Awkward Stock Photo Blog Hit With DMCA Claim
from the awkward-indeed dept
Brad Hubbard writes “One of my favorite sites, AwkwardStockPhotos.com received a legal nastygram claiming that by showing the stock photos from iStockPhoto.com (and linking back, with watermark in place), they were violating copyright. What they were actually doing was driving tens of thousands of hits directly to the iStockPhoto site, and there is at least anecdotal evidence that they increased the number of purchases of these otherwise humorously bad photos.
Sounds to me like these are all perfect Fair Use examples, being stomped by a company that didn’t like how its product was being used. That makes me sad, but it’s the way things are in the world of harsh ownership.”
The blog, if you didn’t know, basically found awkward stock photo images, but did so in a very promotional way, linking back to the original, and always including the original watermark. In other words, it was helping to advertise some rather unique iStockPhoto images — and as the site notes, lots of other sites have done the same — and even received book deals for it. It seems like iStock’s parent company, Getty Images, totally overreacted to a site that was only helping them, and not harming the company at all.
Filed Under: copyright, fair use, stock photo
Comments on “Awkward Stock Photo Blog Hit With DMCA Claim”
Advertising should be the choice of the people who own the content, not a random choice made by a third party. It proves the difference between just a link and the actual use of content inline on a website.
Mike, I think you keep making the same mistake. It might be nice that he was “helping” them, but it is up to them if they want the help or not.
Re: Re:
Advertising should be the choice of the people who own the content, not a random choice made by a third party.
That’s not the way the law works, fortunately. There is no law against promoting others. But, then again, you’ve shown not to particularly care what the law says.
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If he could advertise without using the images, perhaps. But in using the images (even with watermarks) it pretty much blows things out, no?
Oh, and exactly which law do you refer to?
Re: Re: Re: Re:
I believe he was hot-linking the images rather than actually hosting them himself.
Altough some webmasters do not like that practice as it uses their bandwidth, they do have the tools to prevent such activites, “.htaccess”.
Re: Re: Re:2 Re:
FYI, I was uploading the watermarked photos to tumblr, then putting a link back to the source on each photo.
This has all been a wonderful lesson.
Re: Re: Re:2 Re:
Actually he wasn’t. He was saving them to his hard drive and reuploading them to Tumblr’s servers.
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“Oh, and exactly which law do you refer to?”
“There is no law against promoting others.”
So just how is he supposed to provide you with a law that doesn’t exist exactly?
Re: Re: Re:2 Re:
Thanks for the laugh.
Re: Re: Re:2 Re:
You missed the point. I am trying to find the law that says you can use others images without permission on a website.
I am not debating the concept of promoting others (he could have written nice text with a link), but the use of the images (particularly hotlinking them, which essentially makes istockphoto pay for the “promotion”) seems to be way past the line.
Re: Re: Re:3 Re:
So, if it isn’t described explicitly in the law books, it’s illegal? Are you out of your tree?
Re: Re: Re:4 Re:
No, I can find the law (copyright) that says you cannot use someone else work without permission. I am trying to find where it says you can.
Re: Re: Re:5 Re:
Oh look, over there – its a picture.
Sorry, it is illegal to say that
Re: Re: Re:5 Re:
Wow. What a blatant mis-representation of the law.
Would you please cite what portion of copyright law was violated. I can’t seem to find anywhere language meaning ‘you cannot use some else work without permission’.
Re: Re: Re:5 Re:
This was CLEARLY fair use.
Otherwise even sites like Kelkoo would be illegal under current copyright laws. As they use pictures to show the products that are on sale on another site.
All this site did was point out awkward photos that can be found on stock photo sites. While keeping the pictures completely intact, including the original watermarks and giving links to the pictures on the original site.
You can try to pervert the copyright law all you want, but it doesn’t make it any more true. If it was a TRUE copyright violation, Istockphoto would not have needed the DMCA to hit the site with.
Re: Re: Re:5
It’s in copyright law. Fair use. You don’t need permission to use someone else’s work if it’s fair use.
Re: Re: Re:3 Re:
“I am trying to find the law that says you can use others images without permission on a website.”
Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders.
