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An Email from National Geographic
Any copyright lawyers out there willing to offer some free advice? I just received the following email from National Geographic (I'm sensing a bad trend developing here with emails like this... first the time travel mutual fund, and now Nat Geo):


One of our readers has informed us that you are featuring one of our
photographs on your website at http://hoaxes.org/weblog/2003/10/ [note: here's a more direct link].
We would ask that you either remove the photo immediately, or forward me
details of how long the image has been posted and how long you intend to
keep it posted so that we can determine an appropriate licensing fee and
send you a formal retroactive rights release and invoice. Please let me
know if you have any questions.



I'm not quite sure how to proceed. Nat Geo, unlike the time travel mutual fund, isn't someone you want to mess with. But on the other hand, I believe (hope) that my use of the image is protected by fair use. First of all, the image had circulated widely via email before I put it on my site. All I did was add some commentary to it in order to inform the public of the image's true source. Second, my use of the image hasn't deprived Nat Geo of any income since the image was too low quality to make print copies from. In fact, my commentary probably provided them with some free advertising.

I could just buckle under and remove the image, but this question of what is and what isn't fair use with regard to images that have escaped into the wilds of email is one that I'd very much like to know the answer to. Does a site such as mine, that tries to provide some information about random images that people find in their inboxes, have to request permission from the copyright owner whenever the owner is identified? Am I going to have to request permission from Touristguy to have his image on my site, or from that guy posing with the big bear? If so, that would potentially kill off large portions of my site.
Categories: Miscellaneous
Posted by Alex on Tue Aug 31, 2004
Comments (57)
More from the Hoax Museum Archives:
May I suggest that the best way is to remove the picture and instead put in a BIG announcement to the effect that the picture was removed upon the dempand of NG to keep them from looking silly. Those who want to see the original picture and understand why NG are ashamed of being associated with it, are referred to ....
Posted by George Temmann  on  Thu Sep 02, 2004  at  03:03 AM
As a professional photography who makes a living licensing the rights to use his photographs, I have the following two comments to make:

1) NG is completely correct about this. No matter how many times the image has circulated via e-mail, you still need to properly acquire a license to use the image. In fact, you need to do so with ALL the non public-domain images on your website if you are to comply with copyright law. Also, since you've already violated their copyright, the request that you take it down or obtain a license is actually a courtesy request; they could just sue you for the violation that has already occurred. But they are in a position where they hope you'll realize the image has value for your website, so you'll properly license it, and everyone can benefit. I'm afraid they've got the law on their side on this one.

But having said that...

2) National Geographic has one of the WORST rights-grabbing contracts for photographers. The way the magazine photography business works, unless your photographer is on staff, you have to license the rights to the images from the photographer you hire, and pay that person every time you use the image. If you want more rights, you pay more money. Sometimes, you know you'll need broad usage, so you pay the photographer more up front instead of on an as-needed basis. But National Geographic has suckered and strong-armed photographers into giving up pretty much all the rights to their images for almost no pay -- just for the glory of working for National Geographic. While NG has a nice magazine, glory doesn't pay the bills.

You can read an analysis of one of their contracts for freelancers at the website of Editorial Photographers (EP), a professional organization for editorial photographers. They go so far as to call NG the "bully on the block."

The contract and analysis are at http://www.editorialphoto.com/contracts/ngworld.html
Posted by David  on  Thu Sep 02, 2004  at  10:24 AM
I suggest, if you don't receive a response in a week, that you send a follow up message. In that message, say, basically:

I sent you a message on such and such date in which I stated (restate your opinion). I have yet to receive a response to that message. If I haven't heard from you by (insert date), I will assume that you concur that my use of the image is a fair use for the purpose of news reporting and will consider the matter resolved.

I urge you to seek some legal advice, whether NG replies or not. Just because they don't reply, don't assume that this is resolved. Nothing anyone says on here replaces advice from a lawyer.

