As a college student living in the “Digital Age,” I see people on their smartphones in class, in the library, while eating meals, and pretty much every other place that I go. It seems that everybody has a smartphone. I will admit that I am often one of these people, glued to my phone and checked out of reality. So what is it with these devices that has everyone hooked? Other than searching for information or watching videos, many people use their phones to check on and contribute to social media. We take photos at a party so we can post them on Instagram or send them on Snapchat, and then the next day we check to see what other people did the night before. Whether it’s Tumblr, Facebook, Twitter, or the hundreds of other social media websites out there, the main trend is posting photographs. Martha Buskirk took notice of this trend in her article “Fair Game.” In this article, she writes that the social media sites that rely on posting photos have contributed to an “evolution” of photography. She characterizes this new art form by the “sharing,” “liking,” “retweeting,” and various forms of image re-use prevailing on these sites. Buskirk asserts that iPhone cameras have allowed everyone to be a photographer, but at the same time she acknowledges that professional photographers have become “an endangered species” (163). What Buskirk fails to address is the direct relationship between the popularity of social media and the decline of photography as a profession. Because these sites have diluted copyright laws to support image sharing, it is difficult to actually be a professional photographer and make a living off of it. All of us are liking and editing and re-posting, but we often have no idea who took the photo that we are using. The internet has made it too easy to use others’ photographs without giving credit, and copyright must adapt to prevent this “endangered species” from going extinct. The U.S. Copyright Office has recently acknowledged that “neither the Copyright Office nor the copyright laws can stand” against today’s technological innovation (U.S. Cong). In order to allow photographers to claim rights over their images online, new copyright laws should be tailored to each type of creative work.
In October 2015, the Copyright Office released a public draft of the plan to update its current laws and legal structure. The draft outlines the changes that the office will pursue during the years 2016 to 2020. The plan states that the office recommended the creation of a “small claims court” (U.S. Cong.). This same topic was introduced by the copyright office when they released a Notice of Inquiry in 2012. In a response written by the managing director of The American Society of Photographers (ASMP), Victor Perlman discusses the problems that impact photographers more than other kinds of artists. Freelance photographers create more copyrighted works than any other class of creators. On average, they create 2,822 photographs per month (Perlman). It is highly unlikely that an author could write that many books or a singer could release that amount of songs in one year, let alone a single month. However, the photographs they take are normally not worth as much money as a song or book.
When a photographer finds an unauthorized use of a photograph, they can ask the infringer to pay a licensing fee or take down the photograph, or they can sue. Hundreds of ASMP members are put in this situation, and the infringer refuses to pay a fee and/or take down the photo. Due to the nature of copyright law, there is nothing else the photographer can really do (Perlman). The Copyright Act currently in place requires that all cases pertaining to the subject of copyright must be taken to federal court. Since most photographers are sole proprietors, they cannot afford the high cost of federal court litigation or to take years away from their job to engage with the case. In addition, the amount of money in dispute is often a few hundred to a few thousand dollars, making it extremely difficult to find a decent copyright attorney interested in their case (Perlman). While the Copyright Office is definitely on the right track recommending the creation of a court within the office as an alternative to the federal courts, this alone will not resolve the issues that professional photographers are facing in the digital age.
Even with the addition of a court where photographers can enforce their copyrights, these professional photographers still have to individually find every case of infringement on their own. The number of their pictures online can now exponentially duplicate because of the trend of image-sharing and websites that promote it. How could a photographer, or anyone, have the time to find where their photos are used illegally? In an article by Betsey Morais posted in The New Yorker, Yunghi Kim, a photographer who has been in the business for thirty years, tells of her experience with copyright. She claims tracking down infringements is now part of a photographer’s job. However, the Copyright Act is meant to promote learning and advancements; it is not meant to create more work for an artist. In the article, Kim encourages other photographers to claim their rights by using the steps that she does. Kim “goes after” one single offender at a time. She has gone through the legal systems in the US, China, and Europe, talking to lawyers over the phone and sending invoices. She claims that, to her, is it “financially worth pursuing” (Morais). Perhaps this is a case for a photographer with thirty years of successful work, but for professionals who are just starting out in their career it is ineffective for them to waste that much time on lawsuits.
