So Much Fuss Over A Photo That The Photographer Has No Problem With People Copying

from the so-why-the-attention? dept

Wed, Jun 1st 2011 3:52am — Mike Masnick

Over the years we've seen various legal battles surrounding news organizations using amateur photographs that were posted to social networking or photo hosting sites. However, MSNBC has a long and detailed story about the legal issues surrounding news organizations using a photo that Stefanie Gordon shot from an airplane with her iPhone of the space shuttle Endeavor's launch:

Gordon took the shot, and upon landing, uploaded it to Twitpic, tweeted it and promptly went away from computers and technology for the day. The photo caught on and a bunch of news organizations used it -- some licensing it, some not. Here's how MSNBC describes her situation:

It also landed her smack in the middle of an ethical and legal debate that may be as important as the future of the Internet itself.

Except that's wrong. It didn't land her in the middle of that debate at all, because Gordon makes it clear she didn't care how it was used or if anyone paid her for it:

To be sure, Stefanie did not seek this fight, and doesn't feel too compelled to be its poster child, either.

"I never even thought about what could happen,� she said. �To me, it's just a picture. I tweeted and put my phone away. ... I had four hours of sleep and wasn't thinking. I was trying to spend time with my dad. I've never been a person who feels like I need to make money off of everything. I just put it out there for people to see."

And yet, Bob Sullivan from MSNBC seems to want to keep forcing this issue back on her as if she should care. It's really kind of disgusting. Gordon was happy to share the work, like plenty of other people who create and share content. It shouldn't be about copyright. It needn't be about copyright. And yet, MSNBC feels the need to make it about copyright. Why?

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Filed Under: copyright, photographs, space shuttle

52 Comments

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Anonymous Coward, 1 Jun 2011 @ 4:04am

Why?
Because MSNBC is filled with mentally challenged people who are willing to manufacture controversy for a story.

See also: fox news, bees
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John Doe, 1 Jun 2011 @ 4:15am

Awesome shot
That is a once in a lifetime shot there. I would milk it for all its worth. ;)

As for MSNBC and the other news orgs, they would too. They would be filing lawsuits galore if people used a photo they owned without permission. Why MSNBC would make a big deal about it is beyond me, it could come back to haunt them if stuff like this is ruled fair use. They could lose full control of their own photos.
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Stephen Downes, 1 Jun 2011 @ 4:17am

> MSNBC feels the need to make it about copyright. Why?

Because the very same people who complain and complain about people 'stealing' online content are the first to turn around and 'steal' content when the opportunity arises.
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Sailhardy (profile), 1 Jun 2011 @ 4:20am

More MSNBC Stupidity
MSNBC is apparently proud of its ability to humiliate a once respected news organisation. Standing as it does, for Progressive thought (or lack thereof), MSNBCI can be counted on to screw up anything. This is just another example of the thoughtlessness that goes into MSNBC's "news"n every day.
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Raphael (profile), 1 Jun 2011 @ 4:24am

�Organizations say, �Well, it�s a regular person we don't even have to compensate them.� They do things they wouldn�t do with a professional photographer," Krum said.

But...isn't copyright about the LITTLE GUYS?

The Associated Press paid for a license to use Gordon's photo, and to send it to all its members.

Absolutely beautiful use of ambiguity. Does this mean AP paid Gordon for a license, or just that they paid someone?
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Anonymous Coward, 1 Jun 2011 @ 4:31am

Re:
The photo caught on and a bunch of news organizations used it -- some licensing it, some not

That is my question too. How can somebody license a photo if the person who owns the copyright just want to share it and doesn't require a fee?
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ncnite, 1 Jun 2011 @ 4:40am

I think I recently heard that users who upload to twitpic give up the rights to any photos. I can not provide a cite, but it was on NPR.
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Call me Al, 1 Jun 2011 @ 4:43am

Obsession with the $ value
This is just another example of many people being obsessed with the almighty $. They cannot conceive of the possibility that something can have a value not measured in currency.

For an amateur photographer who happened to get lucky she must think her photo being sent round the world is amazing. Why can't people let her be happy with that rather than tainting the whole experience by talking about the money she must have "lost".

Also good points by Raphael and an AC above. I would defintely love to hear just who AP licensed the photo from. I wonder if there is some RIAA equivalent who just collect licensing fees for all manner of things they have absolutely no right to.
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Capitalist Lion Tamer (profile), 1 Jun 2011 @ 4:44am

MSNBC feels they DID THE RIGHT THING and wants everyone else out there to know it. "We paid for it even though no one was asking for money. How altrustic of us. Burn on the rest of you freeloading news agencies and etc."
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hobo, 1 Jun 2011 @ 5:02am

The news orgs are just like any crazed football (soccer) or football (NFL/NCAA) fan out there. That's all they want to talk about. And if you figure out that you can do something else on Sat/Sun rather than watch the game(s), then they will find a way to steer the conversation back to the only thing they know how to talk about.

