There Is Nothing Fair About Fair Use

Austin-ghost-sign-of-Josephs-and-Wrigleys-by-Jann-Alexander-©2013

Too Late to Look for the Spear by Jann Alexander © 2013


Royalty-free art is everywhere. Why rip it off?  Tweet: Royalty-free art abounds. Why rip it off? 32 Resources for Content Marketers http://ctt.ec/cRDW4+ #cm #mktg #photos

One of my cherished, copyrighted images from my Vanishing Austin series had been ripped off and reused on the viz. blog by the Digital Writing and Research Lab of the University of Texas in Austin, cropped brutally in a way that defeated my intent, and I was fuming.

I didn’t wait long to fire off this email to the editor:

“The copyrighted photograph credited to me in Jenn Shapland’s 9/19/2013 Viz post, “Graffiti as Advertisement,” is being used without my permission, illegally and without compensation. To add further insult, the author cropped my photograph, thus altering its original integrity.

“To become compliant with copyright law, please contact me regarding invoicing and terms of usage. Please also provide the contact info for your accounting office and a purchase order for billing for usage to date. “The post in question appears here: http://viz.dwrl.utexas.edu/content/graffiti-advertisement

“The photograph credited to me was obtained without my permission, and is a copyrighted work of art that may not be used or altered without prior permission and agreement as to compensation.”

Her immediate response to investigate was reassuring, and laudable, until I heard (in what was certainly copy-and-paste legalese) from her superior. Will Burdette, DWRL program coordinator, asserted that the reuse of my image fell into the realm of

FAIR USE

“As far as the legality of and compensation for the use of your work, I must argue that we are squarely in the realm of fair use (http://www.copyright.gov/fls/fl102.html). At the risk of being pedantic, I must argue this because fair use is something that we risk losing if we do not exercise it. Therefore, I will outline where we stand in relation to the four factors of fair use as outlined by the U.S. Copyright Office:

“Purpose and character of the use: We were adding value to (transforming) the original by creating insights through commentary on, and contextualization of, the photograph. As an educational institution that does not operate for profit, we are completely and totally non-commercial. The purpose and character of the use, then, is also non-commercial.

“Nature of the copyrighted work: The courts allow for a wider scope of fair use once a work has been published, as yours has.

“Amount and substantiality of the portion used: We used what amounts to a thumbnail, a smaller, lower-resolution version than the original.

Fair use? Not to me.

Fair use? Not to me.

“The effect of the use upon the potential market: Our use of a smaller version of your image that credited you and linked back to your site cannot damage the potential market for your work. No one is going to use the smaller reproduction of your work situated in a contextual analysis for the purposes of rhetorical education in lieu of a full-size original print from your site. The audiences for, and the purposes of, our use is completely different from the audience for and purpose of your use of the image. By crediting you and linking to your site we were in no way attempting to damage the market for sales of your images. Quite the contrary; we always hope that our publication will drive traffic to the sites of people doing interesting work. Anyone in our audience who overlaps with your audience (say, grad students who might want to buy prints for their apartments) would not print out a low-res copy of the work from the viz blog as a substitute. They would use the credit line and link we provided to go to your site to purchase a print.

“Based on these four factors establishing our fair use, I regret to inform you that we cannot compensate you for usage.”

Pedantic? He could have said, overscrupulous, scrupulous, precise, exact, perfectionist, punctilious, meticulous, fussy, fastidious, finicky.

I didn’t feel my work should be used to help keep the fair use interpretation alive. I’m opposed to fair use, because it’s not fair. I disagreed that value was added to my photograph through the writer’s insights. I decided fair use was unfair if it meant that any published work could be reused without my permission, no matter what the courts said. I wasn’t mollified that a smaller, lower-resolution, cropped version had represented my photograph in a deteriorated way. I disagreed about the effect of the reuse on my potential market. Hadn’t they already refused to pay a use fee? That did impact my potential market. And despite his contention that there had been a credit and a link to my website, there was no link. So no one was going to go to my “site to purchase a print.” And the © symbol I always use with my images was absent, giving others an incentive to come and take it, too.

Why pay for visual content anymore, when you can claim fair use?

Many publishers must see the fair use concept as a boon to the bottom line. Why pay for visual content anymore, when you can claim fair use? And Burdette was right in his definition of fair use (well, his legal department was), though I disagreed with his interpretation of it. If I wanted to dispute it, I could take the University of Texas to court. But my pockets aren’t that deep.

There’s nothing fair about fair use for creators. It’s a commission artists won’t get, a photo assignment they won’t earn income for, a stock photo use fee they won’t see. And if you’ve been fair used, as I was, you probably won’t even know it, unless you accidentally stumble upon your work online (as I did).

