"Who's Cyber-Photo is it anyway?"

"Online Focus" - The Big Idea - July/August 1995
by Bayard Saunders

In the old wild west, justice was delivered sure and swift, if not always accurately, by good people trying to protect themselves from bad. In the new frontier, we're still trying to decide what is "bad," and what is "justice." Before you get a rope and join the cyberspace posse, better know your cyber-rights...

There are many places on-line today, on both the commercial online services and the Internet, where photographs and other information (including text, graphics, audio and video files) can be viewed or downloaded (see the "Fun with..." boxes on this page). Some charge a fee, depending on your ultimate use of the piece, and others are free. For example, photographers have sold their wares to art and creative directors on America On-line for years, and this year there has been an explosion of virtual photography galleries opening on the Internet.

And the breadth of subjects is staggering, but it is the necessity for depth of content which drives some to step outside the boundaries of current copyright and trademark convention. Cost of production is not reduced because the cost of distribution on-line is so much less than other media. And for one company, forgetting that fact is going to cost them.

One day last week, an account executive brought a photographer to my office to "surf the net" in hopes of seeing examples of how product photos are used on the pages of the Internet's World Wide Web. We were following the hotlinks to pages provided by a quick search of three "yellow pages" (Yahoo, Lycos and WebCrawler*), when the photographer's face turned white. "Stop!" he screamed. Pointing to the screen he said, "That's mine! It's my photo!" On the screen was the photo this man took six months ago, and contracted with our client to use once in a brochure. Also on the page was the exact word-for-word text from the brochure which our copywriters had worked for weeks perfecting, the rights to which our client owns outright now.

Apparently, this company had "produced" what turned out to be an extensive collection of pages on their "web site" by scanning-in photos and keystroking-in text from existing brochures and advertisements of dozens of companies. They have not paid any of the photographers. They have not secured releases of any type from any company for use of the "intellectual property," as our good friends in the legal arena of patents, trademarks and copyrights refer to creative assets. Worse, by anyone's measure, the company who runs this particular site is charging the retailers $20,000 per year to list their name and address alongside the products, and not offering any guarantee of exclusivity in their product or brand categories.

Needless to say, our attorneys now have visions of O.J. Simpson-like billings dancing in their heads as they begin the process of mounting a class-action lawsuit. But before you join the mob, consider the obstacles this type of case faces today: There is no body of law with a history of appurtenant test cases to rely on. Neither judge nor jury is likely to be familiar enough with cyberspace to avoid having reasonable doubts about your claims. Settlements are the most likely outcome, but many of the offenders are start-up companies with little or no collectible assets, so it may not be worth the cost and hassle to pursue.

So what can you do to protect yourself? If you are a photographer, or a writer, or at an agency, or on the client side, and about the business of negotiating contracts for the use of photographic or other creative assets, it is time to start paying attention to the clause which covers the use of the assets in "electronic publishing," if there is one (many contracts omit this aspect by virtue of having been written prior to the advent of on-line publishing). This may refer to using the asset on-line, or in some other digital delivery format (floppy disk, CD-ROM, CD-i, etc.), and should be a separate item of negotiation considering the potential exposure. As with any legal matter, you should consult an attorney.

Of course, as every good Canadian Mountie and New York debutante knows, you've got to find your man before you can get him. Search the Internet often using your product or brand or area of specialty as a search parameter. If you can afford it, there are a few companies who will search for you - sort of a clipping service for the 90's. Eventually, international laws will be developed and applied to this most international of all media, but until then, many photographers are simply sending bills to the offending company or individual, and warning others online via E-mail and in the newgroup bulletin board postings.

* Searching the Internet is so much easier these days with the advent of new directories and sponsored search engines. The best of the new tools is the Meta-Index at http://cui_www.unige.ch/meta-index.html or W3 Search at http://www.astranet.com/websearch.html which both have direct interface to the CUI W3 Catalog, EINet Galaxy, WebCrawler, WWW Worm and more. The old standby at a new address is Yahoo at http://search.yahoo.com.

Bayard Saunders is Vice President of Media and Interactive Technology at Ross Roy Communications, and President of the Michigan Internet Association. Visit him on the Web at http://oeonline.com/~bayard or send E-mail to: bayard@oeonline.com

Send us feedback about this column - good or bad news, we can take it - and ask questions or tell us what you'd like to know more about in the on-line world.

IF YOU ARE ALREADY ONLINE...


FUN WITH E-MAIL - JOIN THESE E-MAIL DISCUSSIONS:

PHOTOSHOP mailing list, deals with Adobe Photoshop and problems or suggestions related to this topic.
	Send a note to: photoshop@hipp.etsu.edu

NPPA-L, National Press Photographers Association list.
	Address: listserv@cmuvm.csv.cmich.edu (or listserv@cmuvm.bitnet)
	Message: SUBSCRIBE NPPA-L ""

PHOTO-L, general photography from basic to advanced, equipment, travel, aesthetics.
	Address: listproc@csuohio.edu
	Message: SUBSCRIBE PHOTO-L ""

PHOTOFORUM, general photo, emphasis on photo/imaging education and professional practice.
	Address: listserv@listserver.isc.rit.edu
	Message: SUBSCRIBE PHOTOFORUM ""


FUN WITH USENET NEWSGROUPS:

rec.photo 
rec.photo.moderated 
rec.photo.advanced 
rec.photo.darkroom 
rec.photo.help 
rec.photo.marketplace 
rec.photo.misc 
alt.journalism.photo 


FUN WITH THE WORLD WIDE WEB:

Michigan Press Photographers Association - http://www.cris.com/~mppa/
Bengt's Photography-on-the-Internet Info - http://math.liu.se:80/~behal/photo/
Virtual Photography Laboratory at Northwestern University - http://www.artn.nwu.edu/
American Memory, Library of Congress Photos - http://rs6.loc.gov/phcoll.html
Visual Arts on the SunSite, with great links! - http://sunsite.unc.edu/visual.html
Juried Digital Photography Gallery - http://www.bradley.edu/exhibit95/web.digphoto.html
Photo of the Week, Gallery of Artists - http://www.branch.com/artists/photo.html
Contemporary Russian Photographers - http://www.kiae.su/www/wtr/hotpictures/gallery.html

To get on-line call:

• America Online - (800) 827-6364
• CompuServe - (800) 848-8199
• Prodigy - (800) 776-3449
• Delphi - (800) 695-4005
• Netcom - (800) 501-8649
• Greater Detroit Freenet - (810) 691-7077