In this case, it's yelling about their favorite pastime. Copyright.
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abc gum, 1 Jun 2011 @ 5:07am

"shot from an airplane with her iPhone ... and upon landing, uploaded it to Twitpic"

Looks like free advertising to me.

Hope that iphone was in airplane mode at the time, we wouldn't want it interfering with the avionics on board the plane. If phone use during flight is such a risk, then why are they allowed. Air travel these days is such crap.
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aiming4thevoid (profile), 1 Jun 2011 @ 5:09am

"But Wright said she didn't believe courts would see the rarity of an image as a "fair use" exception from copyright law." (quote from the MSNBC.com piece)

You have to admire lawyers in their inate ability to interpret laws in the way that serves them.
Case in point: if an image that is UNIQUE cannot be covered by fair use due to it's rarity, please do explain what is the use of this specific exception to copyright.
I guess in their world view, humanity would be better off if only a few news organisation had been able to lisence this picture (days after the event, if at all) and that as a result only a small percentage of the planet had been able to rejoice in another of mankind's great achievements.
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Anonymous Coward, 1 Jun 2011 @ 5:19am

I think this fight about the media wanting to make this person go all legal on everyone's asses is that they don't understand the concepts of sharing for sharing's sake and alturism. It might also be about the media wanting to make this thing into a more bigger of an issue than what it already is, because that would drive in ratings for their site and thus increase the market share.

Of course, i am no expert about this, but this is just been my personal opinion.
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NullOp, 1 Jun 2011 @ 5:19am

CR
I'm sorry, why is this an issue again?
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jweb (profile), 1 Jun 2011 @ 5:23am

Re: Obsession with the $ value
See this for the stock photo equivalent: http://extortionletterinfo.com/
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JMG, 1 Jun 2011 @ 5:35am

Re: Re:
Twitpic recently changed their policy where they "protect" their users by the user giving them the copyright to all uploaded images allowing Twitpic to license them as they see fit.
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Di Fiasco (profile), 1 Jun 2011 @ 5:39am

Not surprising considering how many people I know have chosen to sue after receiving a text from a law firm stating 'You could be entitled to �5,400.'
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JMG, 1 Jun 2011 @ 5:42am

Re: Re:
Sorry. Mistaken about giving up your copyright to Twitpic. But, you give Twitpic a license to do whatever they want with your images.

From their TOS:

You retain all ownership rights to Content uploaded to Twitpic. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.
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Anonymous Coward, 1 Jun 2011 @ 5:43am

Re:
They just give up some rights when they use TWITPIC along with similar things in other similar services which is the real source of controversy here. If TWITPIC is making real money off this picture they should share a goodly portion of proceeds with the original poster as an agent but they claim all rights.
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Anonymous Coward, 1 Jun 2011 @ 5:44am

Because...
It shouldn't be about copyright. It needn't be about copyright. And yet, MSNBC feels the need to make it about copyright. Why?

Because the emperor has no clothes, and they don't want you to notice.

This is a propaganda war, and the propaganda masters can't let it slip that they're wrong.
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Anonymous Coward, 1 Jun 2011 @ 6:21am

Re: Re:
From TWITPIC terms of service-

By uploading content to Twitpic you give Twitpic permission to use or distribute your content on Twitpic.com or affiliated sites.
---
You retain all ownership rights to Content uploaded to Twitpic. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.

You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in media Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your media from the Service provided that any sub-license by Twitpic to use, reproduce or distribute the Content prior to such termination may be perpetual and irrevocable.
from http://twitpic.com/terms.do
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E. Zachary Knight (profile), 1 Jun 2011 @ 6:27am

Re: Re: Re:
That only means that you are giving Twitpic a license to use your photo for any business of Twitpic. It does not give Twitpic the right to sell and/or license your work to other organizations/persons for their use. Those organizations/persons would still need to contact you for a license.
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FUDbuster (profile), 1 Jun 2011 @ 6:38am

Re: Re: Re:
Right. And that's why "MSNBC feels the need to make it about copyright." The image was copyrighted the moment she took it. When she uploaded it to Twitpic, she licensed it according to the Terms you quoted. Of course it's about copyright. What else would it be about when discussing the right to copy such an image?
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Marcel de Jong (profile), 1 Jun 2011 @ 6:50am

Similar
Recently one of my photos got selected to be printed in a Chinese magazine.
They sent me an email to notify me of this, and I just asked if they could send me the page the photo was featured on, they gave me the whole article. (sadly it's all in Chinese, which I can't read, but google translate tells me that it was a nice article).
I just thought it was cool, and now I can call myself an internationally published photographer.
Sure, I could've asked for money, but what would be the point? They could've gone to someone else instead, who would be willing to give them a similar photo for free.

