You wait ages for a Schindler, then two come along at once...

Charles Swan is one of the UK’s top intellectual property lawyers. His opinions on copyright and court judgements are to be taken seriously. Cory Doctorow…well, perhaps not so much.

Recently His Honour Judge Birss QC found in favour of Justin Fielder and Temple Island in the company’s claim that Nicholas Houghton and New English Teas had breached copyright in production and publication of a photograph [above right] of a London bus that had been Schindlered to within an inch of its life. Temple Island’s case was that the New English image was an obvious copy of their own Schindlerfest [above left] from a few years before. But although similar in many ways the two are entirely separate images: so where was the infringement?

Swan described the ruling as “ perhaps surprising”, a phrase that can have myriad meanings coming from a lawyer. But for the Interweb it meant just one thing: the sky was falling. “Photographers Face Copyright Threat After Shock Ruling”, screamed Amateur Photographer. “Create A Similarly Composed Photo In The UK And Risk Copyright Infringement”, howled Petapixel. According to these and others, anyone in the UK taking a photograph similar to an existing photograph now risked ending up in court for breach of copyright. To the most deranged, “taking a photo in the same place where someone else took a photo can now be a crime.”

None of this was true, but with crashing inevitability the most misleading and hysterical analysis came from Doctorow at Boing Boing. Eager not to let the facts get in the way of a good story, or perhaps because he’d neglected to actually read the judgement he was commenting on, Doctorow took aim at the “insane” and “bizarre” ruling and let rip:

“If a Reuters and an AP photographer are standing next to each other shooting the Prime Minister as he walks out of a summit with the US President, their photos will be nearly identical. Will the slightly faster shutter on the AP shooter’s camera give him the exclusive right to publish a photo of the scene from the press-scrum?”

“The judge here ruled that the idea of the image was the copyright, not the image itself.”

“This creates a situation where anyone who owns a large library of photos — a stock photography outfit – can go through its catalog and start suing anyone with deep pockets: ‘We own the copyright to “two guys drinking beer with the bottoms of the mugs aimed skyward!”’It’s an apocalyptically bad ruling, and an utter disaster in the making.”

Doctorow’s hysteria is of course unfounded. Just one paragraph from Birss’ ruling comprehensively demolishes Corky’s claims:

“The defendants went to rather elaborate lengths to produce their image when it seems to me that it did not need to be so complicated. Mr. Houghton could have simply instructed an independent photographer to go to Westminster and take a picture which includes at least a London bus, Big Ben and the Houses of Parliament. Such an image would not infringe.”

So why did the defendants go to such “elaborate lengths” and why did Birss rule the way he did? Simple: the combatants had history. New English had previously infringed a Temple Island image and settled in court. Temple Island offered to license an image to New English, but the latter declined. Instead they set out to produce their own image based on that of Temple Island: make it as close as possible, went the thinking, but just different enough to avoid infringing. That’s a judgement call, and New English got it wrong.

Helpfully Birss even spelled out exactly how they’d got it wrong. If New English had never seen the Temple Island image and had produced even an identical image independently they would have been in the clear. If New English had scoured the web for similar images for inspiration and produced the image they actually did, they still would probably have been ok. But instead they were interested only in the Temple Island image, copying it as closely as they – wrongly – felt safe to do. And in so doing they breached Temple Island’s original expression of an idea.

Note the “original expression” bit. Contrary to what Doctorow, Techdirt and numerous others tried to claim, Temple Island hadn’t suddenly claimed copyright of London landmarks, Schindlered or not. They simply objected to another company – whose products incidentally sell alongside theirs in tourist outlets – studying one of their most marketable images, then setting out to replicate it as closely as possible.

In other words, the judge reached his conclusion by employing a commodity clearly lacking at Boing Boing, Techdirt and elsewhere: common sense.

Google’s display of EXIF metadata. Photo © Jeremy Nicholl 2011. All Rights Reserved.

Professional photographers have rarely looked kindly on Google. The search engine giant has long been the first port of call for image infringers, and the situation was only made worse by Google’s habit of stripping metadata from images, turning them into orphans.

