Photos are not where they seem

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Photographer PeteZab, Peter Zabulis, publishes his photos on Flickr.  Here are some of his snow scenes:

© Peter Zabulis, All Rights Reserved.

The UK newspaper The Independent used at least one of his photos on its web site, specifically this one, as captured by PeteZab:


Web capture of The Independent page

PeteZab took offense and accused The Independent of copyright infringement.  After some fumbling around The Independent ultimately disputed that it had done anything wrong, but a lot of PeteZab's readership was in hearty agreement with him - "that's stealing!", "Good heaven's this is shocking," "Whoa! What is this guy (@the Independent) smoking?!"  Even Boing Boing, by no means a copyright maximalist, was sympathetic to the photog.

A rare few disagreed.  They made the distinction that The Independent wasn't hosting the content, just using a stream.

The hosting distinction is one that the 9th Circuit has adopted, so it's good law in some fairly significant states (like California). In Perfect 10 v. Google, the 9th Circuit affirmed the lower court's adoption of the "server test" (looking at where the content is hosted) rather than an "incorporation test" (looking at how the content appears to a viewer) to decide whether Google's display of framed images was an infringement of the copyright owner's exclusive right of display. The lower court's justification for using the server test, among other reasons, was because "[t]o adopt the incorporation test would cause a tremendous chilling effect on the core functionality of the web-its capacity to link, a vital feature of the Internet that makes it accessible, creative, and valuable."

There's also some law that not using technical means to prevent copying is an implied license.  PeteZab must not have elected to hide his photos, by deselecting a checkbox, from the APIs The Independent used to capture the stream, or they would not have appeared there.

Above, I embedded PeteZab's photostream.  I created the stream by filtering the PeteZab photostream for "snow" and used the "Share" function to get the embed code.  I also hyperlinked to one of of his photos, and one image in this post is a copy of a screen shot PeteZab took that is now hosted on our server (well, "our" server in the cloud, that is - oy, more complications).  Which, if any, of these uses are infringements and which are not?  (I think none, or I wouldn't have put them here.)   What should matter and what shouldn't?  The commercial nature of the site?  The technical means of the reproduction?  The size?  What if The Independent had memed a YouTube video instead, would there have been such a hue and cry?  Is there a difference between this  -  "take a minute to enjoy this selection of US snow pictures posted to the photo-sharing website Flickr since January 1" - which the Independent did, and embedding a video of Martin Luther King's "I Have a Dream" speech on Martin Luther King Day?

Cory Doctorow's suggestions here.  Any other ideas?

Pam is a Board Member of the Open Source Initiative and the principal of Chestek Legal in Raleigh, North Carolina. She works with creative communities, giving practical legal advice on branding, marketing, and protecting and sharing content.

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Creative Commons License except photos as noted.