job.. and although I’m pretty disgruntled about his behaviour, I don’t want him to lose his  job over it.. so on the 26 November, I wrote him a polite, but firm email – establishing my right to be paid, and sparing him the embarrassment and consequences of a legal DMCA Notice:

Without Prejudice Save As To Costs

Dear Mr Bar-Cohen,

Re: Jerry Seinfeld blog post on Raanan.com :

http://raanan.com/2013/10/16/alec-baldwin-jerry-seinfield-start-up-advise/

http://raanan.com/2013/10/16/alec-baldwin-jerry-seinfield-start-up-advise/jerry-seinfeld/

http://raanan.files.wordpress.com/2013/10/js_jerryseinfeld-large.jpg

I am the exclusive copyright owner of the image shown in the blog post, and the image stored on your WordPress account, and I have no record of the image being licensed for use on your blog.

Also, the image is not attributed or credited to me, and no visible copyright information is given, thus opening it up to becoming an orphan work and further possible infringements.

The license fee for the size and use made of the image thus far (since 16th October) is £322.73 (approximately $522).

Rather than file a DMCA notice immediately and cause potential embarrassment, given your relationship with the host, WordPress.com, I would instead like to give you the opportunity to license the image retrospectively as a means to settle this infringement amicably.

The image in question (and others from the same set) can be found on my website:

http://junction10.photoshelter.com/image?&_bqG=4&_bqH=eJxtkMtOwzAQRb.m2bChhSARyYupZ4isNDb1IyIrC9HwbKmUoCL.Hk9UQVTwYnzuHV._mv3dFXhTQdjuDutmqHIM.w3Y6wsq5pfFIi_m52kUKqKT4rXr.6.zoXt5f.y2m0xFh.Bpli_repajmBiIbCBOrDYNNnlONp1G6W.U_o9K5dvxMJ_aDNIE7W0blTMsjVWkU08ZzVK5aGlF4AiP8naqnbFeWNBVNj4ygkbxkTg4slGhCPwBi93nW1iXzdOBL9Ao6wOsIpSkZcuLsiiXUaWNU_SI4QftzS_WjCC9GLr7_uE5a8Z0OVbJ9RtcrHQx&GI_ID=

This will prove that I am the photographer and copyright owner, and also show you that the price given is my normal license fee, and does not take into account any infringement.

Please see attached invoice from Junction10 Photography.

You can also view this invoice online by clicking here

Please pay the full amount of £322.73 by 26/11/2013.

Please note that I reserve the right to take legal steps to recover damages and additional costs plus interest if necessary, though I trust it will not be.

Then I slept on it.. assuming a decent man in a position such as Mr. Bar-Cohen would do the honourable thing – hold his hands up, apologise, pay, and end the matter discreetly. The next day, I checked my email.. nothing. No reply. No payment. Maybe he didn’t get the email? So I looked at the blog. The image was still there.. obviously he hadn’t got the email..

But wait… I noticed that if I now clicked on the thumbnail

Clicking on the thumbnail image from the blog post would take you to this page, with a higher resolution version of the image.

it no longer took me to the same page it did the day before:

Instead of taking me to the page shown above, where my image was displayed at higher resolution (and clicking it again displayed the original JPG ready for anyone to just save straight to their own computer), it would now take you to the original story.

Coincidence? His blog post has been up since October 16th, and the same night I contact him about the infringing photo, the blog code gets edited so you’re no longer taken to the high res image.. trying to hide his infringement.

Not happy with this, coupled with the fact that he hasn’t even replied to my email to apologise or acknowledge the invoice, I decide to file the DMCA notice after all. Was I being too mean and impatient? Perhaps it was just a coincidence that he was editing the blog anyway and decided to tidy an old post up a bit?

Dear Mr Sieminski,

Notice of Copyright Infringement

I am dumbfounded that I find myself filing a DMCA notice against a senior vice president in your own company, Mr Raanan Bar-Cohen.

Despite the fact I have tried to save Raanan Bar-Cohen the embarrassment of having a DMCA notice filed against him for copyright infringement by yesterday offering him the chance to license the image properly, he has instead chosen to make an attempt to disguise the infringement by changing the URL that the thumbnail in the story links to.. Rather than as it appeared yesterday, pointing to a larger image – which in turn linked to the full size image, he has changed the HREF URL to redirect to the original source of the story, rather than the image on his own blog. I have archived copies of both pages – taken yesterday, and this morning as proof of this – with source code included for comparison showing the exact nature of his actions.

