Wednesday 17th September 2014,
sigma, sigma-lenses, instant-savings, discount, photography, lenses, sigma-corporation-of-america, fall, autumn
Resource Magazine

Sara Lewkowicz’s Copyright Battle

Resource Magazine September 26, 2013 BIZ
Sara-Lewkowicz

By Matthew Corkins, with additional notes by Aurelie Jezequel – Photos by Sara Lewkowicz

 

When Sara Lewkowicz was documenting the life of an ex-convict, an unexpected and sudden escalation found the young photographer fighting to keep a hold on her photos. The Ohio University graduate student met couple Shane and Maggie and became interested in showing how hard it is for a felon to reintegrate normal society. One night, while photographing the couple, the situation became violent: Shane attacked Maggie.

Sara’s fight for her photos had begun.

The police subpoenaed her photographs to be used as evidence against Shane. Unsure of what to do, Sara’s professor told her to contact Mickey Osterreicher, National Press Photographers Association’s general counsel. NPPA‘s and Mickey’s help have been one of the “saving graces this year,” Sara said. In the end, Shane pled guilty and the photographs were not needed—this, however, did not end Sara’s battle.

The photos of Shane and Maggie premiered online for Time magazine in conjunction with the debate on the Violence Against Women Act (VAWA), and soon, they went viral. “Time said that article was one of the most viewed pieces on their website,” Sara said. But going viral is not all that glorious when the rights of the creator are abused.

“The Time story appeared, and people shared it on Facebook,” Sara said. “I only saw the ones I was tagged in, and it was like a couple hundred! I stopped counting at a certain point.” Next came more articles as Sara sold the series to different publications, like CNN and Brazil’s Claudia. But the photos then started to show up on blogs—with and without her permission [full disclosure: Resource’s blog joined the frenzy and didn’t properly clear our use of her images, a mistake we regret and won’t do again]. The images are powerful and unique—domestic violence happens mostly without witnesses, far from cameras—so they really resonated with a lot of people. The stalling of VAWA in Congress only heightened the issue of women’s protection and the importance of Sara’s images. “People just started sharing them in their eagerness to say, ‘Hey, look at this,’” Sara said in regard to social media and blogs. “Most people aren’t doing it out of malice; they’re just thinking, ‘I want as many people to see this as possible.’”

 

Sara-Lewkowicz

© Sara Lewkowicz

The problem is not many people were asking permission to use the photos, and even fewer were paying for them. As more people shared them on social media and their personal blogs, the images’ value lowered. “The more the piece is out there, the less exclusive it becomes. And the less exclusive it becomes, the less reason anybody has to contact me and pay me for my work,” Sara explained. The problem is the digital world and blogs and social media are all still new, and most people don’t know the rules—especially when it comes to paying for content. In time, this might be fixed, but for now, the Internet is a Wild West, seemingly not subject to law. But this free for all is unsustainable for content creators like photographers. “It’s not about me getting rich off of this,” Sara said. “It’s more about that I can’t continue to do this kind of work if no one wants to pay me anymore.”

Instead of pay, blogs offered Sara exposure for the use of her photographs. While to many photographers the mere idea of being seen sparkles like gold, Sara knew better. “If somebody wants to buy your work, it doesn’t matter that you’re a 21-year-old college junior. There’s value to your work and you should charge a market value for it.” She also knew the exposure most blogs offered reached nowhere near as high as the exposure Time gave her. “Most people who contacted me told me they saw the images on Time. Ultimately, Time gave me great exposure—and they paid me.” The question is why can’t everyone else do the same?

Bloggers and publications gave Sara many reasons why they didn’t want to pay. Images of domestic abuse presented an issue of ethics. “We don’t want to pay for these images as we don’t want to send the wrong message,” someone would say—as if Sara was responsible for said violence (war correspondents are not held responsible for the horrors they report; why would she?). Others looked to peers to figure out what was justifiable. “Blogs use each other as a barometer of what is acceptable,” Sara said. “It doesn’t matter if someone else is doing that—that shouldn’t be a measure for whether you think it’s OK to do.”

