Photo Attorney - Serving the photographer's legal needs

As reported by Daryl Lang over at PDN Pulse, Toyoto’s advertising company, Saatchi & Saatchi LA, set up a campaign that used without permissoin a bunch of photos that were posted on Flickr.  Several of these photos were individually protected on Flickr with copyright notices and reserved rights.  Toyota has since stated that “We’re currently pulling the photos and will be in contact with each photography [sic] who was represented.”

Some companies may be grabbing your Flickr photos through Flickr’s API. An API stands for “application programming interface” and is used to allow other software programs to interact with it.  (It’s not known whether Toyota used Flickr’s API in the incident referenced here.)  The Flickr API is available for non-commercial use by outside developers. Commercial use is possible by prior arrangement.

But a company’s use of Flickr’s API is not an excuse to use Flickr photos that have restrictions. Specifically, Flickr’s API’s terms instruct any user of Flickr’s API software that its use is based on terms and conditions, including instructions that:

a.            You shall:

. . .

ii.             Comply with any requirements or restrictions imposed on usage of the photos by their respective owners. Remember, Flickr doesn’t own the images – Flickr users do. Although the Flickr APIs can be used to provide you with access to Flickr user photos, neither Flickr’s provision of the Flickr APIs to you nor your use of the Flickr APIs override the photo owners’ requirements and restrictions, which may include “all rights reserved” notices (attached to each photo by default when uploaded to Flickr), Creative Commons licenses or other terms and conditions that may be agreed upon between you and the owners. In ALL cases, you are solely responsible for making use of Flickr photos in compliance with the photo owners’ requirements or restrictions. If you use Flickr photos for a commercial purpose, the photos must be marked with a Creative Commons license that allows for such use, unless otherwise agreed upon between you and the owner. You can read more about this here: www.creativecommons.org or www.flickr.com/creativecommons.

iii.            Comply with any other terms and conditions a user has attached to his or her photo. . . .

Therefore, to further protect your Flickr photos, you may want to opt out of Flickr’s API.  While a photographer has the option of opting out of the API, it does not alter the burden on the API user to follow the photo owner’s restrictions and requirements.

If Toyota or another company grabs your photos through Flickr’s API, then the photographers whose photos are used without permission may have a cause of action through the DMCA in addition to copyright infringement (H.T. to Jeff Sedlik who shared this idea with the ASMP ProAdvice Yahoo Group).  Specifically, 17 USC 1201 provides that: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”  The Copyright statute explains that, to “‘circumvent a technological measure’ means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” There’s not a lot of law on the DMCA, but this would be an argumentThe statutory damages for violation Section 1201 range from $200 to $2,500 per act of circumvention. Further, if an infringer removes your watermark or other copyright management information from your photo to hide the infringement, you are eligible for additional DMCA damages under Section 1202.  The statutory damages for violating that Section range from $2,500 to $25,000.  Both provide for attorneys’ fees, which will make it more likely for an attorney to help you.  Actual damages are possible for violations of the DMCA and for copyright infringement but can be difficult to prove.  Fortunately, registration of your photo prior to the infringement is not required for the DMCA to apply.  Nevertheless, events like this confirm that it’s important to register your images with the US Copyright Office.

Read more about your options when you’re infringed in my July 3, 2007, blog.  Additional information about what to do when you’ve been infringed is available in my May 29, 2009, blog. Whatever you do, do what you can to protect your work!

Thanks to Chris Nabholz and Joseph J. Beecher for submitting this topic.