But over the summer things have changed. In June Google launched Search By Image, and the following month began displaying EXIF data in their image search returns. The latter absolves Google of the orphaning charge, but it’s Search By Image that’s the real game-changer. Google have promoted SBI as a tool for image users to find images they might want to publish, and it could of course be used by such people to track down photo owners so that the image could be properly licensed. But its real value to photographers lies in its ability to track down images that have already been stolen and published on the web.

Previously image searching on Google was a very hit and miss affair. Enter some keywords, and depending what had survived Google’s metadata mangling and any changes by the publisher you might or might not find the published mage: more usually than often not. But with SBI you enter a low-resolution version of the image on Google’s servers and they search the web for matching images: if any are found they appear in the search returns. And since a visual search is more precise and doesn’t rely on matching keywords SBI invariably returns far more results than a keyword search.

Of course SBI isn’t the first reverse image search: TinEye, PicScout and others have been running for several years. But Google’s offering is immensely more powerful simply because they’ve already indexed far more of the web than their rivals. Not that SBI is comprehensive: TinEye for one sometimes finds images that Google doesn’t, so ideally one should use several services when searching for infringements. But all of these searches are time-consuming, and SBI finds so many more images than the competition that if you’re only going to use one reverse image search then SBI has to be it.

All this is very bad news for photo thieves. For years they’ve heisted images with impunity: the chances of being caught were low, and if caught the default defence was “I found it on Google and didn’t know who the owner was”. But that excuse disappears with the now easily viewable metadata, and the chance of being caught has moved from remote to likely, going on inevitable.

Faced with the near-certainty of being caught a smart thief would stop. Unfortunately most image thieves aren’t smart, but dumb and lazy: too lazy to create anything original themselves, and dumb enough to think they can get away with stealing indefinitely. They’re also stuck in the habit of thieving, encouraged by spurious and misleading advice on such nebulous concepts as “fair use”.

So instead of the logical outcome of Google’s changes – contact the photographer for permission or don’t use the image – the actual result is likely to be lots more legal action from photographers. And of course lots more squealing from thieves who get caught.

But that’s their problem. The first reaction of photographers who try SBI is generally fury at learning the previously unknown extent of the theft of their work. That’s hardly surprising, but really we should be pleased to see the tables being turned, albeit slowly.

Cory Doctorow: serious about copyright... Photo by Ed Schipul (CC BY-SA 2.0)

Question: what do you call someone who campaigns for anyone to be allowed to publish a photographer’s work without permission, and then complains when someone publishes his wife’s photographs without permission? Answer: Cory Doctorow.

Our old friends Irony and Schadenfreude had a field day last week when writer and wannabe copyright reformer Doctorow mounted the Boing Boing barricades to rant against “the awful Daily Mail, a hateful right-wing tabloid that keeps finding new bottoms to scrape.”

That’s an interesting image, but what was the reason for his ire? Apparently his wife Alice snapped an anorexic mannequin in Gap and uploaded the image to TwitPic; Doctorow then published the photo at Boing Boing accusing Gap of “death camp chic”. The Mail, ever on the lookout for a good scandal, picked up on the story and called asking to use the image.

Despite their reservations about the Mail the Doctorows, after due consideration of, oh, a few seconds or so, decided the hateful right-wing tabloid could have the snap for a charity donation of £250. The Mail [part of Associated Newspapers, with 2010 operating profits of £42M] countered that was beyond their budget. Then the Mail did what the Mail does, and lifted the photo anyway – along with a few juicy quotes into the bargain.

Unsurprisingly the Doctorows were outraged, hence the Cory vent in which he accused the Mail of “ripping off” the picture, ending with a demand for £2,000 for two infringed images and the vaguely threatening words “updates to come, I’m sure”. But could this be the same Cory Doctorow that has spent most of his adult life campaigning for the weakening of copyright laws? The Doctorow that tours as a poster boy for Creative Commons licenses that allow photographers’ work to be used without permission? The one that “rips off” photographs for his own articles?

Well, er, yes; which is why a few of the responses to his article were less than kind, accusing him of hypocrisy. However the Doctorow fan boys, like Cory usually very much in favour of redistributing photographers’ work without permission, felt his pain and the comments were largely filled with suggestions that the Doctorows should call M’ Learned Friends. Although it would be highly entertaining to watch the Doctorows sue the Mail for copyright infringement that’s sadly not going to happen; or at the very least they’ll have to get in line.

