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Are Photo Image Licenses Obsolete in the Age of the Internet?

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As a content publisher, I'm personally very aware of copyright and license issues. In the age of the Internet, the age of easy cut and paste, it's virtually impossible to prevent theft. The problem gets worse if you work with images rather than text: however much you try to prevent it, people can always take screen shots and edit them to get a copy of your image.

Which begs the question, is copyright irrelevant? More to the point, is photo licensing obsolete in the digital age? To find out, I asked two professional photographers, Peter Wayne and Paul M. Bowers, and their thoughts on the subject might surprise you.

Q: Peter, you went to the Vancouver Olympics as a photographer. Were you on assignment for a publication, or did you freelance?

This was a freelance assignment from Examiner.com. I did not have an International Olympic Committee (IOC) media pass. I looked into it, including talking with officials of the USOC. They are difficult to obtain for freelancers, though, because you need to be part of an established media organization that has applied for media credentials.

Q: Would you have paid your way to the Olympics if you knew that you wouldn't make a dime from the photography you did in Vancouver?

The amount I made on this trip did not cover my costs, nor did I expect it to. I attended to create material for a few articles I did, add to my professional portfolio. And the Olympics is an incredible experience to be a part of too.

2010-03-24-peterwayneolympicswomenshockey.png
© 2010 Peter Wayne Photography. All Rights Reserved.

Q: You've uploaded quite a few of your photos to Flickr but you haven't marked them as Creative Commons or otherwise released them into the public domain. Why not?

As a practice, most of my images are NOT licensed Creative Commons and where possible I block download features. I've invested in expensive equipment and work hard to create high quality images. My position is that I need to be compensated in some way for the use of my work. This can be monetary, publicity or barter. Also, my opinion of "giving away" the images lessen the value of my work and other professional photographer's work.

For the Olympic photos, I did have one sale to a publication in Canada. I also was approached by an author in Wiki who specializes in ice hockey. He desired to use some of my Olympic hockey photos on Wiki. After looking into Wiki management of images, I decided to submit to Wiki on a Creative Commons. It appeared that Wiki might be good for some publicity, so I broke with my usual mode of operation. We'll see if any leads come out of this action.

Paul adds: I don't allow other people to enjoy the value of my intellectual property any more than I hand out $20 bills on the street corner. I believe every image has some value (clearly some more than others) and giving them away reduces that value and the value of the intellectual property of others.

Q: Do you think copyright is obsolete in the age of digital distribution? That is, from a technical perspective, it's impossible to prevent someone from making a copy of what they see on their screen, however you try to prevent it. Are the laws just obsolete with photography?

Peter: That issue is a major point among photographers and the organization that I am a member of, the American Society of Media Photographers. It is not obsolete. Doing it "by the book," ASMP encourages member to register their work with the US copyright office. The office does have means for digital images to be electronically uploaded and filed.

2010-03-24-peterwayneolympicsluge.png
© 2010 Peter Wayne Photography. All Rights Reserved.

From a technical perspective, you are correct that there are ways people can copy images such as off the screen, but that does not make the laws obsolete. The same scenario can be demonstrated with text from a web page. If that text is copied to another publication without permission, digital or printed, it's still a volition of the copyright laws.

But as you know, copyright violations occurred even before digital media. The issue is that the digital media makes it EASIER to make copies of text or images and proliferate faster.

Paul adds: Theft is theft, regardless of the ease with which the crime is committed. It's easy to knock over an old lady and take her social security, but is that any less a crime than robbing a bank protected by armed security?

I think more to the point, however: Has the perceived value of intellectual property, be it images, video or music, decreased as the ability to transfer the media in which they are contained become amazingly simple?

Certainly!

Here's a great hypothetical example set he controls to the way-back machine:

Fifteen years ago, an ad agency needed an image of a child running in a green field for a major pharmaceutical company. They had two choices -- hire a professional photographer to produce an image to their specifications that had been previously blessed by the client using "comps" or hand-drawn illustrations created by an art director. Or, they could use a stock image that closely represents that comp. To use a stock image, the agency would request 20 to 50 transparencies (that's big slides) from the stock photography agency. They came in a great, big binder with tamper-proof seals to prevent removal and scanning of the original. If the agency could find the perfect image, they would license its use based on the media buy and the client's desire for the exclusive use of that particular image. Lengthy contracts were signed and the image was legally released for use.