To the photographer: There is a news reporting exemption. That these images are circulated with false or misleading information through email and this site reports that as news might qualify under that exemption. There's some basis for it.
Posted by Bill B.  on  Thu Sep 02, 2004  at  12:33 PM
David, if what you're saying is right, then it would seem to me that the public has no right or ability to discuss images without first paying a licensing fee for the right to do so (which would have a chilling effect on public discussion).

Everyone agrees that when people discuss books or movies, they have a right to quote from the original material. But when discussing images it's also often necessary to refer to the original image. How is that to be done? Images can't be quoted from. Occasionally it's possible to isolate a small part of the image, but more often the entire image needs to be shown in order for it to make sense.

My solution was to display a very low-res version of the image that wouldn't threaten the owner's right to sell quality copies of it. If this was illegal, then the only alternative option that I can think of would be to verbally describe the image. But that's silly because anyone who hadn't already seen the image would have no clue what I was talking about.

So is there a way for the public to freely discuss and refer to images in the same way that we freely discuss and refer to movies, books, poetry, etc.? Or does the public have to pay for the right to discuss images?
Posted by The Curator  in  San Diego  on  Thu Sep 02, 2004  at  12:36 PM
I am undecided as to whether NG is trying to bully you into giving them money or whether they are playing nicely and save you the burden of a lawsuit. Because of the ambiguity of this situation i would remove the photograph immediately but also sending NG an email stating your intent behind displaying the photograph - i would not inform them of how long the photos been up as they might be so inclined to charge you for it - at this point in the email i would request permission to use the photo at no charge and see what happens. Worst comes worst they want to charge you for it but cant

Best of Luck
Jared
Posted by Jared  on  Thu Sep 02, 2004  at  04:29 PM
Keep us updated about what happens. Though I honestly think that you are fighting a lost cause (and all for a stupid picture).
Posted by The Mexx  on  Thu Sep 02, 2004  at  09:55 PM
I'm not a lawyer, but I have actually registered copyrighted materials so I know the basics reasonably well. One thing I haven't seen mentioned (apologies if I've missed it).

I've always understood copyright holders to have an obligation to protect their copyright. Those who do not risk losing that copyright. Put another way, if NG knows you're using a work they own and that you do not have permission to do so, it's their duty to follow up.

In a case like this I would hope permission would be granted without charging you for continued (and past) use of the picture. I doubt fair use would apply here--though it is a murky area.
Posted by jb  on  Thu Sep 02, 2004  at  11:26 PM
You are confusing copyright and trademark. Trademark holders have to protect their trademark or else they may lose them. Some of our common words were once actually trademarks that a company failed to defend. Aspirin, cellophane, nylon, thermos, escalator (to name a few of the more recognizable ones) were once trademarks and now are common words. Xerox vigorously defended against the assimilation of their name, which was in danger of being a common word for a photostatic copy. Now Google is fighting to keep their trademark, as it becomes a part of language rather than a brand name, ex., "I'm going to google it."

Copyright holders do not have to defend their copyrights in order to retain them. Rather, their copyrights expire at a certain date.
Posted by Bill B.  on  Fri Sep 03, 2004  at  12:37 AM
David is completely right. The law is on the side of NG here. The best thing you could do is immediately take down the photo and any others you do not have the rights to.

If people were free to use photographs like AP wire photos wherever they wished, then the systemof photo agencies anf photographers could no longer function.

And it's not like this is some college or not-for-profit web site -- you make money from advertising, and having these wacky photos adds to the desirability of your site and its traffic. Hence you are indeed profiting from the use of these unlicensed photos.

As much as people in the digital age love to think everything is free for the taking, the photographers, musicians, and software coders deserve to protect their work and any profits made from it.
Posted by Steve  in  NYC  on  Fri Sep 03, 2004  at  01:19 PM
An update: I've decided to temporarily remove the image in question and replace it with a big note explaining why the image was TEMPORARILY removed. That's just to demonstrate my good faith willingness to negotiate with National Geo on this issue.

However, I'm definitely going to put it back up if Nat Geo doesn't come up with a decent argument for why it isn't fair use, because I think my case is pretty strong. Here's why:

Kelly v. Arriba-Soft, 03 C.D.O.S 5888 (9th Cir. 2003).

