Professional Photographer Dilemma

Posted on 6/5/2020 by Jim Pickerell | Printable Version | Comments (0)

Photographers interested in licensing rights to the images they produce, or in showing their work in hopes of getting assignments, have a dilemma. The only way they can earn money is to advertise and show potential customers what they can do, but the very act of showing in today’s Internet environment creates a huge risk that the images will be grabbed and used without compensation.

Back in the 1980s and 1990s, before the Internet, photographers had portfolios of their work and made appointments to show art directors what they had done. Normally, the AD’s weren’t given any of the images to keep. If they liked what they saw they might call the photographer the next time they had a project than needed doing.

Now, we have the Internet. AD’s don’t have time for appointments. The only ways to let potential customers know what you can do is show your work on a personal website, regularly email sample images to selected AD’s or post images on popular websites like Instagram..

Once the images are on the Internet it is too easy for potential customers to grab then and use them without permission or offering any compensation. In theory the Copyright Law should provide some protection, but for most it doesn’t. Here’s one recent example.

On March 11, 2016, an employee of Mashable contacted photographer Stephanie Sinclair and offered her $50 to use one of her copyrighted photographs titled “Child, Bride, Mother/Child Marriage in Guatemala.” for an article on Mashable. Sinclair refused to grant permission for the price offered. Five days later Mashable used the picture anyway, without any permission or providing any compensation.  

Sinclair sued Ziff Davis, LLC and Mashable, Inc. On April 13, 2020, Judge Kimba M. Wood, United States District Judge for the Southern District of New York issued an order dismissing Stephanie Sinclair’s Second Amended Complaint.  The order was issued two years after Ms. Sinclair first filed suit, or four years after these events transpired.  The case never reached discovery.

Sinclair maintained a website and public Instagram account to showcase her photographs. Unbeknownst to the average Instagram user, the Terms and Conditions state, in relevant part:
    We do not claim ownership of your content, but you grant us a license to use it.  Nothing is changing about your rights in your content.  We do not claim ownership of your content that you post on or through the Service.  Instead, when you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings).  You can end this license anytime by deleting your content or account.  However, content will continue to appear if you shared it with others and they have not deleted it.  To learn more about how we use information, and how to control or delete your content, review the Data Policy and visit the Instagram Help Center.
Basically, according to the Southern District of New York court, this means that if you have posted a picture on a “public” Instagram account anyone can use it for any purpose whatsoever without permission or compensation.

Sinclair described her dilemma best as choosing between “remain[ing] in ‘private mode’ on one of the most popular photo sharing platforms in the world,” or allowing Instagram’s continued ability to sub-license her photos.  In response, the court noted that “Instagram’s dominance of photograph-and-video sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that Plaintiff’s dilemma is a real one.”  Nevertheless, the court’s sympathies only went so far as it ultimately found that it could not release her from the agreement because she had “made her choice,” even if that choice was not truly meaningful.

Is There Really Any Practical Way To Protect Your Copyright?

More and more Internet service providers are introducing longer and longer “Terms of Service.”  No one who is not trained as a lawyer has time to read or understand all the implications.

Any legal actions required to try to protect your rights are very expensive and take a huge amount of time before any settlement is likely to be reached.

While favorable settlements are occasionally reached, unless a huge number of images are involved any legal action to pursue an infringement is likely to cost a photographer much more than will ever be recovered.

If you're an amateur and earning money for your work is not important. If all you care about is that others will be able to view your images then this is not an issue.

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


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