It’s been quite a while since I posted. I’ve been under several deadlines, not the least of which is my doctoral application that caused my e-mail to implode earlier this week for reasons that are best explained in a loud ranting voice over several alcoholic beverages at an establishment accustomed to such behavior. If you need to know what I’m up to on a more frequent basis, follow my one-liners on Twitter because posts here are likely to be scarce for a while.

Brian pointed me in the direction of an ongoing kerfuffle involving a snippy editor at a publication that I hadn’t heard of called Cooks Source. To make a long story short, a woman discovered that a column she’d contributed to an online publication several years ago was reprinted verbatim, and without credit, in this magazine named Cooks Source. When she contacted the editor at Cooks Source, she got the runaround for a while before being asked what she wanted. The woman basically responded that she wanted credit, and asked that a donation of $130 (something like ten cents per word) be made to a reputable journalism school. The magazine’s editor’s reply–which has to be read to be believed–was:

But honestly Monica, the web is considered “public domain” and you should be happy we just didn’t “lift” your whole article and put someone else’s name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally.

For the record, the misspellings are present in the original, speaking of being “in very bad need of editing.” The reason for the misspellings in the lifted source material, in case anyone’s interested, is that the original material was written in Middle English because it was for a medieval cookery website. Well, it’s since come to light that pretty much everything that goes in to Cooks Source is copied and pasted from the Internet, which is not, despite what this editor claims, the public domain. And there’s an active Internet campaign going on to shut this woman down, and hard.

I am no stranger to dancing around the copyright issue (and, frankly, I’m probably dancing around on the side with the fire, but that’s another story). Part of what I do involves collecting primary sources from sources that fall into a gray area, but I do at least make sure they’re cited correctly! Not all of my colleagues are as careful: I remember vividly a surreal conversation in which someone told that she assumed that, by purchasing a book, she had also purchased the rights to reprint parts of it. Falling out of my chair wasn’t part of the conversation, but mainly because this was among the more rational behavior I’d seen from her.

However, there are a lot of companies out there that make assumptions about how willing someone might be to let their material be used solely for prestige. It’s arrogant, frankly. I’ve been contacted by several organizations looking to use my photographs for various purposes. Most of my stuff is available under a creative commons license for non-commercial (read: personal, non-profit, and educational) use. Some of it is fully copyrighted, mostly the stuff that’s private, or some photos I’ve shot of relatively famous people (I’ve had a few of those recently).

A few weeks ago, I received this message:

I work for a company called [I'll be nice and not publish it]. And we’re working on a health program that features some attractions in Hawaii. I would like to request permission to use your photo of Akaka Falls State Park. I can email you a permission form if you send me an outside email address. We would also give you photo credit. The link to the image we would like to use is below. Thank you for your time concerning this matter.

For the record, here it is:

It’s not one of my best photos, being kind of a throwaway shot I took while on vacation in Hawai’i. However, I’m still pretty new at this licensing and selling thing, so I’m happy to oblige any reasonable request.

I responded:

I can be reached at [e-mail]. I’d also like to know the specifics of how you plan to use the image: print or web, size, duration or number of copies, etc.

Thanks!

A couple of days later, I got this:

We create online health and wellness programs that include virtual trails based on real trails that people can virtually travel along when they enter their exercise minutes or steps into the program. The trail features points of interest that the person would see if they were actually walking the real trail. I’m not sure what size the image would be online. I can send you the permission form to check out on Monday. Thank you for your time concerning this matter.

OK, intriguing. On Monday, I got this:

I’ve attached the release form. You can mail, email or fax it back to me. Please let me know if you have any questions. Thank you for your time concerning this matter.

Now, here’s the thing: when you’re negotiating to sell or license an image, the information that I requested is pretty standard. I’m assuming that the young woman tasked with the assignment was pretty new, or low level, or both, and that she didn’t have much experience with this. However, she didn’t even acknowledge my questions after the “I’ll have to get back to you” in her first message.

That didn’t sit so well.

I downloaded and looked at the release form, which read:

I grant [name of company] unrestricted permission to use and or publish for any lawful purpose the photo(s) described below and attached. I hereby waive any right to inspect and approve the finished product. I further release [name of company] from any claims for remuneration.

For the record, that was the entire form.

And my reaction was something to the effect of, “Hell, no.”

As far as I can tell, most photographers sell images one of two ways: licensing an image for a specific use (publication, Web site, etc.) for a specific duration or number of copies; or for unlimited usages, either exclusively (in which case the image is sold or licensed to no one else), or non-exclusively, which means that they can use the image any way they want (or in agreed upon terms) and I can continue to sell it to others.  The first option is the cheapest; exclusive unlimited licensing is the most expensive — licenses through a company like Getty Images can easily run into four or five digit numbers.

What this company was asking for was a non-exclusive unlimited usage contract without compensation. Yes, it’s an unremarkable vacation photo, and I don’t expect that the project is going to hinge on their usage of it, or that they could republish it and win a Pulitzer. On the other hand, they’re a for-profit business trolling Flickr looking for images to use in a project that (I assume, because they’re in the health services industry) that they’re going to sell at a remarkable profit for themselves.

The fact that they never even mentioned compensation and acted like I should be overjoyed to just let them have it struck me as either massively misguided or arrogant, or possibly both. Further, I had only the word of the employee that I would be credited, as it wasn’t written into the agreement they sent. (In all honesty, I still find it difficult to believe that any legal department at any company would have approved such a “contract.”)  It kind of seemed like they were trolling Flickr to find people who would be willing to tell all their friends that they sold a vacation photo and find it a brag-worthy accomplishment.

I let the message sit overnight, and then sent the following:

Thanks for passing along the form, however, I cannot sign this document as it appears here. The terms set forth are far too vague for my comfort.

My work is licensed under Creative Commons for non-profit and educational use; according to what I understand from your earlier communication, this appears to be a for-profit use, which would involve a licensing fee depending on the resolution of the image and the length of time that you would like to use it for. If you or your company would be interested in reviewing my standard for-profit  licensing agreement and fees, please let me know and I’ll be happy to forward that information along. However, if I have misunderstood the nature of your business, please let me know and I will forward my non-profit agreement for your review.

Of course, I understand completely if you would prefer to explore other options instead.

Naturally, I never heard another word.  I did get a phone call from a number in the area code where the company was located, but the connection was terrible and broke after a few seconds and they never called back. The call came in on my work line, and I also couldn’t figure out how they would have gotten my office phone number, but it seems like a wild coincidence to have gotten a phone call from the same area code halfway across the country just a couple of hours after sending this reply.

I also reflect on my tendency to be more difficult with people I think are behaving unprofessionally. At the same time that this was going on, I gave one of my photos to a company developing a walking tour of Nicosia, Cyprus, that they’re selling as an iPhone app—that photo’s in a gray area because I was on a Fulbright grant when I took it, and I’m not allowed to make any profit from the seminar, and also because I know the company’s going to be selling the app for $2 a pop, and, let’s face it, Nicosia’s not a huge destination even for people who can find Cyprus on a map.  I also gave my blessing for another photo to be published in a non-profit magazine in Mexico (Cooks Source, take note — sometimes people are willing to just give you their stuff if you ask nicely!).

But everything about this transaction rubbed me the wrong way. I didn’t like the way they did business, I didn’t like the presumptive attitude, and I certainly didn’t like their release form.

And that’s my rant on this Friday afternoon. Happy weekend, everyone!