Are Flickr Photos Fair Game for Home Printing?

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.

Comments are no longer being accepted.

Thank you for this follow-up. It’s good to explore this topic, as there are a lot of myths about copyright and what it entails. If you are an artist, it’s important to consider what your intention is when putting your work out into the world. Is your intention to sell it and make money? If so, you need your own website, and full control over who views the work (downloads it into a browser). And if your intention is to express yourself and your ideas about the world, and share your discoveries visually, then a public photo-sharing website such as Flickr is perfectly fine.

Also, an important note on this specific issue, selling photos from Flickr is against the terms of use policy for the site, which is designed for sharing photos, not commercial use.

“….and for all those flickr users who felt disrespected by my last column, I apologize”.

Go ahead and say it, Sonia. It will make you feel better.

You could have saved yourself a lot of the heat you’ve attracted by doing that research on those “messy grey areas” BEFORE you posted the article. Just writing, in effect, “Look everyone – free stuff!” without explaining the issue of photographers’ rights, or even suggesting that people ask permission (which is a basic courtesy, when all is said and done) perpetuates the myth that, just because photos, music, video etc are downloadable, then they are there to be grabbed, no questions asked. “Personal use” is a red herring.

The comments where closed on the last one, but here’s the deal:

The overwhelming majority of the comments regarding this article are curiously misguided. The analogies and comparisons being drawn in many cases aren’t even sensible. It’s especially disturbing to see the comments where a person says they are going to take the another person’s content, whether commissioned or otherwise, and repurpose it for their own commercial or free public display.

The issue is surrounding the fair use of content and the responsibility of the content generator to control its dissemination. That is it. Fair use is restricted to private personal consumption of the content. All Rights Reserved, as defined by the Berne convention, WIPO, and eventually re-packaged by the DMCA, provides a content author with all rights over their works(the ability to demand money, have it taken down, etc) whenever they encounter said works. In simple terms; if you see your art you reserve all rights to have it taken down or to be duly compensated.

Here comes the first problem which runs deeper than this article: You are responsible for yourself. The feeling that you are entitled to notification, to payment for non-commissioned works, or to payment for commissioned work that has been been made publicly available, the internet is a public forum, is naive. This belief that you are to be compensated for everything you produce is one of naivety at least and rotten entitlement at best. If you want your content to stay in one medium, secure it so it can’t change mediums, then, you have the DMCA to back you up. The DMCA protects you against a deliberate attempt to circumvent a protection measure securing your content.
EXAMPLE: Illegal, downloading a movie online and watching it by yourself at home.
EXAMPLE: Legal, downloading a movie trailer and watching it by yourself at home.
EXAMPLE: Legal, printing an article from the New York times, putting in your scrapbook, making a photocopy and putting it up in your cube, making a photocopy and putting a copy in your house in a frame, or putting it in a PDF to read at home later. You’ll notice the print link throughout the NY Times site on every single article.

They are all personal use based on the available medium and content choices provided to the content consumer, you.

This issue goes way back on Flickr. In 2007, the outlook was “The day you produce something that I want and give it to me for free, we can talk. “(flickr:www.robinryan.ca). That appears to still be the viewpoint amongst Flickr users. You’ll notice here though that a commissioned work is being requested for free. No one asked you to share your content in high-res for the entire public world to consume. Barring the transference of media, your content is immediately portable to wallpaper, screen savers, digital photo frames, internet cache files (which is legally the property of the computer owner. You can turn over a lot of convictions if you can get around this one), telephone, TV, or LCD monitor.

By virtue of the comments saying that the article’s suggestion is illegal, printing out what someone says on Twitter is illegal. To say that ‘Users can’t transfer my content to another medium.’ that medium being a printer, is incredibly naive. To demand governance over that other that politeness is to ask for laws which in turn asks that a government of sorts investigates everyone’s home for your content on a printed or analog medium. That is the only logical conclusion to your arguments. The thought of that terrifies me near to death.

In the US or other countries, we are not entitled to money just because it turns out that someone liked something you did. If that’s the case I’m sure there are some 6th grade teachers with notebooks full of your content or crumpled notes of your art that owe you immense amounts of money for having proffered your content for their own use and enjoyment.

tldr; It is your responsibility to secure your content.

“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.”