Also, they PUBLISHED it to the internet. Someone else POINTS to it. They even cite it! If istockphoto (or anyone) doesn’t want hotlinking, they could just turn it off. We have the technology.
I know you have to disagree with everything posted, but sometimes you’re stretching it a bit too far.
Mike: Sky appears blue.
A-Mike: Sky is clearly plaid!
Re: Re: Re:4 Re:
AC #22;
The did in fact PUBLISH it on the web, BUT they published it inside a larger document, and not exclusively by it’s self. By doing so the larger document (the page) is where the issue lies.
By extracting the photo and hot linking back to it, the infringer is doing two things, first changing the content that the photo is intended to be displayed, then making someone else pay for the bandwidth to display it in his content.
To me this both infringes on the owner of the photo’s copyright rights, AND is also “theft of services” by taking the bandwidth as well. One criminal and one civil.
Re: Re: Re:5 Re:
The photos on the stock photo sites are there as advertisement for the sale of said photos…
The page is not a “work”, that would be a perversion of the copyright law.
The photo is the work.
And if they didn’t hotlink the picture, but instead host it themselves, the site’d cry foul as well, as that would be a copyright infringement.
Re: Re: Re:6 Re:
And for the record, they didn’t hotlink. See the site owners comment just above.
Re: Re: Re:5 theft of services my arse
The Ninth Circuit held that in-line linking to images does not violate the public display right.
http://www.eff.org/cases/kelly-v-arriba-soft
Re: Re: Re:3 Re:
I believe the way laws work in the USA is that you are legally allowed to do anything unless there is a law saying otherwise. That is the 9th and 10th amendment of the constitution.
Did you forget the basics of the system?
Re: Re: Re:3 Idiot People that don't understand the whole concept of laws
Sorry, rant coming on here.
This is such idiocy. Where is the law that says you can eat cornflakes? Where is the law that says you can breathe without a permit? Where is the law that says you can write stupid uninformed comments on a website?
You don’t need a law to ALLOW something. Laws restrict things. If you claim what the blog did was illegal, cite the law stating it is illegal. If there is no law preventing it, you’ve got no basis.
It sickens me that people are allowed to talk without any understanding of how society and laws work, but sadly, there’s no law preventing people from being dumb.
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Oh, and that pretty much isn’t the way the internet works. If they don’t want the traffic, then perhaps they should put everything behind a paywall or remove them from network access.
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So by your definition, if I talk about a product favourably to my friends, show it to them, show all its features and then encourage my friends to buy that product, I could get sued by the company that makes that product, for driving traffic to their products? WTF!
Remind me never again to write a review of a product on Amazon!
Have you ever heard of “word-of-mouth promotion”?
I consider this site to be large-scale word-of-mouth promotion of these photos, and I’m sure the photographers were glad for the extra money they received from this site.
Don’t forget the worst kind of attention you can get is ‘no attention’. The biggest problem for the photographers on iStockphoto is obscurity and not this free promotion.
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Again, don’t misrepresent my comments.
If he wanted to write about a product, if he wanted to discuss the product, if he even wanted to use a thumbnail of the product, I don’t think there would be an issue.
he used the full sized image, and had the balls to hotlink it and make istockphoto pay the bandwidth to provide it.
Without using the images, it would be a discussion, and nobody would care. Adding the images generally would require permission, and hotlinking them only make it worse, causing the owners to incur costs for this “promotion” that they didn’t ask for.
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Pay the bandwidth to provide it. LOL! at you.
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In that case, why did istockphoto threaten to sue the website in question, why not send them an email asking them if they’d kindly use a thumbnail instead?
It can be done civilly, without resorting to legal nastygrams and threats.
Incidentally without using the images, the site doesn’t really have a point, now does it?
post 1: oh look at this funny picture over at istockphoto.com.
post 2: oh look at this embarrassing picture over at istockphoto.com.
post 3: oh look at this funny picture over at whateverelseforstockphotositesyouhave.something.
BTW, I’m almost 100% sure that this nastygram wasn’t sent because of copyright violation, but because of the embarrassing nature of a number of those photos. Embarrassing to istockphoto.
Re: Re: Re: Re:
Actually, he used the watermarked, scaled-down version of the image that the stock photo site itself posted solely for advertising purposes. If you want their *product*, you need to go to their site and *buy* the full-sized, unwatermarked version.
