IMHO Installment #22: Guerrilla Marketing Is Dying
Keep these two photos in mind for a moment... I'll explain below.
SAMPLE SOURCE PHOTO:
SAMPLE PHOTO USED:
My boss walked into my office today carrying a letter from a lawyer. Seems our firm's web site had an image owned by some giant media company out west, and they were pissed about it. Of course, using non-royalty-free images without permission is a huge no-no for corporate web sites. Everyone knows that, myself included. But, from time to time, I've done it anyway. I've got such a miserable budget here at Horn Dog Enterprises (HDE), I simply can't purchase all the graphics I need for whatever it is I'm doing. The owners don't want to hear that, though; they only want me to find cheap ways to make them look good.
Normally, I use royalty-free sources like Microsoft's free media. But sometimes that site's lacking, and I find myself chancing it. Now, I would never purposely chance it for a print ad or for a prominent web graphic. Too many people see those things. But, for one-off things that no one'll ever see (such as within a proposal sent to one person or within handouts left for clients at seminars, etc.), I figure the chances of getting caught are infinitesimal. That doesn't make it right, I'll concede. But, I'd also never pay $300 to license a photo that's going to be edited and seen by four people. So, the sin is, at least in my mind, akin to a white lie or something -- technically wrong, but rather minor.
In this case, I'd snagged a high-res photo from the web several years ago for use in a one-off poster that I needed at a software trade show. I'd edited the photo substantially, and had it saved on my hard drive. Then, last year, we were having a seminar one week and I needed a quick, tiny graphic to complement an invitation/announcement sent to just a few dozen people via our emailed newsletter. I happened to see that old, edited high-res pic, dropped it into the newsletter, shrunk it down to just a few hundred pixels wide, and sent it off.
Here's where I screwed up: A month or so ago, I archived a bunch of these announcements on the corporate web site (forgetting about the graphics used in them). They weren't prominently displayed, either. In fact, they were deep, deep, deep within the site (nearly forgotten about, really). So then this letter arrives. It's got their picture on one side (resembling the first picture shown above) and a screen shot of the web page on the other (bearing a tiny approximation of the second photo shown above). Incontrovertible, you know? It was DEFINITELY the same picture source, and they owned the copyright. Nabbed. Busted.
So, I called the photo owners and pled my case. "Aww, come on... It was shrunk soooo tiny, and only used for a few days, and only used as an accent to some stupid announcement..." Hell, I knew those arguments were lame and they wouldn't budge. But, it couldn't hurt to ask, I figured. In the end, they did budge a little. It'll probably cost us $800 or so to settle the case. A few of the owners are pissed at me, but I told them to look on the bright side: If we'd had to pay $800 for each time I swiped a graphic for any purpose, they'd probably be looking at a hefty sum. (Hell, if I had to legally purchase every graphic I ever used for them -- even at $200 a pop -- we'd be looking at untold thousands.) So, we're off scott-free, relatively speaking.
There are two sick parts to the tale (and, hey YOU, you know who you are ... don't fucking judge me like you're doing, okay?): [Sorry, that wasn't meant for YOU... It was meant for some other reader who was about to get all "moral-lecture" with me in the comments. You would never do that to me, right?] Anyway, the follow-ups:
First, my boss doesn't want to settle. I told him we're clearly in the wrong, took full responsibility, and advised him to just eat the $800 and move on. But he said, "No, fuck 'em. Let 'em sue us and come after the money themselves. It won't be worth the cost." Cool, I thought... I clearly fucked up and now he's mad at someone else. This is awesome! Now I get to watch this escalate into some huge $10,000 disaster and remain in the clear for it.
Second, I asked the media company how in the hell they ever found that totally-buried picture. "Oh," she said, "we hired a company that has intelligent software. They took all of our photos and ran them through an algorithm to digitally fingerprint each one. Then, they send web crawlers out to analyze every single photo on the internet -- doesn't matter how deep on any web site, it'll find and identify it, and then a legal settlement notice is sent out to the site owner. It's basically an automatic law-suit machine."
Okay, that last part may not be a direct quote, but it's close enough. I used to think I could get away with this shit. And, I suspect many web masters feel the same. Time was, when you needed a small picture or something, you'd hit up images.google.com, shrink down your source, rename the file, maybe even edit the damn thing a little bit, and you were golden. I'm here to tell you, it doesn't matter anymore; the software they use can still detect it.
While that's all fine and dandy (and, objectively, damn impressive computer programming), one must reflect on how this technology will be applied someday. One day in the not-too-distant future, you'll walk into, say, Best Buy, and your face will be automatically scanned and compared with a ginormous database of people... They'll find a match and cross-reference you with other databases... credit data, interest profiles, various other electronic dossier. Two minutes (or less) into the store, and a totally wired sales associate will approach you and say, "Welcome Patrick... There's a huge incentive right now for Verizon DSL customers to switch to cable modems, there's a sale on CF media, and the new Foo Fighters CD is in aisle 9."
"Fuck," I'll say, "eerie how this guy seems to know me."