But there was also the DWRL program coordinator’s disturbing admission, at the start of his email to me, that his wife (as a photographer and a picture editor), had grappled with this issue from both sides, and that nonetheless, he condoned what his publication had done with my photograph.

“Let me first say that I understand where you are coming from, and I appreciate your right and need to be compensated for your photography. My wife is a photographer and a photo editor, and she has to deal with this issue all the time from both perspectives. She has had her images used, and she has fielded complaints from others who have had their images used. So I’m sympathetic to your cause. For this reason, we have decided to find another, similar image to use in the blog post, and we have taken yours down.”

Despite his sympathy, clearly we disagreed about the intent, not to mention fairness, of “fair use.” Using my art was simply an online grab by a hurried writer to illustrate her notion that “graffiti and murals” are commercial in nature. I actually didn’t even agree with her point. Regardless, there are lots of murals in Austin, with royalty-free images freely available. Why rip mine off, crop it and forget to link to my website?

I had been fair used. But it didn’t feel fair to me.

Most stingingly, why not merely approach me first and ask permission to use my photograph with a proper credit (that includes my copyright) and a link to my website, explaining it would be used as part of a story I may have an interest in, appearing in a prestigious visual arts digital pub? Like many who are asked politely first, my permission probably would have been granted. It’s like this:

“I need a ride to get to the doctor’s today. I’ll just ask my neighbor if she’ll loan me her bike.”

~instead of~

“I need a ride to get to the doctor’s today. I’ll just take my neighbor’s bike while she’s not looking.”

We’re neighbors, the Digital Writing Research Lab of the University of Texas, and I. We live and work in Austin, and we’re part of the same visual arts community. Neighbors treat neighbors with courtesy and respect.

The rebuke of having what you’ve worked hard to create stolen behind your back is what irks many of us about copyright theft. Mostly, we’re thrilled when you ask us to use our work, because we’re artists at heart, and we make what we make for the joy of making it, and long for it be acknowledged, admired, shown, shared.

How many times have you downloaded an image to use for . . . . ? If you didn’t realize it was illegal, and an affront to its creators, you do now. I’m no longer surprised by individuals who are unaware that they’ve broken copyright laws. But I remain astounded by the audacity with which it happens.

There’s no excuse for abuse of copyright law, thanks to the Copyright Act of 1976. Everyone’s heard about Napster. People who work in creative fields are aware of how it works. It’s a simple concept: a work’s creator owns it. Period. Henry Ford invented and owned the Model T, right? Ernest Hemingway wrote and owned The Sun Also Rises, right? Bruce Springsteen wrote and owns Dancing in the Dark, yes? Same deal with photographs and art.

Copyright is a form of protection provided by the laws of the United States for original works of authorship, including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations.

—U.S. Copyright Office

My introduction to image rights came early in my career as an art director at the Washington Post Magazine. Later, as a freelance editorial and corporate communications designer, I was primed to be a fierce advocate for photographers’ rights, where I usually negotiated one-time use, first printing rights for the clients I was designing for; occasionally I negotiated reuse (for web or second publication) or an outright buyout (for a logo design). It was as natural as breathing for me to respect, and uphold, those terms: I’d been taught honesty and fairness as a child.

But there’s no shortage of information today about the legality of reuse of others’ creative works, even if you didn’t learn about it from an institution dedicated to free speech but protective of others’ rights. Just like there’s no shortage of sources where copyright-free material can be legally downloaded and used:

Tweet: Where Can You Find Royalty-Free Images? 32 Resources: http://ctt.ec/9fM2O+ #marketing #cm #fairuse Where Can You Find Royalty-Free Images?

18 Top Stock Royalty-Free Libraries collected by Creative Bloq

Stock Photos That Don’t Suck collected by Dustin Senos, Medium product manager

Creative Commons for commercial use and repurposing

Getty Images for WordPress embeds of photos and illustrations

Where to Find Free-to-Use Images for bloggers from the WordPress Daily Post

Create Visual Social Media Content with 6 simple photo tools from Social Media Examiner


Has your creative work ever been unfairly used? What was your response?

Fair Users and Copyright Abusers: Please respect my copyright, and the way I earn my livelihood. If you’d like to use my images, please contact me here. Let’s work together to end creative piracy. 


Endangered Species of Austin, poster by Jann Alexander © 2009

Endangered Species of Austin poster

About my Vanishing Austin series: While many Austin landmarks are lost, many are survivors still. Admire them all in a slideshow, HERE. Prints start at $35.

You can marvel at what’s lost and what’s survived in my Endangered Species of Austin poster, featuring 16 Austin icons, and sized at a handsomely large 24 x 36,” available for $25, HERE.


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