Photography

What to do when someone uses your photographs on the Internet

They published my photos on their site a whopping 154 times without my permission. So I sent them a takedown notice. And I learned an unfortunate lesson.

I’ve always encouraged people to use my photographs in their personal or non-profit projects. I wanted to make it easy to do that. But I’ve never wanted for-profit companies to use my photos without my permission. So for years I’ve had Flickr assign the Creative Commons Attribution-NonCommercial-NoDerivs (BY-NC-ND) license to my photos as I upload them. It set just the terms I wanted.

Not long ago a reader contacted me to say that he found several of my photos used in an article on Only In Your State. This site publishes articles about places and events in each US state. They claim to be a travel site, but it looks to me like they’re trying to take advantage of search’s “long tail” and of social-media sharing, to drive eyeballs to their site and the ads on it. The articles appear to be churned out quickly, and it looks like they mine Flickr and Facebook for photographs to use as illustrations.

I went to the page that reader shared and there my photographs were. At least they credited me by putting my name under each one.

Curious, I Googled “Jim Grey site:onlyinyourstate.com” — and got a long list of results. My Flickr stream had been a gold mine for them! They used these photos in particular many times in their articles.

Ohio River, from IN SR 62, Leavenworth, IN
Ohio River, from IN SR 62, Leavenworth, IN
Turkey Run trip
Turkey Run State Park
Midway entrance
Indiana State Fair midway entrance
Misty morning Bean Blossom 4-9 1
Misty morning, State Road 135 near Bean Blossom

A number of years ago I wrote this post about image theft. I gave it a tongue-in-cheek title, but I was serious in saying that when you publish your photos on the Internet, you should expect that people will sometimes use them when you’d rather they didn’t. When it happens, you have to decide whether righting the wrong is worth the effort. It takes time and effort to write a DMCA takedown letter. If it fails, you need to lawyer up to get your work taken down. Here’s the two-point test I posted then that still guides whether I go after someone who’s used my photos without my permission.

  • Have you harmed me somehow, such as by claiming my work as your own, associating me with something I don’t support, modifying my work in a way I don’t like, or making significant money from my work?
  • Are you being a butthead, repeatedly using my work without honoring my terms?

Only In Your State hasn’t materially harmed me (although I have no idea what their ad revenues are). But using my photos 154 times crosses firmly into butthead territory. So I sent them a DMCA takedown notice.

That took most of an afternoon. You have to list every single instance of your work that you want taken down. You also have to link to where they store it on their site, and where you store your original on the Internet. They used my photos 154 times — the letter was 17 pages long!

I heard back from Only In Your State within 24 hours. Their response was not unfriendly. They pointed out that there’s a well-known gray area in Creative Commons noncommercial licenses like the one I used: what constitutes commercial use? One camp says it is directly making money off the licensed work, such as by printing it on T-shirts and selling the shirts. The other says that it’s any use by a for-profit company. I looked it up; it turns out this gray area is real.

I fall into the second camp. Only In Your State falls into the first, and has no intention of removing my photographs. They did, however, offer to write articles about something I’m passionate about in my own state.

First thing, I removed the Creative Commons license from all of my Flickr photos. I now reserve all rights. But if you want to use my photos in your personal or non-profit work, email me (use my contact form here) — I’ll say yes.

Second, I told the people at Only In Your State about Indiana’s byways, especially the Michigan Road, the National Road, the Lincoln Highway, the Ohio River Scenic Byway, and Indiana’s Historic Pathways.

Maybe they’ll write articles, maybe they won’t. But from here on out, my photograph copyrights should keep them from using my images in any new articles. I hope.

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Photography

To the entire Internet: Here’s how to steal my work – but be warned, I’ll steal yours in the same ways

The other day several of my friends e-mailed me congratulations that one of my photos had been published. It caught me flat-footed; I hadn’t submitted any photos anywhere! It turns out two of my photos were published that day in different online publications – without my knowledge.

The first ended up being a permitted use. Indiana Landmarks, our state’s historic preservation group, used to e-mail me a couple times a year asking to use my photos in their publications. I’m a Landmarks member and love their cause, so I always enthusiastically said yes. Finally I just gave them blanket permission to use my photos as they see fit as long as they credit me. I just didn’t stop to think that “as they see fit” might include passing them on to an outside group!

