Did a Major Advertising Agency, DDB Berlin, Steal a Flickr User’s Image and Refuse to Pay

Do You Know This Woman? (Part II) on Flickr – Photo Sharing! Lorenzodom, one of the more popular photographers on Flickr has successfully been building a reputation as a top notch photographer. Recently he in fact set up a cafe press account called lorenzoshop to try and actually make some money off of his photography.

But apparently he is now in a dispute with mega advertising agency DDB, Berlin over what he considers theft of his images from his Flickrstream.

“All my images and photos are copyrighted. Yet, they still took a screenshot and lifted one of my photos right off of flickr and used them for business purposes, as mocked up above.
It’s one thing for an individual to blog someone else’s photo with a link directly back to the page or to publicize it in a magazine after you’ve asked permission, but it is really another to manipulate it and then to ask, after the fact. “

Although it does not appear that the agency actually published Lorenzodom’s image it would appear that he has a problem with them using it at all, even internally.

I’m not sure what the legal internal use only rules are with regards to all rights reserved images but this seems to be the crux of the issue. Apparently they wanted to get permission from Lorenzodom after the fact to use his photo in an advertising campaign without paying him any money.

Lorenzodom puts it this way:

“I suppose I should be grateful that they liked it enough to use commercially, albeit “internally,” and that they subsequently asked me to use it for advertising purposes. Yet, at the same time I feel, somewhat, taken advantage of.

Many photographers get paid lots of money for their photos, yet these guys weren’t willing to pay anything. In fact, last year $822,400 was paid each for Dorothea Lange’s “White Angel Bread Line”and Edward Weston’s platinum print of “The Breast” from 1921. That’s a little less than a million dollars for a single photograph.

And DDB is one of the world’s most successful, richest (i.e. according to Advertising Age’s February 27, 2006 4th Annual Guide to Advertising and Marketing, DDB Worldwide Communications boasts over a billion dollars of worldwide revenue, a 14% increase over last year) and highly visible advertising agency networks, in the world. Thus, they can readily afford to buy stock photos.”

In interesting debate about what is only going to be a more and more complicated conversation as marketers increasingly try to interact with the rich libraries of images that are accumulating on the various socially networked photo playgrounds.

What’s your opinon? Has the company violated copyright law by using his image for a campaign, even internally, and then presenting it to him? Or is this probably ok as they never actually used his image in an external published campaign?

Check out Andy Goetze’s article on the issue for lots more information and links.

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13 Comments

  1. Anonymous says:

    As I understand it copyright is copyright. You are not allowed to make a copy of something that is copyrighted without permission (fair-use is the exception to this rule but it only applies if you are making a copy for your own use of something that you already own). It doesn’t matter whether you use the copied materials “internally” within a company or “externally” in a publication, it’s still illegal if you didn’t get permission.

    It’s not legal for me to copy a music CD and give it to a co-worker so why would it be legal to copy a photo and give it to a coworker?

    Andrew.

  2. Technically legal? Maybe, maybe not. I’d say fair use, but it’s a close call. Andrew’s strict interpretation of fair use is absolutely not correct.

    It is certainly common practice. Every single online stock agency lets you freely download images for comping purposes. Nobody pays for non-commissioned work until/unless they use it. Ever.

    Given his 20 years in the advertising field he knows damn well that’s how it works. How many times has he comped stuff he hasn’t paid for yet? Thousands I’m sure. If it were someone outside the ad industry this kind of misunderstanding might make sense. But the more I think about it the more this smells.

    Now, DDB asking for free use, that’s cheeky. And stunningly stupid–hello, there are two people, you need a model release!

    How could one of the world’s leading agencies be that dumb?

    Which makes me wonder about that part of the story. It’s clear DDB comped without permission or payment. It’s not clear at all exactly what they did/didn’t offer him for publication rights.

  3. Sorry, hadn’t seen or read the separate part 1. Sure sounds like they offered money and demanded releases. In fact part one is mostly him lamenting not having the releases. Only on part two does he get cranky about free comping. Bet he’d have been just fine with free comping if there’d been a big check at the end.

    In fact, if they pay for comp, that’s then much more clearly commercial use, getting everyone in hot water for the lack of releases.

  4. lorenzo says:

    In summation of what I wrote in my discussion stream as a reply to your input:

    Yes, I’m aware of comps, but common practice does not make it “okay” or “right” to do so. Especially, since there was no offer whatsoever of due compensation. They essentially wanted permission to use it for free, making excuses like “we have a small budget.” And then again, they used it nonetheless, albeit internally, without permission. Stock agencies have comps with sign-offs already in place.

    And as per my story, their client, Max Magazine already has an established history of taking advantage of eager beavers by getting them to sign off on their pictures, comping use for magazines that sell by the tens if not hundreds thousands, and likely make as much revenue in turn.

