the "stopstealingphotos" tumblr site is worth checking out. They name names!

[Slobodan Blagojevic]

I'm not sure what's worse - the unquestioning conviction in the court of public opinion of alleged copyright infringement...

Oh, please! He is just reporting on the "alleged." You be the judge. The proof is in the pudding, as they say. You see the original site, you see it on another site, draw your own conclusions. He is offering his, you are free to agree or not. You have eyes too (although there were instances of blind photographers).

[Slobodan Blagojevic]

It is grey at best. Due to the nature of this site, if he is not making money off of it...

Nope again.

Newspapers are making money (well, at least until recently), yet their use is considered editorial, thus fair use. The term "commercial use" is meant to cover advertising. For instance, if you show someone recognizable in a photograph, you can't use it commercially, i.e., in an advertisement, without a model release. Yet you can sell it in a gallery as a fine art print.

[SZRitter]

Nope again.

Newspapers are making money (well, at least until recently), yet their use is considered editorial, thus fair use. The term "commercial use" is meant to cover advertising. For instance, if you show someone recognizable in a photograph, you can't use it commercially, i.e., in an advertisement, without a model release. Yet you can sell it in a gallery as a fine art print.

Then how do photographers sue magazines and newspapers for use of their images? By your definition, that would be fair use.

[Slobodan Blagojevic]

Then how do photographers sue magazines and newspapers for use of their images? By your definition, that would be fair use.

You are right, I wasn't clear. Not every use in magazines is considered editorial, but when it is, it is a fair use, in spite of the fact that magazines are making money in general. My point was that "making money" is not necessarily a proof of commercial use in the sense of the fair use doctrine.

[MarkM]

You are right, I wasn't clear. Not every use in magazines is considered editorial, but when it is, it is a fair use, in spite of the fact that magazines are making money in general. My point was that "making money" is not necessarily a proof of commercial use in the sense of the fair use doctrine.

"Editorial" is probably the wrong word in this context. The commercial/editorial distinction is useful when talking about model releases, but it isn't meaningful in the context of discussions about fair use. Magazines and newspapers, even when they are producing editorial work, are not exempt from copyright, and their use of copyrighted material is not automatically considered fair. Consider a magazine piece about the architecture in a city — this is almost certainly an editorial piece, but I guarantee that if you take the cover photos from Architectural Digest and use them to illustrate your editorial story, you will not do well in court when you are rightly sued for copyright infringement. If editorial use was automatically fair use, there would be no market for selling stock to magazines and newspapers. The Associated Press and Reuters would no longer exist. Fair use is designed to allow commentary, criticism, and (lately) transformational use, not a blanket exception for "editorial" use. An example of fair use in a magazine might be an article about gallery opening that includes a photo of the artist's work in context.

The stop stealing photos blog is pure criticism and commentary, however. It's almost almost exactly what fair use designed for. The possibility of using copyright to prevent this kind of criticism is why fair use is so important.

[buckshot]

Oh, please! He is just reporting ...

I think he could be a she - not immediately obvious since the 'about' page is useless (odd, you'd think our self-appointed people's champion of copyright would want to shout his/her name form the roof tops) - but click on the 'donate' button and it looks like payment goes to a named photographer, so I presume stopstealingphotos.com is what this photographer does in his/her spare time. That said, I can't be certain (it could be a business partner, a spouse, the cat, or someone else entirely), and not wanting to falsely accuse anyone, I'm henceforth going to refer to our crime-fighting superhero as Cynthia Von Doom (tip of the hat to Stan Lee and Jack Kirby).

