So long, Selling Stock Newsletter

Founded in 1990, the Selling Stock Newsletter, published and mostly written by Jim Pickerell, has been a drive-by documenter of the pathetic demise of the stock photo industry. Often times, Pickerell seemed to revel in the corporate takeover of the small stock photo businesses, becoming not-so-helpful to the photographer. Pickerell is old-guard, but not good at guarding. And now there is nothing left.

Today’s Selling Stock Weekly Digest featured an article titled, Is There A Need For A Publication Like Selling Stock? in which Pickerell comments on his own article from the week before titled, Copyright Protection For Photos Is Dead.

But copyright protection is not dead! Photographers have had some good momentum going on lately in regard to big tech and copyrights. I wonder why Selling Stock is not reporting the good news?

The Selling Stock Weekly Digest of June 6 failed to report the best news photographers have had for a very long time – the McGucken v. Newsweek  June 1 decision that there is no apparent license from Instagram to endusers of the embedding tool that confer rights to use copyrighted photos. Instead, the Selling Stock Digest contained two articles that were written by Nancy Wolff, who is Newsweek’s lawyer in the lawsuit!

And then the next week, in the June 13 Selling Stock Weekly Digest, after Instagram came out and announced to the world, in a June 4 article by Ars Technica, that Instagram definitely does NOT hand out sublicenses for copyrighted photos via their embedding tool, Jim Pickerell questioned whether or not that is a correct legal opinion, referring to the “sad case of Stephanie Sinclair,” (so sexist) not even mentioning that Sinclair v. Mashable was under reconsideration for the April 13 “dismissal” decision. Hmm….

And then just this week, Sinclair v. Mashable decision was overturned, as the judge wrote that “in light of the persuasive authority of McGucken, and in order to correct clear error,” the Court overturned the dismissal because there is no evidence of a sublicense.  But does Selling Stock report that? NO! It would rather paint the industry dead!  Thank goodness for the rejuvenation of justice by a younger generation of artists and lawyers.

And by the way, on May 20, through writing an article on PetaPixel.com, I myself achieved a major victory for photographers.  I managed to persuade SquareSpace, a huge website provider, to change their practice of stripping copyright management information metadata from users’ photographs. Therefore, because SquareSpace changed their policy and from now on, will retain CMI metadata contained in uploaded photos, these photos will be able to appear on Google Images with the upcoming Google Licensable Badge. This is a very good thing for photographers.

It’s been a great year for photography with the recent court decisions, the upcoming Google Licensable badge, and the retention of metadata for SquareSpace users. Copyright protection for photos is far from being dead, unlike the Selling Stock newsletter.

Morel v. Agence France-Presse & Getty Images

Our social media photos – free to take? fair use? Who is fooling who?
"Then there are bloggers who have a disdain for paying for anything, and think that anything they use is fair use. They don't understand that just because a photo is of the news or illustrates something newsworthy, that doesn't mean it's fair use. Otherwise Time would never pay for pictures." PACA (Picture Archive Council of America) attorney Nancy Wolff commenting on “fair use” in PDN August 2007.

Thirteen years later, guess who is representing Newsweek and claiming fair use for displaying without permission a copyrighted photo on their website? That is, if the Instagram sublicense defense doesn’t work? Already in this case, which just this week made it past the dismissal phase, the judge ruled that it is not fair use nor is it transformative. The judge ruled that with no valid sublicense from Instagram, it is a willful copyright infringement. For these reasons, and since there is no evidence of a sublicense from Instagram, the case moves forward.

[update: June 5:] Instagram told Ars Technica in an email on June 4: “Instagram does not provide users of its embedding API a copyright license to display embedded images on other websites.”

The photos we put on social media are not free!

Daniel Morel v. Agence France-Presse & Getty Images, 2013, is a landmark case for photographers.

The jury awarded Daniel Morel the highest possible statutory damages available for each photograph infringed by Agence France-Presse & Getty Images, who stole Morel’s 2010 Haiti earthquake photos that he put on Twitter, removing his name and sold 996 downloads of his photos for publication. Morel was awarded $150,000 for each one of the eight photos they infringed on his Twitter account – 1.2 million dollars! Plus he was awarded $400,000 for DMCA violations – the removal of his copyright management information from the eight photos (his name) and (doubling it) for the dissemination of false copyright management information.

Anna’s notes. Anna went down to the New York Southern District Courthouse to witness firsthand the drama of the copyright infringement trial of the decade, Daniel Morel v. Agence France-Presse & Getty Images.

“I am proud that my five years of effort on this case have helped to eliminate some of that ‘havoc’ and to give my fellow photojournalists an important tool to protect their rights and fight against those who would try to trample on those rights…. May the next generation fight on and persevere.” Daniel Morel to PDNonline, June 3, 2015.