    And yes, you are absolutely right, this wouldn’t have been an issue if they had offered due compensation for my work (duh). Whether or not it was a big or little check is truly irrelevant.

    Oh, and by the way, what really smells is anonymity. It is really easy to criticize from behind a curtain…

  5. Anonymous says:

    “Oh, and by the way, what really smells is anonymity. It is really easy to criticize from behind a curtain…”

    FYI- Anonymity should never be flamed just for the sake of you not knowing who they are if they are giving you a valid argument for your money. I hope you have heard of Thomas Paine and Common Sense. Rather than fear anonymous feedback and criticize it for that, let the argument within stand or fall on it’s own merit.

  6. Anonymous says:

    Almost forgot, also in response to the attack on an anonymous critic: “Thomas Hawk” itself is a pen name, which we have been told was to keep his professional life separate from his blogging life which effectively renders him anonymous to most people anyway. So again, don’t beat up on someone for using anonymity if you are certain your argument will win the day for you anyway because it doesn’t matter. In any case, on the Internet, no one has to know you are a dog.

  7. Who’s anonymous? I seem to be the only one criticizing you here, and I’m using my real name.

    OTOH, I seriously doubt lorenzodom is the name printed on your driver’s license.

    If DDB tried to cheap out on final usage, yeah, they’re shmucks. Happens all the time. Just say no.

    But free comping benefits independent photographers. Just because you might, in a fit of pique, be able to stop it doesn’t mean you should.

    Unless, of course, the best interests of Getty and Corbis are what’s really driving you. Because they’re the only ones who benefit if you create enough of a stink to get free comping stopped.

  8. Scott says:

    Back on the topic and away from the bickering, I think it’s wrong of them to use his photo without permission. If the photographer chooses to let them use it for free, that’s his choice… not theirs.

  9. Trying to get agencies to stop using others’ images as part of their creative process sounds like a great idea, but I suspect it would lead to fewer opportunities for photographers who aren’t already established.

    If you grab an image and include it in a mock-up for a client, you have increased the likelihood of using that as a paid image.

    If you restrict yourself to images from stock agencies where you have written permission to use low-res images for composition purposes, the likelihood of then chasing down an image from another source for the final product is reduced.

    Musicians and playwrights who won’t sign away online rights under any circumstances are similarly protecting their intellectual property, but are losing a huge opportunity to find new audiences.

    This fight may be winnable, but I don’t see tighter contols on use of images for mock-ups benefitting the photographer.

  10. Posted a question over on the original photo yesterday, but haven’t heard anything, so since this has been cross-posted, indulge me while I cross-post my question.

    I think everyone needs to step back and take a deep breath and look clearly at what happened. There are a lot of implications of impropriety being bandied about, perhaps for what is and should be normal working procedures.

    I think there is a huge potential for amateur photographers to develop our skills, build a fan base and begin making our work available to companies that want to pay us. Something like this could work against that happening and the agencies could come away saying “it’s not worth it to try to work with amateurs.” Certainly if there were many cases like Lorenzo’s, that could well happen, especially if this becomes fuel for a “Blogger Bitchslap” to the company via a site like BoingBoing.

    Anyway, below is what I wrote as a comment to the original photo:

    http://www.flickr.com/photos/lorenzodom/249334520/#comment72157594309224763

    Wait… Can you clarify something?

    Beyond sending you a mockup of how they wanted to use your photo, did they use it in some other way?
    I got the impression on first reading this, that they made some internal use of your photo, like an annual report, poster or something else distributed as a finished product.

    Was that the case, or are you upset that they made a mockup of how they wanted to use it and sent that to you for your approval, to which you said no?

    I’ve had people approach me for use of my photos. In some cases they’ve sent along a mockup of the magazine or in one case, a CD jewel box mockup that nicely included a CD, as well. It would never occur to me to be offended that some designer downloaded a low-res copy and popped it into Illustrator to make a mockup. I would assume that this process involves consulting others, bosses, creative directors, others involved in the normal process.

    Now, if I’m reading this wrong and they actually distributed this as a finished product, even to their own staff, of course you are due compensation.

    I get the sense that the most upsetting part of this is that you had a good image that is absolutely unusable because of a couple of unsigned model releases.

    You may want to read up on the Orphan Works discussions on Lightstalkers and http://www.illustratorspartnership.org/01_topics/article.php?sea...

    The US Orphan Works Report: On January 23 the U.S. Copyright Office issued their Orphan Works Report, outlining a proposed amendment to the 1976 Copyright Act. It defines an “orphan work” as any work where the author is unidentifiable or unlocatable, and applies to both published and unpublished works, US and foreign, regardless of age. The legislation would be retroactive.

    Basically, this law will make it perfectly legal for them to take your image, use it and say “Hey, we looked around for the owner, but couldn’t identify him. Sue us.”
    Sadly, there are incredibly low limits on how much you can sue for, far lower than you could expect to spend on legal fees.