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“he used the full sized image, and had the balls to hotlink it and make istockphoto pay the bandwidth to provide it.”
1) No, he didn’t hotlink.
2) The “full sized images” he used were…the reduced size thumbnails with obnoxious watermarks that iStockPhoto uses to…get people to purchase them.
3) I know reading is hard, but please try it.
Re: Re: Re: Re:
he used the full sized image, and had the balls to hotlink it and make istockphoto pay the bandwidth to provide it.
Wow really? He used a picture that’s several megabytes in file size and thousands of pixels of resolution? Because you know, purchased photos are really really big, something like 10,000 x 10,000 pixels or bigger. Or did you actually think that they just removed the watermark and emailed you a low quality JPEG for you to use commercially upon purchase?
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“if he even wanted to use a thumbnail of the product, I don’t think there would be an issue.”
That’s exactly what he did. To borrow a term you like to throw around, “fail.”
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he used the full sized image, and had the balls to hotlink it and make istockphoto pay the bandwidth to provide it.
Neither of those things are true, as the owner of the site explained well before your comment here.
Will you now take back your statements and support him?
As you said: ” if he even wanted to use a thumbnail of the product, I don’t think there would be an issue.”
He did use a thumbnail of the product, and there was a problem.
Can you admit, just once, that you were wrong?
Re: Re: Re:2 Re:
Yes Mike, I got it wrong. There are a signficant number of references to hotlinking and htaccess (not all from me) in this discussion, including someone before the site owner (who isn’t clearly identified as the site owner) saying that the images were hotlinked.
As for “full sized image”, since I could not see the site because it was already taken down, I refer to the original quote on your story:
“claiming that by showing the stock photos from iStockPhoto.com (and linking back, with watermark in place)”
Notice he didn’t say “showing reduced sized thumbnails”.
So yes, I was wrong about one thing, and not so wrong about another, as I made an assumption based on your original post, which wasn’t very clear. Thumbnails would have made a difference (depending on their size, as always).
I hope this clears things up, and apologies to the site owner. However, I am not comfortable with the idea of taking content off of a site and uploading it to another for your use. The thumbnails are part of the original site’s content and design, so it isn’t entirely clear that you had rights to them.
Again Mike, I hope this clears it up. I hope that you can admit that the original post wasn’t entirely clear on the subject(s) either.
Re: Re: Re:3 Re:
So, you’re still uncomfortable with someone sending free traffic to a site, for free, using images that are originally and explicitly designed to get people to purchase the full-size images?
Re: Re:
Advertising should be the choice of the people who own the content, not a random choice made by a third party.
I disagree with you TAM (obviously). Advertising does not exclusively belong to the owners. Advertising belongs to the owners, the users, and the random third party that happens to be a fan. It’s called “Word of Mouth” advertising that has been upgraded to the digital age.
istockphoto implied that advertising them was ok with the “download a comp” link that they have. But you see, TAM, word of mouth works both ways. Now with istockphoto exerting fascist control over the positive advertising, they are in effect going to lose control over the negative. Word of mouth is a very powerful thing. Ask any restaurant.
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Word of mouth doesn’t give you unlimited and unfettered access to the product(s).
Example, I can write a story about my car (GTI, I love it!). I can even take pictures of my car and use it to illustrate why I love my car, and why I think that everyone should enjoy a 2 liter turbo motor. I wouldn’t recommend getting black, as it is hard to keep clean.
However, I don’t get to go to the dealer and borrow cars to show off to people.
You don’t get to use copyright material just because you are saying nice things about the copyright owner. That is their choice, not yours. Nobody is stopping you from saying nice things, but you cannot use their products without permission (or without paying, I bought my car, I can take pictures of it, although I might have to hide the company logos if I used it to sell something else).
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What about fair use?
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The product is not the image being shown. The product is the *full size* image. The thumbnail is an advertisement, a sample, a snippet, etc. In your car analogy (and please, can we ban the car analogies from both sides for the rest of eternity? They’re always terrible), you would NOT be allowed to show a picture of your car.
This is particularly dissapointing
as istockphotos seems to pride itself on being a member driven site.
