September 25, 2007

Hell Hath No Fury Like A Dadblogging Lawyer Copyright-Infringed

DT Handknit iPhoneWhen my picture of the kid holding her handknit iPhone was making the rounds this summer, I licensed it a few times for commercial use, and let it go for free a few times. Then one day, I ran across it on a commercial site, not only listed as Creative Commons and free for reuse, but credited to someone else.

Turns out some flickr monkey had reposted it as his own, with a wide-open CC-license. He was apologetic and took it down, and all was resolved immediately and amicably, but I can still feel the sense of outrage and violation at seeing, not just my picture, but my picture of my kid being used in a way I had no input or control of. And it was just a picture of her hand!

Which is a self-involved way of saying I can totally empathize with Dutch's still-unmollified, protective anger over Babble's unauthorized and uncredited use of one of his photos of Juniper to illustrate a story on the dangers of lead contamination.

Since posting about the incident a few days ago, the comments have filled with other people whose images were used without permission, too. Babble's editor Ada and Nerve Media publisher Rufus have chimed in repeatedly, and current and ex-Nerve employees trade conflicting accounts of standard operating procedure.

I've got too many conflicts here to count [1], but it seems pretty clear to me that Nerve/Babble was in the wrong--repeatedly--and as a result, they're facing a pretty unsympathetic crowd so far.

Nerve Media, Inc. ("Babble") stole a photo of my daughter without attribution, acknowledgement, or permission [flickr]

[1] but I'll try anyway: I was an early contributor to Babble, including pics of the back of the kid's head in Asia and France. The editor Ada is a family friend. I've known and liked Rufus since the early Silicon Alley days, when I was the only known Mormon at parties. I count several Babble bloggers as friends. Dutch is my online idol. Another one of the photographers whose work was ripped off is married to a former work colleague. I'm sure there's more.


Ahh... I wonder if this has something to do with the mass migration away from Strollerderby recently...?

It seems like the discussion prompted by SJ has degenerated into some name-calling, which is too bad.

As I see it, if the facts are, (a) Babble stole pictures (b) Babble was told about it and (c) Babble removed pictures and never did it again, then cool. Babble botched, Babble owned up to the botch, and Babble apologized. This is the way we want our kids to behave.

If (c) is changed to Babble removed the pictures and then did it again two months later, then this is starting to look like willful infringement. To quote Section 504(c)(2) of my favorite code:

"In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000."

Plus criminal penalties.

Frankly, I've stopped reading Babble because they weren't particularly interesting. I read SJ and DT instead.

[Seeing past cases come out of the woodwork with similar excuses makes me think it's a matter of 'forgiveness is easier than permission'. But while that might work with parents, it doesn't do so well in business. -ed.]

Oy. Just read all those comments on Dutch's Flickr post. One thing that Dutch brought up that no one ran with was the issue of others misusing Flickr pix for commercial use. I just read this the other day:

[yeah, the default setting on flickr is for creative commons attribution, or share-alike, which Virgin apparently abided by when they used flickrpix in their campaign. I think the Virgin case is really about legal cluelessness or disinterest, people not really worrying or knowing what CC-licensing means. What it means for privacy is another, particularly Australian thing, tho. Also, nice Asian angle on the story, dude ;) -ed.]

This seems like a fine line to me - was permission granted for all the pics on this site and SJ? My understanding is that any photo taken since 1923 is under copyright protection, and attribution or not you have to get permission unless there is a CC license or something similar. Fair use may apply sometimes, but doesn't most of the time.

[fair use can apply in a lot of settings, but it's not the get out of jail free card some people--who liberally use other peoples' content--claim. I debated making some statement or disclosure about DT's use of OPC, but I couldn't, and it seemed a little beside the point at hand. As a rule, though, I consider use of an image from a site/product/person to be fair use when I'm writing *about* that site/product/person. But I also make a point not to reproduce ppls' entire content on DT, but to use just enough content--quotes and images--to get the msg across on DT and, if relevant, to encourage a clickthrough. Thumbnails and fragments of images are also covered under certain fair use rules, which is why I just include a teaser of someone's watermarked, exclusive auto spyshots instead of the whole thing. etc. What Babble did, though, illustrating stories with unrelated images and not giving credit, is a whole different kettle of fish. -ed.]