What happens if (or more likely, when) Cynthia Von Doom falsely accuses someone? There's no oversight whatsoever on who Cynthia Von Doom chooses to pick out and put up against the wall. Whilst Cynthia Von Doom appears to be pulling out prima facie examples of copyright infringement right now, what happens when Cynthia Von Doom tires of that and starts looking at images that infringe concepts/ideas, or ones inspired by previous images (e.g. the classic view of Half Dome rock)? Anyone got pictures from Antelope Canyon or Yosemite on their website? It's a fine line. If you were (or are) a commercial photographer Slobodan, would you feel comfortable if some private individual, acting arbitrarily, started scrutinizing all your images on the off-chance that they might find one that (in their unqualified opinion) may have been 'inspired' by another photographer's work - all done with the intent of blazing your name across the web and ruining your reputation. No, probably not. In the long term, people like Cynthia Von Doom are far more dangerous to the livelihood of reputable photographers than any sleaze-bag copyright infringers using unlicensed images to misrepresent themselves.

Jim

[Slobodan Blagojevic]

... What happens if (or more likely, when) Cynthia Von Doom falsely accuses someone? ... In the long term, people like Cynthia Von Doom are far more dangerous to the livelihood of reputable photographers than any sleaze-bag copyright infringers...

What happens if (or more likely, when) police falsely accuses someone? In the long term, people in the police are far more dangerous to the livelihood of reputable citizens than any sleaze-bag criminal.

There, I fixed it for you.

[Slobodan Blagojevic]

... their use of copyrighted material is not automatically considered fair....

Mark, I think we are mostly saying the same thing. However, we are now sidetracking the discussion into a debate on "editorial," while my intention was to point out that "making money" is not a sufficient reason to dismiss something as a fair use. The fair use doctrine rests upon four criteria, where financial gain/loss is just one of them, and all four should be taken into account together. In other words, it is not enough to point out that someone is making/loosing money.

[Joseph Philbert]

You know whats funny .... there has NEVER been a time that any photographer/copyright holder has ever complained to the owner of the site about using their images to "out" a photostealer.

They are surprised and GRATEFUL and most of the owners contact photostealers for help and this is a fact.

Here is another fact ... the website has a real cost, the time spent working on the website is a real cost. So asking the photography community for donations and help to offset that cost is something anyone can understand.

In the digital era there are too many copyright thieves and this is the biggest deterrent I've seen so far. Now if anyone knows of a better faster way to get photography thieves to stop stealing the images of others. Then I am all ears but, I dont think you will have an answer to that question

[Gulag]

here is another take on the issue:

The battle against copyright infringement has been lost : Between the ease to copy and publish, the rapid rise of various massive social media site, the sharing culture, the inefficacy of the industry to police and the overall carelessness of the public, defending copyright is a costly, ineffective battle. Going after hundreds of thousands ( if not millions) of bloggers, or just individuals sharing on Facebook, Twitter, Pinterest, Whatsapp, Tumblr, blogs is an impossible task. Since there is no revenue, it is a draining exercise with no incentive. Take down notices does not pay your bills. Better make deals with social media platforms, like Getty did with Pinterest, and let the images flow.

http://blog.melchersystem.com/2014/03/06/getty-images-gamble/

[MarkM]

here is another take on the issue:

The battle against copyright infringement has been lost : Between the ease to copy and publish, the rapid rise of various massive social media site, the sharing culture, the inefficacy of the industry to police and the overall carelessness of the public, defending copyright is a costly, ineffective battle. Going after hundreds of thousands ( if not millions) of bloggers, or just individuals sharing on Facebook, Twitter, Pinterest, Whatsapp, Tumblr, blogs is an impossible task. Since there is no revenue, it is a draining exercise with no incentive. Take down notices does not pay your bills. Better make deals with social media platforms, like Getty did with Pinterest, and let the images flow.

http://blog.melchersystem.com/2014/03/06/getty-images-gamble/

I'm sure Daniel Morel is glad he didn't seek your advice when deciding whether to sue Agence France Presse earlier this year and win $1.6 million. Copyright is still very relevant. Certainly, most people are not going to spend their time and resources chasing bloggers unless they have deep pockets, but that hardly means the battle is lost. Your argument is like saying the battle for the rule of law has been lost because a lot of people speed.

And infringement is really not the biggest problem illustrated by stopstealingphotos. Advertising one's services by showing the work of someone else, goes way beyond infringement — it's outright fraud.