While copyright infringement is part of some companies’ business model—they just pay the occasional artist who comes knocking on their door but don’t bother otherwise—most bloggers simply don’t know they should ask permission. Most blogs are not journalistic but personal: the person in charge more often than not has not studied the ethics of journalism and the importance of copyright laws. Blogs are opinion pieces, existing in the Internet ether where everything is seemingly free and accessible.

Digital theft is hazy or remains unnoticed for many—users don’t have the same perception of it as they would with physical images. When someone steals a movie, CD or work of art, the owner no longer has that item, whereas nothing is “missing” with digital theft. Instead, the item has simply multiplied, increasing its exposure and reinforcing its seemingly accessibility—a never-ending loop, feeding upon itself. But as Sara stated, “Just because something is on a website doesn’t mean you can use it.”

On one hand, artists’ work can scale the length of the Internet in a matter of days or hours. On the other, exclusiveness (and its correlative, value) can become practically nonexistent. “I went overnight from being a totally unknown graduate student to having people wanting, valuing my work,” Sara reflected. “It took me some time to understand that I was entitled to contact these places and say, ‘Hey, this is my work. You can’t just take it for free.’ It has been a very interesting experience. It’s been really exhilarating, but it’s also been really frustrating at times. It’s especially weird when you contact somebody and they say they’re doing you a favor. There’s a part of you that feels bad. You feel like a jerk for saying, ‘I know you meant well, but you’re not doing me a favor if you’re not paying me.’ That’s something you have to get used to.”

Of course, Sara didn’t have to do it all alone. She once again had help from NPPA and Mickey to help police her photos and their digital presence. “I got really, really good advice in two separate instances where I really needed it,” she said. “Being part of a professionals association like NPPA is a way photographers, especially freelancers, can help themselves.” Mickey helped her approach people, but he’s urging blogs and other publication to contact the artist and ask their permission (and, better yet, pay them if possible). As he explained, “People shouldn’t just assume. Assuming is always dangerous.” You should ask, and ask first because the answer you get might change whether or not the story will happen.

But what to do if your images go viral and are used without your permission? Contact the offending blogs and ask them to either pay you or remove the unlawful post. Most will comply as they often didn’t know or understand the law. The Internet being by definition without borders, blogs in other countries might be working under a completely different set of assumptions. Bringing a lawsuit is hard enough in America but close to impossible internationally (except if you have lots of time and money on your hands). Copyright infringement attorneys ask on average for a $10,000 retainer to start, so you need to make sure the damages you’re entitled to are greater than your lawyer’s fees. “It often doesn’t make sense for somebody to bring a copyright infringement suit. If the most you hope to recover is a few hundred dollars (and there’s no guarantee you will win), who’s going to lay out $10,000?” Hence the importance of belonging to professional associations which can offer free legal counsel and help you determine the best course of action.

The other thing you can do (and really should do) is to register your work with the US Copyright Office. It’s a bit of a tedious process, but it’s worthwhile to add it to your workflow. Regularly batch register before things are published. Make it a habit—this will offer greater protection if you need to sue someone for illegally using your work. As Mickey explained, “If your whole life you’ve only been paid $5 for a photo, if you have haven’t registered that work with the US copyright office, that’s all you’d be entitled to. Attorney’s fees and statuary damages are only applicable for copyrighted work… What you get is up to the court—but you cannot get anything at all if the images are not registered.“ Mickey acknowledged that too many photographers skip that important step. “Out of all of the content creators, photographers are the worst at registering their work,” he said. And news photographers are the worst out of them as they are always busy chasing a story.

While bloggers need at the very least to ask your permission, nothing will stop your photos to go viral if the Internet gods decide they should—but at least you have the right to call them up on it!

 

 

Sara Lewkowicz

16 Comments

  1. Concert Photos Magazine September 27, 2013 at 1:47 AM

    Still posting photos without watermarks? Seems like you still have a lot to learn.

    • Anonymous September 27, 2013 at 2:29 PM

      Watermarks can be removed.

      • Loadstar September 28, 2013 at 2:12 PM

        You do realize that intentionally removing a watermark, or other CMI, from a copyrighted work is illegal and carries substantial statutory damages under the DCMA, right? And those damages are separate and in addition to the copyright infringement itself..

