found drama

It’s a convention almost as old as the web itself.  If you need some graphics to go along with your story, you just go out and find them.  We crib images from each other all the time.  I’ve done it.  You’ve done it ¹.  It’s just something that people do.  Right?

Maybe in the Internet’s Wild West days – those dorm room late-nights of the mid- and late-90s, those pre-Napster-crash days when it was still easy to buy into the premise that the web was free as in beer.  Bandwidth was cheap and once you set your content free (unfettered by a pay-wall) then you were effectively giving it to everyone.  For free!  Gratis excelsior!

But that wasn’t really true.  Not really.  Not even then.

And especially not now.  Not now that phrases like “DRM” and “fair use” and “intellectual property” are all practically known by every Grandma and Girl Scout out there.  But it’s a sticky one sometimes, this question of fair use.  If a professional (say…  James Duncan Davidson ²) publishes an iconic photo online, watermarks it, and labels it as copyrighted – well, it’s pretty clear cut what’s right and what’s wrong when that photo shows up unattributed on some other site.

But what about those cases that aren’t as clear cut?

I’m talking about the Creative Commons licensed media and the ambiguously attributed photos and the other miscellaneous items that fall into “those” categories.

The answer is not always an easy one.  Take two such examples from my own experience:

The Burlington Mardi Gras, 2008. Magic Hat Brewing Company is primarily responsible for organizing this (now 4th?) annual event, the proceeds from which go to benefit the Women’s Rape Crisis Center.  A good time to be had, and for one of the worthiest of causes ³.  Now, I took a bunch of photos of the event in 2007.  Pretty good photos, if I do say so myself.  Then, in the lead-up to the 2008 Mardi Gras parade, one of those photos (at left) appeared in a derivative form on Magic Hat’s promotional site for the event.

Now…  Granted:  that photo (like nearly all of my photos) was published under a Creative Commons Attribution-Noncommercial-Sharealike license.  You can see how this gets pretty sticky, pretty quickly.  By having their name attached to the event as an organizer and sponsor, Magic Hat is (arguably) using the photo for commercial purposes ⁴.  But that’s a little bit of a stretch because of the philanthropic nature of the event (vida supra), so we can let that slide.  Continuing though, we note that the photo was derivative – it was cropped and masked and otherwise worked into an animation.  But we must let that one go because remixery is explicitly part of the license provided that (drumroll?) attribution is given.  And that’s what I could not let slide.  However small it was, that was my photo on there and I wanted to make sure that my name got attached to it ⁵.  I spoke up and Magic Hat made good:  attribution was given on their blog and then they sweetened the deal with some complimentary schwag (thanks guys!) ⁶.

Damn, that’s cold?  A tale of Shed Mountain Ale, cautionary Tech Tails, and a tell-tale bokeh.  This time, Small Dog Electronics – a local (and, dare I say, celebrated) Apple retailer – is the one that catches me.

In my inbox tonight, I noted issue #650 of their Tech Tails newsletter had arrived.  Always game for a technical tip, I start skimming.  That’s when I notice…  Is that my beer??

Something about the photo was decidedly familiar.  The slightly too-cool white balance.  The reflection along the top of that deliciously brown Shed Mountain Ale.  The way the table cloth blurs into that bokeh that a Canon SD630’s macro mode seems to inevitably blunder into rather happily.  A side-by-side comparison was all it took to make me sure it was mine.  And quick âŒ˜F through the text was sufficient to convince me that neither my name nor my online alias appeared as an accompanying photo credit.

Again, we have a Creative Commons license.  Again, we have dubious “commercial” usage that can easily be overlooked ⁷ but as Randall Dante says in Kevin Smith’s infamous Clerks: “I just believe in giving credit where credit is due.”  It’s the attribution that matters most.

Thus doth circumstance put the burden onto the media’s creator.  So be it?

Unfortunately, it may be the case that it is up to the authors and musicians and photographers ⁸ to keep track of where their creations end up.  As I mentioned above, the answers are clear-cut when we’re talking about explicitly copyrighted material, when we’re talking about someone who makes their living off these kinds of publications.  Those grey areas crop up fast though, they surely do.  Is it unreasonable to expect that the bloggers and marketing assistants of the world will learn to look for these licenses?  That they’ll learn to link back to the original authors where requested?  It’s a kind of social contract, if you ask me.  “Feel free to use this, so long as you send the credits (“traffic”) back my way” – that sort of thing.

I don’t mean to be a sour puss about this at all.  I don’t want to suggest that the RIAA’s rampage has sucked the life out of that “quick Google for pictures of Darth Tater!” ^{9 10} Wild West attitude that still takes root of every neophyte blogger and old school 4chan troll.  We do what we need to do to get by, to make our point(s), to lively up our BB signatures, etc.  Right-click → Save Image As... has been and probably always will be our friend ¹¹.

In the meantime, please crib responsibly!

UPDATE:  I didn’t mean to lead folks to believe that Small Dog had left me twisting in the wind there re: my photo.  When I wrote this last night, our correspondence was still in progress.  As of this morning, I got word that they’ll be crediting me for the photo in the next edition of the newsletter.

UPDATE 2:  Small Dog’s after-the-fact attribution and some additional thoughts appear in their Feb. 18th blog post by Ed Shepard.

1. And don’t tell me you haven’t.[↩]
2. A man who has written on this topic several times.[↩]
3. I’d also like to mention that I find it deliciously ironic that Magic Hat is essentially undermining a “traditional” Mardi Gras mythos in this way.  But let’s not get off the subject.[↩]
4. Advertising, natch.[↩]
5. Who knows?  Maybe some day I’ll seek a new career snapping pictures![↩]
6. Post-script to that anecdote:  It appears that I’m still at least #2 in Google for “Burlington Mardi Gras”.[↩]
7. After all, you want to support your local businesses, don’t you?[↩]
8. And/or their attorneys?[↩]
9. I’m not even in the top 10 pages for that search term.  I do come up pretty high for “Darth Tater Peeps” though.[↩]
10. Also: I’m aware of the irony of “using Google as a verb” while talking about issues of copyright and intellectual property.  It’s a fucking joke, okay?[↩]
11. As long as we don’t bury all our images as the background CSS properties of divs.[↩]

About Rob Friesel

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