Greg, you are, it appears, in a much better position to judge the various participants in this dust-up so I will defer to you on this. That said, as I read the comments on Dutch's post I found Rufus's a little disingenuous. When he said that Dutch was looking to make money off this he ignored the fact that it was Babble that intially put the cash on the table. They offered 100 bucks to him and he said no. They either don't get his outrage (and I think they do) or they're just complaining about the price. In either case, they are wrong.

If someone came into my home, took something of mine, got caught, and then accused me of somehow gouging them over the price when I didn't accept their unilateral valuation of the item I might be a little angry above and beyond the whole "it's my child" aspect.

[yeah, I think that comment was a real misread of Dutch's POV, basically assuming that everything's part of a messy, public negotiation for a settlement. Though from Rufus's/Nerve's POV, the sense that the cost of a resolution is only going up is probably accurate, too. -ed.]

My earlier comment was a little ambiguous. To be clear about where my bias lies, I think copyright restrictions are overly draconian and that this site and SJ are acting in a way that I think should be legal, but probably (unfortunately) is not. I do think it is tricky position for someone to complain about people infringing their copyrights while (perhaps) infringing on the copyrights of others.

All that said, based on this post and the SJ post, I adjusted my own Flickr settings.

[a valid point to an extent. But the "everybody does it" claim breaks down on the "it" part. I choose not use a CC license, but instead say "no unauthorized commercial reuse," and rather than rely too much on untested or assumed CC doctrine, I try to work within the existing fair use rules and arguments. But I try to respect the interests and spirit of other people's content, too. As such, I don't find it tricky at all to disapprove of misuse that can't fall under CC OR fair use in any stretch of the term. -ed.]

shilli, I actually agree with you. it's part of life on the web.

If there is a subtle difference though, it's that greg and I and others like us may make a few dollars from ad revenue, but we are not multi-million dollar corporations (Nerve made at least $600,000 in profit last year) with full-time employees looking to gain a readership of 2-3 million people per week. as bloggers, we are accustomed to linking to each other, quoting each other at length in our own posts, using attributed pictures, etc. I probably have somehow violated some draconian copyright rule, though certainly not through the use of another parents' photo of their minor child. And I have never violated any copyright after being told time and time again that what I was doing was wrong.

Babble gave me a song and dance that I initially accepted: "Oops! Silly intern! We'll never do it again!" They took down the photo, apologized, and everything seemed cool. Then SO MANY people told me the same thing had happened to them, that they had been given the same song and dance, it was obvious that Babble had a pattern of doing this willfully and then lying about it whenever it got caught.

I wanted to do my best to make sure that it stopped. And I wasn't going to let Rufus Griscom or Ada Calhoun telling me they would stop be the end of it. They had told others that and it didn't stop. I wanted to shed some light on what was going on so that there would be enough pressure from more than just a few irate photographers to actually make them stop once and for all.

My name is Dutch, and I like to kick the butt of those who would steal my daughter's picture.

Ooops, wrong post.

Wow! I'm a relatively new blogger and it's weird to me to hear that people will take other's images/posts and re-post them as if they are their own. If I make reference to a post, article, image, I do my best to find the source and give them credit. In my mind it's not ethical to take credit for someone elses creativity!

Greg - I also did a post about your hand knitted iPhone a while back, but I did give you credit. I'm learning so if I didn't give you (or your mom) enough credit, please let me know! Here's the link to the post:


I hate to be the one to break it to you Greg, but it looks like Wired stole your image too, unless you gave them permission to use it in this nice iPhone specs chart:

Although they did kind of, sorta, not really, give you some credit for the pic via

Have a great day!

[I just emailed wired, and we're square now. -ed.]

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