Flickr has a built in method for seeing your favorite images over and over again. It is called Faving. Mark photos as Favorite and enjoy them all you want by the method to which you have been granted permission of the artist to use, DISPLAYED on Flickr. To do anything else is a violation of Flickr Terms of Service and Copyright law.

Why do I have a sneaking suspicion that Sonia’s apartment is plastered floor to ceiling with “borrowed” “grey-area” images?

Go Flickr.

And I agree with Mr. John McNally, still waiting for an apology.

i agree with the previous commenters: an apology is in order–for poor journalism, bad manners, and advocating theft. that being said, the new post does raise some very interesting questions about the limitations of copyrights, the responsibility of the artist to protect one’s own property, and the grey area in between.

personally, i expect that some people out there are going to illegally download and perhaps even print my photographs. knowing that, it does not stop me from displaying my photos on flickr. i feel that the enjoyment, feedback, and education that i gain from participating in the flickr community is worth the trade-off. and no offense to the hardworking professional photographers out there, but i also think the “she’s taking food off my table” argument is a bit of a red herring. art is not inherently a commodity; most artists create and share their work as a matter of instinct. whether or not one sells one’s art is not the threshold for value or intellectual property rights. stealing is straight-up rude and wrong. and for those who do make a living from their photography, flickr is an excellent marketing and business development tool if used properly, but with that benefit does come some risk. one really shouldn’t post even moderate resolution images of their work on flickr or anywhere on the internet without a watermark if they want to take reasonable precautions against theft (because it *will* happen).

I find it fascinating that many flickr users on flickr group message boards are mentioning their comments are not making it to the original article comment page (now closed). Of course, when the Times can select what comments to actually post, they will, of course, edit out the comments that are reasoned, well thought out, and explain why what the author of the article wrote is wrong.

I also find it fascinating that the author’s own photos on flickr are “all rights reserved”. She clearly understands that she does not want her own work copied, but encourages others to copy the work of talented photographers.

Too bad this will never make it past the Times’ censors.

A rational and admirable reply that illustrates the conversation and law isn’t as clear cut as some of the name-calling demographic liked to paint (the mob mentality here can be offputting…you’d think we were all fighting for voter’s rights in Iran, such the anger and emotion). Photography as a commercial industry and community is going through some growing pains…much more painful than when we transitioned from film to digital. To throw hot water on the topic instead of having a genuine and rational discussion of how, when, and where people use images we post/share is detrimental to a productive look at those very gray areas being debated. It would be a shame if the photography community took the same shape as the conglomerate sledgehammer known as the music and movie industries without considering common sense Fair Use applications.

Eliminating the issue of legality, what’s fascinating is we’re the cultural drift happening between a younger digital generation used to free or easy adapted media and those born with hard copy media with definite boundries. As someone born inbetween the two eras, the disconnect between where a previous generation want us to be and the reality of where we’re going in a digital world is quite striking.

Sonia doesn’t seem to know very much about copyright law. Sad.

If you will go so far as to “lift” someone else’s creative efforts, i.e., images that are copyrighted as mine are, how long before you start “lifting” the ink, the paper, and the frames in which you will present them on ‘my studio apartment (there isn’t a bare wall in the house)’? You have a moral obligation to keep your thieving hands off other people’s things. It really is very simple, Sonia.
Nik Carpenter

David F. Gallagher June 26, 2009 · 8:52 pm

Flickr user: We post comments that follow our commenting policy. We don’t post personal attacks. Or SHOUTING. Please see the FAQ. Thanks for commenting.

Sincerely,
The censors

I did look up the Fair Use provision of the Copyright Law. Unfortunately the law, as you’ve said, hasn’t quite caught up with the web. It references use by non profits and educational institutions that provide exceptions to copyright privileges.
In the case of some corporations, notably NBC news, they can solicit photographs for “Non-Exclusive Royalty free Licenses”. If one reads further down the long contract provisions for submissions to their site it is stated that they have the right to “sell” your images to third parties. Flickr is often used as a source for other websites, often with the tacit cooperation of the powers that be at Flickr and Yahoo, with various apps that allow the display of Flicker images. Most of these apps and sites do link back to flickr photos and their respective owners. There are a lot of gray areas that still need to be worked out. But the fear I have is also that the freedom of the web to transmit images and spread creativity will be stifled by the zeal for copyright security. I have to say that I did believe fair use was the issue here. I do like getting views on my photos and I’ve seen some coming out of blogs that I did not implicitly give permission to use yet most of them were of a non commercial or a limited commercial nature so I’m not bothered all that much about them.