  2. Mike Bou-Nacklie September 27, 2013 at 5:10 AM

    Sara and I are good friends and Im dealing with a similar issue with publishing companies and blogs who ripped off my work to put on books and blogs without even so much as asking permission. Something needs to be done to stop peoples work from being ripped off so easily. It’s aggravating and demotivates many photographers, myself included from posting our work online at all (even on our personal blogs) for fear of it getting lifted. Now I post all my images with excessive watermarks which utterly destroys the images impact.

    http://bunklyvision.blogspot.com/2013/02/ripped-off-and-absolutely-livid.html

    • Greg October 2, 2013 at 11:33 AM

      Mike: see my comment below on how to have your work taken off of websites under the DMCA. Watermarks are OK (even though a lot of Art Buyers don’t like them.) But sending e mails to infringers and fling the electronic forms to have the work removed is quick and fairly easy.

  3. Harry September 27, 2013 at 9:35 AM

    I wonder how much Sarah paid the couple who she filmed? did they get any benefit from all the extra publicity his act caused?
    How about the child in the photos, she may well be exposed to these photos for many years to come.
    Poor old Sarah!

  4. johny September 27, 2013 at 1:06 PM

    IS she a photographer or what? Fuck you Sarah!

  5. pix September 27, 2013 at 7:31 PM

    How sad people post and bash the photographer when they have no idea about the laws of this country. She obviously had permission to photograph the couple. Even if she did not, editorial publication does not require a model release. Do a little research on journalism 101 before you post bashing comments.

    I am involved in over 30 legal cases from people stealing my commercial work. Its a problem in this country that need a major fix.

  6. Andrew Butler September 28, 2013 at 6:05 AM

    Why no copyright declaration in the photo’s metadata? I have just pulled the image from this site, I know the caption, the camera brand the lens and the software but I have no way of knowing who owns the image<

  7. Anjali September 28, 2013 at 6:10 PM

    I understand that Sara wants to be compensated for her content, and she was very brave to tell this story in the first place. But perhaps after receiving payment and exposure from Time, she should be grateful that the photos have spread to promote discussion and awareness of domestic violence – is that not what she originally published them for anyway?

    Making these powerful images a talking point for copyright laws and compensation seems trivial to what the subject may be feeling right now. Will she get paid for being the national symbol of domestic violence?

    • Mark October 2, 2013 at 5:59 PM

      She created the content and should be paid for its usage. It is up to the photographer to decide if a site can use it for free. Time paid her to use the images and everyone else using them should also pay unless the photographer gives permission to use them for free. The idea that we photojournalists should be happy that people are stealing our work is preposterous. It’s theft plain and simple. Happy to have work published doesn’t pay my bills. I had a similar incident with a photo I took of man who was attacked by a mountain lion and his wife beat it with a stick and jabbed it in the eye with a ball point pen. There where even major new networks running my image without my permission or pay.

  8. Nick October 1, 2013 at 4:13 PM

    Anjali, your comments are the reason for this article. The message needs to be heard, but if it get diluted by countless bloggers who just want hits on their sites then who’s going to care about the content. Controlling where your work is seen and experienced is just as important as the work itself.

    Harry and Johny you are both ignorant fucks and should do the world a favor and never open your mouths again. Not one person cares what ether of you have to say, ever.

  9. Dan October 2, 2013 at 8:48 AM

    I think Sara needs to view the big picture. She was quite fortunate to have the opportunity to shoot these photos. Sure they’re protected by her copyright, and it would be nice if she could monetize them to their maximum potential. But, the real “pay-off” is in the fact that these photos can / have launched her career, and also drawn attention and aided the efforts to make progress on an important issue. IMHO Sara should focus on what she will shoot next. Can she get “lucky” again. There is a capitalizing on the misfortunes of others element to all this that Sara, and any photographer in a similar situation must recognize.

