The Times Kicks The Hornet’s Nest of Fair Use

June 29, 2009

New York Times columnist Sonia Zjawinski has suffered the swift and sure wrath of the internet by suggesting that photo sharing website Flickr could be used for interior decorating.  In her initial column, she suggested that you could easily search for thematic photographs on flickr, download the photos that you felt best met your decorating whim, and then print and frame them as you so desired.

This rubbed a number of flickr users the wrong way as evidenced by this entry where the power of social networks was engaged to give Zjawinski a piece of their collective minds.  The Times reacted in what I felt was a positive manner by recognizing the response to the article and then speaking to a number of legal experts on the issue of fair usage.   It engaged the audience, treated their concerns as valid, and sought the input of experts on the subject to try to come to some sort of conclusion.   The conclusion is essentially that you’re looking at an area greyer than a Scottish fog bank that’s spent the last two seasons locked in a basement abusing steroids and lifting weights but there are precedents that personal, non-commercial usage could in many cases fall under fair use provisions of copyright law.

Like many issues in law this all fun and games and idle intellectual speculation until someone gets sued and a judge (and perhaps jury) finds themselves required to listen to two lawyers lock horns, pick a winner, and then assign damages when appropriate.

I’ve discussed copyright and protection of your images online in the past so I’ll just put forward a few quick thoughts about this specific issue.   At the center of the complaint is the feeling that Zjawinski was encouraging the public to steal.  If a visitor downloads a photo from a flickr stream and prints it out for their own personal usage they’re depriving the photographer of a sale.

There are a few practical issues to consider.

Did the photographer provide a method for the visitor to purchase a print?  Is there an etsy, paypal store, or other online method for purchasing a print without having to email the photographer unsure if they will ever respond?   E-commerce is about instant gratification. Has the photographer responded to their customer’s needs for a seamless motion between desire and acquisition?

Has the photographer provided a full resolution copy of their image?  If you allow people to download a copy of your image that could easily be printed out at 8×10 at 240 to 300 DPI then are you surprised if people do so?  That’s a far larger resolution than could be displayed on any monitor.  Why wouldn’t someone choose to print out a copy of your image if you’ve so thoughtfully provided them with an image that is of full print quality?

Legal considerations aside, if you’ve provided an easy way for a visitor to print out a copy of your own work without making it obvious how to contact you to purchase a print, is it surprising if they simply make their own print?

If you’re dealing with a grey area of usage then its best to be proactive and establish the usage patterns that you want.   If you want to sell prints, sell them.  Let people know they’re for sale and establish a system that makes it easy for them to purchase them.  If you just want to share your photographs and restrict usage entirely, take steps in that direction.  Finally, if you feel like offering your photographs for usage by the community for their creative ends, there are a number of licenses that you can provide them under. Flickr offers a number of tools to accomplish any of goals and make it readily appearent to a knowledgable, non-malicious user what usage pattern you wish to establish.

For the photographer who wishes to provide their photographs only for viewing, you can set your flickr account to disable downloads.  This is not a complete solution but it strongly communicates a level of control that you wish to have over your work.  For the photographer with an eye to sales, only posting low-resolution photos which would make a very small print (mine are 800 on a side, which is about 2.3-3 inches at common print resolutions) is a very sensible first step.  Watermarking as I’ve discussed in the past is another easy technique to claim ownership and discourage certain kinds of usage.  Openly announcing that your photograph is for sale and operating an online store to make it easy for visitors to purchase your work is essential.  Don’t claim that you’re loosing sales unless you’re offering a product for sale.

The reality is that fair use is a contested area in legal opinion and practice.  When there is ambiguity, its essential to establish your desired outcome.  There are tools provided by flickr to make it very clear what your intentions are.  When someone violates your clearly established wishes, then feel free to jump down their throat.  Until you make that clear declaration people will rely on their own judgement.

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