//www.flickr.com/paypaul

This post sounds so much like “Since I’m not woman enough to just admit I was wrong, I found a bunch of experts to make it sound like I was right!”

I think that’s very weak. Sure, there are gray areas galore surrounding copyright and fair use. But you wrote an article blithely exhorting people to act as if it’s black and white and totally ok to ” Download, print, frame!”

Just say sorry already!

I bet you weren’t expecting this kind of response when you posted your original article, Sonia :) I wanted to let you know that not all Flickr users are against you…

Some of us remember the reason that Flickr exists (“Flickr is almost certainly the best online photo management and sharing application in the world.”) and we understand the idea of reasonable, fair use.

I’ve posted a (long-winded) follow-up to your original article on my Flickr photostream:
//www.flickr.com/photos/no3rdw/3664187720/

I do appreciate the follow-up, but it’s still a little muddled, I think.

While I don’t speak for everyone, my personal feeling (as a professional photographer) is that it’s just *rude* to take my photos without asking.

If you ask, either in an email or Flickr-mail, I’ll be likely to grant you permission for personal use. I’ve done it hundreds of times already, up to and including allowing school children to use my photos in their projects, or recreate them as drawn art. But they asked permission, and that’s what’s important to me.

Benjamin D. Bloom June 26, 2009 · 9:27 pm

@Bruce: “It is your responsibility to secure your content.”

It absolutely is not. It’s the responsibility of the consumer to take reasonable actions to use content responsibility.

If it were the responsibility of the owner to secure content, RIAA would have no grounds to stand on. Artist could be told, “Hey, you let your CD out into the world without adequate copyright protection, so it’s your fault it’s being downloaded all over the web.”

If I post a photo to Flickr and mark it as all rights reserved then my intent is pretty clear – I want to share this image and provide the ability of people to view it within the context of Flickr. That means I’m comfortable with viewing it on a website, people consuming it via RSS, and other avenues that Flickr may provide. It does not mean that downloading it and printing to hang on a wall is OK. It also does not mean you can copy the image and re-post it on a blog/website/other medium.

While the law may not have caught up to technology, if you look at the intent of the content originator you can get a good idea of what is moral. Corynne McSherry and Heather Champ have it absolutely correct – when in doubt, ask the artist/photographer/content creator. You will quickly find out if you are within your rights to reproduce the content for personal use.

That being said – I take precautions and only post low resolution watermarked images to Flickr because I recognize reality vs. intent. I recommend that other semi-serious photographers do the same. It provides a reasonable mechanism to keep honest people honest.

There is a specific legal litmus test for Fair Use under current U.S. copyright law. Falzone and McSherry danced around the question without answering it. While I am not surprised at their being non-committal, people wanting to use ARR photographs need to be far better educated about that particular aspect of copyrights.

The bottom line is, a photo marked ARR (All rights reserved) is best left alone unless you make arrangements with the photographer to use it. And, CC (Creative Commons) photos have their own set of rules that need to be followed as well.

Also, speaking as a professional photographer, I find it disturbing that people would use the anonymity of the Internet to grab and print out photos just because they ‘want’ them. Serious amateur and professional photographers all have an incredible time and monetary investment in the craft. It is not uncommon for a pro photographer to have $25,000 to $100,000 (or more) invested in equipment, and spend hours or days in the field capturing the images that others are simply ripping off without so much as a thank you. If you think it’s so easy, try being a real photographer for a few days and you might gain not only a better appreciation for what they go through to get those pictures, but also an understanding of why most of the photographers who have responded to these two articles have been so angry.

Completely and totally wrong. You can copy a part of a work under fair use (subject to a number of other conditions), but you can’t copy a whole work, whether it’s a book, a song, a movie or a photograph.

The author also clearly doesn’t understand the difference between commercial use and non-profit educational use.

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.

indeed, many did see it as promoting thievery. I’ve just read your original article again, and it still reads that way.
nothing wrong with the research you’ve done since then, but the original article was simply poorly conceived, poorly researched, and poorly written.
you owe flickr users an apology.