    • Greg October 2, 2013 at 10:23 AM

      First there is the Copyright law that many are not aware of: A photographer owns copyright to their work unless they sign it away in writing, either in an employment agreement, or in a contract. That means no one can use a photographer’s work without their written permission (or unless a photographer posts a work with a Creative Commons document allowing the work to be used under the conditions of that document.)

      You suggest that Sara should be grateful for the exposure. Copyright law was enacted to protect the rights of the creators of original works. That means that Sara gets to decide if the exposure is worth letting someone use her work for free. In this country, people don’t get to steal something and then later on we tell them they should be grateful, that, for example, their operating system is being used around the world and no one is paying for it and they should be excited and grateful. Bill Gates would not be a rich man if in 1986, we said, “Hey Bill, great OS. Everyone is using it now. Everywhere! It’s so cool and we love it! Please don’t sue us because we hacked it and stole it, because, well, you should just be happy for all the exposure you got. It will bring you great fame and we should all be able to use it for free. After all, we are just individual computer users who use our computers at home. Just think of how it will help people in third world countries and governments struggling to survive. We shouldn’t have to pay you for this OS that you created. Thanks Bill.” Because that type of thinking is exactly what is happening in much of Asia where there is no incentive for anyone to create anything if there aren’t laws to protect the individuals, the creators of original content.

      Many people seem to have a double standard with young photographers and photography in general. It’s easy to take a simple image quickly with a smart phone. Images are everywhere, so it seems to some who do not know the law, that they are all free. Young photographers, in particular, don’t know their rights and get taken advantage of all the time. Once they learn their rights and assert themselves, some people become angry because they still think photography should be free and the photographer should be happy for the exposure. Well, exposure doesn’t pay the bills and there are very few images in a photographer’s career that put your kids through college and if you can’t capitalize on those images, you will probably not be a professional photographer anymore. If these were Annie Leibovitz’s images that we were talking about or some other famous photographer, or if the bloggers had stolen Nan Golden’s image from “The Ballad of Sexual Dependency” of Nan with a black eye, there would be a different story being written.

      As for, “capitalizing on the misfortunes of others;” it is clear that this couple gave their permission and agreed to be in the documentary. Sara didn’t know that this woman was going to be attacked. This is an ethics question that all photojournalists must answer for themselves. Should Eddie Adams have put down the camera he probably would have himself been killed, instead of capturing the image of Nguy?n Ng?c Loan executing Nguy?n V?n Lém on February 1, 1968. Are you saying that Sara’s images should not have been published because she received recognition and was paid for documenting an unfortunate situation? Are you also saying that drawing attention to an important issue is adequate compensation for a young photographer? Would you say to the Doctor at the emergency room that the feeling of doing good work and helping hurt people is adequate compensation and they don’t need to be paid money for their work? I think not. People are rewarded for great work and in the case of photographs, unless they sign copyright away in writing, they control the rights the images.

  10. Greg October 2, 2013 at 10:41 AM

    What to do if someone on a blog or a small business is using your images and it does not pay to sue them. First, e mail them a nice note that says they probably weren’t are that these were your images, but that you own them and please take them off of the website (or you can try to negotiate a usage fee.) If they do not respond or respond with anger or think they should not pay, keep reading.

    The Digital Millennium Copyright act allows for the owners of copyrighted material that is being used without their permission, to request the images be taken down from the websites where the material is posted. Go Daddy will even completely disable the entire website. Facebook will generally take the images down, no questions asked. So if you have an infringer, who refuses to cooperate, contact their ISP and file the proper forms online, and you will find that, with the law on your side, your images will disappear from their website or their website will be unavailable until they remove the material.

    DMCA Title II, the Online Copyright Infringement Liability Limitation Act (“OCILLA”), creates a safe harbor for online service providers (OSPs, including ISPs) against copyright infringement liability, provided they meet specific requirements. OSPs must adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim from a copyright holder or the copyright holder’s agent. OCILLA also includes a counternotification provision that offers OSPs a safe harbor from liability to their users when users claim that the material in question is not, in fact, infringing. OCILLA also facilitates issuing of subpoenas against OSPs to provide their users’ identity.

Leave A Response

Follow

Get every new post delivered to your Inbox

Join other followers: