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15 minute read

December 18, 2020, 6:20 PM

Recently, I submitted a takedown notice for content in a post called “Preaching to the Choir” which, among other things, discusses the seventh and ninth commandments in the Bible (conveniently skipping over #8, i.e. “thou shalt not steal”), on a blog called Serendipity Seeking Intelligent Life on Earth.  The post contained a photo that I took of the former Howard Johnson’s on Afton Mountain.  Specifically, they used this shot:

This photo comes from the original Afton Mountain photo set that I published in 2003.  As it is one of my older (pre-2014) photos, per my policy at the time, it is available under a Creative Commons Attribution-ShareAlike license.  That means that as long as you (A) provide attribution to the copyright holder, i.e. me, and (B) license the resulting work under the original license, you’re golden, and you can use the material for whatever you want, and for as long as you want.  And really, I don’t mind that my work is used in other contexts.  I love seeing my stuff appear in the wild, and people who have witnessed my finding one of my photos’ being used in the field will tell you that my face just lights up upon discovering it.  But the license still must be followed in all circumstances, unless you ask to make alternate arrangements ahead of time.

When people choose not to follow this license, and I find out about it, I take care of it using the various remedies that are available to me.  For business or organizational usages, I typically handle it through Pixsy, to get a licensing fee for the usage.  For infringing usages that don’t qualify for resolution through Pixsy, I typically use remedies available to me through the Digital Millennium Copyright Act, or DMCA.  In those cases, I contact the host of the content, they verify the infringement, and they remove it and notify their customer about the removal.  In that case, the host has done what they are legally obligated to do, my claim is satisfied, and we all go on with our day.  Sometimes, though, the original user writes me after it’s all over, not necessarily to challenge it (since there is a legal process for that, too), but rather to tell me what a horrible person I am for defending my copyrights from infringement, or to try to get me to retract my claim for a promise that they will remove it immediately afterward.

In this case, after the takedown notice was submitted, processed, and executed, I received an email from Marilyn Armstrong, the woman who runs the blog, about it.  I suppose that the old saying is true.  If you give someone enough rope, they’ll find a way to hang themselves.  Armstrong went ballistic on me with a very long email complaining about the situation that she now found herself in.  I got the sense that she definitely knew that she was in the wrong, but was desperately trying to justify or otherwise excuse her actions despite knowing full well that she was wrong.  Perhaps she was trying to soften the blow for herself, to make her feel a little bit better about it.

In any case, Armstrong’s email provides a number of “teachable moments”, so I’m going to quote it in its entirety, and discuss the various points that she makes.

Why in the world would you report me without at least getting in touch with me first?  Did you believe a single photograph of an abandoned Howard Johnson’s used as an illustration in a non-profit post as a humorous commentary on sermons during the COVID pandemic, would cause you harm?  Was it used commercially?  Was the site commercial?  Did you lose money?  Were you in any danger of losing anything?

I always find it curious when people immediately question why I go straight to a takedown notice rather than contacting the perpetrator first. Recall that Barbiturate also complained about the same thing when I nailed them for the photo of the cemetery in West Virginia.  The question that I usually have about that is, why should I, especially when I don’t know the person?  I see no benefit to doing this vs. going straight to the various legal remedies available to me, and Armstrong just demonstrated exactly why I don’t do that through her response.  Why would I subject myself to someone’s hemming and hawing and trying to justify why they shouldn’t have to do what is asked of them after they are caught, when I can avoid having to read all of that and get a disinterested third party (the host) to do it for me without all of the fuss?  Especially so when, if the person doesn’t remove it themselves, I then would have to use the legal remedies regardless.  I also don’t like to threaten people with escalation as a tactic to get compliance, i.e. if you don’t do what I tell you, it can get much worse.  That’s not how I operate, and I have always found it a bit tacky when someone threatens escalation.  That goes for teachers, bosses, and anyone else.  If escalation is warranted, just do it, and if it’s not, then don’t.  Or, in this case, start at the level that you’re supposed to and let those people handle it from there.

Additionally, as far as copyright is concerned, nonprofit or not, commercial or not, whether I lose money or are otherwise at risk of being harmed in any way does not matter in the least.  It’s still copyright infringement.  If someone plays the “poor nonprofit” card with me, they’re still going to get spanked for copyright infringement just like they would if they had taken responsibility for it like an adult.

