Comments on: Seeking the photographer. Really. I want to ask you a question.

Question: Seeking the photographer. Really. I want to ask you a question.

Medieval Maven — Fri, 30 Jun 2006 14:39:21 -0800

I've read through the AskMe archives, and I didn't really find an answer to my question. We found a photo on Flickr that we want to use as a banner on the site for our new production of a play that is in the public domain. I've mocked up the banner and tried to contact the owner of the photo. . . but what if she doesn't contact us back?

We haven't changed the photo other than to crop it. In the message I sent to her, I told her that we're totally nonprofit (hell, we pay for everything out of our pockets at this point) and that we'd link back to her photo at Flickr. Hell, I'd link to her personal site if she wanted, but I can't get a response. I've made a good faith effort here. . . would it be totally unethical to use the image and link back to the Flickr image? We really have no nefarious or lucrative intent. We just want a pretty picture.

By: kindall

kindall — Fri, 30 Jun 2006 14:42:19 -0800

If you don't hear from her, you find another pretty picture that you can get permission for, and use that instead.

By: luriete

luriete — Fri, 30 Jun 2006 14:42:53 -0800

Yes, it would be totally and completely unethical, not to mention totally and completely illegal. It's not your photo - what's so hard to understand about this?

Flickr allows a photographer/uploader to specify whether or not a creative commons license applies to their work. If not, you can be reasonably sure they mean to enforce copyright.

The question is asked over and over by folks who would really like to use a specific image. I understand that your motives are not nasty nor are you trying to profit from her image. But the fact remains, and it is a very simple one: the image is not yours to do with as you please. Period.

By: ThFullEffect

ThFullEffect — Fri, 30 Jun 2006 14:48:59 -0800

Let me give you an answer other than a stern "NO". Some photos on Flickr have a creative commons license that state you can use the image under certain circumstances. Look to the bottom right of any photo and it should have a link to the status of that image. The rules can be found at:

http://creativecommons.org/licenses/

Good luck!

By: Hogshead

Hogshead — Fri, 30 Jun 2006 14:54:02 -0800

It would be unethical, and also against the law. If you used the photograph without permission, the photographer could sue you for damages. In most territories, the fact you're making no money from it is legally irrelevant.

My advice: there's a lot of great photos out there. Find another one.

By: Medieval Maven

Medieval Maven — Fri, 30 Jun 2006 15:04:25 -0800

Clearly, I understand it's not my photo. Hence, my question. There's no need to be snarky. I haven't and won't post it as part of our site if we don't hear back from her. Thanks TheFullEffect and Hogshead -- you two actually answered exactly the questions I needed answered (even if I didn't ask it very well).

By: jessamyn

jessamyn — Fri, 30 Jun 2006 15:38:24 -0800

The Creative Commons thing is also good to know especially if you like the image and you could find one similar to it. It may be that one of them is copyrighted but another similar photo might have a license that allowed you to use it.

By: RustyBrooks

RustyBrooks — Fri, 30 Jun 2006 15:39:41 -0800

would it be totally unethical to use the image and link back to the Flickr image?

I haven't and won't post it as part of our site if we don't hear back from her.

But, this is exactly what you were asking if it was ok to do.

By: BorgLove

BorgLove — Fri, 30 Jun 2006 16:08:54 -0800

I'm going to get flamed for this bigtime, but I don't see the big deal about it. Photo is on public display, you asked and she didn't bother to respond, and you're a non-profit. If it's that important, use it and email her again telling her you used it and where. If it's a problem she'll get in touch shortly no doubt.

If she didn't care to respond when you asked, she probably doesn't care period. Or she might even like to have her photo used for something useful.

By: sablazo

sablazo — Fri, 30 Jun 2006 16:16:16 -0800

I'm a semi-pro photographer (one of many things I do for money) and use flickr often - if the photographer of the photo you want to use didn't get back to you after a month or so, and it agrees with the license stipulations, go for it. They'll let you know if they have a problem with how you have used it...

Most of all, when (if) the photographer gets back to you your response must be as instantaneous as possible - if they request the banner be removed, take it down as soon as you get the e-mail.

