Thursday, April 17, 2014

Dis Claimer

There was a problem with the Vivian Maier photo I posted yesterday. I had no right to reproduce it. According to the FAQ on vivanmaier.com, which is where I found the image,
All photographs appearing on this website and in the archive of the Maloof Collection are copyrighted and protected under United States and international copyright laws. The photographs may not be reproduced in any form, stored or manipulated without prior written permission from the Maloof Collection.
So John Maloof owns that photograph along with most of Vivian Maier's work. I want to take a moment now to give proper credit. That is John Maloof's photograph. He took it, at least in a manner of speaking. I did not get prior permission to post it. I broke copyright laws. But I don't really give a shit and here's why:

1. I backlinked to Maloof's site, giving him credit for the photo.

2. I used the photo to make a secondary point, possibly an academic one, and probably a very academic one, which exempts the post from copyright law under Fair Use doctrine.

3. I did not represent the photo as my own work. It is clearly labeled as Vivia— I mean, John Maloof's photograph.

I think I've taken proper steps to cover myself. After all, it's not as if I just found an old photo in storage, attached my name to it, claimed all rights, and sold limited editions of that photo for thousands of dollars. I could see how that might raise questions. But I'm not doing that so I should be covered. 

But if someone wants to sue me anyway, go for it.

22 comments:

Anonymous said...

Amen to that!

Anonymous said...

wow, this guy bought a dead lady stuff and stands to make a lot of money from it. Nobody was there to inherit anything, he owns the original but copyright should be public!

J. Wesley Brown said...

A thing of beauty.

s said...

bravo!

Frank Nachtman said...

John Maloof is a cunt.

Blake Andrews said...

I was hoping this post might spur some thoughts and discussion on this topic. And some of the comments here are a small step toward that. But the last comment might be a step backward instead. I'm leaving it up because I generally don't censor, but I don't agree or endorse.

Euan Forrester said...

I'm not sure I really see any problems here.

I don't know much about lawyering, but what you did seems reasonable enough to me, for the reasons you stated.

And his actions seem reasonable enough as well. He's certainly put in a lot of work, and I can understand him wanting to maintain tight control (with simple wording!) amidst the Internet maelstrom. Ensuring that he gets compensated for his time means ensuring that we get to see more of her work.

So I'm not really sure there's an issue anywhere. Perhaps if he had asked you to take the image down?

Stan B. said...

Shit, I've done it more than once, also with (what I've assumed is) proper accreditation all around, under what I assume to be Fair Use.

As for John Maloof, if it wasn't for him, there would be no Vivian Maier today. All credit to him. He's done a splendid job in a respectful way, not having known anything about photography (he does now, particularly after rather successfully maneuvering through the circles of hell that compromise the photo art world). And he deserves a few bucks to continue securing and popularizing her work and legacy.

Interestingly enough, before he died, Richard Avedon was supposedly in the process of suing a no name band member who used one of his photos on leaflets pasted to light poles on the Lower East Side announcing dates for the band's gigs...

k said...

I was hoping this post might spur some thoughts and discussion on this topic.

I was actually wondering the other day what would happen if someone copied his Vivian Meier book and starter selling copies. I doubt Maloof has copyright on any specific picture. Two issues arise:

1. Is there some notion of copyright on the sequencing/organization of photographs in a book?

2. If a photograph was developed by Maloof or if it was processed after scanning, does this process introduce some "originality" that one can have a copyright on?

Note that in the US, taking a photograph that is simply an exact reproduction of another 2D object does not introduce enough originality to introduce new copyrightable content.

https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

https://commons.wikimedia.org/wiki/Commons:Reuse_of_PD-Art_photographs

David Bennett said...

I've been down this road and discussed it a number of times.

I checked in the code on your site and I see that you referenced the Maier image from its URL.

As many people may or may not know, there are at least two ways that one can get a photo from someone else's site.

One way is to pull the photo off its source, (the Vivian Maier site in this case) onto the desktop and then upload it to your own site.