This procedure was difficult and needed to be done by well-paid people who were trained for each step.

Now, if an agency wishes to create an ad for a pharmaceutical company, they will do an internet search for any of the *millions* of images of a child running in a green field. The production artist will use a few of the images from the resulting search to create proofs that are nearly the finished product for the client. The client will then choose which is their favorite, and the production artist will pay, via credit card over the internet, for the license of that image. Or not pay at all if the image has been released into the public domain. And given the production artist has their choice of *millions* of images, the price is likely to be very, very low.

2010-03-24-paulbowersmotorcycle.jpg
© 2010 by Paul M. Bowers. All Rights Reserved.

The music industry has "big-business" interests that are trying to control intellectual property theft. Record companies are making big noise about a few lawsuits, hoping to stave off what may be inevitable -- loss of control of digital intellectual property. While noble efforts are made by the photographer's associations: Advertising Photographers of America, American Society of Media Photographers, Professional Photographers of America, these organizations lack the huge budgets and lobbying power wielded by the recording industry.

Q: As a professional photographer, your images are your work. How has the Internet impacted what you do, both for the better and worse?

Paul: The internet is an excellent communication tool and the advantage to my business is similar to other small businesses -- promotion and delivery are two of the top positive changes. The internet has also provided a huge quantity of images to clients, and greater supply means lower prices.

From a legal view, the number of images available on the internet that are specifically un-protected: public domain, unregistered or "royalty free" may eventually change the licensing model for payment to photographers. Legally, unused or unclaimed rights of any sort are often lost. Professionals exercise these rights through copyright registration, notifications, and contracts. But the number of images available without these protections has multiplied to the point where protected images are a distant minority. Legal folks have a specific term for this: "waiver" -- rights to images are being waived, and eventually these rights may be lost.

We're seeing bills before lawmakers, specifically the so-called "Orphan Works" fiasco. People are trying to call copyrighted works where the owner cannot be found "orphan" and therefore change the designation of that work to "public domain." Of course the "cannot be found" is ambiguous, and "not finding" the owner of intellectual property can have a significant financial payoff for the prospective user. As the number of images with undocumented authorship increases, the rights to legitimate owners will thereby decrease.

Peter adds: For better: Through searches and propagation of my web site link on other sites, people can find me, review my portfolio and offer me work. The Olympic photo I sold was through a search on Flickr.

For Worse: It can be a substantial amount of work to keep web presence up to date. Images on-line may not look as good as the original. I'm at the mercy of the viewer's monitor for the quality of the viewed image. Hard-copy prints are still the best and most consistent method for photo reproduction.

Q: Cameras have become increasingly sophisticated in the last decade and now they're really image processing computer systems with far more sophisticated focus systems, face recognition, and dozens of presets for different lighting and composition alternatives. Are professional photographers becoming obsolete?

Peter: Automation in today's camera certainly makes it easier for your average person to create GOOD photographs. It has also enabled the "pro-sumer" the ability to make great photography. But at the same time, the level of sophistication in advanced capture and post-processing techniques has increased. In the commercial area, it has raised the bar on what defines a quality image. Further, there is the skill of setting up professional studio lighting and the creativity of composition that is not automated. Therefore, we still need professionals that have the skill, training, experience and aptitude for photography.

Paul: Yes, many are. There will always be room at the top of the industry for the most creative with solid business practices. But much of the middle-market pros have had their cheese moved. This will continue -- I believe the next phase shift will be from photo-illustration, or what I like to call synthetic. Products -- be it widgets, electronic devices, clothing or whatever -- are now designed on very sophisticated drawing systems that can now create new products that look completely real. Synthetics are labor-intensive, and can be created in areas of the world where labor has lower value.These synthetic illustrations will become less expensive than a photograph and far more flexible in layout and design. The product photography market as we have known it will change forever.

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Peter Wayne is an editorial photographer for the Boulder County Business Report and the Denver/Boulder edition of Examiner.com. He is a board member of the American Society of Media Photographers, and a member of the Colorado Press Association. Learn more at Peter Wayne Photography.

Paul M. Bowers has been a commercial advertising photographer for 27 years, working worldwide and based in Southern California. His newest website is JustTheCoolStuff.com based on small-camera photography.

Interviewer Dave Taylor does event photography when he's not writing for his many blogs or reviewing movies at DaveOnFilm.com.

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