Google's image search set back from the LA Times

"U.S. District Judge A. Howard Matz in Los Angeles ruled that Google was likely to lose at least part of a copyright infringement case filed by a publisher of adult magazines and websites. Perfect 10 Inc. alleged that Google users could find for free its pictures of nude women, for which it normally charges. The search engine links to such images posted improperly on other websites."

Most photographers we have heard from want their names and images to show up in Google because they view this as a form of free marketing exposure. But to prove that the diversity of thought on issue is as wide as the Grand Canyon, it seems that at least one adult content provider thinks this is a violation of his copyright.

In the case of Perfect 10, most images that Google is sourcing have been stolen, and being used to drive traffic to other sites. This is clearly differentiated from a case where a photographer wants to use Google almost like a marketplace to show off their work when it points back to a source where the image can be licensed legally.

So for all the benefits of rapid information exchange that the Internet has made possible, so many ambiguities over "fair use" have been exposed since not only the speed, but the breadth of the exchange has exploded.

What do you think?

AP Cancels Photo Coverage Of LPGA

A wire service like the Associated Press has enough distribution and clout to make waves in the photography industry. So when the LPGA announced its new restrictive photo credential, which gives them unlimited free use of images in perpetuity, the AP decided that it would stop covering LPGA events.

It shouldn't be surprising that when the issue is financial, large organizations that can make a difference finally take a stand. It's unfortunate that they aren't motivated financially to take a stand on issues like the NCAA, etc. But business is business. And we ought not to expect the AP to take a stated position and put legal resources forward to fight for the "rights of photographers" even though non-staffers contribute many of their images.

I'm not a pro-union kind of guy. And I tend to think that many of the photographic organizations that exist today are generally ineffectual. But in many cases, they are ineffectual because they don't take a stand. For example, the NPPA has an ethics column and ethics chairs, but I can't remember hearing of people being censured or kicked out for ethics violations.

Photographers aren't like doctors or lawyers. There is no credentialing body or tests to ensure that you have technical and ethical competence. So the notion of a universal or semi-universal code of ethics with a standards body is hogwash. Nevertheless, there are issues that are salient to all photographers like copyright and use of images for self-promotion. It would be inspirational to see the extant organizations come together occasionally to speak out on an issue that provided guidance for photographers.

In a world filled with ambiguities, photographers look for guidance every once in a while. For example, the Professional Bull Riders Association has a credential similar to the LPGA, and I can't help but think that if a large organization like Sports Illustrated went on record to say they wouldn't support such a credential nor accept images from such events, that other photographers and editors might follow the lead.

While I dream of a kinder, gentler world, I'll raise my glass to the AP for protecting their rights, even if their day rates aren't what they should be. After all, an accumulation of baby steps can make a difference.

Happy Birthday, Bitshelter!
Although PhotoShelter wasn't launched until late June 2005, our company, Bitshelter, was founded a year ago this month. Happy birthday to our little Delaware corporation!

I still find it amazing that in this day and age of multi-billion dollar companies like Microsoft and Google, that a few friends can get together and still build a product or service that can have a noticeable and positive impact on a given industry. But in many ways, our organizational size makes us ideal for realization of a new product. It reminds me a bit of a Malcolm Gladwell's (author of The Tipping Point, and fellow Yalie...) article in the New Yorker magazine, where he describes a food engineering company's quest to develop the perfect cookie with three different teams. The supposed "Dream Team," which had a large number of top experts from the industry turned out to have too many cooks in the kitchen to be effective. And a small team comprised of a few people was the most successful in the end.

I remember sitting down to dinner at Le Zinc in Tribeca in December 2004 with Grover, Jason and Jeffrey to discuss PhotoShelter for the first time (I got the salmon burger and it wasn't very good). It's hard to believe that it's all come together, and that people around the world are using the service a year later!

In early November 2005, two photographers were contacted by Sue Edson, the Syracuse Athletic Communications Director, to remove their images of Syracuse Athletes from their online portfolios on SportsShooter.com. The reasoning was two-fold: 1) the images were being used in a way to promote the photographer (thereby constituting "commercial" usage), and therefore affecting the eligibility of the student athlete, and 2) other freelance photographers were complaining that their access to take such photos was being denied.

I wrote at the time:

"The fact that the medium for displaying work is an online aggregator site like sportsshooter, instead of a book, doesn't alter the mechanics of how every photographer has generated business in the past -- namely the by showing his/her prior work. the internet merely means that our distribution is wider than it has been before.

ms. edson's office fields requests for press credentials as a function of her job. she shouldn't use an increase of credentialing requests as the basis for decredentialing journalists that happened to use images in their portfolio"

In the end, the NCAA did provide Ms. Edson with guidance stating that SportsShooter was an editorial website, and her office did meet with the University's Newhouse School of Public Communications to discuss the issue. Curiously, no official, written statement was ever made by the NCAA on the issue. But Syracuse put the issue to rest.

Several months later, photographers on SportsShooter.com started to receive cease and desist letters once again from various university compliance officers to remove images. There was no clear impetus for such action, and many seemed to be unaware of the resolution with Syracuse. Instead, it seems that compliance officers had met on their own to discuss the issue of photographs, and determined on their own that SportsShooter was in violation of NCAA by-law 12.5.2.2, which states:

12.5.2.2 Use of a Student-Athlete's Name or Picture without Knowledge or Permission. If a student-athlete's name or picture appears on commercial items or is used to promote a commercial product sold by an individual or agency without the student-athlete's knowledge or permission, the student athlete (or the institution acting on behalf of the student-athlete) is required to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics.

The intent of the rule, of course, is to prevent exploitation of an amateur athlete. And the intent of the compliance officers is to maintain the eligibility of their athletes. No one would want to see ESPN report on Reggie Bush losing his eligibility to play in the Rose Bowl because he appeared in a SportsShooter gallery.

And of course, this would never happen.

Let's forget all the legal mumbo-jumbo for a minute and talk about intent. As I wrote in November, a photographer's portfolio is the only proof of his ability. And in a free-market environment with large competitive pressure, marketing oneself to garner new business is the only way to survive. There is nothing unethical about posting an image in a portfolio, since the image isn't for sale. It's merely a showcase.

Formerly, photographers sent books around. The books had business cards in them. And it was always clear that the point of the books were self-promotion. The Internet gave us another medium to distribute work, but the point of the distribution never changed.

And let's remember that SportsShooter is not eBay. In fact, if you search for images of athletes on eBay, they are most likely stolen from SportsShooter photographers. The professional photographers are not the ones perpetuating the real violations, and defeating the spirit of the law.

Photographers are trying to promote themselves with the images in their portfolio, but a "reasonable" person wouldn't likely consider this commercial usage. ESPN shows a game with an ESPN logo in the right corner. Sure, coverage of the game is editorial in nature, but plastering logos on the video feed is promotional for the network. Let's call a spade a spade, and be done with this nonsense. The NCAA is never going to suspend an athlete because his/her image appeared on SportsShooter.

So what does this have to do with PhotoShelter? PhotoShelter is host to the SportsShooter Virtual Agency, and we have received a cease and desist letter from Colgate University, dated February 6, regarding the posting of a rights-managed editorial photo that available from PhotoShelter.

That's right. Everyone has lost their minds. The compliance directors are now saying that even editorial licensing of student athletes is impermissible at this time.

I'm sure that NCAA compliance directors looking at this posting will shake their heads and deny that the intent of the letter was not to disallow editorial sales. But that is the effect of the NCAA not issuing a written statement to their participating universities. Everyone is practicing "cover your ass" scare tactics. College athletics is big time money for universities, and few universities can survive losing the eligibility of their star players.

As it stands right now, the situation is regrettable, but also laughable. Compliance directors sending out cease and desists to PhotoShelter, which has no legal affiliation with the SportsShooter Virtual Agency, which in turn isn't a legal entity in the first place sounds like a witch hunt. Not to mention the fact that PhotoShelter isn't a part of the NCAA. As I wrote Colgate University, we'd very much like them to comply with our Terms of Service, however, since they aren't a member of PhotoShelter, enforcement would be difficult.

This nonsense is certainly likely to rise before it recedes, so stay tuned for more!

We are a company of Internet nerds, so when a blockbuster like "Firewall" (starring Harrison Ford) comes out, we take a field trip. 7 previews and 100 minutes later, I realize that I'll never get that time back.

Harrison Ford stole a part of my life. The only upside was that Mary-Lynn Rajskub (Chloe from '24') was in the movie.

Upgrading the features and functionality of PhotoShelter occurs late at night to minimize disruptions to the site. Of course, there's a lot of idle time waiting for 1am to roll around, so we like to play some hoops in the office.