The strange case of the late Congressman and pervasive disrespect for intellectual property rights of content creators

Leadership New Jersey holds Forum on the Future of New Jersey, Public Policy Seminar and Town Hall meeting
The late Bob Franks, former NJ Congressman and president of the Healthcare Institute of New Jersey, speaking at the 2008 Leadership NJ Forum on the Future of New Jersey. Photo Copyright ©2008 Steven L. Lubetkin. All rights reserved.

If Bob Franks were still alive, he might be surprised and even amused that this photograph I made of him at Leadership New Jersey’s 2008 Forum on the Future of New Jersey was the centerpiece of some digital copyright issues for me.

But I am pretty certain about one thing.

Let us imagine that a pharmaceutical company begins manufacturing drugs based on another company’s drug formulations without permission and without licensing the formula.

At the time of his death, Franks was president of the Healthcare Institute of New Jersey, which describes itself as “a trade association for the research-based pharmaceutical and medical technology industry in New Jersey.”

My guess is that he would almost certainly have thrown his moral weight behind the company that owned the misappropriated formula.

Here’s why I bring up the Franks photo.

Copyright law obligations are no different than the ones that should prevent a company from misappropriating another company’s drug formula.

You don’t have the right to take my car from in front of my house because you like the way it looks in your driveway. (Hat-tip to @LynetteRadio of Purple Stripe Productions for this analogy!)

Similarly, you don’t have the right to just copy my words off my blog, or my photos off my Flickr site, or my videos, without asking permission or paying for a license to do so. It’s my property.

This issue has become especially critical in the digital world.

This week we saw a cooking blog editor steal a story from a food blogger, and then instead of apologizing, tries to tell her that the whole web is “public domain.” (It is absolutely NOT public domain, according to intellectual property lawyer Margaret Esquenet, who appeared on NPR.)

So let’s talk about the Franks photo.

When Franks died, I let some news media know I had this great image available of the former Congressman.

Then, I Googled Franks’ obituary to see who else was writing about him.

That’s when I discovered that his alma mater, a well-known midwestern university, had posted an obit about its distinguished alum that also included this photo. No credit line to me. They didn’t ask my permission. They just copied the photo from, where I post many of my images for public viewing — but not for borrowing or use without compensation. All my images are copyrighted, and the notice is clearly visible in the captions on Flickr. I also embed copyright statements into the images using the IPTC metadata fields in the JPEG file.

But whoever misappropriated my photo for the university’s website was smart enough not to leave a trail that could be searched. The photo had been laundered to remove all traces of the metadata — that means someone opened it in Adobe PhotoShop or a similar program and erased the copyright statement and other keyword data.

That suggests an awareness that taking the photo was wrong. That’s very problematic behavior.

I sent a formal notice under the Digital Millennium Copyright Act (DMCA) requesting a take-down of the photo, and the university complied. But they never really apologized for the taking of my property rights, and I have no assurance that the person who surreptitiously erased the property data from my image before saving it has been re-educated as to the legalities of their actions.

When the Cook Source story broke on NPR, I immediately thought of my Franks photo, and Googled it again. To my surprise, I found a popular New Jersey political blog site had also misappropriated my image months ago, without even giving me a photo credit line. I sent a DMCA take-down notice and the editor responded within a few hours that the photo had been removed, apologizing that he had only joined the site recently and was not there when the photo was apparently lifted from my Flickr stream.

People involved in journalism and communications in the online space need to be more respectful of content creators who produce audio, video, and photos to make a living. It’s just wrong to borrow these images or files for your own purposes without — at the very least — asking for permission from the person who created them. And the unwillingness of such sites to pay content creators for the images or content they create is also shortsighted. If people can’t make money from the content they create, they will stop creating it.

I was also involved this week in a Yahoo group discussion with newspaper photographers about video editing. One of the participants suggested that it was perfectly ok, a “fair use” exemption from copyright law, for a newspaper to record the audio or video from a commercial TV broadcast and then repurpose it on the newspaper’s website. This was in response to a technical question from a photographer who admitted his newspaper couldn’t afford to send their own crew to cover the event. The broadcast they wanted to record would be copyrighted by the TV station that broadcast it.

You have to get permission to use a recording of it for commercial purposes. It’s only “fair use” if you use a limited excerpt from it for the purpose of commentary or analysis, not because you didn’t want or couldn’t afford to cover the event yourself.

When the Rutgers Quarterly Business Outlook podcast was free to the public, we got thousands of downloads every quarter. Now that we’ve begun charging the huge sum of $0.99, guess how many downloads we get? You don’t want to know. But if we don’t get some, we have to rethink whether the content creation really matters to people.

Information does not want to be free of charge, it wants to be freely available, and if you want content to be produced, you have to give people a chance to make something from it. I pay for online subscriptions to the New York Times, Wall Street Journal, Financial Times, and Philadelphia Inquirer.

Which content creators are you willing to step up and support financially?  And if not, why not?

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