“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.”

Falzone is cherry-picking parts of the Sony v. Universal decision. While it’s true that the fact that the court agreed that since the programming in question being recorded was obtained free off-of-the-air, this was only one of a multi-part basis for their siding with Sony. Equally important in their eyes was Sony’s “time-shifting” argument. They agreed that a Betamax user taping a program in order to view it at a later more convenient time was a primary reason consumers used VCRs and worthy of “fair use” exemption of copyright protection. What this blogger is advocating isn’t analogous to “time-shifting”.

First, thank you for posting a follow-up to the previous article. Unfortunately, I’m not sure how much good it will do, at least in regards to damage-control. What I mean by that is, I wonder how many people who happened to read the previous article (or skim over it, as most are wont to do) are going to actually read any of the comments posted under it or are going to follow the link to this one?

Regardless, posting this was the right thing to do, though I disagree with a few of the points.

I still believe it violates copyright to copy and display “all rights reserved” photos on your wall. I think the VCR argument is disingenuous. We are obviously working out the boundaries of a new frontier in regards to the digital age; however, when someone has spent time and effort and money in order to produce a product (in this case, a visible yet intangible digital file) why do other people think they can just take it, merely because it is not a physical copy? If you went into a friend’s house and liked a photo in their scrapbook enough to display in your own home, would you not at the very least, have the courtesy to ask for your own copy? Perhaps even offer to pay the printing costs. You wouldn’t just take it out of the scrapbook, because they have the negatives and can always make another copy. I know people will argue it’s not the same, because the original is still online, etc. But get over the extreme literal interpretation, people. It is ideologically the same.

I appreciate that Creative Commons (and searching by such) was finally mentioned; though in the original article it did sound as if the author had plastered her apartment with snagged photos. The fact (if true) that only one out of (allegedly) only four photos decorating her walls was taken from flickr and actually paid for (whereas the others she claims were all taken from the LoC account, which is fine) just goes to show that even she felt she should ask (and was willing to pay for) permission to print a copy to hang on her wall. It was irresponsible to suggest anything less, and while I’m still not quite satisfied with this follow-up article, at least it is a step in the right direction.

Dear Censors,

I dont believe my previous comment (on the original article) included personal attacks or shouting but is strangely absent from the ‘locked comments’.

Sonia failed. Pure and simple. The original article was superfluous fluff. A position was taken (by Sonia) with regard to actions (and legal frameworks) upon which she had NO knowledge.

She sort no counsel, performed no due diligence and purported actions which, in many real world situations, promoted illegal activity.

I do not know to what editorial standard the NYTs holds itself to account but it is safe to safe Sonia is unlikely to find employment elsewhere.

Even now with this article we see her natural instinct is to find a bias which supports her view. Instead an self respecting, thorough, professional journo would find a balanced view.

Instead we see Sonia how cowering behind the ‘it’s complicated’ defence.

I do fear this issue will blow up in the NYT face if it is not properly dealt with….

While this follow-up article is appreciated, I still consider your first article to be weak in journalistic quality.

One point of clarification: Flickr is a community of both amateur and professional photographers, and both are equally concerned about their rights and how their work is used by others.

Most of us who have been doing business online for some time are well aware of the “gray areas” to which you refer. That is all the more reason for using good common sense in dealing with online property issues. A simple ask upfront can avoid a pile of trouble down the road. Since last June, I have had 57 permission requests to use my photos on Flickr. I have approved 42 of them and denied 15. The turn downs were either from commercial users who were unwilling to pay to use my work, or they were unwilling to provide the requested credit citation. In a couple cases, I turned down requests because I was not comfortable with the mission and values of the organization concerned.

By the way, Flickr is a really cool online community. In my mind, Flickr is a model that others should seek to emulate. It offers the opportunity to both share your photos with others and develop valuable friendships around the world.

Sonia does not have to apologize to anyone. She was being honest (and within boundaries of the law; it is Fair Use) about how she uses Flickr. Flickr is about photosharing and it is disappointing that many people would even feel offended about her perfectly legal use of Flickr.

I welcome Sonia to my photography. I sell prints, but also offer original sizes for free on my Flickr. Let “All Rights Reserved” photos languish in obscurity and allow unshackled photos to flourish.