Last week I was browsing one of my favorite photography blogs, FStoppers, and saw something about the photo at the top of the page eerily (no pun intended) familiar. After a quick comparison, I confirmed it was my photo from this blog. When one of your shots goes viral the first reaction is “Awesome!” your second is “Oh my god, did I get a by-line?”. In this case, the photo wasn’t credited. FStoppers followed a normal Photoblog practice and linked back to the originating site, called Wall to Watch.
I searched Wall to Watch for a credit or link to my site, finding only a link to the creator of the pumpkin sculpture, Ray Villafane. When you find your work on the Internet you have a couple of options, the first is you can lose your gourd (pun intended) start screaming and issuing threats of dire legal action. You can even insinuate the infringing site’s owner mother and father were at best briefly acquainted. The second is you can find a boilerplate DMCA Take Down Order, fill in the blanks and fire that off. Last, you can simply write an email and politely request your work be attributed or taken down, which is what I did.
The next thing you do is see where else the property might be and address that website. I followed the link from Wall to Watch to Villafane Studios. I discovered the artist was using the shot in his gallery of sculptures, which meant that Wall to Watch HAD properly credited the photograph by linking to where they found the image and Villafane Studios was that source. This is where it get’s educational: Who owns the rights to the original sculpture, what rights does the original artist have over my photograph?
The artist, Ray Villafane owns the copyright to the original work of the pumpkin sculpture, unless he signed over those rights to the New York Botanical Garden where the sculpture was displayed. The sculpture was displayed prominently in a public space and advertised by the venue, so prior permission to photograph was not required, or not clearly stipulated by posting around the installation of the artwork, so taking photographs of the piece is allowed. (Hundreds of people took photos of the sculpture during the time it was displayed.) The photographer, however, is limited as to what he or she can do with those photographs. Basically, the photographer cannot use that photograph for any commercial purpose: sell it for advertising, print on t-shirts and sell online, that sort of thing. The photographer may include it a portfolio or art exhibition and derive income from any sales as a piece of art. Finally, the photographer may use it in an editorial piece, a news story or blog post about the art so long as they properly credit the creator, as I did in the original blog post. I have distilled a lot of this down to very basic thing, there myriad exceptions and prohibitions in the actual law far too broad for me to cover. Here is a solid run down of the applicable copyright laws.
I contacted Ray Villafane and asked if he could credit my photograph. Ray promptly returned my message saying he would do so and inquired about purchasing the rights to use the photograph. The same protections provided to Ray as the original artist also apply to me because my shot is considered a derivative work. Because of creative choices I made taking the photograph, it became not just a photograph of a sculpture but a separate work of art containing elements from the initial work. Ray and I worked out details, he purchased the rights to use the photograph. Ray was a thorough professional, and a real pleasure!
Your photographs are going to be used improperly if you post them on the Internet, that is price you pay for free exposure. How you address this happening is key to what happens next. If you act like a professional, be polite and clearly spell out a reasonable request to the parties involved, you will likely get the result you seek. If you throw a fit and make threats, everyone is going to wind up mad and nothing will get done. Flies with honey, you know, because you may be right does not give you carte blanche to act like a dick.
Ray will be offering t-shirts and other cool things with his amazing Pumpkin Zombie sculpture based on my photograph, zip on over and buy stuff from him! That way he can keep investing in other artists, that is how the system works! Ray Villafane the Great Pumpkin Carver, he’s a cool guy doing amazing things with a fruit…vegetable…what exactly is a pumpkin?
I should also note I heard from Wall to Watch and FStoppers, both of whom credited the photo on their respective sites. Every party in this story deserves a “good job” and is allowed to take a cookie from the jar by the door.