This is how you properly credit a photo of Magnum Martinez at Pipe. A beautiful photo at that. Image: Nate Smith
Diamond theft can be a very lucrative business. Despite the stone’s fabled indestructibility, they have one very conspicuous flaw when it comes to keeping them out of the hands of thieves: the second you cut a diamond it becomes a different diamond. It doesn’t matter if you shave one micrometer off a single facet or chop the thing in two, once it is cut, there is no known way to authenticate a diamond. The very nature of the act calls into question what an “authentic” diamond might be.
I got to thinking about this last week when a great surf photographer named Nathan Smith (winner of The Inertia’s 2012 Portfolio Challenge, Editors’ Pick) emailed us to bring to our attention the problem of photographers having their work stolen, excised of all credits and digital watermarks and then plastered onto the many Facebook photo pages that have sprung up like colorful mold all over the internet. Once they are free of their credits and digital watermarks, they become nearly impossible to trace back to the photographers who are their rightful owners much like diamonds lifted out of a safe and re-cut. As an experiment, I joined Pinterest and searched for photos tagged “surf.” I spent about half an hour perusing the thousands of images and was able to find zero that credited the photographer. The best you could hope for was a “via” link which typically led to other “via” links. After passing through the personal Tumblr web pages of about seven adolescent girls, I would eventually come to a dead end.
The terms and conditions of Pinterest, as with most social media sites that allow image and video sharing like Facebook, Instagram, and Twitpic, to name a few, are long and profoundly complicated. They are written by lawyers, after all, to protect the companies and to a lesser degree, the rights of people using the sites. But there is a funny little flaw existing somewhere in between how the terms and conditions are written and how people use social media that puts many types of image sharing on grey legal ground.
Any photographer who shares an image free of charge, via Facebook for instance, is granting Facebook fair use of his property but not the right to resell it to other parties. The agreement essentially takes place between him and Facebook Inc. when he checks the box below the statement of terms and conditions which no one ever reads upon signing up. Ironically, these terms guarantee his ownership of the photo and state that any use of it without his consent (outside of Facebook) infringes on his ownership. In other words, as long as the photographer is uploading his own photo, everything is kosher. What he is not doing when he checks the box is granting fair use or the right to use the photo without his consent to other users of the site. That means that anyone who wants to reproduce his shot legally has to get permission and give him credit unless they are doing so via the “share” button, which will link back to him. For the sake of argument, let’s say I see a photo that Nathan Smith has uploaded to Facebook that I want to show my friends and/or followers. Instead of sharing it via the “share” button, I decide to pull it off of Google images and upload it, sans credit, to my page. I have just robbed Smith, even though the same photo may already be on Facebook and numerous other places around the web. The same would be true if I took the image from Facebook and pinned it to Pinterest or “tweeted” it without his permission.
The implication here is that most people who are reasonably active on social media, myself included, have knowingly or unknowingly ripped off a photographer at some point and probably do so semi-regularly. In fact, as I was writing this story, the film director Tim Bonython emailed to inform me that, in an article I wrote for National Geographic about dangerous waves, I had linked to a clip of his that had been illegally posted on Youtube without the proper credits. Linking to random Youtube videos as if they sit in a public archive is standard practice among many who publish regularly on the internet, so it had never occurred to me that anything on Youtube might not be subject to fair use. It’s not, although that also varies some depending on how you are using the video/image. And although I’m technically just as liable for the theft as the original user who posted the clip to Youtube without Bonython’s permission, it would be difficult and costly to prosecute either of us. His only real recourse then, to making sure he gets credit for his work, is to email me and ask that I put it in. Many, like me, are happy to oblige, but there is a subset of users who are not.
“There are people on Facebook and Instagram who excitedly share images,” says Smith. “Well, they are like kids in candy stores who seemingly harmlessly grab what they can without thinking. But then you have the more serious person we call the thief who knowingly steals images for monetary gain. And the thing is, both types affect the creator.”
The thieves that Smith refers to often compile photos in order to try and reap advertising dollars from web pages, or revenue agreements like those that exist on Youtube. They probably aren’t raking in six figures, but they are taking money indirectly out of the pockets of the photographers whose work they appropriate.
Smith teamed up with Timo Jarvinen, Russ Ord and others to create Don’t Steal Our Work! (DSOW)–an organization that hopes to raise awareness about the problem of image theft and counteract it’s perceived acceptability.
“Since creating the DSOW Facebook page, we realized that this is actually a monstrous issue,” says Smith. “Both Facebook and Instagram are riddled with fake pages composed of stolen images with some people even going to the extent of removing water marks and even adding their own text to a stolen image to pass it off as their own. It’s all really crazy and furthermore super frustrating as there is no way of contacting anyone in a position of power at Facebook or Instagram who can help.”
Although Facebook has, in the past, shut down pages that are guilty of copyright infringement, it is happening on such a massive scale, and in such grey areas of national and international law, that it looks like they will be slow to make comprehensive changes like having to request to share photos from their original sources and allowing photographers to track their photos as they are shared. This is where we come in. “Sharing” – that favorite word of the web 2.0 – is something of a misnomer because it implies the use of objects that have no owners. A photograph produced professionally has a definite owner and therefore cannot and should not be shared without certain minimal restrictions. Even Smith is not adamant about complying with every letter of the law.
“I do not mind sharing my photos and do not mind if someone does,” he says. “Just link it so people know who shot it. It’s a win-win really.”
From my own personal experience, I would also add: make sure you know who shot it, so you don’t link to the wrong person.
