May 24, 2011 at 1:15 AM ET
Short on sleep and worried about the recent loss of her job, Stefanie Gordon boarded a Delta flight from New York to Palm Beach at 6:30 a.m. on May 16. Still miffed after a late-night Yankees loss to the Red Sox, she took a photo out the window of her airplane seat with an iPhone, tweeted it to friends when she landed, then headed off to spend the day with her father.
By the time she was sitting in the passenger seat of his car, her iPhone was practically buzzing out of her lap, teeming with messages of congratulation and requests for interviews. Gordon's now-famous photo of the space shuttle Endeavour soaring through the clouds got her an overwhelming amount of attention -- her 15 minutes of fame, Internet style. It also landed her smack in the middle of an ethical and legal debate that may be as important as the future of the Internet itself.
Gordon's photo has been viewed nearly 1 million times, and shown by media TV, Web and print news outlets around the world. She was paid by precisely five news organizations.
In a world where social media users, bloggers and even some professional journalists are increasingly comfortable simply copying the work of others and republishing it, can intellectual property rights survive? Can original content survive? And what should the world do when an amateur photographer takes a newsworthy photo and shares it on a social network?
To be sure, Stefanie did not seek this fight, and doesn't feel too compelled to be its poster child, either.
"I never even thought about what could happen,” she said. “To me, it's just a picture. I tweeted and put my phone away. ... I had four hours of sleep and wasn't thinking. I was trying to spend time with my dad. I've never been a person who feels like I need to make money off of everything. I just put it out there for people to see."
Still, she is the latest in a long line of characters made larger-than-life by the Internet's virus-like network effects. The last victim -- or recipient, depending on your point of view -- of Internet fame borne of an accidentally famous photograph was Janis Krum. He landed, quite literally, in the middle of the digital rights debate in 2009, when a passenger aircraft made an unexpected landing in the Hudson River. He took exactly one picture with his iPhone, instantly tweeted it from the ferry he was on a few feet from the plane, and went to help passengers off the floating aircraft. He earned virtually nothing from his famous photo, which was copied and used by both commercial and private publications around the world. The confusion surrounding Gordon's photo felt very familiar to him.
"It's kind of crazy that after two years there is still nothing in place to deal with this issue,” Krum said. “It's still the wild, wild West right now.” In some ways, it seems more socially acceptable to take advantage of a naïve rights holder. “Organizations say, ‘Well, it’s a regular person we don't even have to compensate them.’ They do things they wouldn’t do with a professional photographer," Krum said.
One face of Internet culture dating back to the advent of Napster holds that everything electronic should be free, and there's no harm in copying digital content. It's second nature for people who use social networks to copy and paste photographs or other media, and there's probably no changing that. On the other hand, commercial outlets that sell a product using images and videos should feel compelled to pay for content they use. Gordon and Krum’s stories show that reality is far more complicated.
The law, however, is not. The mere act of taking a photograph means the photographer holds the copyright for that picture. Sharing it on a social media site does nothing to limit or reduce that fundamental right, according to digital rights expert Mary Luria.
"Unless (you) post the photo with a message that says, 'please copy this and pass it along,' the photographer holds the copyright," said Luria, a partner in Davis & Gilbert in New York.
Misuse of content isn't new, she points out -- famous photos have been copied without credit for 150 years -- but the Internet has made it easy and, in some circles, normal.
"The culture of the Internet is this concept of sharing everything. That things belong to us, not to a person," she said. "And they are surprised when someone says, 'You've taken this, it's mine."
Not everyone thinks that way. The Associated Press paid for a license to use Gordon's photo, and to send it to all its members. (Msnbc.com also paid Gordon for the right to use her photo on the website and on television.) Many other outlets asked for her permission to republish, which she granted without charging a fee. But there were plenty of other outlets that used her photo -- and Krum's before it -- without obtaining permission. Some even used it without giving credit.
When that happens, it's up to the rights holder -- the photographer -- to file a copyright claim and demand payment. That's a bit backward, Krum says.
“There's definitely an ethics issue here," Krum said. "You have to police them, because they won't do it themselves."
The legal questions begin immediately upon taking the photo. Professionals are well-schooled in controlling the distribution of images, but amateurs often aren't. Even if their legal rights remain, it's often incredibly hard to shove the cat back in the bag after a photo has been tweeted to the world and passed around. Carolyn Wright, who operates PhotoAttorney.com, says a few moments of "What if that happened to me?" reflection now can save a lot of heartache later.
