The Digital Journalist

Don't Steal This Arti©le

by Peter Howe

Somerset Maugham once said: "There are three rules for writing the novel. Unfortunately, no one knows what they are." I may not know the rules for writing a novel, but I do know one of the tricks of writing an article: Always Start With A Quotation. Quotes are great. They are usually wittier and wiser than anything that I could come up with on the same subject, and have the added advantage that if they annoy or outrage you the reader, then I can justifiably claim that someone else said it not me. It's what the Nixon administration used to call "plausible deniability." So each month when faced with the wrath of Halstead I go through a two part process. The first part is to decide what to write about, and the second is to find an appropriate quote. The Internet has made this much easier because there are numerous quotation services bookmarked and ready to help. Imagine my panic therefore when having decided that this month's topic would be copyright I searched every site upon which I normally rely, and found not one quotation dealing with the subject. Never mind a funny one, I couldn't even find a boring one.

Fortunately help generally comes to the needy, and my salvation in a quoteless world came in the form of the Three Digital Cavaliers, Jeff Shewe, Seth Resnick and Jack Reznicki (the last two gentlemen claim not to be related despite the similarity in their unusual names.) At a Canon sponsored symposium on Copyright in the Digital Age in New York recently they gave an illuminating and often frightening overview of the copyright laws in the United States, how they relate to photography, and the difference that digital technology can make in both harming and helping the photographer in the protection of this precious commodity. I have heard each of them on the subject before, and one of the things that I love about their presentation is that they spend more time solving the problem than bewailing it. But the high point for me this time was the inclusion in their PowerPoint presentation of "a quote."

The quote that stopped me dead in my tracks was from Justice Sandra Day O'Connor in a ruling on copyright. Here it is: "The primary objective of copyright is not to reward the labor of authors, but to promote the Progress of science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art." (The italics are mine.) Now I've always thought that Sandy was a pretty scary gal, but this sent more than the usual shudders down my spine when hearing one of her deliberations. First of all the phrase "useful arts" seems to be an oxymoron. I've always felt that the whole point of art was that it wasn't useful. Inspiring, disturbing, motivating, horrifying maybe, but not useful. Furthermore I have always believed that the primary objective of copyright is to put authors in the position whereby the reward that they receive for their labors allows them to survive long enough to continue to advance the progress of Science and Art, both useful and futile.

Another trick that the writers of columns constantly use is the old dictionary definition ploy. This is mostly utilized if you can't find a suitable quote. So it was a natural reaction to head to to see what they had to say on the subject. This is the entry for copyright:

Main Entry: 1copy.right
Pronunciation: -"rIt
Function: noun
Date: 1735 : the exclusive legal right to reproduce, publish, and sell the matter and form (as of a literary, musical, or artistic work)

In one swift action I had proved that an online dictionary service was smarter, wiser and easier to understand than a Justice of the United States Supreme Court. Here were all the elements that I presumed about copyright. It is exclusive, it is legal and it is a right. The reasons that it exists are to reproduce, publish and sell that which is copyrighted. And furthermore it dates back to 1735, which makes it even older than some of the members of the Supreme Court.

My presumption that copyright is, as its name suggests, a right is probably based on the fact that I cut my photographic teeth in the UK. In fact in this country it's a right, but not the inalienable kind. One of the most disturbing aspects of the Schewe/Resnick/Reznicki presentations is when they ask how many of the audience have registered their unpublished works with the copyright office. It's depressing on two levels. First of all it's depressing that you have to ask the question in the first place. In Britain and most other Western countries the question would be superfluous because these countries afford complete copyright protection upon the point of creation. (This is especially true in France where the Guillotine was first invented to prevent copyright violations by aristocrats.) Second of all the depression edges closer to despair when the hands are counted. On a good day you may see six to eight percent of the photographers in the audience who not only know of the need for registration but also have done something about it. Without registration it is impossible to get punitive damages and as importantly court costs awarded against the infringer. Without registration the most you can get awarded per infringement will be the fee that would have been incurred if the work had been used legally. So if your work appears illegally on a web site where you would have charged $100 for the usage, that's exactly what you'll get in any court settlement. The fact that it cost you $10,000 in legal fees to get those hundred bucks will not be considered.

So as the situation stands at the moment you have to register, and Seth has a simple and effective method for doing this that is outlined on his website at: However the problem is the way that the situation stands at the moment, and as a community and an industry we have to spend as much effort in changing the status quo as we do finding ways to work within it. In fact the two can and should work in tandem. As Seth pointed out in the seminar, if hundreds of photographers send thousands of images to the Copyright Office for registration they will be completely swamped, and the sheer volume will put them in a much better frame of mind to simplify their work methods. The real problem though is the fact that registration is necessary at all, and in order to change this the laws themselves have to be changed. As anyone knows who has even tried to change a local ordnance, this is no small feat, and to change Federal Statutes takes time, money and most importantly clout. It's not something that you're likely to achieve by yourself.

Here our intrepid trio comes to the rescue yet again. They and the organizations that they represent have put together the Coalition of Visual Artists in an effort to form a lobbying body that will have the breadth and depth to achieve the changes necessary. (When these three actually get time to take photographs I have no idea, but they look reasonably well fed and dressed, so presumably they fit photography in somewhere.) Information about the CVA can also be found on This is a great start, but it seems to me that the organization would be much stronger and more effective if it was broadened to include not only photographer groups such as APA, EP, and ASMP and others, but also the agencies whose interests in copyright are exactly aligned with the photographers'. It's no use trying to incorporate publishers, because the copyright laws as they stand now are actually in their favor, but if the agencies, especially the large agencies, were included this would increase the clout of the group exponentially. Believe me the names of Getty and Gates carry far more weight in Washington than Resncick and Reznicki.

So, my intrepid readers, have at it. Join the Copyright Cavalry, because if you don't all the other battles will be irrelevant. It won't matter what percentage your agency pays you, because we all know what 100% of nothing is, and that's exactly what you'll have if the "all information is free" contingent wins the day.

A troubling thought just struck me. Is the use of quotations a violation of the quoted person's copyright? Is it fair usage protected by the first amendment? Is Somerset Maughan's work in Public Domain? When did he say the thing about writing novels? Am I being Neurotic?

I was a photojournalist for thirteen years. You work out the answer to the last question."

© Peter Howe, 2001. All rights reserved.

Warning: Embedded in this text is an ancient curse that will be activated upon unauthorized reproduction of this article. Activation will cause plague and pestilence to be unleashed upon you, your family, you camera repair technician and your travel agent. Now that's copyright protection!

Peter Howe


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