To use or not to use, that is the copyright question

3497952240_9dd017b390_oImage by flickr user Olivia Hotshot

If you’re a fan of great travel photography, then you’ll appreciate the job they did at Chili Sauce in compiling a list of the Top 100 Travel Photographers. There are some amazing photographers on the list. But when I see things like this, I always wonder, did Chili Sauce get permission to use their photos in its post?

That got me thinking about making my own list of the best travel photographers who post their work on flickr or 500px under a Creative Commons license, meaning they allow bloggers, like myself, to use their photos, typically with the condition that the photos are properly credited and link back to the original. Working on the list, in turn, got me thinking about writing a post about Creative Commons.

So, look for my “top travel photographers” list in the next couple days, but right now, let’s talk copyright. Unfortunately, there are a lot of bloggers who knowingly or unknowingly infringe on copyright. Right this second, someone’s posting a blog with a photo that they don’t have permission to use. Don’t be that guy.

This isn’t to say that Chili Sauce violated anyone’s copyright. I have no idea if they asked all 100 photographers permission to use their photos. Additionally, an argument can always be made that the photos were posted under the “fair use” guidelines. Those guidelines say that in certain circumstances,  you can use copyrighted work. The balancing test includes whether you’re using the copyrighted work commercially, how much of the work you’re using and whether your use of it will negatively affect the market value of the copyrighted work.

However, don’t be fooled to think that it’s easy to claim fair use as a blanket exception to copyright. It certainly won’t keep you from being sued. Just ask Perez Hilton. (Update: Shortly after I posted this, a new lawsuit was filed against Perez Hilton, aka Mario Armando Lavandeira, Jr. by a freelance photographer. Read about the case here.)

2583620793_a41371bec1_bPhoto by Sam Teigen

Even lawyers who make their living in the copyright arena will tell you that determining whether something is fair use is a murky proposition in the best of cases.

In the ideal world, everything I post on this blog would be illustrated with photos taken by myself. In the real world, that’s not always very practical. So being able to use photos made available under a Creative Commons license is a godsend (I make absolutely nothing on this blog, so it doesn’t make a lot of sense to spend money on stock photos).

In turn, I make my own photos available on flickr for others to use under a Creative Commons “Attribution-NonCommerical-Share-Alike” license, meaning it’s okay to use my photos as long as you attribute and link back to me, don’t sell them or use them in advertising and if you build upon my work, you must allow others to use the resulting work under the same or similar license.

I’m not saying the Creative Commons system is perfect. It definitely isn’t. For one, it’s sometimes  difficult to tell whether someone who slaps a Creative Commons license on their flickr photos actually took the photos and actually owns the copyright. Secondly, the licensing requirements can be confusing. For example, the attribution provision requires that “you must attribute the work in the manner specified by the author.” But most of the people who set a Creative Commons license on their flickr photos don’t clearly specify how they’d like their work attributed.

There are plenty of people who think the entire Creative Commons concept is well-intentioned but ill-conceived and does nothing more than muddle the understanding of copyright. Despite all that, I think Creative Commons is a useful tool to connect photographers and artists who want to share their work with bloggers and publishers who want to use their work.

However, the concept of “giving” your work away for free isn’t without controversy, either. Some say the practice undermines hardworking professional photographers who make a living selling and licensing their work. I certainly respect the photographers who vigorously guard their copyright. In fact, I’m a huge fan of Ken Kaminesky who is outspoken when it comes to copyright issues. On his website, Ken writes:

Music, movies, and photography have all gone digital and with that fact comes the sad reality that many people believe that these forms of art should be free. While no one would walk into an art gallery, music store, or magazine store to steal things, it seems like for far too many people this is quite ok to do online.

I’m just a hobbyist and am not in the same position as pro photographers like Kaminesky. However, some professionals say the horse has already left the gate when it comes to stopping the unauthorized distribution of their work on the Internet. Veteran travel photographer David Sanger say it’s incumbent on photographers to adapt to this brave new world of photo sharing.

Sanger writes on his blog that having your work shared on social media should be seen as an opportunity.

To make sense of this new regime I think it’s best for photographers to see user sharing of their work not as a threat but as an opportunity. One could do worse than have thousands of people like your images. The challenge is to find ways to build their audience, leverage their popularity and invent business models for direct photographer-consumer interaction.

Trey Ratcliff also took to his Stuck in Customs blog this week to talk about copyright issues. He describes his decision to share his work under a Creative Commons license as “liberating”:

As you may know, my work is all Creative Commons Non-Commercial. That means people, as long as they give credit and link back to , can use my images on their blogs, wallpaper, personal use – anything – as long as it is not used commercially. Every day, I upload a HUGE 6000+ pixel max-resolution image to the Internet. I do not have any fear at all… Believe me, it’s quite liberating living in a world without internet-stealth-fear.

Ratcliff also points out that if people use your image and link back to you, it not only increases traffic to your site but the back links help build your search engine rankings.

I’m extremely grateful for photographers such as Ratcliff who are generous enough to share their work through a Creative Commons license.

That doesn’t mean you can do whatever you want with images you come across on flickr that are licensed under Creative Commons. If you’re going to use a Creative Commons image, comply with the license requirements and, if there’s any doubt, try to contact the photographer and ask for clarification.

I think Kaminesky is 100 percent correct about the need for people to respect copyright. Don’t steal other people’s work. Just don’t do it because, it’s not only wrong, but with new services, such as TinEye, chances are you’re going to get caught, eventually.

You might say, “so what?” Your blog is non-commercial and it would cost someone more to sue you than it’s worth. Well, then you should also look very carefully at the Terms of Services of your web host. Mine, for example, says it has “a policy that provides for termination of websites hosted by Bluehost that are found to infringe on copyrights, trademarks or other intellectual property rights of third parties.” All it takes is one well-founded complaint.

I’d be lying if I said I’ve never violated copyright in my 13 years of blogging. These days, I try not to do it, mostly because I’m more aware of the law but also because I’ve put too much work into this blog to risk having it shut down because of my own recklessness.

The featured image at the top of the page is by flickr user Olivia Hotshot  and the photo of the graffiti is by flickr user Sam Teigen. They are used here under Creative Commons licenses.

Joe Newman

I'm Joe Newman, multi-media story teller, non-profit do-gooder, international street photographer, serious poker player, intrepid traveler. Bourbon drinker.

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