Another way is to reference the URL of the photo (in this case the photo on the Vivian Maier site).

Doing it this second way means that your site is a portal that is pulling in the image from the Maier site. If the Maier site goes down or the website owner deletes the photo then once the Internet caching has worked its way through, the image will disappear from your site.

I'm pretty sure you know this, and I wonder why I am pressing on but, to press on..

You state: " I did not get prior permission to post it. I broke copyright laws. " and you give a link to an article on Petapixel about 'bogus excuses people give when they steal photos from the Web'.

Is Petapixel the final word on copyright?

However, one of the 'excuses' that Petapixel cites is this:

"3. I found it on Google Images, therefore it is free to use

Google Images is not a free stock photo agency. Google does not own any of the photos showed as a result of your search. Google’s job is to find images that fit your search query. Other people or companies own the photos and the copyrights."

What does Petapixel mean by saying that Google is in the clear because it does not own any of the photos shown in a search?

I would say the answer is that Google references the images from the URL like you did.

Hence, no breach of copyright.

Maybe.

Anonymous said...

See § 202 at http://www.copyright.gov/title17/92chap2.html (emphasis added):

Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.

Also see this passage (copied from http://www.copyright.gov/help/faq/faq-fairuse.html) (emphasis added):

In the case of photographs, it is sometimes difficult to determine who owns the copyright and there may be little or no information about the owner on individual copies. Ownership of a “copy” of a photograph – the tangible embodiment of the “work” – is distinct from the “work” itself – the intangible intellectual property. The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession.

Under U.S. law, the only copyright Maloof can legally claim is for his copy of Maier's work, not her work itself. By linking to his photo on his website, you are potentially violating his copyright, but in this particular instance, the Fair Use doctrine would appear to have your back. See this passage (copied from http://www.copyright.gov/fls/fl102.html) (emphasis added):

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment ... use in a parody of some of the content of the work parodied;....

Mike Johnston said...

You probably haven't been guilty of any violation, although the only real arbiter of a specific situation would be a court case. But you should ask Carolyn Wright (PhotoAttorney.com, "Serving the Photographer's Legal Needs") to write a post giving her general opinion about John Maloof "copyrighting" Vivian Maier's work. I suspect the real situation in this case might be pretty cut and dried, and it would be interesting to know what it is. If you need help paying her for a post, contact me privately--I'd pitch in for the privilege of linking to, and quoting, your post, on my site.

John G. said...

Does buying the negatives give you any rights to the copyright? If not, what can give you the copyright? A contract? How does that work with a person that is deceased? If it does give you rights, what about work captured digitally? What then?

Another issue: should you restrict the distribution of work which you did not produce, but may own? If you do, why? Are you afraid that the pirating of the image will cost you money? Perhaps a print by anyone that is not the artist or sanctioned by the artist, is just that, a print. A print by the artist is a piece of art.

Interesting.

Blake Andrews said...

The comments have taken a diversion into copyright law nuts and bolts. Honestly the legal nitty gritty doesn't interest me that much, so maybe that was a red herring. I think at this point image use on the web has gotten way ahead of copyright law. That was the issue I was trying to highlight. The horse has left the barn. There are millions of Vivian Maier photos online. The idea that Maloof can require permission for every reproduction is not only ridiculous. It works against his interests. It would present impossible time demands on him, and it would kill his site. Vivian Maier is a creature of the web! Every jpg out there spreads her legend.

This is true for all online images. But I thought this case was especially interesting because the relationship between Maloof and Maier is so convoluted. It seems strange to claim ownership of someone else's creation, to make money from that creation, and to make a blanket declaration that no one else can use that creation. All without Maier's knowledge or consent. The copyright statement on his site seemed particularly provocative to me, so that's what I highlighted for this post.