Stanford's fair use website describes this very recent, precedent-setting case: "Arriba-Soft [an image search engine] was sued by a professional photographer whose photographs were copied (in thumbnail form). The court said that the search engine was designed to "catalog and improve access to images on the Internet," and was thus considered a "transformative use" (i.e., it adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.)" So Arriba-Soft won the case (which, I assume, is why other image search engines such as Google continue to exist).

In other words, a 'transformative use' of an image weighs heavily in favor of fair use. Arriba-Soft was cataloging the images and making them easier to find. I'm providing a resource to help people determine if images are real or fake. That's clearly also a 'transformative use.' I'm not just putting the pictures up there because I think they're pretty. I'm adding a new layer of meaning and context to them.

Add to this that my use of the image was for the purpose of commentary and educational, and that I used a low-resolution image that doesn't threaten Nat Geo's ability to sell the image.

Of course I'm biased, but I think that adds up to a compelling case for fair use. Though I need to convince Nat Geo of that, not you all. wink
Posted by The Curator  in  San Diego  on  Fri Sep 03, 2004  at  02:30 PM
That legal precedent you just quoted, by itself means nothing, unless it is used by a judge to rule on your particular case... -during trial- And that means that you would have to go through litigation. Heard lawyers are quite expensive on the US these days, best of luck if you intend to go to trial over this.
Posted by The Mexx  on  Sat Sep 04, 2004  at  01:33 AM
I.m sorry, you can rationalize it anjy way you like, but bottom line is you used copyrighted material without permission (or even a credit). And for profitable purposes.

And although you quote that case, this site is not a search engine. Thr thumbnail on your site does not link to NG or to the photographer's web site.

If you know what's good for you, you'll drop it IMHO.
Posted by Tom  on  Sat Sep 04, 2004  at  08:49 PM
Is this picture the one of the Cessna crashing into the ground and a lucky fellow just missing being cut up by a metre or so? If it is, I have seen it before in a NG photo book, and I'm afraid it is their intellectual property... So I guess removing it was a wise thing to do. May I suggest taking a few pictures of Cessna's at your local airfield? With a bit of patience and a preferably legally obtained copy of Photoshop, we might get some lovely pics.
Keep up the good work, this is a great site!
Posted by Martin  on  Tue Sep 07, 2004  at  12:56 PM
Who cares about copyright??? What about FREE SPEECH!!! FREEDOM OF PRESS!!! why is it large corporations are allowed to take away our freedom of speech laws? that's why they use different names on TV shows. and besides he didn't know it was copyrighted until it was posted. So all you biotches better get off alex's case. he's just doing what he likes, exposing hoaxes. if it weren't for him, we wouldn't never known about the DVD rewinder or Hogzilla or any of these hoaxes. Alex is right, and I'm defending him all the way. and i have the same picture saved on my hard drive, maybe i'll post it on my blog and make money off it.
Posted by john  in  NH  on  Tue Sep 07, 2004  at  06:31 PM
Good thinking, John, and I hope they sue you too.

This has nothing to do with freedom of speech or of the "press". Alex has a right to say whatever he likes. He just can't use a commercial image owned by someone else without paying.

Let's say I set up my own "news" site, and use photos from CNN and the NY Times on it to illustrate my stories or commentary. I'd be in trouble since CNN and the Times owns their photos -- they pay photographers and editors for them. They also license wire photos from AP, Reuters, and the like. The pictures on their site are not just free for the taking.

Professional photographers (and artists, writers, musicians, etc.) have every right to be compensated for the fruits of their talent anbd effort.
Posted by Steve  on  Tue Sep 07, 2004  at  07:39 PM
Steve,

Point taken, but don't you think there's a difference between reproducing an image for the purpose of commenting on it, and reproducing it just for the sake of reproducing it?

Let me give you an example. Say that I was reviewing a book of photography. Do you think it would be legitimate for me to reproduce one or two images from the book for the sake of commentary, in the same way that book reviewers quote passages from books for the sake of commentary?