Stealing or sharing?
Anti-Mike, so when you take Mike’s picture, do a flip and inverse in Paint and use it as an avatar. Is that stealing or sharing?
If Mike has copyrighted that picture you’re in for your Master’s medicine.
Re: Stealing or sharing?
Anti-Mike, so when you take Mike’s picture, do a flip and inverse in Paint and use it as an avatar. Is that stealing or sharing?
It is neither, it is parody.
I already answered this for you once. Do I have to keep repeating myself?
Re: Re: Stealing or sharing?
But you took it without permission and that is stealing, now walk the plank you dirty little pirate.
Re: Re: Stealing or sharing?
Fair use is a beautiful thing, isn’t it?
Re: Re: Re: Stealing or sharing?
you obviously don’t understand the meaning of fair use.
Re: Re: Stealing or sharing?
the anti mike: Do as I say, not as I do
Re: Re: Stealing or sharing?
Oh, that’s just precious!
Strike 3, you’re out.
Sucker.
Re: Re: Stealing or sharing?
Would you say that if I use one of your quotes with attribution to you, that that’s fair use?
Now if you put a photo up somewhere, with a watermark in it, and I show it with attribution to you. How is that any different?
Re: Re: Stealing or sharing?
Fair use doesn’t exist in your world, though.
Re: Re: Stealing or sharing?
It’s a parody? You mean like that “defense and not a right” called fair use?
Re: Re: Re: Stealing or sharing?
actually yes. I would expect that the person who produced the original image might consider legal action, and I did so know that those who do parody work often do have to explain themselves in a court of law.
I also considered the size of the image, it’s use, and the clear indications of parody that exist when the modified image is used as a very small icon next to “the anti-mike”.
I also considered the humor factor. Clearly, if someone involved with Mike Masnick sued for copyright violation, it would potentially be one of the most awkward moments in Techdirt history, with Mike either having to side with me on the issue of fair use, or support a photographer against his personal beliefs.
No matter what happened, it would be a win.
So yes, in answer to your question, parody would be a defense under fair use, where I would first have to admit to violating copyright in the strictest sense, as I am using someone else image. You see how the two step process works?
Re: Re: Re:2 Stealing or sharing?
Except that’s only true in your imagination, and not in any law, court of law, or realm where common sense reigns.
Re: Re: Re: Stealing or sharing?
Fair use can’t involve using istock’s webservers to fill the content of another person’s website.
The Awkwardstock people poached files and links for their own profit to drive revenue via Google ads.
Re: Re: Stealing or sharing?
To paraphrase Dan Aykroyd during his “Weekend Update” days: TAM you ignorant slut. Do you actually believe the tripe you post? Or are you just being ignorant for the sake of being a contrarian?
Re: Re: Stealing or sharing?
I love this guy. Who are you Anti-Mike?
Re: Stealing or sharing?
“so when you take Mike’s picture, do a flip and inverse in Paint and use it as an avatar. Is that stealing or sharing?”
That’s totally legal.
Change an image by 20% and it’s yours, buddy.
The only thing is that exactly what constitutes as to whether or not an image has been altered 20% or more is debatable.
Re: Re: Stealing or sharing?
Change an image by 20% and it’s yours, buddy.
Curious. Can you point me where in the law this 20% limit is?
I’ve not seen nor heard of it.
Re: Re: Stealing or sharing?
liar. You are talking out of your ass.
No matter what purpose he was using the images for, he was still stealing. Is it stealing if I take a chocolate bar from the corner store, but then stand outside and tell the customers that I stole a chocolate bar from that store and that it was delicious, and that they should go buy one. I am driving traffic into their store arnt I? But I still stole the chocolate bar. You use and image for your own personal gain from a place who’s business is to SELL IMAGES. Of course they are going to send you a take down notice, and most likely a bill. Its called DOING BUSINESS.
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You’re being satirical, right? You do understand the difference between scarce and infinite goods, right? You do understand the difference between commentary and unjust enrichment, right? You’re not trolling, right?
If you’re not posting satire, please lurk before you post.