As for Maloof, I didn't mean to malign him. I've interviewed him on B before, and I honestly have mixed feelings. Stan is right that he is the force behind Vivian Maier. She would never be as acclaimed without him. But the way this has all gone down and the path he has chosen leaves a bad taste in my mouth. I was there on HCSP the day this all started in 2009. From that point I think it couldn't gone down a very different path. But here we are in 2014 and Vivian Maier is morphing into Tommy Hilfiger or some other registered brand.

I think it's a similar situation to Berenice Abbott and Eugene Atget. But in that case Abbott did not turn Atget into a cottage industry. She did not claim copyright on his images, or sell reproductions. If I search for an Atget image online there is no disclaimer saying "Reproduced with the permission of Berenice Abbott." So there are alternative ways. For me it is all a very gray area, and still evolving as Maier's legacy develops.

Stan B. said...

I think final judgement remains to be seen since it's such an ongoing and unusual "journey" she has taken post mortem (as was her life).

It would be easy to nitpick Mr. Maloof, but as you point out he's come a long way since 2009 when he was literally begging for help in unknown seas- waters I think he's traversed quite well since, and that others could have done much worse (don't think I could've done much better, or as good). And in this day and age I don't know if you can avoid the branding issue- particularly since unlike Atget, she really didn't leave any original prints of her work. She may not approve of anything he's done whatsoever- who's to say. But all told, he's done a pretty commendable job.

jim rohan said...

"It is clearly labeled as Vivia— I mean, John Maloof's photograph."
One of these days I'm hoping to buy a stack of undiscovered images by someone like Robert Frank or Lee Friedlander just so I can say that I'M the photographer.

pepeye said...

I am an attorney and I can tell you without a doubt that Maloof owns none of Maier's intellectual propety rights. He owns the prints/negatives he acquiered from their sale by the storage unit owner after she failed to pay the storage bill. But the copyright interest passed to her heirs. If there weren't any heirs, her rights would have escheated to the state making them the property of the citizens of the state of her residence at death. Any attempt by Maloof to assert the rights of a copyright holder to those images is complete bullshit. He's essentially appropriating public property.

Jose Guilis said...

Far away from the Us, not as familiar with your peculiar intellectrual property laws as I am with the European. The separation between copyright of a work (almost equivalent to our droit d'auteur) and the physical embodiment of it is clear.
Yet the owner of these, in this case the photos themselves, can control its reproduction and assert his rights in court. John Kobal has a very lucrative bussiness reproducing and exploiting classic pictures from Hollywood stars, and I doubt he can claim to have copyright to them.
From what I read elsewhere there are indeed heirs to Vivian Maier, and they've reached an agreement with John Maloof (who in my opinion deserves every cent he gets from the exploitation of Maier's work).
Can't agree on the horses who left the barn bit though. Image use on the web is not getting ahead of copyright law. It's just infringing/ignoring it. But the law is still there, very rightly so. The web is still the wild west, but will be civilized sooner than later. There are automated control systems and the introdution of the IPTC metadata etc. will make control easy. It's already happening with music, and large companies like Getty have their own robots and algorythms who detect wrongdoers. I know quite a few frieds who have received out of the blue invoices for the use of a Getty image in a web with almost zero traffic. Some have resisted payment and have been sued by them.

The idea that Maloof can require permission for every reproduction is not only ridiculous. It works against his interests. It would present impossible time demands on him, and it would kill his site Well, IMHO it is up to Maloof whether to require authorization or not and no other person has anything to say on the issue. It's his content and he has the right to exploit it as he deems fit. If he requieres permission, we should ask for it. The only person who can decide how a content is distributed, where, who accesses it and in exchange for what is the owner of the content.

Reinier said...

Something interesting to read:

"Misplaced: ethics and the photographs of Vivian Maier"

https://www.academia.edu/6320666/Misplaced_Ethics_and_the_photographs_of_Vivian_Maier

Anonymous said...

