Update | 7:08 p.m. Adding comment from lawyer at Electronic Frontier Foundation.
I wrote a post this week about using the photo-sharing site Flickr as a source of photos to print and frame at home. The post was meant to be a celebration of the many fantastic amateur photographers that have found a spotlight via Flickr, but a lot of people saw it as promoting thievery. That was not what I wanted to advocate by any means. Many people wrote in to explain how this practice is not fair to photographers. Obviously there are a lot of legal and ethical issues here that are worth exploring.
The rules for using images on the Web are pretty well understood. If I am interested in using an image on one of the commercial sites I write for, I e-mail and ask permission, and I credit those images clearly. As a writer I certainly understand the importance of getting credit for your work and getting paid for it. But what about putting an image from the Web on my wall?
In order to get the legal perspective on this I talked to Anthony Falzone, a law professor at Stanford and the executive director of the Fair Use Project there. He said that an “All rights reserved” label on a photo did not necessarily give the photographer total control.
“When you say ‘All rights reserved,’ that simply means you’re reserving all the rights the law gives you,” Mr. Falzone said. “But that begs the question: What are the limits on the rights the law gives you?”
That is where the doctrine of fair use comes into play. Mr. Falzone pointed to the 1984 Supreme Court decision in Sony Corporation of America v. Universal City Studios, which said that it was legal to use a VCR to record copyrighted content from broadcast television for personal viewing.
“There are a lot of parallels with what’s going on with Flickr,” Mr. Falzone said. “People are posting photographs and know very well that they are going to be viewed by people on a computer, and if someone wants to print a photo out that they see on Flickr to enjoy some other time and in some other place, that seems fairly analogous to what people did with the VCR.”
From that legal angle, if someone decides to download an “All rights reserved” image from Flickr and put it on their PC desktop or print it at home, they should be covered under fair use. But the law has not fully caught up with the digital era, leaving lots of gray areas.
“The real core question is, is this a fair use or not?” said Corynne McSherry, a senior staff attorney at the Electronic Frontier Foundation, a digital rights group. “Frankly the answer is, we don’t know.” Ms. McSherry suggests playing it safe and always asking.
Groups like the E.F.F. are trying to figure out how old laws apply in such cases, and it may take a while to develop clear answers. But in the meantime I heard from a lot of photographers, especially those who shoot for a living, who clearly feel that printing a photo without permission is wrong.
In the comments on my last post, Diana Pappas wrote: “Many of us on Flickr are professional artists and photographers, doing our best to get our work out there and make a living. I can’t believe, in this economy, you would take $$$ out of people’s pockets.”
What’s Flickr’s stance? Flickr aims to create an online community where people feel safe sharing their photos, which is one reason the site has over 40 million users. “There’s a natural tension between wanting to share publicly and assuring that respect is being given to the content creators and permission is being sought,” said Heather Champ, the site’s director of community. “This isn’t just about Flickr and not just affecting the Internet. It’s about respecting the rights of creators.” She added: “It’s really important that when people want to use a photo for a specific use, to acknowledge and respect the work of individuals and ask their permission.”
One safer route is to only use photos whose creators have released them under a Creative Commons licenses, which are often characterized as “Some rights reserved.” Flickr’s advanced search page lets you restrict your searches to those photos. The licenses often specify that the photos can be freely used in noncommercial ways as long as proper credit is given.
But that raises another issue for those interested in printing and framing. Should a label be placed next to the frame with the photographer’s name and the image’s Web address? Is it enough to put the information on the back of the frame? Once again, bringing something off the Web and into the real world raises tricky questions. Ms. Champ mentioned Flickr’s own practices as a good solution. When Flickr wants to use a Creative Commons-licensed work for some reason, it asks users how they would like to be credited.
I mentioned in my last post that I’ve printed out photos to display on my own walls. One of those I paid for four years ago because the Flickr user noted that she was happy to sell prints. The other three are from the Library of Congress, whose Flickr images are labeled “no known copyright restrictions.” That’s another way to avoid those messy gray areas.
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