We’ve covered a few different recent stories of various sports leagues or professional sports teams trying to limit how journalists and photographers can report on their games, and have even covered cheeky attempts to get around such restrictions by having reporters cover events from home while watching on TV. Now, a whole bunch of you have been sending in variations on a story in the UK, where the Southampton football team apparently has decided to ban photojournalists from taking images of matches, instead telling newspapers they need to buy photos from the team’s “official” photographer.
Thankfully, some of the newspapers covering the latest match felt that was ridiculous, and chose to respond in some rather creative ways. The Plymouth Herald, who was covering the visiting team, decided to employ someone to draw cartoons of key moments in the match, rather than using the official photographs:
This is hardly a surprise, but with the Google Book search lawsuit/settlement with authors and publishers still under discussion, it seems that photographers have decided to file their own lawsuit. This was, in large part, driven by the judge in the existing case, who excluded photographers from the current lawsuit/settlement, because the photographers have a very different perspective and demands concerning the scanning.
While Google decided to cave rather than fight the good fair use fight on regular book scanning, it would be interesting to see if they decide to fight the photographers on this one. I would think they have a very strong fair use case — and there is at least some case law to support this position. I know of two recent cases that had at least somewhat similar fact patterns, involving commercial entities using copyrighted images as part of an aggregated product — and both were found as fair use.
Just last year, we wrote about a book that used old magazine covers drawn by artist Basil Gogos that looked at Gogos’ artwork. The magazine that originally published the artwork claimed copyright violations, but the district court found a strong fair use claim in noting that it was “fundamentally transformative in nature.” The other case, involves old Grateful Dead posters, where someone published a book of the posters, but was sued by the Bill Graham Archives, claiming copyright infringement over those posters. Once again, the court said this was fair use, despite it being a commercial endeavor. Again, part of the reasoning was that this was an aggregation of the content, and the overall quality of the images did not match up to the original posters. Given the low-fi quality of Google book scans, it seems likely that the same claim makes sense for photographic/visual media works that Google scans in books as well. It’s worth noting, also, that the Grateful Dead poster decision took place in the same district court (Southern District of NY) where this new lawsuit is being filed.
Even so, this whole thing seems confusing, and feels like a pure moneygrab by photographers. The images from a Google book scan are not high quality in any way. They’re certainly not going to replace or act as a substitute for the original works. In fact, it’s difficult to see how they would do anything but increase the interest in the original, higher quality, works.
Wired has a write-up of PhotoShelter, a site that helps “protect” photographers from the scourge of their work being too easy to find. They cite Lane Hartwell, the photographer who got bent out of shape when one of her photographs appeared briefly in a popular viral video, as an example of the kind of photographer who would benefit from the site. I can understand why she’d be unhappy that she didn’t get credit for the use of her photo, but I don’t see how switching to PhotoShelter would have improved the situation. Most of the money in photography is going to be from commercial clients. Companies tend to be pretty good about paying for photographs (and other content) because they’ve got deeper pockets and less plausible fair use claims. On the other hand, non-commercial uses of photos aren’t going to be very lucrative; most individuals and smaller non-profits will use a lower-quality free image rather than pay to license a professional photograph. Certainly the creator of a viral video isn’t going to pay royalties on a product he’s planning to give away for free. So the smart way to handle things is to treat non-commercial uses of your photographs as promotional opportunities, seeking credit rather than compensation. That should build your reputation as a photographer and hopefully get more commercial clients interested in your work. PhotoShelter appears to be a solid site for professional photographers looking to catalog and market their photographs. But the fact that the site makes it more difficult for people to find and use a photographer’s work isn’t something photographers should be cheering about.