This is extremely unsettling for someone in such a senior position at a company who really should know better about copyright law.

The photograph of Jerry Seinfeld in this blog post:

http://raanan.com/2013/10/16/alec-baldwin-jerry-seinfield-start-up-advise/
and hosted at: http://raanan.files.wordpress.com/2013/10/js_jerryseinfeld-large.jpg

is an infringement of my copyright.

The original file can be found here: http://www.wnyc.org/story/jerry-seinfeld/ – which is correctly attributed to me (and licensed). Clicking the thumbnail reveals the source image taken by the infringer. http://www.wnyc.org/i/raw/1/JS_JerrySeinfeld-Large.jpg

This image also appears on my website, with available licensing options here: http://junction10.photoshelter.com/image?&_bqG=4&_bqH=eJxtkMtOwzAQRb.m2bChhSARyYupZ4isNDb1IyIrC9HwbKmUoCL.Hk9UQVTwYnzuHV._mv3dFXhTQdjuDutmqHIM.w3Y6wsq5pfFIi_m52kUKqKT4rXr.6.zoXt5f.y2m0xFh.Bpli_repajmBiIbCBOrDYNNnlONp1G6W.U_o9K5dvxMJ_aDNIE7W0blTMsjVWkU08ZzVK5aGlF4AiP8naqnbFeWNBVNj4ygkbxkTg4slGhCPwBi93nW1iXzdOBL9Ao6wOsIpSkZcuLsiiXUaWNU_SI4QftzS_WjCC9GLr7_uE5a8Z0OVbJ9RtcrHQx&GI_ID=

I can be contacted at:

xxx

I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.

I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

I acknowledge that a copy of this infringement notice, including any contact information provided above (address, telephone number, and email address), will be forwarded to the user who uploaded the content at issue.

/s/Jason Sheldon, 27 November 2013

Later that day I found out. A few hours after I’d emailed the DMCA notice to DMCA@Automattic.com, and despite not having any acknowledgement from them, or confirmation that they had acted to disable access to the infringing material (as REQUIRED by the DMCA), the blog post had been edited AGAIN.. that’s right. The second time in less than 24 hours… on a blog post over a month old.. strange… so what had been changed? The thumbnail had gone completely. But, not as a result of disabling access, as would normally occur with a DMCA takedown. That would leave the image placeholder intact and an error message or ‘broken’ image link.. or as they tend to do most of the time, the complete removal of the blog post… No, this was once again, careful editing of the actual blog post, to remove the thumbnail from the post. This had to be Mr. Bar-Cohen doing the editing…. but why? Surely he wasn’t tipped off about the DMCA notice? That would be illegal after all:

Automattic DMCA Policy: “If an Infringement Notice is valid, we are required by law to respond to it by disabling access to the allegedly infringing content. If you are a WordPress.com user and access to portions of your blog have been disabled for this reason, we will notify you. You then have the option to send us a written counter-notice stating why your content does not infringe copyrights and asking for access to be reinstated.”

(Via http://automattic.com/dmca-notice/.)

The law doesn’t say they’ll ask the infringer to hide the infringement.. it says that they have to disable access to it.. even if it turns out to NOT be infringing, the law requires them to remove it first, then give the alleged infringer the chance to argue it with a counter-notice.

So why has the infringer been given the chance to edit his blog to ‘hide’ the image? Oh – that’s right.. he’s the Senior Vice President of Commercial Services for Automattic – the company that owns WordPress.

Apparently, he’s still on the darks side…

No conflict there then, or embarrassment if a SVP is caught in an act which violates his own company’s terms of service…

Wait a minute.. There’s a problem… while he’s done a fine job of editing his blog post… he’s forgotten to actually remove the image from the WordPress server.. and so have Automattic.. I see AT LEAST one violation of the DMCA there.. but possibly more.

Ah, the image was still there after he changed the code to try and hide it on the 27th November.

And it’s still there as of 29th November as well.. after he’s edited the blog post again, and after the company have been served a formal DMCA notice.

Here is a screenshot of the code he’s edited.. it shows three windows in Text Editor, the first window showing the page source code as it was on the 26th November when I noticed the infringement. The second window shows the same section of code the next morning, after I’d emailed him an invoice and offered to avoid the DMCA route… Here, it shows that he’s now changing the location of the hyperlink to the story on WNYC.com rather than the extended blog post showing my picture in greater detail. The third window in the bottom 3rd of the screenshot shows the code as it appeared later that day, after I had emailed the DMCA notice:

Click to enlarge…

I ask you, why would anyone go back to a blog post over a month old, and edit an image holder TWICE in 24 hours, each time after being contacted regarding an infringement of copyright? Would Automattic allow any regular user the chance to edit their post before they remove it? No, they wouldn’t. It’s not their policy and is a violation of the DMCA..  so why does the law not apply to their own senior staff?