"Not only that, Mr. Hillman," says the wired clerk, "but the bathrooms are located behind aisle 14. According to your credit file, you were at Steak n Shake about an hour ago and you had three glasses of water. Based on your metabolism and BMI accessed through your private electronic health record, you should be just about ready to burst."
--posted by Patrick at Blowing Shit Up With Gas.
22 Comments:
Your boss is a fool....the company could be hit with a $150,000 intentional infringement penalty if the graphic was registered before it was lifted (which it likely was) PLUS attorney fees.
Even if the court doesn't award the full intentional infringement penalties, expect to have to pony up $20-30K.
Not settling is not smart . . . .
I don't know for sure, but isn't there some kind of thing where you use the picture outside its intended something or other, or you modify it enough, and it's no longer considered the copyrighted material. I remember I worked in a woodshop making funeral urns (no joke) and people were always stealing our designs...just tweeking them a bit. Does that matter in something like this?
Very intersting story. And plenty of good ideas in it.
Your boss is an idiot and I would fire any employee that steals like that. My license fee is up to $2000 per image per year so at $200 - $300 you're getting off easy. And, monstro, you are 100% wrong. The myth that you can alter any amount and claim it as your own copyright is just that, a myth. I recommend you look up derivitive works. When you steal from graphic designers you are usually stealing from someone who is working freelance and not from a huge company that "can afford it". But even then, what does it matter if a company "can afford it"? It's theft regardless. If more people were responsible for themselves and more respectful of others, the world wouldn't be the mess it is today.
You the man Hillman! Thanks for confirming that my own ethical choices were shared by someone else and a bonus - that someone else is smarter than me and is a better at blogger than me. In a twisted way this post has improved my self-confidence. As for the lawsuits, my "employer" has deep pockets and we're Canadian so take off eh!
Ouch. I've heard horror stories about this kind of thing- your boss really should listen to you and take the settlement; it's a very very good thing that they offered it in the first place. Not everyone is so lucky.
BFS: I agree, and $800 is peanuts. But, if he wants to be stubborn, it's on him. I've conceded the error, deleted the offending graphic, and stressed my position / recommendation. If he wants to be a dork, well, at least it'll be entertaining for me.
Monstro: Erring on the side of caution, I just deleted it altogether. I think there is a thing called fair use that allows certain usage of things, but not sure how that applies to pictures. Again, I was clearly in the wrong, though I think I expressed my own additional views on tha matter.
Grant: Thanks. Coming from the CEO of a media company, that means a great deal. I'll keep up the good work.
Anon: See my comments above re my boss. The law's on your side, but I doubt you're any more honorable at the end of the day. What do you photograph? People, buildings, bridges, landscapes? How much royalty do you pay your subjects each time you sell a photograph they're in? How much royalty does the architect of that awesome building get each time you sell a cool photo of it? How much does the landscape gardener get from you each time you sell that great garden shot you took? Do don't lecture me about stealing, pal. I always felt that most of the "talent" of this second-hand art form lies in the equipment, the subject matter, and simply being somewhere at the right time. As such, photography is the least creative of all the arts, yet pro photographers are often the haughtiest people I've ever encountered -- and you've supported that. Don't get me wrong -- I like to look at nice photos, but it's also painfully easy to take nice photos.
Reg: Thanks, bro. Canada rocks. I went there and took 1,147 photographs last fall (actual number of digital photos taken, btw). Maybe I can sell them all for $2,000 and just retire.
Dragon: Maybe he'll pay, if I harp on him.
Anybody ever notice that anonymous people are gutless? I mean seriously, Grant Miller is pretty much shamelessly plugging his blog with some kind of random comment generator, but even he has it all over the anonymous poster. There's something so absolutely hillarious about an anonymous poster coming in and telling you about ethics as if cowardice weren't a character flaw.
Monstro you beat me to it...
I am in the entertainment biz, and as a rule I ignore any comment or review that is not accompanied by a name. My grandfather left the Masonic lodge in the 1930's because of the practice of blackballing- in which you could anonymously put a black ball in a box that was passed around and thus prevent someone from being admitted to membership. Even then he said that "every man should face his accuser". A novel idea, isn't it Anon?
Anyways....I do feel Grant's pain. While I go to considerable lengths to make sure I do not infringe on copyrights (in music) I have just a little trouble with that same notion when it comes to photographs. I know it's the same thing. Theft...yah yah...But it just seems like a slippery slope that will result in NO ONE being able to use any photo without 30 pages of legal wording granting release of some asshole's image. It gets a little silly after a while.
But still, you admit that you were being "naughty" in using the picture. You are part-way to admitting your sin, my son. Your boss, however, is asking for a good- and expensive- spanking. Any company that can find their property on the internet with that kind of ease probably has enough bucks to lay on a big hurtin' if they so choose. I'd have payed my $800 bucks and said 5 Hail Mary's.
- Creepy stuff about the software.
- I love your bosses attitude, but it's not my ass on the line.
- Stumbled into your site because I loved the name. I'll be checking back often.
Whoah ! You hit some nerves there, Patrick. Your nightmare scenario about the computerization of our private lives is already here. Your mailman carries a scanner that records just about every move he makes. As far as copyright law goes, I think you got caught up in some overkill. It's not like you marketed Beethoven's fifth as your own work.