The picture (and by the way, I didn’t use it nor did I write the piece, but it did appear on my site) came via a Google search and not from your website.  Personally, I would not have used the picture because it had obviously been copied and moved multiple times before Rich found it.  It had no name on it.  No signature.  No indication of it having any protection.  I am also a photographer and I post hundreds (maybe thousands) of pictures a year.  Google steals all of them.  I have found my pictures many places — and writing, too.  I decided I was not going to spend the rest of my life mad at “the Internet.”  Google steals everything, and anything Google doesn’t steal first ends up on Facebook or even Wikipedia.  I’ve given up worrying about it since I don’t sell my work.  I do miniaturize them so while someone might use one as a small illustration, they aren’t going to enlarge it as a wall hanging.  I ask people to give a photo credit if they want to use my pictures, but usually, I don’t even get that because some clever person slices the signature off the bottom.

I see a few things here.  First of all, she is passing the buck to a guest contributor, a man named Rich Paschall.  I have no reason to doubt that Armstrong did not write the post in question, as the blog contains a lot of material written by other contributors besides Armstrong.  However, it’s still Armstrong’s blog.  Ultimately, it’s her site that is publishing the material, and therefore, it is up to her to ensure that everything that is being posted is up to spec.  Whenever I watch Bar Rescue, I have noticed that Jon Taffer never lets the owners get away with passing the buck.  There’s a reason for that.  They own the business, and therefore, the buck stops with them, because they’re the owner, i.e. the ultimate authority over that business.  The same thing applies here.  Armstrong’s name is on the copyright notice, therefore, it’s pretty clear that the buck stops with her.  That comes with a lot of responsibility, and if she’s going to put her name on it, then she should take responsibility for it.

Also, notice how Armstrong tries to justify the image use.  She, or her contributor, got the image from somewhere that wasn’t Schumin Web, and therefore, it’s okay to use it.  Even if we pretend to take some of her claims at face value, i.e. that Google and other sites steal and distribute images en masse in violation of copyright, that still does not excuse any party from the responsibility of determining (A) who the copyright holder is, and (B) whether the image is okay to use in a specific situation.  What Armstrong is essentially claiming is that two wrongs make a right.  Basically, because Google “stole” my photo first, and therefore, a wrong has already been committed, it’s okay to commit further wrongs because someone else did it.  It’s like when kids try to justify their actions when they get caught by saying that little Johnny did the same thing and didn’t get in trouble, and therefore, they shouldn’t be punished for it.  Just because little Johnny didn’t get caught didn’t make the thing any less wrong.

Generally speaking, though, if you can’t determine the source of an image, you shouldn’t use it, no matter how great of a photo it may be.  In the case of my photos, if you look a little bit, you will usually find my name somewhere nearby.  This particular photo was published on Schumin Web, Flickr, and Wikimedia Commons, and based on those places, there is a good chance that there will be downstream usage.  However, finding it in a downstream usage doesn’t negate the need to do your own vetting, and to follow the license.

Additionally, one thing that Armstrong fails to recognize is that copyright is automatic.  The moment that you put an idea into a fixed form, it is copyrighted, and if you are the one who created it, you are the one who holds that copyright.  For stuff created since 1989, a copyright notice is unnecessary.  It exists, therefore it is copyrighted, unless the copyright holder explicitly gives it away.

There are battles I will fight. This isn’t one of them. This blog is a hobby, NOT a business.

I admit that I laughed a little bit when I saw this.  For someone who is claiming to pick their battles, and who has also said that this is not a battle that they are willing to fight, it sure sounds like they have chosen to fight it, don’t you think?

I can’t write you on Facebook or Instagram since I do not use either of these social media outlets.  I have already been hacked after Facebook stole all my personal information and sold it Cambridge Analytica.  Ironically, all I got from that was a bland “oops, sorry.”

Congratulations, I suppose?  I have little to no sympathy for people who complain about what Facebook does with their information, since ultimately, it’s stuff that they provided to Facebook themselves, and used pursuant to terms that they probably didn’t read but agreed to nonetheless in order to use the service.  I’m less than concerned about these sites’ using information about me.  I figure, maybe they’ll find me more interesting than I do.

I remember the time when some friends of Elyse and I came over the house, and I showed them the Google Home device in the room where they would be staying.  One of them asked if we were concerned about having a microphone connected to Google right in the house.  Then I showed them how it worked, and they watched the way that Google Assistant responded.  All concerns about the device went out the window, and they were having a blast talking to Google for quite some time.  Clearly, it wasn’t that big of a deal once they got to know it.  I also say that if someone really wanted to do a deep dive into my information, they’re the ones who are going to be scarred for life because of it, and not me.