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@Kae: Your analogy is way off the mark. We’re talking about digital media that can have infinite perfect copies, not finite candy bars (as Valkor points out). I think it should be closer to: Is it stealing if I took a picture of the candy bar, and then stood outside and showed the customers and told that it is delicious, and that they should go buy one? Absolutely not.
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You would own the copyright of the image, but the candy bar is trademarked, and thus you can not profit from someone else’s trademark.
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Looks like somebody stole some of that crazy logic.
Apples and oranges
Kae: Candy Bars and watermarked stock photos are apples and oranges. It’s an irrelevant comparison.
it's getty images, what did you expect?
“Intellectual Property is the oil of the 21st century” – Mark Getty, chairman of Getty Images
getty is one of the most predatory content companies out there.
the company was founded by someone who gives copyright the same value as natural resources, so clearly that company will go to war over pretty much anything that it perceives as a threat.
Re: it's getty images, what did you expect?
snakeoil is what he meant…
The explanation on awkward’s site is a work of art all on its own. PRICELESS!
I just thought of something
Istockphoto adds a large watermark on their photos.
Partly to protect misuse of the photo and presumably also to advertise where the image came from, otherwise a white cross or some other watermark would be enough to prevent people from grabbing the image without paying, and they wouldn’t need to add the advertisement “Istockphoto.com” on there.
So why do they object, when people use the watermarked image to drive customers their way? I simply don’t get it, unless they just objected to the awkwardness of the photos in question. But then Istockphoto is acting in a childish way.
BTW, this bullish reaction from Istockphoto will make sure that I will never put my photos on their website ever, nor will I buy a photo from their website. Even if they’d offer it for free.
Why not....
Maybe I glazed over this point, but why didn’t he just buy the photos? iStockPhotos’ prices are pretty reasonable. He could’ve spent a buck or 2 a photo and been legit.
Re: Why not....
The whole purpose of the site was to allow people to submit awkward stock photos (from anywhere), and then he’d link back to them and we’d all have a good laugh.
Given the 10-20 per day, purchasing them all would seem prohibitively expensive.
This type of site pop up quite often, normally with stolen images and lots of advertising. Buy the images for a dollar or two and take the advertising money.
As for fair use, I don’t think it really applies in this situation. However, I am sure that it could be established either way by going to court. Anyone wont to pay those legal fees, I think Getty has deep pockets to pay its lawyers.
Re: Re:
Please explain how “stealing” (and please spend some money on a dictionary) thumbnail images (which anyone can easily do themselves anyway) that have absolutely ZERO purpose except to advertise for the full-size images and then using them to send free traffic to your stock site harms your business.
Re: Re:
This type of site pop up quite often, normally with stolen images and lots of advertising. Buy the images for a dollar or two and take the advertising money.
Would you prefer they not advertise to others how to buy your photos?
Taking off the watermark actually does more harm to you in this situation, since the target audience are people who may be looking to buy stock photos, and under your rules, they’d have less knowledge of where to find your photos.
Do you really think the fraction of a dollar today is worth more than the free advertising?
As for fair use, I don’t think it really applies in this situation.
Uh, what?!? It’s a question of copyright, so yes, of course fair use applies — and if we go through the four factors, I think a competent lawyer could make a very strong case for fair use. The case law certainly supports it… if you look at cases like the Perfect 10 case, or the case about a book of Grateful Dead posters… it seems pretty clear that putting together a collection of thumbnails for aggregation like this is, in fact, considered fair use. No matter what you “think.”
Anyone wont to pay those legal fees, I think Getty has deep pockets to pay its lawyers.
Hence the problem. The fact that Getty can crush this blog because the legal fees are too expensive, despite a strong fair use claim?
You don’t see that as an issue? You are honestly supporting a big company bullying a tiny site that was providing free advertising? Really?
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“This type of site pop up quite often, normally with stolen images and lots of advertising. Buy the images for a dollar or two and take the advertising money.-
Would you prefer they not advertise to others how to buy your photos?
Taking off the watermark actually does more harm to you in this situation, since the target audience are people who may be looking to buy stock photos, and under your rules, they’d have less knowledge of where to find your photos.
Do you really think the fraction of a dollar today is worth more than the free advertising?”
You miss understand. The advertising is not for the stock photo it is down the side of the page, affiliate adverts which the site owner gets money from per click.
