http://www.pdnpulse.com/2009/07/homeland-security-secretary-report-suspicious-photographers.html

Here’s an idea. Instead of calling the cops on people with cameras we call the cops on politicians who speak before thinking.

Mallon appears to have a fairly ironclad legal right to publish those images, so why is this a problem at all? It’s a problem because neither has the wherewithal to undergo an expensive legal process to defend their rights, because AIG would, if they prosecuted this case, have to make it a federal case of it, both literally and figuratively, and therein lies part of the problem.

If someone comes into my yard and breaks my lawnmower, and I want restitution, I can file a claim in California’s small claims court. In California these courts inexpensively handle small (less than $7500) cases, and the rules of those courts are set up to make them accessible to folks without a lawyer. Sadly, there is no equivalent of small claims court in United States Federal Law, as such, prosecuting even the smallest copyright case through the court system is likely to end up costing tens of thousands of dollars. Mallon probably would have trouble proving that his claim was worth tens of thousands of dollars (not to mention how the case would play out with his client, Weeks Marine, who’d get caught in the middle of this), and so the court system is effectively useless to him.

The same dynamics play out nearly as poorly for small photographers whose copyrights are violated by theft. If someone grabs one of my images and uses it on the packaging for their cat litter, I’m going too have to judge whether the chance of recovering the license fee, probably no more than a few hundred bucks, is worth the investment of tens of thousands of dollars. In many cases, I’ve lost before I’ve started.

There is an important exception. The Digital Millennium Copyright Act gives me a tool that can be used in cases where the copyright theft ends up on-line. If Fred grabs one of my images and uses it to sell cat litter on his web site, I can issue a “DMCA takedown notice” to their web hosting company and ask that the infringing content be removed.

This DMCA can even help with tangible products. Last year, a music CD was produced with one of my images on the cover. I spent two weeks trying to contact the record company and the band to no avail, but eventually I realized the product was being sold on Amazon.com, and that my image showed up in the product listing there, so I DMCA’d the infringing content at Amazon.com. Less than 90 minutes later, the record company was trying to contact me, and within a day, I had a check speeding my way for payment. Had the CD only been distributed off-line, I’d’ve had no lever to enforce my rights.

I’d like to see that fixed, perhaps with a “small claims court” for copyright, any other suggestions?

Part One – The basics.

Photography is copyrighted intellectual property, just like books, music and software. Like musicians, authors and filmmakers, photographers are paid a fee for creating the work and then residuals or royalties for the subsequent use of those works. An artist’s ability to profit from their creations is a Constitutional right, Article 1, Section 8:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Not to get too political here, but… The framers realized that a stable and prosperous society is aided by the ability of the innovative and inventive to profit from their innovations and inventions. This may all seem like political mumbo jumbo, but in the face of those who think copyright is a hindrance to free expression (if you liked Napster, this means you) it’s an important rebuttal. Without the profit motive to, well, motivate us, why create.

Ego? Artistic self-fulfillment? Those are important personally as artists, but it don’t pay the bills. If Merck didn’t think they could make a profit on the development, creation and sale of Gardasil, which will most likely protect my daughter from cervical cancer, then why develop it. Public health is a laudable and noble endeavor and our society should pay greater attention to it than it does, but it costs a lot of money, effort and time to develop this stuff. This sort of development wouldn’t occur without investors. Those investors wouldn’t exist without the profit motive.

Of course the photographic industry isn’t big Pharma, and most photographers don’t have outside investors, but we do have ourselves and our families. You and I have invested in ourselves, our businesses and our craft. We’ve spent countless hours investing in refining our talents, our skills and our craft. This investment is every bit as legitimate as Merck’s, as General Electric’s, as Google’s, and we deserve to profit from our efforts. In fact, it’s our Constitutional right.

Don’t let ANYONE tell you different.

Steve Buchanan is a commercial and editorial photographer based in Maryland. His work can be seen at www.buchanan-studios.com