By: lychee

lychee — Fri, 30 Jun 2006 16:20:55 -0800

Does it have to be a photograph? Can't you get someone to draw the image based on the photograph? Or is that a complete no-no as well?

By: odinsdream

odinsdream — Fri, 30 Jun 2006 16:54:05 -0800

I'm going to get flamed for this bigtime, but I don't see the big deal about it.

BorgLove, whether or not you personally have a problem with it is irrelevant. I can only speak to U.S. law, of course, but assuming this question is about a play shown here in the states, what the poster wishes to do is plainly illegal.

It's also quite a jump to say "she didn't bother to respond." What if she doesn't check her e-mail that often, for instance? Assuming that lack of response is some kind of "ok" is not acceptable.

By: odinsdream

odinsdream — Fri, 30 Jun 2006 16:55:42 -0800

By: Civil_Disobedient

Civil_Disobedient — Fri, 30 Jun 2006 17:00:03 -0800

Same background as sablazo, same opinion. If it's up on a public site, it's either there to generate revenue, or it's there to generate interest (or both). If it's the former, you would have heard from the photographer in question. If you're really, honestly not going to use the web site for any kind of income generation, even if it's ancillary, just use it with a link back to the original.

If they get back to you and tell you no, take it down immediately.

By: BorgLove

BorgLove — Fri, 30 Jun 2006 17:15:58 -0800

Disagreed, odinsdream. MM asked whether it was ethical, not whether it was illegal. And so far, according to MM, she hasn't bothered to respond. We're splitting hairs.

By: ROTFL

ROTFL — Fri, 30 Jun 2006 17:34:25 -0800

Another side: What if you wanted to use a photo of her 9-year-old daughter at the beach to publicize a production of "Lolita"? Or what if you wanted to use her photo of her baby in a play that happens to be pro-life, and supports your nonprofit pro-life organization -- only this woman is staunchly pro-choice?

I don't know what the play is or what your organization does, but I'm sure that somewhere someone would find a reason to disagree with it. I don't think it's fair to co-opt someone's image for something they haven't bought into. Anyway, just because you're nonprofit doesn't give you a moral halo that allows you to appropriate other people's property.

By: fire&wings

fire&wings — Fri, 30 Jun 2006 18:11:52 -0800

WOT IF???

Some people have a rod up their ass over copyright. Laws are broken everyday, and all that you should worry about is

a) Will this person see your banner?

b) Will they care enough to sue you?

The answer is likely no. If you want to take the risk and you feel you can sleep at night, do it.

You asked in the wrong place - 90% of Metafilter members are frustrated photographers desperate for an opportunity to make an example of someone so they can create a website about it, like that Nike guy who wanted "sweatshop" embroidered on his shoes.

By: kdern

kdern — Fri, 30 Jun 2006 18:58:14 -0800

This isn't what you asked, but perhaps if you give us a link to the photo, one of us can find (or take) a similar photo that you can use legally?

By: Medieval Maven

Medieval Maven — Fri, 30 Jun 2006 19:05:29 -0800

I'm still holding out hope that the original photographer will get back to me. It's really the most perfect photograph. I will be quite sad if we don't hear from her.

We are doing Shakespeare's Twelfth Night, for those of you worried about "Lolita" and other suchwhat. It's a photograph of a rowboat, and I will happily look at five million more photographs of rowboats that any MeFites might offer up for our use.

By: wordswinker

wordswinker — Fri, 30 Jun 2006 19:07:46 -0800

They sell expensive insurance to protect publications etc. against lawsuits for inadertent copyright infringement.

Would anything happen. Likely not. But it certainly could and you really wouldn't have a leg to stand on.

Something useful I've found is searching the Creative Commons images alone. Then you don't have to fall in love with an image you can't use.

Also, check out many of the free stock photography sites.

By: yclipse

yclipse — Fri, 30 Jun 2006 19:32:25 -0800

How much money will your group make off of using the photo? If the owner were to sue, that would be the amount that she could claim. If the answer is a couple of hundred bucks, most people would not sue for that much, particularly if you (as many have recommended) were to respond immediately if she were to tell you to remove it.

