Do Photographers Have Any Rights?

Posted on 6/12/2020 by Jim Pickerell | Printable Version | Comments (1)

A couple days ago we told you about the sad case of Stephanie Sinclair who had an image used by Mashable after she told them that $50 wasn’t a sufficient payment for permission to use her copyrighted image.

Mashable went ahead and used it anyway arguing that they got it off Instagram and that based on Instagram’s “Terms of Service” (TOS) they had a right to use it. After four years of legal hassle a judge in the Southern District Court of New York decided in Mashable’s favor saying that if a photographer posts a picture on a “public” Instagram account anyone can use that picture for any purpose whatsoever without permission or compensation.

Now, Instagram tells Ars Technica, "While our terms allow us to grant a sub-license, we do not grant one for our embeds API. Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law."

Evidently, lawyers at Facebook can’t write “Terms of Service” in a language that enables a judge in the Southern District Court of New York to understand what Facebook really intended. If lawyers and judges can’t come to an agreement on the meaning of certain TOS, how are individual creators expected to understand them?

How Did We Get Here?

In the U.S. prior to1976 the copyright law basically said that anyone who hired a photographer, or paid for an image created by a photographer, owned the image and could do with it what they wanted. The photographer had no more say once the image was handed over. Big business owned the right to anything they purchased.

The 1976 copyright law reversed this position and said that the image creator owns the images he/she creates unless the person was a full-time employee of the company that uses the image, or unless the photographer agreed that the image had been created as a “work for hire.”

At that point photographers had control over who used their images, how they were used, and how much the photographer should be compensated for the use.

Up to that time there was relatively little stock photography because photographers had no control over their work and couldn’t earn enough shooting stock to make it worth the trouble. Everyone was focused on getting assignment guarantees.

Once the copyright law went into effect the stock photography business started to grow. At that point, in between shooting assignments, photographers could spend their time producing stock images. If they studied what the market wanted and focused on producing that kind of imagery, they could earn extra money during what had previously been down-time between assignments.
Big business didn’t like this new legal change. It ended up costing them more money for the pictures they needed, now that image creators had some say in how much they should be paid for the work they produced. Ever since big business has been trying to get more value while paying as little as possible.
Part of the process has been to push for ever more complex legal deals that are hard to understand, favor big business and take more and more away from the image creators. Often the legal jargon gets so complex that even the people writing it can’t understand it.

We are rapidly working our way back to where the photographer has very little control over what they produce. It is getting to a point where producing images on speculation with the hopes of licensing their use is no longer worth the trouble.

Copyright © 2020 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz


  • Penny Gentieu Posted Jun 13, 2020
    When did you tell us about the “sad” case of Stephanie Sinclair? The facts are that her case was in court two years (not four years as you reported) and that a Motion to Dismiss sat on the judge’s desk for two years before that judge retired and the new judge, immediately dismissed the case with no discovery, no jury trial, and no evidence of a license. The case is being reconsidered. Meanwhile, a case just like it won — McGucken v Newsweek — that I see you didn’t report on it last week but instead had two articles by Nancy Wolff — is that because she is the lawyer for Newsweek? Sinclair’s case is not sad because Instagram came out and said they do not give third parties a copyright license with their embedding tool. Bravo! It’s a big win! Too bad for Nancy Wolff who is a real hypocrite for saying to PDN in 2007 that just because photos “illustrate something newsworthy doesn’t mean it’s fair use, otherwise Time would never pay for pictures,” and now argues for just that as Newsweek’s lawyer! She lost on the “fair use” argument of Newsweek’s defense, too.

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