I claim my image, Fair Use!

[kevyn]

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.

Comments

[pocketlama.livejournal.com]

As soon as my computer comes back from whatever hell it is in at the moment, I'm uploading this to my server. I can't believe she's using the idiotic "I'm so popular that I would have to hire a secretary just to email pictures to the ravening hoards." <---paraphrasing of course ;-) It's stupid, it's unworkable, and it's bad publicity. You have an audience and you asked nicely, she's an idiot.

[djmadadam.livejournal.com]

It's a photo of you. I say you have more right to its use than she.

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.

Hagrid's dilemma

[pocketlama.livejournal.com]

I've just written her:
-------------------------------

"Hagrid's dilemma
to kathryn.bachen, bcc: Hagrid

I'm writing (without his foreknowledge) in the hope of changing your
mind about "allowing" Kevyn to use the picture you took of him during
the Prop 8 rally ( http://westernfrontonline.net/2008111810487/news/students-protest-prop-8/ ).

A couple of points need to be addressed here. First, I'm a
photographer as well and am also working to make my living from this
business. I have friends who are already doing so as well. It is
from this perspective that I respectfully disagree with your choice in
this case.

A simple but important fact is that Kevyn is not asking for rights to
your image, he is just asking for fair and personal use with
attribution. This means no loss of income and on the other hand
*means publicity* for your work. These are the surest ways to
success; good word of mouth and eyes on your work.

Also, I would be shocked if you have ever had or ever will have more
than a few requests to send an email with a better quality image to
someone who happens to be in one of your pictures. It just doesn't
happen that often, and using that as an excuse is silly.

Kevyn is right, once your images are out there in the electronic
sphere the only thing you can do is try to guide how people use them,
not stop the use. One very powerful way to do this is to *encourage
people* who respectfully ask your permission.

This encouragement helps all of us in the business because it helps
foster the forces of politeness and attribution that are so important
if we are to be known for our work. Just look at the sites all over
the internet that post thousands of unattributed images of wonderful
photographs taken by people who will never gain from the large
audiences looking at their work. I'm asking you to take part in a
larger culture of interactive politeness and reciprocity.

Thank you in advance for taking the time to think about this.

Respectfully,
Mac Lerch
pocketlama@gmail.com
206-718-6105

P.S. By the way, you take some really nice pictures. I would love to
see some more of your work. I hope you decide to keep posting on your
blog. :-)

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[phreddd.livejournal.com]

It's your face... fuck what she told you.