Of course, the photo in this article is pretty spectacular, and the angle is somewhat unique, but the subject isn't.
And if the artist is okay with publishing the photo, why in nature's name does MSNBC try to make this into a shitstorm in a teacup?

Incidentally, NASA's Astronomy Picture of the Day site recently featured a very similar but different photo.
http://apod.nasa.gov/apod/ap110525.html
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Krusty, 1 Jun 2011 @ 7:00am

Given the convoluted logic of photographic industry it�s obvious that the phone manufacturer owns the rights to the picture. D� uh.
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JMG, 1 Jun 2011 @ 7:14am

Re: Re: Re: Re:
I don't know, but a royalty-free, sublicensable license sounds like Twitpic is free to license out your image without any royalties to the creator. It's not stopping the creator from doing the same as it's a non-exclusive license. Granted, that's how it sounds to a non-lawyer layperson just reading the TOS.
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Anonymous Coward, 1 Jun 2011 @ 7:29am

And yet, MSNBC feels the need to make it about copyright. Why?

Because Bob Sullivan is a person who feels like he needs to make money off of everything.
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Anonymous Coward, 1 Jun 2011 @ 7:45am

Re: Re: Re:
Wow, that is amazingly bold. It sounds like people are getting screwed over by essentially giving Twitpic money for doing absolutely nothing.
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jnorth, 1 Jun 2011 @ 8:34am

Re: Re: Re:
Twitpic isn't really empowered to give copyright to anyone
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Anonymous Coward, 1 Jun 2011 @ 8:38am

Copyright Legal Owner vs Creator
It also significant changes the legal argument made in the article as the creator of the photograph, who does not care who uses the photograph, is not the legal copyright owner of the photograph.
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Anonymous Coward, 1 Jun 2011 @ 8:40am

Re: Re:
How does a user know it is just fine to use a photo without any problems if they do not ask the person who took the photo?

The question here is not this photo, try as Techdirt is doing to make this all about a single photo and use this very limited situation to decry copyright law in general.

It is, however, about the propensity for some commerical companies to simply ignore any consideration of the law and unilaterally do as they wish. It is also about some social media and other similar sites using Terms of Use, which change frequently, to garner for themselves the opportunity to make money from what people may submit. It is one thing for a submitter to say "I uploaded it for the world to see because I think it is something worth sharing." It is quite another for a social media site to say "Thanks for the upload. We know you want it shared widely, but had you read the Terms of Use for our site you would have noticed you granted to us a money making opportunity, your wishes notwithstanding."
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Anonymous Coward, 1 Jun 2011 @ 8:45am

Re: Re: Re: Re:
Giving someone a royalty-free right to sublicense is a "barn door" through which that someone can grant fee bearing licenses to third parties without any obligations to share any of the derived revenue with the person who created the item of interest.
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Anonymous Coward, 1 Jun 2011 @ 8:46am

Re: Re: Re: Re: Re:
You read it correctly.
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Anonymous Coward, 1 Jun 2011 @ 8:49am

Re: Re: Re: Re:
I do not know if they are getting screwed (only they can make that determination), but I do know that these sites are taking advantage of a situation through "fine print" that may provide the site a sizeable income stream without any obligation to share. In other words, "thanks for sharing your work without us having to share anything with you should it prove a money-maker for us".
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Anonymous Coward, 1 Jun 2011 @ 8:53am

Re: Copyright Legal Owner vs Creator
Not necessarily. Maybe the Twitpic people say they can grant a license if you upload a photo, but the photog retains the copyright.
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Anonymous Coward, 1 Jun 2011 @ 8:54am

Re: Re: Re: Re:
Not so.

See the part about "sublicenseable and transferable."
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Anonymous Coward, 1 Jun 2011 @ 9:19am

Airline
I'm surprised the airline co she was flying with isn't demanding a royalty fee for talking the picture from their plane.
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PRMan, 1 Jun 2011 @ 10:40am

Re: Why?
Think about it. It's made up of:

MS - who makes a living off copyright and
NBC - who makes a living off copyright
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Anonymous Coward, 1 Jun 2011 @ 10:42am

People who own content don't want ANYONE giving it away because then it competes with material that is for sale.
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btr1701 (profile), 1 Jun 2011 @ 10:49am

Re: Copyright Legal Owner vs Creator
> It also significant changes the legal argument
> made in the article as the creator of the
> photograph, who does not care who uses the
> photograph, is not the legal copyright owner
> of the photograph.

Yes, she does still own the copyright. Twitpic's TOS doesn't transfer copyright completely. It merely gives them a non-exclusive license. The photographer still owns the copyright.