Sounds like a risk worth taking.

By: easternblot

easternblot — Fri, 30 Jun 2006 20:03:34 -0800

You can search Flickr for photos within a certain creative commons license.
The section you want to look at is the attribution license: those photos are allowed to be redistributed and even altered as long as you give proper credit. Within the section, you can even search for "rowboat". Here, I already did it. These are the rowboat photos on Flickr that you can alter and use with credit.

You can also go to sites like istockphoto, where you pay for images, but they're very cheap and you can use those (once you buy them) to make banners and such. (A friend of mine has work on there that has been bought and used for posters and such, so I know it's possible, but I'm not entirely sure if all photos on the site are "alterable")

By: La Cieca

La Cieca — Fri, 30 Jun 2006 21:29:52 -0800

I am absolutely not a lawyer and I am not giving legal advice. However, I have found myself in an analogous situation to yours more than once. Most of the time nothing has come of it, i.e., I have never heard from the owner of the intellectual property. A couple of times I have heard from the owner, in the shape of either a) a cease-and-desist letter from a legal representative, or b) an informal email saying, basically, "Hey, do me a favor and take ______ off your site."

This is not to say it is impossible that you would be sued, but my impression is that it is highly unlikely because it's more cost-effective for them to ask nicely first. This would particularly seem to apply to someone who is doing a not-for-profit.

When you talk about ethics, you are talking about morality, and nobody can tell you if what you are doing is ethical or not -- that, obviously is your own decision.

If you want to be absolutely squeaky clean about this, build two versions of the banner, one with your ideal image and one with the most similar Creative Commons image. Run the CC image until you get an answer from the photographer.

By: Medieval Maven

Medieval Maven — Sat, 01 Jul 2006 05:26:31 -0800

For whatever reason, we didn't know about the istockphoto, so that's a good find for us. Thanks, easternblot.

By: reklaw

reklaw — Sat, 01 Jul 2006 10:21:36 -0800

God, another copyright question brings out the copyright Nazis. What is it with you people?

It's perfectly legitimate to use an image if you make a good-faith effort to contact the rights holder but fail. Haven't you ever seen one of those messages in the front of books that says "we have endeavoured to find all copyright holders, but if you own a copyright, contact us"?

Basically, what you're doing isn't some kind of out and out evil -- that's bullshit -- but it is risky. If you use the image without permission then you leave yourselves fully open to the copyright holder later contacting you and telling you to stop it immediately. Basically, if you're willing to take that risk, go with it, but be ready to pull that thing down at a moment's notice. If they don't know about it, you're fine.

Of course, while I think "I am not a lawyer" disclaimers are damn stupid ("omg I can't wipe my ass without a qualified professional"), remember that what I am is just some guy on the Internet. Research this further before you do anything.

By: kindall

kindall — Sat, 01 Jul 2006 10:56:26 -0800

It's perfectly legitimate to use an image if you make a good-faith effort to contact the rights holder but fail.

If by "legitimate" you mean "completely illegal" then yes, you are utterly correct.

By: reklaw

reklaw — Sat, 01 Jul 2006 13:10:35 -0800

Ah... I thought that if you try in good faith to trace rightsholders and keep a record of it, that constitutes a legal defence, but apparently that's a UK-only bit of law. Silly me for assuming that your system wasn't completely broken, as ever. For more, Google "orphan works".

Realistically, you're going to be fine (no-one's going to bother to sue you for this; they'd just send a cease-and-desist, and you would take it down), but there seems to be no 'good faith effort' defence (yet) in US law, which means that you would technically be liable for copyright infringement, if you happened to cross someone who felt like pursuing you through the courts.

Still, trying to paint this as a straight case of illegal vs. not is bollocks. Ever heard of shades of grey? Like I said before, there's a risk to balance, and research is the key here.

By: kindall

kindall — Sat, 01 Jul 2006 16:10:27 -0800

True. It's illegal like speeding is illegal -- you might shouldn't do it, but you'll get away with it an awful lot.