We can agree to disagree on the other points. I sell though getty and they take 70% so I don’t have to hire lawyers.
I just don’t think a photographers work should be put onto a site that makes money from advertising but pays the photographer nothing. It would only cost $1-$2 per image. If it is not viable then don’t do it.
Don’t forget to sue GameSpy:
http://www.gamespy.com/articles/106/1066150p1.html
“Re:
by Anonymous Coward
Please explain how “stealing” (and please spend some money on a dictionary) thumbnail images (which anyone can easily do themselves anyway) that have absolutely ZERO purpose except to advertise for the full-size images and then using them to send free traffic to your stock site harms your business.”
The images available on istock are available for purchase at different sizes. The smallest size of the image for sale is about the size of the thumbnail on the stock page. These smaller sizes are for use on websites, marketing emails etc. Larger sizes are for commercial printing.
Use of an image with a watermark on a website is against the terms of use with istock and is deemed to be stealing. However you can use a watermarked image for a mock up to see how it looks. Awkardstock was not a mock up.
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It’s not “advertising”. Too bad you don’t understand the law.
What is done is illegal. Period.
Copyright holder has control. And the materials the person linked or sourced is NOT PUBLIC DOMAIN.
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Copyright holder has control. And the materials the person linked or sourced is NOT PUBLIC DOMAIN.
But it is almost certainly fair use. No one claimed it was public domain. Not sure why you are making it up.
You are incorrect that “copyright holder has control.” They do in some cases, but fair use is an exception to that limited amount of control, and the case law on similar examples suggests very much this is fair use.
Oh joy, more butthurt copyright holders deciding to deprive the world of a little brightness just to be assholes.
Could someone please explain how the photographers were losing money because of this? Did they expect the site to pay $10 a photo and thus be an unsustainable money sink? Or do they somehow think that people will see the photo (with the giant watermark) and decide they no longer need to buy it. Both propositions are absurd. Especially considered the images linked on the site are the exact same ones you can download for free from stockphoto.com (you know, with the big flaming watermarks).
Reading the forums at stockphoto shows why legal action was really taken. The pick photographers got all upset that their (horrible) work was being mocked. If you can’t stand being made fun of, don’t post things on the internet. Especially if they’re bad. The best part is that the work will still be mocked. Now you just have to click a link.
Finally, only an illiterate moron would term it “stealing”. Which apparently makes half of the istockphoto users illiterate morons. What exactly is being stolen. The credit? The blog made it pretty clear it didn’t create any of the photos. It’s copying, not stealing, no matter how much you try to revise the english language.
The Law is the Law.
Rationalizing is the coward’s way of dealing with it.
As an artist, I have very little sympathy for those who try to pad their own websites with copyrighted material and intellectual property of others. The website concept is very much like Perez Hilton’s site (which btw is being sued up the wazoo by X17 and getty for lifting images off other sites, linked or not.).
DCMA specifically gives rights to the copyright holders. You ought to familiarize yourself with the law.
Too bad bitches. This is poaching of copyrighted content. And the law is the law.
Re: The Law is the Law.
DCMA specifically gives rights to the copyright holders. You ought to familiarize yourself with the law.
Quit familiar. So familiar that I know what fair use is and the case law around it. It appears, on the other hand, you do not.
if I any were my images I’d be pissed. views with no sales lowers you in most search engines. the site costs the contributer (as well as bandwidth).
And really what an arrogant wanker, where’s his amazing portfolio full of absolutely perfect shots??? Not exactly worlds most downloaded photographer is he? poke shit at other people and he’s too much of a cheapskate to spend the $1 or so to buy a blog sized image and then has a big sook when he gets his hand smacked. The guy who runs the site should be on the biggest loser…
now I look like a loser with my bad grammar and not checking before posting 🙂
Any press is good press, right?
I guess it’s their loss… maybe it pinched a nerve with them. Perhaps iStock/Getty felt that this was an insult to their collection, rather than a way to drive additional traffic (referral/affiliate commission free) to their website. If anyone ever hotlinked my stock images from my personal website, I would just see it as free advertising. They’re watermarked like crazy, and optimized for small sizes, so it’s not like it would be a bandwidth buster.