Clearing Logs (but not the photo rights)
Sep 6th, 2008 by Brian
Cleared for take-off, originally uploaded by gmr2048.
UPDATE, September 9, 2008: Ok, Gary at least heard back from the artist, Mr. Stermer so I will dial back my rhetoric about his copyright infringements. Bicycling Magazine still has some explaining to do.
All images and text © 2007 Gary Ryan. All rights reserved. This material may not be reproduced, displayed, modified or distributed without the express prior written permission. For permission, email me.
Seems that someone didn’t quite take to heart the “Copyright ©” part of this cool shot of Larry Camp clearing a log. Compare this image to the “illustration” found on the Bicycling magazine website (or in the October 2008 PRINT edition of the mag). They’re an exact match. Well, no, that’s not entirely true, as Gary points out on his blog, several modifications were made:
Things that are different
Jersey color
Number on race plate
Their rider doesn’t have a head. Poor fella.
Gary’s friend Ben helps out with the comparison:
Way to go Mr. Stermer Bicycling Magazine. You all seem to be playing from the old school way of business that Mr. Stermer rails against when he talks about the erosion of intellectual property rights or when he wrote the following:
Further, much of the theft has to do with moving the stolen pictures to other sites on the internet anyway, basically dot for dot. None of us has the time, will or resources to try to track down these illegal acts, and the thieves know it. Further, unless we take the considerable time and trouble to register each of our pictures with the U.S. Copyright Office, even if we did track down an offender all we can do at best is get a cease-and-desist order, which he may or may not choose to obey.
The thing about the internet is that as information housed on the web grows larger, the world will continue to shrink. We now have family, friends, and all manner of online contacts spread all over the world. And they are all consuming bits and pieces of the data stream, which means we do not have to worry about the time and resources to track down illegal acts. Just like the one illustrated above, illegal acts are going to pop up almost instantly. Combine each of our social networks with search engines like TinEye and the world flattens even more. Thieves will no longer be able to hide.
Well said, Brian!
Yea, looks like he has taken his words to heart.
I sent an email to both Bicycling Magazine and the artist listed in the illustration’s copyright notice. The artist wrote back and seems to be a decent enough guy (and not at fault!). The ball is back in Bicycling Magazine’s court:
From: Dugald Stermer
To: Gary
Sent: Monday, September 8, 2008 12:06:53 PM
Subject: Re: Use of my copyrighted photo.
Hello Gary.
I did do the illustration, from, as you point out, your photograph. However it was supplied me by Bicycling magazine as reference. My assumption was that they had a staff photographer take the picture or at least had acquired permission. Your quarrel is with them, and I sympathize, even empathize.
The art director’s mail is ******@rodale.com.
Best of luck,
Dugald
Thanks for sharing this Gary, I’ve updated the blog post to reflect that Mr. Stermer was not at fault.
Oh gosh… I think there is clearly a “fair use” argument here for someone creating their own sketch of “a bike clearing a log” while using Gary’s picture as a reference. Whether it was Gary’s picture or from anyone else, imitation is the most sincere form of flattery is it not? =) At least Bicycle Magazine found Gary’s photo to be a prime “reference” for this sketch, so I would consider it a compliment.
Would it have been even better if the magazine just asked Gary for permission to replicate the photo? Yes. Did the magazine violate copyright by creating a “new art” sketch using the photo as a reference? No, I don’t think so, and I think you’d have a tough time arguing that in court as well. So I say, “just relax, smile”!
Hey Brian…Just a quick update to my story:
Bicycling Magazine has put things right regarding the use of my image in their print magazine and on their web page. They’ve asked that I keep our specific communications confidential, and I’ve agreed to that. Generally speaking, I specified terms and compensation that I felt were fair, and they agreed to them. They also agreed to post a correction in the magazine giving me credit for the original image.
I’m happy with the way things worked out. I can only hope that going forward, Bicycling Magazine (and publishers in general) will be more careful about the images they use and the manner in which they acquire them. That’s really the heart of the matter. Photographers have rights. We’ve got to stand up for them. They’ve got to respect them.
Thanks to all who offered insights and thoughts.
Brian,
re: fair use: I am not a lawyer, but it seems to me that this would fall more under “Derivative Work Right” than fair use. Via Wikipeida:
“The owner of a copyright has the exclusive right to prepare derivative works based on that copyrighted item under 17 U.S.C. § 106(2). US Copyright Office Circular 14: Derivative Works further states that:
Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. The owner is generally the author or someone who has obtained rights from the author.
Thus, one who creates an unauthorized derivative work violates the derivative work right. ”
And while, yes, I was flatter to some extent that they found my shot to be good enough to use as a basis, all this could have been avoided had they just asked permission in the first place. Publishers (and advertisers) have got to learn that they can’t just “find” a photo and use it. Hopefully my experience have done a little to teach them this. Hopefully.