Let me repeat: the photograph was NOT stolen from your web site.  It had already been stolen by any number of people before Rich found it.  As far as I can tell, the photo does not contain any embedded copyright information — not even a signature.  If you feel obliged to copyright every photo you post, you might want to embed copyright information in the picture (which can also make them impossible to copy) so people know the photo has an owner.  There are any number of programs that do this, including one from Adobe.

When you search Google for a picture, they do not provide any information unless copyright info was embedded.  When you get photos that way, you do the best you can to provide information when it is available, but when there isn’t any?

Armstrong is correct – I do not embed any copyright or authorship information into my photos, either as a watermark or as metadata.  As far as watermarks go, I used to watermark my large-size images until around 2005 or so, when I started using Creative Commons licensing.  A watermarked image would have looked like this:

(For those wondering, this is from the “Cookout at Canterbury” photo set in College Life)

I have never liked watermarks.  I think that they’re ugly, and that they detract from the photos that they’re used on.  I started watermarking images back then when I started an early foray into image licensing, with the idea of marking the images so that people can’t steal them, and routing them to the rather rudimentary licensing site that I had at the time if they wanted to use my work.  But I found that watermarking was (A) a considerable amount of extra work to apply, and (B) it made my images look ugly.  I gradually eliminated watermarks on Schumin Web, first by not using them on new material, and later eliminating them as far back as April 2005 (a change in my work process at that time, starting with the A16 set, meant that I had better photo set masters from that point forward).  I eventually eliminated watermarks entirely in July 2012, when the site was converted to WordPress, and all photo sets were reprocessed from the originals.  Watermarks now only exist on College Life, since I want to preserve that site as something of a time capsule, and thus I am unlikely to edit much of that site, so as to preserve its character as the work of a much younger man.

As far as embedding copyright and licensing information into the metadata goes, I have never explored this.  I don’t know if it’s necessarily worth pursuing, either, considering that material that originates from me is typically well-documented as such, regardless of whether it appears on Schumin Web, Flickr, Google Maps, or Wikimedia Commons.  All of it says “Ben Schumin” pretty explicitly on it.  I also find the idea of retrofitting thousands of photos for this to be more trouble than it’s worth, especially since it doesn’t take much effort by a downstream user to strip out the metadata, thus negating my efforts.

But in any case, the fact that I don’t watermark or embed copyright information in the metadata has no bearing on the end user’s responsibility to do their own research when it comes to determining whether or not a photo is okay to use in their own work.

I’ve got more than 100,000 photos in archives, but I haven’t photographed everything in the world.  Occasionally someone who works with me needs an illustration and can’t find a copy of it in my files.  On a Google search, there is NO way to figure out where a picture came from.  Surely you do know that Google automatically steals every picture you publish, right?  If someone stole anything, Google (or Facebook) is who done it.  But you can’t get through to them.  They don’t even offer you an email address.

Regarding the photo count, I have 183,904 photos in my own archive as of this writing.  So… what’s your point?

Otherwise, notwithstanding Armstrong’s “two wrongs make a right” excuse, I decided to test her argument that it was not possible to determine where an image came from.  So I ran a Google image search on the subject image, and here’s what I came up with:

Out of the twelve results that Google presented me, six of them, including the first five results, are first-party usages, i.e. ones that I uploaded and placed myself.  Five of those are for Wikimedia Commons, where I am attributed by name on the file description page, and the sixth is to the photo in its original context on Schumin Web.  Of the other six results, two are third-party usages, three are scraper sites for Flickr and/or Wikipedia, and the last one is Pinterest (which you shouldn’t use in the first place if you’re looking for photos to republish).

So that blows a hole into that argument so large that you could drive a truck through it.  It took me under a minute to come up with proper sourcing for the photo in question.  The only thing that I can conclude from that is that if Armstrong or her guest contributor tried to find the source information, they didn’t try very hard at it.

Meanwhile though, you are more than welcome to use any of my pictures unless you are a business in which case, this becomes a different story.  Otherwise, I’m old enough and have taken enough photographs that I will never actually have enough years left to publish them.  If the world can benefit from my photos, may it be a better, brighter place because I sent the world some photographs of places I’ve been in the course of life.

I wonder what Armstrong would have said if the shoe had been on the other foot.  I wonder what she might say had I used one of her photos in violation of the terms that she offered it under.  I wonder what her response would have been.

