phone photo of london underground nominated for time best photo;
photo agency claims credit for creative commons work 12.28.2005, 10:26 AM
posted by lisa lynch
Moblog co-founder Alfie Dennen is furious that the photo agency Gamma has claimed credit for a well-known photo of last summer's London subway bombing --first circulated on Moblog under a Creative Commons liscence -- that was chosen for Time's annual Best Photo contest. Dennen and others in the blogosphere are hoping that photographer Adam Stacey might take legal action against Gamma for what seems to be a breach of copyright.
We at the Institute are still trying to figure out what to make of this. Like everyone else who has been observing the increasing popularity of the Creative Commons license, we've been wondering when and how the license will be tested in court. However, this might not be the best possible test case. On one hand, it seems to be a somewhat imperious "claiming" of a photo widely celebrated for being produced by a citizen journalist who was committed to its free circulation. One the other hand, it seems unclear whether Dennen and/or Stacey are correct in their assertion that the CC license that was used really prohibits Gamma from attaching their name to the photo.
The photo in question, a shot of gasping passengers evacuating the London Underground in the moments after last summer's bombing (in the image above, it's the second photo clockwise), was snapped by Stacey using the camera on his cellphone. Time's nomination of the photo most likely reflects the fact that the photo itself -- and Stacey -- became something of a media phenomenon in the weeks following the bombing. The image was posted on Moblog about 15 minutes after the bombing, and then widely circulated in both print and online media venues. Stacey subsequently appeared on NPR's All Things Considered, and the photo was heralded as a signpost that citizen journalism had come into its own.
While writing about the photo's appearance in Time, Dennen noticed that Time had credited the photo to Adam Stacey/Gamma instead of Adam Stacey/Creative Commons. According to Dennen, Stacey had been contacted by Gamma and had turned down their offer to distribute the photo, so the attribution came as an unpleasant shock. He claims that the license chosen by Stacey clearly indicates that the photo be given Creative Commons attribution. But is this really clear? The photo is attributed to Stacey, but not to Creative Commons: does this create a grey area? The license does allow commercial use of Stacey's photo, so if Gamma was making a profit off the image, that would be legal as well.
Dennen writes on his weblog that he contacted Gamma for an explanation, arguing that after Stacey told the agency that he wanted to distribute the photo through Creative Commons, they should have understood that they could use it, but not claim it as their own. Gamma responded in an email that, "[we] had access to this pix on the web as well as anyone, therefore we downloaded it and released it under Gamma credit as all agencies did or could have done since there was no special requirement regarding the credit." They also claimed that in their conversation with Stacey, Creative Commons never came up, and that a "more complete answer" to the reason for the attribution would be available after January 3rd, when the agent who spoke with Stacey returned from Christmas vacation.
Until then, it's difficult to say whether Gamma's claim of credit for the photo is accidental or deliberate disregard. Dennen also says that he's contacting Time to urge them to issue a correction, but he hasn't gotten a response yet. I'll follow this story as it develops.
ray cha on December 28, 2005 12:18 PM:
It was only a matter of time before the Creative Commons License gets tested with an example such as this one. Regardless of who is right or wrong in this matter, many important questions are being raised.
My question is what happens next year when ten or a hundred or a thousand people submit the same ubiquitous camera phone image that has been disseminated across the internet under a similar license?
David Tiley on January 3, 2006 12:34 AM:
I must be thick. I always thought that if you claim credit for a photograph, then one of two things must have happened - you shot it, or you have a license from the person who did which positively gives you the right to transmit the thing.
If you don't, then you actually don't have the right to the image and it is called stealing. The owner doesn't need to assert ownership in some way.
Creative Commons to me is a way of either emphasising that you take this very seriously, or - more importantly - of creating a situation in which a user can disseminate the material safely. But they still can't claim the thing, unless they get the aforementioned contract.
There are exceptions to the rule of re-use and transmission, but none of them allow you to claim the image as your own.
The use of images on blogs is a grey area. I use them frequently, but I never claim them, always credit them, and provide links to the source. No-one has ever objected, though they can be found by a search. I presume they are displayed in public because the owner wants people to see them; my activities increase the audience for the image and the collection from which they are taken.
But if anyone objects, I would remove it pronto.
alfie on January 4, 2006 6:23 PM:
Thanks for the insight into this case. It is a grey area of a sort I think. It seems that Gamma-Presse believe that since it was on the internet it was essentially, "free". Adam did not enter into any agreement with Gamma, mereled pointed them at my moblog, where clear CC licensing was in place. Because of this, there is a clear case to be made that Gamma are infringing. As you say, there is no real precedent at this level, so we'll see what happens over the next week or so, Ill be updating at alie dot com.
Axel Hess on February 3, 2006 8:02 AM:
To David Tiley,
though this gets a bit off topic, I really have to comment on your posting:
The use of images on blogs is in no way a grey area. Though it may not be intended as a commercial use it still is the same media as any other website. If an image is not clearly marked as being public domain you MUST ask the creator BEFORE publishing it on your blog - else it is plain copyright violation, theft of intellectual property. And then you better pray it is not registered in the US...
I for one (I am a photographer) tend to be very generous with non commercial image uses, but I get mad if someone just takes from me without asking beforehand.