The article itself explains this:

"A particularly vexing problem facing users
of services like Twitpic involves the ever-
changing fine print in the sites' terms of
service agreements. Both Gordon and Krum used
Twitpic to share their photos. Currently,
Twitpics' terms of service informs users that
the firm has the right to resell any images
loaded by original rights holders onto its
servers. In other words, Gordon has the right
to sell her Space Shuttle picture, but TwitPic
does now, too.
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Anonymous Coward, 1 Jun 2011 @ 11:09am

Re: Re: Re: Re:
It should not be about enforcing her copyright if she doesn�t care right now about enforcing it. She is free to change her mind later, and if she does, then THAT would be a good time to make it about copyright.
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DogBreath, 1 Jun 2011 @ 11:44am

You know if she had taken this with her iPhone...
the lawyers would have been fighting each other to the death, just to represent "her rights" in court, (not to mention their profit on the cases, but I did).

Space Shuttle Destroyed by TFH - CGI - 2D
http://www.youtube.com/watch?v=6KS-ypy88fY

After seeing this, an unnamed law firm spokesperson said: "The First Amendment and Fair Use be damned! There is money to be made! Sue em' all! Let the courts sort them out! Whether we win or lose, we're getting paid! This is Sparta! Tonight we dine in Hell!" etc,etc...

The story reminds me of this private home video of the 1986 Challenger explosion that was released into the public domain after 24 years had passed (nobody got paid for this one as far as I can tell):

New Video Of Shuttle Challenger Explosion Disaster Found Never Before Seen
http://www.youtube.com/watch?v=GAjBr1lOWAU
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JMG, 1 Jun 2011 @ 12:41pm

Re: Re: Re:
I haven't seen it discussed here yet, but Twitpic just happened to become affiliated with WENN (a celebrity news org, from what I can tell) days after modifying their TOS. WENN will be selling/licensing celebrity photos (actual photos uploaded to Twitpic by celebrities) to other news organizations. Of course, those who uploaded the photos keep their copyright of those photos. But the new TOS allow WENN to profit off selling the pics.

Link to an article. Love this quote:

�There has been much unauthorised use of Twitpic images which we shall be addressing without delay. The belief by some that any photo posted on Twitter is available at no cost is completely wrong but now as result of this new arrangement, anyone wishing to publish celebrity photos posted on Twitter via TwitPic will be able to do so legitimately via WENN.�
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Anonymous Coward, 1 Jun 2011 @ 6:45pm

Re: Re: Re: Re: Re:
Again TWITPIC would sound better if they were giving money to the original copyright holders as a sales agent. If they had a plan for this they wouldn't seem to be as craven. If they were sharing in the wealth when there was wealth it might even act as an incentive use the service.
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darryl, 1 Jun 2011 @ 7:08pm

Good Pic thought..
you got it all wrong,,

the airline company should of layed claims to the copyright of the picture.

After all, it was taken from their platform :)

(or the mobile phone company who made the camera).

Or NASA who own the shuttle.

Or the US Gov who owns NASA.

oe twitter, who the person who took the photo give it too.
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Anonymous, 1 Jun 2011 @ 10:30pm

Re: Re: Re: Re:
The point is they should be discussing the photo not making a baking a controversy over copyright that wasn't there...
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Anonymous Coward, 1 Jun 2011 @ 11:36pm

Re: Why?
i though Fox News was in charge of all the BS. i cant keep this straight
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Mike, 2 Jun 2011 @ 2:35am

smelly dirt
the reporter's comment: "Internet's virus-like network effects." shows he has an agenda of his own... getting primed to help screw user's access and privacy online?
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DogBreath, 2 Jun 2011 @ 7:06am

Re: Good Pic thought..
Actually, every bit of the profit from said photo should go to the aircraft window manufacturer. Without them, the photo in question would not have been possible at all. At best, she would have just taken a picture of the inside of an airplane wall and been seen as a loon (or a "twit") for posting it on Twitpic.

TWEET: "Look everyone! A pic of the Space Shuttle Endeavor launch from the air! Well, it would be one if I had a window. Damn this no-frills airline."
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Jumbo, 2 Jun 2011 @ 8:56am

TwitPic
Try this link for clarification.
http://blog.twitpic.com/2011/05/your-content-your-copyrights/
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Jumbo (profile), 2 Jun 2011 @ 9:03am

Re: Shot from an airplane
Why would she need to have it in airplane mode she was using it as a camera.
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Not A Whiner Like You, 3 Jun 2011 @ 2:39am

Re:
"Hope that iphone was in airplane mode at the time, we wouldn't want it interfering with the avionics on board the plane. If phone use during flight is such a risk, then why are they allowed. Air travel these days is such crap."

Ohhh shut up.
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