For what the Doctorows overlooked is that in uploading the image to TwitPic they had already given away their image distribution rights long before the Mail came calling. As the rest of the Internet already knows, TwitPic signed a highly contentious deal with the World Entertainment News Network in May that gives WENN distribution rights to any images uploaded to TwitPic, and without any payment to the image owner. So if anyone is going to be suing the Mail it will be WENN, not the Doctorows. Interestingly the story disappeared from the Mail site over the weekend without the Doctorows’ knowledge, so it may be that WENN have already contacted the paper.

The final irony is that only hours after his Mail bitch-fest, Doctorow was busy ripping off photographs himself. On August 16th, the day of Doctorow’s rant, the Guardian ran a story from the Edinburgh Festival with a photograph by Murdo Macleod. And the following day there was a story about the Edinburgh Festival on Boing Boing, filed by Cory Doctorow and with that very same Murdo Macleod image. Doubtless Doctorow took time off from discussing the Mail with his lawyers to ask Macleod’s permission to use the image. If not he will have already calculated what he owes Macleod for “ripping off” the photo: his own going rate of £1,000 per image.

It’s clear that Doctorow, despite his carefully constructed image as a cutting-edge thinker on intellectual property matters, has a lot to learn when it comes to copyright. But last week should have provided a lesson simple enough for even Doctorow to grasp: when it comes to intellectual property and ripping off other people’s photographs, what goes around comes around.

In common with all Internet photography specialists I have written extensively on the recent Jay Maisel – Andy Baio legal controversy. And like other leading copyright experts I have concluded that a world in which entrepreneurs cannot use other people’s work for free is truly fucktarded™.

In posts such as “Photographer Jay Maisel Extorts [Opinion] $32500 Out Of Andy Baio”, “Photographer Jay Maisel Ties Andy Baio To A Chair And Pours Gasoline Over Him”, and “Photographer Jay Maisel Hires Tony Soprano To Put Andy Baio’s Head In A Vice” I revealed how one of the world’s wealthiest men plotted in his 70 room mansion to crush the dreams of a starving young artist. I also published the only eyewitness account of how Maisel personally “held his feet over the fire and tormented him and hung him upside down to shake $32,500 out of his pockets” in order to buy new a new couch to match the drapes in that mansion.

I am now shocked and distressed to learn that some readers may have misinterpreted these posts to imply that Mr. Maisel, rather than exercising his legal right to defend the copyright of his life’s work, was engaged in some kind of criminal protection racket. I have further become aware that I may have inadvertently led people to believe that I somehow disapprove of the legal settlement between Mr. Baio and Mr. Maisel.

Nothing could be further from the truth.

On the contrary, as the World’s Fourth Most Influential Photoblogger™, I welcome Mr. Maisel’s defence of his intellectual property, and his insistence on his right to be paid for the use of that property. Why, I myself in the past have campaigned long and hard to be paid with a byline in Forbes magazine.

I also wish to stress that my description of Mr. Maisel as “a hack photographer” and “the worst kind of artist” in no way implies that he fails to measure up to my own high standards. While Mr. Maisel cannot match my 60,000 publications on flickr, I recognise that his 55-year career shooting annual reports, magazine covers, advertising and more for clients worldwide is an accomplishment in its own right.

It is for these reasons that I am delighted to announce that I have now deleted all my previous posts on Mr. Maisel to make space for a permanent exhibition of his work on my blog at its new home in the Utah desert.

It would be entirely wrong to suggest that this sudden reverse ferret is a result of discussions with Messrs Sue, Grabbit and Runne, attorneys at law, or because my employers at Stone & Youngberg have torn me a new asshole.  On the contrary, as I wrote in one of the deleted posts, “as a blogger disclosure is important”; my attempt to hide the posts and pretend that none of this ever happened is a clear demonstration of my commitment to disclosure and transparency. It is also entirely consistent with what Mr. Baio himself has described as my questionable grasp of copyright law and leaps of logic, and my history of publicity seeking by making vicious and unfounded attacks that are subsequently withdrawn and replaced by a grovelling apology.