The underlying reason for the post was the aforementioned permission statement from the website vivianmaier.com which establishes usage rights for the content being delivered on that website. Contrary to the implications of this post, this is NOT an assertion that Mr. Maloof produced the original intellectual property ("the art" itself), but is an assertion of copyright over the reproductions, prints, books, films, and other content being produced from it. This may be an thin hair to split, but there are separate collections of Vivian Maier's work not in the hands of Mr. Maloof.

http://vivianmaier.com - John Maloof
http://vivianmaierprints.com - Jeffrey Goldstein

In both cases the name Vivian Maier is splashed all over everything as a branding. And Mr. Goldstein is not asserting that he produced the original artistic content anymore than Mr. Maloof. Indeed, they are both simply positioning themselves to legally capitalize on the (mainly self-driven) hype surrounding the Vivian Maier legacy.

Considering that Jeffrey Goldstein has also released reproductions and content from a separate group of original negatives by Vivian Maier any legal disclaimers, which exist on both websites, clearly arise from a more guarded business standpoint than from concerns about blog postings. It is likely that Mr. Blake Andrews has nothing to fear legally from his own usage unless there is some commercial exploitation of the image in question. However, giving source credit is always the correct thing to do online, as in print.

It may be ethically objectionable for a stranger to profit from the artwork of a deceased individual, who by most accounts would have rejected any exhibition of the artwork in question. However, as clever as she was with a camera, Ms. Maier was quite careless about the business affairs for what seems to have been her greatest passion in life: image-making. She kept her work very much a secret, and made no arrangements for the fate of the massive quantity of negatives and work product she had amassed over decades and hoarded away. The reason Mr. Maloof and Mr. Goldstein have been able to purchase these collections is because Ms. Maier had forfeited the physical property to a storage company through non-payment on her locker and it was auctioned to the highest bidder. Legally she did not forfeit her artistic and intellectual copyright, but in that contractual default she did give up her rights to the physical property–and with the absence of an estate representative–how it would be managed after her death. If she had wanted these items to remain hidden from others she could have destroyed them instead of placing them in storage. I wouldn't necessarily say that Mr. Maloof is "lucky", but it was he who took a risk and purchased the bulk of her life's work at a storage auction, and I don't think anyone could positively say that they would have outbid him for that same lot if they had been in the room that day.

The comparison to Atget/Abbott is intriguing. It was mainly through Abbott's own marketing of Atget's work that he achieved his current status, but it is false to assume that Berenice Abbott made no financial gain from her collection of Atget negatives and prints–from which she made prints and portfolios–and then sold to MoMA in 1963. Abbott, unlike Vivian Maier, was extremely business savvy and made sure to protect the copyright of Atget as well as her own by openly printing his negatives and copyrighting them as his artwork, her print. It is also an entirely different question of copyright because a large portion of Atget's work passed directly to Abbott upon his death, so there is a clear progression of legitimate estate representation.

Kevin C said...

well, if you read Maloof's language carefully, notice that it only states the obvious: "All photographs appearing on this website and in the archive of the Maloof Collection are copyrighted and protected under United States and international copyright laws".

Yes, they are, but HE doesn't hold the copyright to any of Maier's artwork. Any suppositions/suggestions/inuendo to the contrary, Maier's rights belong with her and her estate. Do a search at the copyright office if you doubt me - he hasn't filed for protection for any of her images. None of her portfolio was included in the estate distributed by the probate court when it was settled after her death, either.

Kevin C said...

The statement on Maloof's website simply asserts the obvious. Does it mean that he controls the copyright to Vivian Maier's portfolio? No - and in fact it doesn't state that - if you read it closely. All inferences to the contrary, he has not filed for protection at the copyright office, and her portfolio was not part of the estate inventory that Lane Gensberg brought to the Circuit Court after petitioning to be made her guardian when she lay gravely ill. No, Maloof is simply huffing & puffing.

Should a tomb robber be rewarded for his 'hard work' and entrepreneurial flair for bringing Attic ceramics to light in the 20th century?

Or is Vivian Maier's portfolio suitable for picking over because, well, it's there and - after all - she's dead and she can't do anything with it?