![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
I claim my image, Fair Use!
Photo by Kathryn Bachen
From The Western Front, November 17, 2008
Used without permission: Fair Use.
The image you see to the right is an image of me taken from The Western Front, at the Prop 8 Gay Marriage protest in Bellingham this past month. (It is possible that Flickr will take it down as DMCA flagged, so I may need another server to host the image, preferably outside of the U.S.)
By posting it here, I have intentionally, with forethought and contempt of copyright law, taken a stand for bloggers everywhere.
I was just originally going to just post the photos as a reflection on the protest, not as a way to take a stand on journalistic ethics. I planned on publishing with credit to the photographer, and a link to the page on the Western Front website where it was published ( http://westernfrontonline.net/2008111810487/news/students-protest-prop-8/ ). As such, I emailed the photographer, Kathryn Bachen, as a courtesy, and to request from her a larger digital image:
Hi Kathryn,
I would like to use two photos from the Nov. 18 Prop 8 protest for noncommercial purposes (Do you Creative Commons license?)
I'd like to blog/post/scrapbook the photo of me talking into the megaphone, and Ted Mohr in his wheelchair.
Would it be possible for me to obtain larger copies of these?
Thank you,
kevyn 'Hagrid' Jacobs
24 hours later, I received a response that stunned me:
Hi Kevyn,
Thanks so much for getting in touch with me. Unfortuately, I have a policy that I don't give or sell the digital copies of my photos unless I am hired for a job. I would really love to give the photos I take of people to them but with the amount of photos I take I would spend a lot of time emailing people photos. Also, as photography is my career I cannot let my product go without some type of exchange.
I don't mean to sound cold, it's just a policy that many photographers adhere to so that our profession can survive our image saturated society.
If you would like I can have prints made for you at a very reasonable price.
Otherwise please feel free to link to the Western Front article, and/or my blog: www.kathrynbachen.blogspot.com
Again, I really appreciate you asking instead of copying them off the Web, as you can imagine copyright is a constant battle.
Let me know if you have any questions,
Kathryn
EXCUSE ME?!?!?
OK, first of all, the photo of me is MINE. No matter what the law says, there is no clearer case of Fair Use than claiming the right to use one's own image, especially when no contractual agreement was made prior to creating the image, and after that image has been released into the wild (e.g., published in a newspaper and online, etc.).
Furthermore, for me to copy and paste an image from an online newspaper onto my personal blog is tantamount to cutting out a newspaper clipping in pasting it into a scrapbook or journal -- and allowed under Fair Use.
I wasn't looking for a fight, but this seems to be a worthy cause.
Anyway, annoyed beyond belief that this photog would dare try and deny me use of my own image, I sent back the following, somewhat snippy, message:
Kathryn,
I have no need of prints, except to scan them for online use. How much? (*kidding*)
Fine, fine, if your policy is not to grant permission for digital use, then I need to dictate terms to you. I'll take screenshots from the Western Front (direct linking is not possible from the flash player on the site, and I don't see the photographs I need on your blog) and post them on my blog anyway, without permission. You will, of course, be credited as the photographer, along with the phrase "Used without permission."
You really should re-think your policy in regards to digital copies. I asked first, out of politeness, but really, in this post-copyright digital age, your rights as a photographer are limited, and you do not have the power to stop people from copying your posted photos for personal use. Sorry to be cold, but you're not facing the reality of posting photos the internet.
You really should consider using Creative Commons licensing, in order to protect your rights as a creator.
Regards,
Kevyn 'Hagrid' Jacobs
OK, OK, I'll apologize to her later for the tone. But she REEEEEALY annoyed me by trying to control what she has created and released into the wild. When it comes to creating culture -- and a published photograph IS culture -- transmission of culture trumps copyright. And as many of my friends know, I believe copyright is a dying legal fiction, and I am prepared to stand up for that belief -- even if it makes me a Pirate! Arrrrrrgh!
There was another photo that I wanted to post, as well, of my friend Ted, from the same photo essay. I know in my gut that I have the right to publish that here as well. But, in the spirit of choosing my battles -- I have a stronger case to fair use of this one than that one -- I am going to just post this one right now.
This may also be a teachable moment. As an advocate for the Free Culture movement, I'm thinking that maybe this debate needs to be held in the halls of journalism at WWU. Perhaps the journalism students -- who will shape the future of the media -- should examine the issue.
I maintain that, for a photographer to try to maintain exclusive control of an image, once released into the culture, is completely futile and absolutely wrong-headed. And then for that photographer to refuse to license the image digitally... that is completely unacceptable. And I also maintain that the subject of an image has default Fair Use rights to that image.
For what it's worth, Kathryn Bachen, it's not personal. I do think you're a talented photographer. But this is about standing up for a principle: Fair Use.
Tags:
![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
From:
no subject
From:
no subject
There's a couple of important points are worth pointing out, here: First, that she's already been compensated for the work (presumably), by the Western Front. Second, she still has rights as the creator of the work, but it is control over who can make copies that she has lost by publishing. And third, by publishing the photo here on my blog, I have compensated her with something of value: publicity.
From:
no subject
I'm also going to write this woman as one photographer to another. I'll find a way to call her a twit without insulting her... :-)
From:
no subject
From:
no subject
Consider that filmmakers are not liable to financially compensate people who walk past the camera in a public place where they're permitted to film. At age 17, walking (skipping, actually) with a friend at the Hudson River pier in NY City, I appear in "Paris Is Burning". A friend of mine is walking along a subway platform in "Fatal Attraction". By this notion, the photographer should neither compensate you NOR charge you for use of that photo.
I don't know what the law dictates. I highly doubt she'll "come after" you for linking the photo to your LJ.
From:
no subject
It's a win-win situation for me. If she doesn't come after me, I win by default, a fair use precedent is set, and I blow a hole in copyright law.
If she does come after me, I win by bringing this issue to the forefront, getting some publicity for my cause, and potentially blowing an even bigger hole copyright law.
From:
no subject
No, she never asked my permission, or asked my name, or anything. The first time I even knew the photo existed is when it appeared in The Western Front.
I don't know what the contractual agreement between her and The Western Front was, and I don't really care, other than to have it confirmed that she was compensated.
The core of the issue for me is: It is *my* image. I am the subject of the photograph, and it was published. And as far as I am concerned, I have a fair use right to use the photo in my personal blog.
This is going to be a hard lesson, for both the photographer, and The Western Front. She was unwilling to negotiate digital rights, so if they want a fight, then they've got it.
From:
no subject
From:
no subject
From:
no subject
For instance, I know, as a person in a public place, I have no reasonable expectation of privacy. Even less so, when I'm holding a megaphone and shouting to a crowd at a rally.
And I know, in such circumstances, a photographer, especially a news photographer, need not get my consent to take my picture.
HOWEVER, how that image is used is a different story. And that's the right I'm claiming here: The right to Fair Use of my published image, regardless of what
copyrightcopywrong law says.From:
Hagrid's dilemma
-------------------------------
From:
Re: Hagrid's dilemma
From:
Re: Hagrid's dilemma
From:
no subject
From:
no subject