The photo in question is this one of The Diner, the front part of which is a 1953 Mountain View aluminum diner. I took it on my 2009 trip along Indiana’s National Road (US 40). A well-known landmark in the Indianapolis suburb of Plainfield, it has been closed and vacant for years now. It is also the last aluminum diner on the entire National Road, which led Indiana Landmarks to advocate for its preservation. They’ve worked out a deal where the diner itself will be moved farther into town, still on the National Road, but this valuable land will be sold for development.

Roadside businesses on US 40

But that’s not why a cropped version of the photo showed up in this story in The Indianapolis Star. It appeared there because Indiana Landmarks sent poets all over Indiana to write verse about various landmarks, including The Diner; they then held a reading of all the poems. The Star wrote a story about it, and Indiana Landmarks provided my photo for the story. Indiana Landmarks honored my terms by asking that the Star credit me, and the Star was good to honor that request.

The other photo was published without my permission. It is this photo of the Monon Fitness Center, which I took a couple months ago with my vintage Agfa Clack. (And in the three years since my photo of The Diner, I learned how to fill the frame with my subject!)

Monon Fitness Center

I uploaded this photo to Flickr, where I assign all of my photos a Creative Commons license that lets people use them freely for non-profit purposes as long as they credit me and use them unmodified. The Indianapolis Business Journal is certainly for profit – and when this building sold recently to be converted into a brew pub, the IBJ featured my photo when they blogged about the sale. They credited me and linked to my blog.

I was at once delighted and irritated. I love it when someone finds my pictures useful. My words, too, for that matter. But couldn’t the IBJ have sent me a quick message asking my permission? Harrumph!

But it’s time for full disclosure: I sometimes use others’ work here on Down the Road:

  • Just last week I used a frame from a Harry Potter movie in a post, and I have reproduced a few photos from a book about US 40 here. I think (hope!) this falls under fair use.
  • For my recent post about television news themes, not only did I use a photo of a television I found somewhere on the Internet, I superimposed onto the screen a frame from a YouTube video of a copyrighted TV news broadcast. Heck, for that matter, I made the accompanying video of copyrighted news opens from videos I liberated from around YouTube.
  • Finally, for several years I knew I was violating Google’s terms when I used screen shots from Google Maps in my road-trip posts. Used to be, Google insisted that maps be embedded. But they sometimes update the aerial imagery, meaning that my blog would no longer show things as they were at the time I took my trip. So I deliberately violated their terms until a couple years ago when Google relaxed the terms to allow screen shots as long they’re properly attributed. That’s why you now see long copyright statements under my Google Maps screen shots.

A couple years ago I quietly added a Copyright page to this blog. It outlines the practices I try to follow in using the work of others, and states my terms if you want to use my work (my photographs and my words). I happen to think that the best way to protect your work is to not publish it on the Internet. I won’t go as far as to say that publishing on the Internet erodes your copyright, but I think it’s realistic to expect some of it will eventually be stolen. You have to determine whether righting the wrong is worth the costs, in time, effort, and maybe even lawyer fees. I have come down on the side of nope in all cases so far. Here’s my twofold litmus test:

  • Have you harmed me somehow, such as by claiming my work as your own, associating me with something I don’t support, modifying my work in a way I don’t like, or making significant money from my work?
  • Are you being a butthead, repeatedly using my work without honoring my terms?

I don’t feel harmed by the IBJ‘s use of my Monon Fitness Center photo – they credited me, I like the IBJ, they didn’t even crop the photo, and I can’t imagine how my photo materially boosted their revenue. (I might not be so forgiving if I made my living with my camera or my writing. I make software to feed my family.) And as far as I know, they haven’t been liberally raiding my Flickr stream. So they get a pass for using my photo.

Similarly, I think my use of others’ work here on Down the Road meets the same criteria. Well, my repeated use of Google Maps imagery miiiiiiight have dipped its toes into the butthead pool a little. I was relieved when Google changed its terms, and I immediately started honoring them.

What do you think? Are you more or less rigid than me when it comes to your work that you’ve published online? Why?

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