Saturday, July 31, 2021

It's better to ask for permission

Bald Eagle, Fox and Rabbit in Middair, San Juan Island, Washington

There’s a saying that it’s better to ask for forgiveness than permission. While that may apply to acts of charity or taking initiative on a project at work, it does not apply to using someone else’s artwork.

My series of images of a bald eagle, young fox and rabbit in midair made the rounds of the internet again a few weeks ago. But this time, nobody asked for permission to post the images. Worse, nobody even acknowledged that I was the photographer.

One popular social media page that used 10 of my images listed the photographer as “unknown.” Another said that photographers who want credit for their work must write a personal message requesting it.

Often photographers are glad for you to share their work. We’re all trying to build our audiences. But the way my images were shared created a massive copyright headache. Here we’ll talk about how to share other people’s images so that everybody is happy. But first: If you want to use someone’s work, it is your responsibility to find the artist and ask for permission. It is never the artist’s responsibility to notice that you’ve used their art, to track you down, and then negotiate with you after the fact.

People who post the work of others often believe they are entitled to because of the fair use statute. But that statute is a complicated part of U.S. copyright law and it involves a significant amount of nuance. Lawyers will rarely give you a definitive opinion as to whether something qualifies as “fair use.” There are a number of factors to consider and only a judge or jury can make a final determination.

Fair use tries to find a balance between allowing an artist to earn money from their work with a greater good benefit of an informed society. PennState provides a fantastic analysis of that balance, but here are some of the key questions:

  • Are you profiting off someone else’s work?
  • Are you depriving the artist of income?
  • How much of the artist’s work are you using?
  • Are you using the copyrighted work in a way that creates new value for society?
  • Is the artist willing to license their work?

People usually stop at the first question. They reason that they’re just posting the images to their own social media pages where they don’t make a direct profit, so they can use whatever they want without consequences. But profit is not the only factor.

Every single one of the accounts that copied my work last month had a prominent pitch requesting that viewers follow or subscribe to their feeds. I would argue that their usage deprived me of new followers. People click the “follow” button where they see work they like. Some people undoubtedly followed those other feeds because they liked my work; I didn’t get new followers because there was no link to my feed.

Most of those accounts also used 10 of my images — nearly every image in the blog post I created to tell the story of the original incident. By reproducing all my work, they eliminated any incentive for people to visit my website to see more.

Nobody created anything bigger with my work. If someone had critically reviewed the pictures, analyzing the compositions or discussing why they resonate with people, it might have qualified as fair use. Simply copying and pasting my work almost certainly does not.

Education is a trickier question. Discussing the images in an art class would probably be fair; printing them in an animal behavior textbook probably would not.

The questions around news coverage are equally difficult. If publishing them would save lives, there’s a solid case for fair use. But news organizations do not have a blanket license to use copyrighted work. Any news organization that I know of that has used my work has licensed it.

Finally, there’s the issue of artist cooperation. If you want to use the image for bona fide criticism or substantially derivative art and the artist refuses to work with you, you have a stronger argument for fair use. In this case, however, any of the social media managers could have shared the images from my blog or social media feeds, or licensed them through my website.

In order to protect my copyright, once I was made aware of the unauthorized uses of my images I had to take action. I wasted valuable hours filing takedown notices, hours that I would have rather spent on more meaningful projects.

Couldn’t I have just watermarked my work? I do on my own site, but publishers who pay to license my images get to use them without watermarks. The pictures were likely copied from one of those sites.

After serving the legal notices, a few of the people wrote to me saying they would have given me credit had they known the images were mine. That’s an especially appalling excuse. All anyone had to do is run a quick Google search for bald eagle and fox. They could have clicked on virtually any result and found my name. (My name would also have appeared in the photo credits on the site where they lifted the images.)

It’s not much harder to find the artists behind other pictures. A few sites provide the ability to do a reverse search: you upload an image and they will show you sites where that image appears. Google and Tineye are two of the most useful sites that allow you to search by image. For Google, click the camera icon in the search box to be able to upload the image. If you use the Chrome browser, you can right-click on a picture and select “search for this image” to search for a picture directly from the webpage where you found it.

You may have to click on a few of the results to find a proper site that gives the photographer’s name, but most of the time you can find it with a minute or two of effort.

Artists work hard for little pay. Many appreciate the opportunity to introduce their work to new people. But posting their work without permission and without attribution is not OK. Please take a minute to ask first.

(Follow Kevin Ebi's photography on Facebook or Instagram. Prints of his images are available through

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