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Photographer Grants Photo Rights, Then Sues For Infringement

By Hanssie on August 24th 2015

Copyright infringement is commonplace in our industry. With the advent of Google and image searching, added with ignorance of the public, “accidentally” using a photographer’s photograph without permission or compensation happens too often to keep up with. Sometimes you’ll hear about a big lawsuit where a major corporation (that should know better) uses a photographer’s image without attribution or permission. More often than not, there’s a settlement in the photographer’s favor. Not in this case.

An image was taken in Maryland by photographer Art Dragulis and uploaded to Flickr. A few years later, Dragulis discovered that Kappa Map Group had used his image commercially on the cover of their atlas (they still make those?). Dragulis filed a lawsuit claiming copyright infringement against the company for using his image without permission.

Photography-copyright-lawsuit

In the court documents, Dragulis accuses Kappa Map Group of copying his “work and [making] derivatives of the work without [his] authorization in violation of 17 U.S.C. § 501.” Id. ¶ 22.” But the document points out that the photographer “did not assert exclusive rights to his copyrighted image, and he instead opted to license the work and make it available for use by others without compensation.”

[REWIND: DECODING THE CREATIVE COMMONS LICENSING AND COPYRIGHT MYSTERY]

Because Dragulis licensed the photo under Creative Commons BY-SA-2.0, which states that under the Attribution-ShareAlike license, he gave blanket permission for users to:

  • Adapt — remix, transform, and build upon the material for any purpose, even commercially.

As long as the user gives proper attribution (i.e. “appropriate credit, provide a link to the license, and indicate if changes were made.”) and if the user changes or adds to the image, [they] must distribute [their] contributions under the same license as the original,” there are no additional restrictions. The court documents that Kappa Maps did attribute Drauglis on the back cover of the atlas with, “Photo: Swain’s Lock, Montgomery Co., MD; Photographer: Carly Lesser & Art Drauglis, Creative Commons, CC-BY-SA-2.0.”

Since Kappa Map Group complied with the licensing agreement that Drauglis chose under the Creative Commons license, the only thing for the court to decide upon was if Kappa was compliant with the “technical terms of the license under which plaintiff published the work. The Court finds that it did.” The court further found that Kappa did not violate the “ShareAlike” agreement of the CC license as the atlas is not a derivative work. You can see the full filing here.

This case is a good reminder to read what you are agreeing to when it comes to sharing your work online and making sure you understand your own licensing before ending up with some costly lawyer fees. To read more about the Creative Commons License and how to choose the right one for you, check out this article.

[Via TechDirt/Reddit]

About

Hanssie is a Southern California-based writer and sometimes portrait and wedding photographer. In her free time, she homeschools, works out, rescues dogs and works in marketing for SLR Lounge. She also blogs about her adventures and about fitness when she’s not sick of writing so much. Check out her work and her blog at www.hanssie.com. Follow her on Instagram

Q&A Discussions

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  1. Rob Levandowski

    I think the Court reached the morally correct decision, but if the photographer decides to push it, I can see where he has grounds to gain reversal on appeal. The Court found that Kappa provided a Uniform Resource Identifier (URI) in the copyright notice because they included the abbreviation CC-BY-SA-2.0, and Googling that string results in the relevant license coming up. But as the judge noted, “URI” is a specific term of art. To be a URI, a string must meet the syntax definition in Internet standard STD 66 and Internet Engineering Task Force Request for Comments (RFC) 3986. “CC-BY-SA-2.0” doesn’t match that syntax. By definition, it cannot be a URI. As best I can tell, the only URI namespace for which a valid, official URI for the Creative Commons license exists would be the http URL. So yeah, -technically-, the license wasn’t met. But not by enough of a technicality to merit the lawsuit, in my mind.

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  2. Jim Johnson

    Wow… I would think that if you were suing someone, you would have a lawyer who could…. um, you know… look over the license agreement. This photographer’s lawyer should be fired for letting it go to court.

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    • Graham Curran

      You would have thought the guy could have decoded the license agreement even without a lawyer. Is this just another example of over-litigiousness?

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    • Jim Johnson

      I read it as a by-product of the current photography culture— the one fomented by blog post after blog post about how photographers are so undervalued and ripped off. I think a lot of people have taken away a message that was never intended, which is that they SHOULD make money off of everything they create…. no matter what the circumstances.

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