You Got Flickr'd

Flickr’d. verb.
To have an image that you posted on Flickr misappropriated by a third party without your permission.

First there was Body Magic

Then Alison lost her Virginity

Then an earthquake with Lane Hartwell

I love flickr. I have a flickr Pro account. My dad posts pictures of our house on flickr. The Strobist uses flickr. One could argue that flickr + sub-$1000 DSLRs made PhotoShelter economically viable. But the bottom line is that photos are intellectual property, and the IP concept of fair use doesn’t apply to theft.

People that use flickr as a source for free imagery have got to get this through their head. It doesn’t matter if you think copyright laws in the US are broken, they exist, and to misappropriate an image because you misunderstand the law isn’t right.

In the case of the Richter Scales use of Lane Hartwell’s image, the fracas could have been avoided in the first place if they had simply selected an image that didn’t have “all rights reserved.” There are 2 billion images on flickr, and you’re telling me that a bunch of erudite singers couldn’t take another few seconds to find an image that had the appropriate Creative Commons license? (Full disclosure: I sang in an a cappella group in college, baa!)

Intellectual Property laws are slippery (and often archaic) to understand, but flickr is probably the largest functioning repository of Creative Commons objects, and the definitions of the licenses are so straightforward that only blatant disregard and cavalier attitude towards creative rights could explain this situation.

Yes, the Richter Scales are a fun a cappella group that created the video as a parody, but the success of the video acts as marketing for the group. More people show up for concerts, more CDs are sold, more beer money for those gentlemen songsters. So in the end, they are benefiting by the inclusion of Ms. Hartwell’s image. Their claim of “fair use” is spurious because they are not parodying the photo, they are parodying the subject of the photo. If their interpretation was correct, then an ESPN blogger could take a photo of Roger Clemens with the statement that “he’s a joke!” and not pay a licensing fee. Clearly, this is not legal.

Back in the olden days, it was commonplace for creatives to have patrons (Think JS Bach). But since that isn’t economical reality for the most part anymore, we have to ensure that we respect the intellectual rights of creatives so that they can continue making new works, lest we be relegated to listening to Sheena Easton, watching re-runs of the A-Team, and looking at that Robert Doisneau photo that everyone had in their dorm room for the rest of our lives.

I’m pretty sure we don’t want *that*.

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Allen Murabayashi is the Chairman and co-founder of PhotoShelter.

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