    I am a photographer who cares deeply about not having my images misused, but I think you are blowing this out of proportion. They did, after all, contact you for your approval before distributing any sort of published copies, correct?

    Oh… Small point on your example of Lange and Weston: You are confusing “the image” with “the photograph as an artifact”. Those pictures commanded those prices because they were signed originals, most likely printed by the artist themselves. At the same sale, in another lot, there was a group of 32 photographs also by Lange, “Selected Resettlement and Farm Security Administration Images”, that sold for $296,000.
    The difference between those images and Bread Line is that Bread Line predates Lange’s work with the Farm Security Administration. The lot of 32, signed by Lange and including her most famous “Migrant Mother” are artifacts.
    The “images”, on the other hand, belong to the American people as a whole, having been paid for by the FSA, a tax-funded entity.
    You can download extremely high-resolution scans of the original negatives at the Library of Congress.
    Bread Line’s image rights are owned by Lange’s estate.

  11. Posted a question over on the original photo yesterday, but haven’t heard anything, so since this has been cross-posted, indulge me while I cross-post my question.

    I think everyone needs to step back and take a deep breath and look clearly at what happened. There are a lot of implications of impropriety being bandied about, perhaps for what is and should be normal working procedures.

    I think there is a huge potential for amateur photographers to develop our skills, build a fan base and begin making our work available to companies that want to pay us. Something like this could work against that happening and the agencies could come away saying “it’s not worth it to try to work with amateurs.” Certainly if there were many cases like Lorenzo’s, that could well happen, especially if this becomes fuel for a “Blogger Bitchslap” to the company via a site like BoingBoing.

    Anyway, below is what I wrote as a comment to the original photo:

    http://www.flickr.com/photos/lorenzodom/249334520/#comment72157594309224763

    Wait… Can you clarify something?

    Beyond sending you a mockup of how they wanted to use your photo, did they use it in some other way?
    I got the impression on first reading this, that they made some internal use of your photo, like an annual report, poster or something else distributed as a finished product.

    Was that the case, or are you upset that they made a mockup of how they wanted to use it and sent that to you for your approval, to which you said no?

    I’ve had people approach me for use of my photos. In some cases they’ve sent along a mockup of the magazine or in one case, a CD jewel box mockup that nicely included a CD, as well. It would never occur to me to be offended that some designer downloaded a low-res copy and popped it into Illustrator to make a mockup. I would assume that this process involves consulting others, bosses, creative directors, others involved in the normal process.

    Now, if I’m reading this wrong and they actually distributed this as a finished product, even to their own staff, of course you are due compensation.

    I get the sense that the most upsetting part of this is that you had a good image that is absolutely unusable because of a couple of unsigned model releases.

    You may want to read up on the Orphan Works discussions on Lightstalkers and http://www.illustratorspartnership.org/01_topics/article.php?sea...

    The US Orphan Works Report: On January 23 the U.S. Copyright Office issued their Orphan Works Report, outlining a proposed amendment to the 1976 Copyright Act. It defines an “orphan work” as any work where the author is unidentifiable or unlocatable, and applies to both published and unpublished works, US and foreign, regardless of age. The legislation would be retroactive.

    Basically, this law will make it perfectly legal for them to take your image, use it and say “Hey, we looked around for the owner, but couldn’t identify him. Sue us.”
    Sadly, there are incredibly low limits on how much you can sue for, far lower than you could expect to spend on legal fees.

    I am a photographer who cares deeply about not having my images misused, but I think you are blowing this out of proportion. They did, after all, contact you for your approval before distributing any sort of published copies, correct?

    Oh… Small point on your example of Lange and Weston: You are confusing “the image” with “the photograph as an artifact”. Those pictures commanded those prices because they were signed originals, most likely printed by the artist themselves. At the same sale, in another lot, there was a group of 32 photographs also by Lange, “Selected Resettlement and Farm Security Administration Images”, that sold for $296,000.
    The difference between those images and Bread Line is that Bread Line predates Lange’s work with the Farm Security Administration. The lot of 32, signed by Lange and including her most famous “Migrant Mother” are artifacts.
    The “images”, on the other hand, belong to the American people as a whole, having been paid for by the FSA, a tax-funded entity.
    You can download extremely high-resolution scans of the original negatives at the Library of Congress.
    Bread Line’s image rights are owned by Lange’s estate.

  12. Hmmm, something interesting has happened here… suddenly the flickr image under discussion has gone private.

  13. SEBASTIJAN says:

    Hello!
    My name is Sebastian Carek and engage in commercial photography.
    It occurs in Zagreb (Croatia)
    My goal is to show your picture and make cooperation possible.
    Your works are excellent!
    You can see my works:
    http://sebastijancarekphotography.freehostia.com
    I hope you at least a little like the pictures?
    Nice greetings!

    Sebastija