In addition to going through lawsuits, Yunghi Kim suggests that photographers take advantage of Digital Millennium Copyright Act “takedown notices” (Morais). The Digital Millennium Copyright Act is an amendment made to the Copyright Act of 1976 that was signed into law in 1998. The purpose of this amendment was to move the laws into the “digital age” and control the acts of copyright piracy (Maddrey 518). Under this act, photographers have the right to demand the removal of their work from websites that display it without permission through the form of a DMCA takedown notice. Yunghi Kim encourages photographers to use these notices so their work does not circulate without compensation. In her opinion, it is worth it for photographers to “do as much as [they] can” even though they will not be able to find all infringements (Morais). The DMCA requires that each instance of infringement is separately documented. As a result, the process of sending them becomes nearly as time-consuming as filing a lawsuit and, evident by experiences of ASMP, is not very effective. In 2015, the US Copyright Office released a Notice of Inquiry seeking comments regarding “copyright protection for certain visual works” (Kennedy). The subjects of inquiry are five questions directed at photographers and their current issues with copyright. In the response written by Thomas Kennedy, the executive director of ASMP, he compares the DMCA notice to a game of “whack a mole.” Once infringers receive the notice, they can re-post the material immediately or just place it in a different location. One ASMP member documented his efforts to get his infringing photographs taken down. In just six months, he found over 100 different websites that illegally displayed his photos. For more than half of the images, the photographer’s recorded outcome is “forget for now, may revisit.” Some other common recorded outcomes are “stalling”, “wait for law advice?” or just simply “unresolved” (Kennedy 51-5). This is just one of the many photographers expressing frustration with takedown notices. With thousands of images in circulation over the internet, it is very easy for the photograph credit to be lost or intentionally removed. As it stands, there is no effective and efficient way for photographers to both find and remove illegally posted photographs. In order to combat this problem, the copyright laws must be updated in accordance with the sharing-culture now prevailing online.
Since data on the internet is growing at an exponential rate, it seems impossible to try and control its users through a system of laws. While many people are pushing for more copyright laws to protect intellectual property online, others feel that new laws are unnecessary. In an article about contemporary internet culture, Eric Schlacter argues that copyright laws cannot control the “intellectual property renaissance” that has emerged online. Schlacter believes that the issue of online copyright infringement will just “sort itself out” (51). He supports this claim by noting that the combination of the today’s internet culture is affecting the public’s collective attitudes toward intellectual property (36). Since the internet has made it very easy to have access to free intellectual property, people have become hesitant to actually pay for it, so they find ways not to. As a result, internet users have become very comfortable with “serial micro-infringements” (Schlacter 37). These “micro-infringements” include illegally downloading songs, posting photos, streaming videos, and activities that do not seem like criminal acts but are in fact against the law. Schlacter concludes that since there are millions of these “micro-infringements” online, trying to control them is a waste of time (50). Therefore, he argues that laws should not be created to limit these activities on the internet, but rather laws should only regulate the most extreme behavior, and the rest will just work itself out (51). Schlacter is opposed to laws regulating activities on the internet, as if the internet is an indivisible place. It is valid to say the government cannot regulate the internet in its entirety, but if the copyright office directs its laws to smaller entities within the internet, the number of infringing activities online can potentially be reduced. The problem with the government adopting Schlacter’s approach is that this issue has been affecting professional photographers for years, and it has yet to fix itself after causing significant damage to their profession.
Perhaps Schlacter’s argument could effectively apply to other creative works, but the idea of “micro-infringements” being trivial is detrimental to photographers’ work because of the nature of their profession. Thomas Kennedy of the ASMP distinguishes photography from other forms of media by its “high volume, low value” works. In order for photographers to make an income, they sell their photos commercially in large quantities (1). So a photographer, for instance, could spend a few weeks taking photographs for a store like Macy’s. The photographer is hired on the basis that he or she is taking pictures for a catalog, and receives a payment for that job. Once the photographer sells their pictures to Macy’s, the department store chain has taken the rights to that photo and can post or re-print it without notifying the photographer. If it a popular store or business and they post the photo to Twitter or Instagram, they have given millions of people the ability to now take those photos and use them as they please. According to Kennedy, members of the ASMP feel that the “marketplace norm” is for their photographs to be “shared” on social media or as part of websites for further marketing without the photographer’s permission or compensation (3). This is an issue between businesses and their clients, one that the government should work towards resolving unlike Schlacter’s suggestion of a “hands-off” approach. Schlacter does have validity in suggesting that it is impossible for the government to make laws that control the internet due to the exponentially increasing instances of copyright infringement. However, the Copyright Office can make laws to change the nature of business between companies and photographers which could in turn reduce the number of potential infringers.
A realistic change that the Copyright Office could make is to restrict the terms that publishers are allowed to request of photographers. Under the Copyright Act currently in place, images on the internet can be considered “compilations,” “derivative works,” or “collective works” (Gastineau 108). For each of these definitions, the Copyright act allows for an employer to claim all of the rights of a work created by an employee on the job and allows for employees to transfer any or all rights to an employer (Gastineau 114). Technology and the widespread accessibility of cameras and photographers have created a competitive field for professional photographers. In his article about how technology has affected the role of photographers, John Gastineau discusses possible legal changes that could aid photographers to work in the digital age. Companies are able to gain control because today’s market is mostly large corporations that buy from freelance photographers (100). Most agencies expect to buy all the rights to the pictures when they hire a photographer, and the competitive field gives professional photographers little room to bargain. If they don’t agree, the corporation can easily hire somebody else. As a result, photographers sign away the rights to their own works (98). With millions of people on the internet, these companies often publish the images online after buying them from the photographer. The nature of the internet, as well as the current Copyright Act, allows these companies to post the photos wherever they please without notifying or compensating the photographer.
If the Copyright Office defined “digital images” as its own type of work with its own specific set of principles, they could help ensure photographers keep the rights to their photographs and are compensated fairly. While the law allows for transfer of copyrights, it also allows for the termination of the transfer of those rights during a five-year period starting once the work was published for a total of 35 years (Gastineau 115). Within one day a company can post a photograph to five different social media sites with a million followers on each site. The ease of information and image sharing has made the policy of terminating the transfer useless for photographers. As Gastineau suggests in the conclusion of his paper, the duration of time before photographers can terminate the transfer or their rights should be significantly shortened. He recommends that rather than waiting thirty-five years for the ability to terminate the transfer, they should only have to wait five years (126). If this change was made, photographers could potentially terminate an employer’s rights if they discover the company is using their work without compensation before it spreads all over the internet. Additional restrictions should be added to the law under the subject of “digital images,” such as taking away the “work-for-hire” doctrine that grants employer’s copyrights to works created by employees (Gastineau 114). Images, whether posted in print or online, should always be able to be claimed by the photographer. They should have to grant permission for every way that it is used and every site where it is posted rather than companies having the ability to decide all of this for themselves. With the addition of this specific work in the Copyright Act, it could also establish a clear line of what does and does not constitute as fair use for images online.
While it is an unrealistic goal to stop every infringement on the internet, social media websites can be targeted to potentially reduce a significant number of online infringers. In Thomas Kennedy’s response to the U.S. Copyright Office, he characterizes the nature of social media as problematic for photographers for several reasons. While social media is a great tool for photographers to market their work, the most popular social media platforms have terms of service stating they have rights to the content posted. For example, in Facebook’s Terms of Service it states that “you grant [Facebook] a…worldwide license to use any IP content that you post” (Kennedy 9). By posting their own photos on these websites, professional photographers give away their ownership rights yet again. In addition, sometimes their photographs are posted on social media without their permission. For an instance like this, photographers have the option of filing a DMCA notice, but these are often inefficient, especially when service providers create their own provisions for takedown procedures (Kennedy 11). One photographer, Lisa Corson, found her photographs used on Tumblr. Tumblr requires that she sends a link to each individual picture before they can be taken down. As a result, she sent them 60 links to images to take down from one blog alone (Kennedy 11-12). The Digital Millennium Copyright Act is an amendment that was passed in 1998 as an effort to control piracy, but it needs to be amended again to accommodate for the significant changes to the internet community since then (Maddrey 518). It should be established that a service provider cannot claim the rights to content posted by others. For professional photographers, the benefits of their creativity and work are equally accessible to Facebook once their work is posted. This practice negatively affects the market for photographers yet the elimination of this provision in their terms of service would most likely not put Facebook out of business. In addition, it should be enforced that service providers cannot alter the requirements to get an image taken down as Tumblr has established in their terms of service.
While these two changes to copyright law would help photographers claim rights to their works, one major change should be made to reduce the quantity of infringing pictures on social media. The downfall of the DMCA is the Online Copyright Infringement Liability Limitation Act. While this act requires some action on the part of service providers, such as removing content at the request of copyright owners, it also states that they cannot be held monetarily responsible for the activities of their members (Maddrey 518-19). In his article, “Photography, Creators, and the Changing Needs of Copyright Law,” Thomas Maddrey refers to this act as a “safe harbor” for online service providers such as Facebook or Tumblr (518). If service providers have no liability for infringing material posted, they will not have any interest in enforcing copyright protection.
This “safe harbor” should be removed. Service providers should be made responsible, by all means, for the content posted by their members. If this was the case, these service providers would come up with strategies to limit the amount of infringement on their site, meaning they would work towards this goal alongside photographers and the U.S. Copyright Office. Perhaps social media providers would publish how copyright laws apply to online images or require that the creator’s name to be attached to every image before it is posted.
Thirty years of innovation and advancements have occurred since the Copyright Act of 1976 was initiated. It is going to require immense reform to accommodate for creators of every type of work. Immense reform is going to take time, time that photographers cannot afford. Social media and the ease of spreading images on the internet has specifically affected their job market compared to other creators. While the U.S. Copyright Office works towards modernizing the current laws, steps can be taken in the meantime to bring awareness to this issue. The American Society of Photographers (ASMP) works with several other national organizations in advocating the rights of photographers, and they should work with the U.S. Copyright Office to educate the public. Whether it be through commercials, or even ads on social media, they should encourage people to consider copyright laws while using online images. They could also promote the use of Creative Commons, a service that provides artistic works with embedded rights regarding publishing, reproducing, or various uses for a work (Maddrey 524). As a member of most social media sites, I have been more conscious about using images online after being introduced to the issues that photographers are facing. Posting pictures has become so common that most people, including myself, may not consider the possibility that it is infringing upon someone’s copyrights. Photographers are being affected now, but the law cannot change overnight. Photographers should share their challenges with the public and inspire people to help them maintain their incentive to share their artwork with the world.
Buskirk, Martha. “Fair Game.” Artforum International 52.10 (2014): 163-166. Academic OneFile . Web. Oct.-Dev. 2015
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