I read recently that Leo Gorcey, the star of "The Dead End Kids", an old film series from the thirties, told the Beatles they couldn't use his photo on their Sargeant Pepper album cover unless they gave him $400. They erased his picture.
Thought I'd comment again, just to bring the tally up to a cool dozen (a new record for me).
Monstro & Fatso: Spot on RE anon. But Grant gets a pass. Grant Miller Media is a friend of BSUWG's.
Wormstooth: That scenario would probably bother me. Sooner or later, you'll get back from delivering mail, and they'll have some timestamped GPS-datasheet on you. Your boss'll say, "Wormstooth, we happen to know that, during your run today, you spent 42 minutes at 124 XYZ Street, home of a simgle woman with multiple subscriptions to pornographic materials. Now, what've you got to say for yourself?!!!"
Sorry guys. No blogger account and bsuwq already admits he steals online so what would you do?
By the way, buswg, I don't photograph. My work is 100% digital art. Considerably more involved than photography.
And you're still wrong. :)
BSUWG, your blog is blowing up!
Alright Anon, if you want to talk politely, there's probably room for discussion, but consider, as an anon, you don't have possession of any intellectual material. I cannot, for instance, be sure that you're the same anon from your previous comment. I'm not even sure that your explanation is for your own actions or someone elses. But that's probably beside the point, right?
Look, I too am an artist. But I make solid stuff, and I make it out of stuff. I'm like the ultimate recycler. I take chinese food containers and tupperware and I burn them, cut them, mold them, and glue them until they look like futuristic fortresses which I then sell to people who do futuristic table top wargaming.
So, let me ask you, should I be sued. Seriously, does Tupperware have a case against me? What about Dupont as I cut up their styrofoam insulation to make up the skeletons of miniature buildings. What if someone sees how I make something and decides that they want to make one of their own? Can I sue them?
All I'm saying on this is that it isn't as cut and dry as it would seem. Intended purpose does play some part in all this. I'm not getting all philisophical/ethical here. I'm not talking about Susan Sontag or anything (is the image of an image still the image?). I'm just saying that Pink Floyd can have hammers marching in their movies without oweing DeWalt a paycheck.
Hahaha... I love this post.
How true, and kind of scary.
The concluding portion of your post reminds me a bit of Minority Report. All those freakin' advertisements and person recognition as you're walking around.
Disturbing.
There is a bit of a difference in your tupperware example. I'm assuming you purchased the tupperware first and didn't steal it from the store? Tupperware doesn't come with a license agreement or terms of use either. You can't duplicate hundreds from one and re-distribute your creation from the original tupperware either.
If you snag an image in someones portfolio, how do you know it isn't licensed out to someone else? How do you know the artist isn't displaying, as is their right, a commissioned work someone else paid for? And if you do, you can most certainly expect to receive a C&D notice and/or a bill for it's use depending on the situation. It's the artists right to be paid for their work. Who here disagrees with me?
Or can I come into your studio and take your work without your permission or payment to you and sell it for a profit to myself?
Actually, I do have an anonymous comment generator.
Any rebroadcast or retransmission of this comment without the expressed written consent of Grant Miller Media is forbidden.
But I did actually find this story interesting as I've worked in the publishing field and issues like this have come up before in my office.
Sorry Grant--
Didn't mean to imply you were a machine.
I'm usually the copyright Nazi at my business. Employees steal images and graphics left and right and I have to piss on their parade and tell them they just can't do that. As a designer, I know more about copyright law than even our company lawyers do -- because I've even caught them using stolen images off the web for marketing material! Their attitude? "let them sue us." Nice.
Question: What about Bloggers? Most of the people who've commented have blogs, most of which also run photos. Blue, I took a look at yours... lots of cool pictures. But, I assume that, like me, no one else went and gained permission for using any of them. So, should we be sued?
No... because it's for "personal" use - and somehow that's acceptable. Right? But, is it TECHNICALLY personal use? Sure, we retain the rights to whatever we write, but we're also providing the "content" for the *very commercial* blog providers (such as Blogger, Typepad, LiveJournal, etc). Without all of our content, these sites would be out of business. So, is a blog personal use or commercial use?
My point is that there's a grey area here -- one of those "letter of the law" versus "spirit of the law" areas. And, is such an area exists for bloggers, I think it could also be demonstrated for many corporations. Envision a lawyer, for example, who keeps a "personal blog" on, say, ERISA litigation cases, for the purpose of providing information to readers and also of building business in his real-life firm. Since he's a blogger, no one's going to come down on him for grabbing an image. Yet, it's clearly for commercial use.
There's a grey area here. Theft is not, as anon put it, simply theft. There are degrees. Some things are technically theft; others are clearly indisputably theft. Putting a 100 pixel piece of lousy clip art on some internal company newsletter is a far cry from robbing Fort Knox. And, no one would or could ever fire me for such a minor thing because I'd never work for that kind of hard-liner.
Post a Comment
Links to this post:
Create a Link
<< Home