You would think after the recent case of Daniel Morel vs AFP / Getty, people would take copyright infringement a little more seriously wouldn’t you?  Especially when caught red handed…

AFP and Getty thought they would get away with it…   it’s estimated to have cost them over $10 million so far..  [$1.2m damages to Daniel Morel, and a reported $9m legal cost for Getty]

Update: 2 December 2013
The full resolution image was removed by 1 December 2013 – but not as a result of the DMCA notice filed on 27 November.

Mr Bar-Cohen responded to my email on 29th November, shortly after I made this blog post public and it had been retweeted a few times, and pointed out that as it was Thanksgiving in the United States, he hadn’t been online much…. although there was enough time to edit his blog twice.

I replied, wishing a happy Thanksgiving, but also reminding him that although the thumbnail had been removed, it did not remove his liability for the infringement, so my invoice was still due.

Today, I sent the following email:

Without Prejudice, Save As To Costs.

Dear Raanan,

Further to my emails of last week, I am writing to seek your attention to the invoice for the infringing usage of the Jerry Seinfeld image.

Please let me know how you would like to proceed.

With regard to how photographers would like to see things work – it’s pretty straightforward.. this isn’t a hobby for us. It’s our job. This is what we do for a living, so we expect to be paid.

We have no comfy desk job that pays our mortgage and feeds our families and thus giving us the freedom to enjoy photography in our spare time when we feel like it…

It’s hard work being a freelance press photographer. That’s not a bad thing, just a statement of fact. I invest a lot of money in the equipment. Travelling to cover events costs money, I have to pay for public liability insurance, petrol, vehicle and equipment maintenance, mobile broadband and, of course, there is my time, skill and expertise, software licenses and upgrades – all out of my own pocket. I even have to cover events that I don’t enjoy particularly. That’s some of the investment I make in my living.

When my work is stolen, it is taking bread from my mouth. You may not feel that way, but that’s what happens. My clients (newspapers, magazines and websites) are more likely to pay for exclusive content – if it’s plastered everywhere, it devalues my work and that hurts me. It also hurts my professional pride – it’s offensive. It also causes me direct damage.. the loss of the license fee that I am entitled to.

You also put me at risk. If I license an image on an exclusive or sole basis, my clients expect to have exclusive use of that image. If my clients see it appearing on other website, they might assume that I’ve gone back on my word and licensed the image to other people. This means they are likely to feel cheated, and less likely to use me in future, putting my livelihood in jeopardy.

It becomes even worse when my photos are taken and then republished with no byline or picture credit – or copyright notice. The page on WNYC.com correctly attributed the image to me. This makes it possible for people wishing to license it find me and seek permission, and pay the license fee. When my photos are blogged and there is no mention of who took the photo, or a reminder that it is protected by copyright, it increases the chances of further infringements, and the problem mushrooms because all those other infringements don’t carry any image credit either… and thus, my work gets devalued further, and eventually becomes worthless.

You may be under the impression that taking a photo from another website and hosting it on your own site is harmless, but it isn’t. I have children to feed and can’t – if people are distributing my work for free.

It may not be a ‘tangible’ item.. it’s not like a CD or a book which has a physical entity.. and I imagine there lies the problem.. people think that because it’s a digital file and not a ‘physical’ item, it has no value.. it’s just a collection of bytes…

However, it’s a collection of bytes which has cost me tens of thousands of pounds and years of training and experience to produce..

I hope you understand, and that we can resolve this amicably.

 This is his reply:

Hey Jason —

I totally get.  I’m very much on the side of the independent content creator.  I appreciate that this is your business and how you earn a living, and that’s why I took quick action when I got your note, and removed the image.

Please accept my apology and understand that in no way was I  trying to cause any harm to you or your business.  I simply put up a post fairly quickly and made an honest mistake.

In terms of the invoice, since this is my personal blog, I’m not interested in licensing any images at this time.

best,

raanan

It doesn’t matter if it was a personal OR business blog, or if the infringement was an honest mistake…  it’s still an infringement.

Ignorance is no defence!