If not, then why not? Why is there NO controversy about reproducing short passages of text for the sake of discussion, but there's an ENORMOUS controversy about reproducing thumbnail-sized (or extremely low-res) images for the sake of discussion?
Posted by The Curator  in  San Diego  on  Tue Sep 07, 2004  at  07:53 PM
Alex,

It isn't that there's no controversy. It is arguable that "quoting" the photo for commentary purposes is legitimate "fair use". The trouble is, it isn't CLEARLY fair use, meaning that NG can sue you and you'll have to defend yourself, and make a case.

You should really consult an intellectual property lawyer. An attorney of my acquaintance maintains that IP law is so specialized, any non-specialist lawyer giving advice on it is treading close to malpractice automatically. Certainly, the comments of people on some blog discussion board are not a substitute for actual legal advice, especially when they're emotional messages of support rather than practical advice on the consequences of various actions.

Carl
Posted by Carl FInk  on  Tue Sep 07, 2004  at  08:45 PM
Carl, I have been in contact with the EFF (Electronic Frontier Foundation) who feel that I have a strong fair use case. But for now I'm keeping the image down because I'm leaving on vacation tomorrow, and I don't want to have to deal with the issue while traveling.
Posted by The Curator  in  San Diego  on  Tue Sep 07, 2004  at  08:57 PM
I say: FAIR USE! FAIR USE!! FAIR USE !!!

PERIOD !!!!

You review hoaxes and alleged hoaxes. This has been circulating around. Inquiring minds want to know: Is it a hoax? Unlike so many others who have merely circulated, you attribute and explain, thus actually bringing benefit to NG.

If I had a magazine or web page and someone like you took some of my material and referred people to me, I'd say, "Thanks!!" I'd send you more of my pictures with notes asking, "Hey, what about this one?" .. and hope you'd publish them.

A tremendous amount of the expertise of a Professional Web Designer involves getting referrals like the one you gave NG unsolicited and for free.

Often, and particularly in this case, "NG" means "No Good, throw away." I always liked National Geographic. Their own actions in this case make me think of them as NG... Leaves a bad taste... smell...
Posted by WRC  in  Florida  on  Wed Sep 08, 2004  at  12:33 AM
Wow, I am never getting their magazine or any of their books again. What bullies- and don't they realize they got free publicity from you? Maybe you should send them an email asking for some compensation for that.
Posted by No Name  on  Sat Sep 11, 2004  at  07:26 PM
Humm, you have a lo-rez version of it, and now it has the proper credit, and it's in the context of a 'news' story about wether or not it's a fake photo, there's only two conclusions. A: National Geographic are snobby a-holes, or B: It's fair use. I'm not sure about B, but I know that A is correct.
Posted by Drunk Stepdad  on  Mon Sep 13, 2004  at  06:54 AM
I'm glad you contacted the EFF. I hadn't read this string since before you went on vacation, so I missed that. I'm also glad they were willing to talk to you and discuss your situation. When I suggested that, I wasn't sure that they would, but I operated from the adage that the worst they could say was to go away. You'll have to let us know what happens.
Posted by Bill B.  on  Wed Sep 29, 2004  at  12:45 PM
Alex, you received what was to be expected from the readership: common sense, attaboys, and f*** the machine. But you already knew that you didn't know how to proceed and that you needed expert info to make an informed decision. So why ask us anything? It's your life.
Posted by 1776  on  Fri Oct 01, 2004  at  05:58 PM
Ridiculous acting by national geographic...they got free publicity from you,so what
Posted by Evey  on  Sat Oct 02, 2004  at  09:43 AM
Does anyone know if there's an update on this??
Posted by Maegan  in  Tampa, FL, USA  on  Wed Oct 13, 2004  at  10:12 AM


you may freely keep this link to a picture of my wrecked car on your site
Posted by Beasjt  in  Menorca (Spain)  on  Fri Jan 14, 2005  at  02:59 PM
Wonder what a-hole of a reader went to the trouble of reporting this to National Geographic.
Posted by J  on  Tue Jun 07, 2005  at  04:43 AM
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