I would appreciate your removing the mark against me.  To call me a copyright thief for accidental use of a photograph of an abandoned Howard Johnson’s restaurant is a bit unjust, don’t you think?  No one did anything intended to harm you.  Moreover, I suspect this falls under the realm of fair usage anyway since it was previously published and used non-commercially for zero financial gain.  No one STOLE ANYTHING.  Rich simply used an untitled, unsigned photograph from a Google search in a non-commercial blog as an illustration.  I was not intended to cause anyone distress or financial injury.  If you had gotten in touch with any of us first — there’s a contact link clearly on the cover of the blog — I would have removed it except, of course, I had no idea there was a problem.  Given the state of the world, did you really need to send more angst to a senior just trying to get through this and come out alive?

I can’t help but laugh a little about this one.  Simply put, Armstrong or her guest contributor (and it really doesn’t matter which one of them did it) used a photo in violation of the license terms, and got caught.  Does that make them copyright thieves?  Yes, it absolutely does.  Do they deserve any of the consequences, such as copyright strikes, that stemmed from their actions?  Most definitely.  Especially when, right after claiming that no one stole anything, she admits exactly that.  She earned her copyright strike, and I see no reason to make any effort to have it removed.  That copyright strike is her warning not to infringe on other people’s copyrights again.

The rest of that paragraph is Armstrong’s attempt to verbally lick her wounds, since it is clear that she knew full well that she was in the wrong, but didn’t want to admit it.  Everything that she cites, such as the commercial nature of the site that she found it on, whether or not she is using it commercially herself, whether or not I “signed” the photo, or her own age, is all irrelevant.  None of that matters when it comes to its being a copyright infringement.  Playing the age card in particular makes me laugh a little, because it opens the door for me to fire back with, “You’re old enough, then, that you ought to know better.”

As far as a fair use justification for the photo goes, I say no.  The passage that makes the HoJo’s photo relevant is towards the middle of the article.  It states, “Now before we begin, we would like to extend our thoughts and prayers to our neighbors just across the state line at the Congregation of the Perpetual Noise.  Many of you know the building right there off the highway.  It’s the one with the large orange roof.  I think you can spot that orange top from a long way off.  I understand it used to be a Howard Johnson’s Motor Inn.  In fact, one of our moms, Mrs. Knaves, used to work the place, but I digress.”  My photo ran with that, captioned, “Congregation of the Perpetual Noise”.  The photo is now gone from the blog, and was not replaced.  Does the lack of the photo decrease the understanding of the remainder of the content?  Not in the least.  The usage is entirely decorative.  In this instance, it’s a pretty picture, and nothing more.

I have trouble understanding people these days.  In a world full of illness, fear, poverty, and pure mean craziness, why in the world would you want to hassle someone with something this minor?  I don’t understand it — and I AM a photographer, and a good one at that.  I guess I just don’t take myself seriously enough.  Sorry to have inadvertently stepped on your territory, but it was unintentional and in no way intended to cause distress or harm to anyone.

Yes, from what I can tell, Armstrong does do a lot of photography, though her style is a bit different from mine.  And there’s nothing wrong with that.  We all add a little something to the world through our photography.  But as a fellow photographer and blogger, she really needs to get a better handle on copyright, because if she still has infringing material out there on her blog, the odds are good that she will eventually get caught again.

Another thing that Armstrong fails to realize is that when it comes to policing my copyrights, it’s nothing personal.  It’s just business.  I am not distressed by this.  I just take care of things.  By comparison, she appears to have viewed it as a personal attack against her and her guest contributor.  Clearly, it shook her to the core, affecting her enough to write 890 words about it across ten emotionally-charged paragraphs.  But she grossly overestimates how much I thought about her as an individual.  It’s just a business matter to me.

Never attribute to malice that which is adequately explained by stupidity. — Robert Hanlon
Marilyn Armstrong
Uxbridge, Massachusetts

“Serendipity – Searching for Intelligent Life On Earth”

I admit: I saw her signature, and my first reaction was, “Please don’t make me insult you.”  And let the record show that she said it, not me.  But I can’t disagree with it.  I have no doubt that the infringement that appeared on her blog was an innocent mistake, and not malicious.  And I corrected that mistake.  You’re welcome.

So, all in all, I wonder if Armstrong and/or her guest contributor will learn from her mistakes, or whether they will just view it as someone’s picking on them and not letting them have their fun.  Time will tell, I suppose, but I suspect that it will probably be the latter, since that email definitely has a strong “here is why you are wrong” slant to it.  But the bottom line in all of this is the same as it is in all of the other copyright cases that I’ve written about, i.e. don’t steal.  Just because it’s on the Internet, regardless of where you found it, does not mean that it’s free to use.

Categories: Copyright infringement, Some people