Like Gordon, it's quite possible that someone could take a photo and not realize its inherent value right away, she said.
"Gordon immediately tweeted it, and that just lets the gate open these days. It'll spread like wildfire," she said. "If people can just take a moment and recognize that they have something of value… I tell people, 'If you happen to take a picture of Elvis at McDonald’s, think about what would be the value of that."
Amateurs probably wouldn’t consider this in the middle of such excitement, but it is possible to sell more valuable exclusive rights to a news outlet, or to find an agency to do the bidding for you. The days when Newsweek and Time magazine would fight over the rights to a photo with six-figure checks are dwindling, but there is still value in exploring value ahead of publication to social media.
Asserting rights after the fact is trickier, but still possible.
The process will sound familiar to anyone who's followed the complicated issues around music and movie piracy. A photo rights holder must send a cease-and-desist notice, then send a bill. A small cottage industry has evolved of lawyers who file rights claims for photographers, Luria said.
"You don't want to sue everyone who has the photo on their site. That would be very costly," she said. Payments are limited to the amount the violating site normally pays for similar photos, which could be a few dollars.
On the other hand, firms that appropriate an image and use it for purely commercial purposes -- say, an advertisement by an airline -- could face a large lawsuit.
Photographers who want to exert their rights will have a much easier time if they file paperwork with the U.S. Copyright Office. They have 90 days to do so, and the rights are retroactive to first publication. That means someone like Gordon could decide to pursue legal action for up to three months after her 15 minutes of fame subside.
"The law, it’s accommodating to the fact that you might not think to file with the copyright office in the middle of such an event," Luria said.
Photographers often protect their rights a second way: by placing watermarks on images they publish, often including their website or phone number. These watermarks can be easily removed, but doing so can land the remover in a heap of legal trouble. The photographer can sue under the Digital Millennium Copyright Act for such a removal, and claim damages of up $25,000 per incident.
U.S. law does carve out exceptions for news publications under extremely newsworthy circumstances, what's often called "Fair Use." If a piece of digital media itself becomes news, U.S. outlets can publish it under the theory that it is protected First Amendment speech.
Fair Use is the subject of widespread debate, however, and its application is wildly subjective. Luria, for example, said that in situations where news publications have no alternative access to an important image in a breaking news situation, they would be protected by fair use.
But Wright said she didn't believe courts would see the rarity of an image as a "fair use" exception from copyright law.
Meanwhile, retaining copyright doesn't mean retaining all rights. A particularly vexing problem facing users of services like Twitpic involves the ever-changing fine print in the sites' terms of service agreements. Both Gordon and Krum used Twitpic to share their photos. Currently, Twitpics' terms of service informs users that the firm has the right to resell any images loaded by original rights holders onto its servers. In other words, Gordon has the right to sell her Space Shuttle picture, but TwitPic does now, too.
"They take a non-exclusive license when you upload the image," Wright said. "Just by using the outlet, you give them that right."
Danny Sullivan, a search engine and social media expert, says it's inevitable that amateur users will increasingly find themselves in possession of powerful, newsworthy photos. He thinks it’s up to the photo services to fix the current mess.
"I think the problem is that photo-sharing services don’t allow you to easily provide copyright information,” said Sullivan, who operates SearchEngineLand.com. “If somebody comes across a photo they think is newsworthy, there is nothing there which indicates you need to license the photo. Right now we're in this vacuum."
He thinks photo sharing services could offer users simple options like, "Would you be interested in selling images?" -- and could even act as agents for consumers.
They could also help solve a practical problem that Gordon faced. When an amateur is suddenly in the middle of a news swarm, they become nearly impossible to contact, as a flood of Tweets and e-mail act as a kind of denial of service attack. Gordon had to turn off some Twitter notifications after her follower ranks swelled from 1800 to 5,000 overnight. A photo sharing site could help funnel the requests, and provide reliable contact information for media outlets.
Of course, without social media and the viral effect, there wouldn't be any need for an ethical discussion. Gordon would have merely shown the photo to her father and a few friends, and it would have quickly faded into a curiosity. So Wright, of PhotoAttorney.com, doesn't offer hard-and-fast advice to suddenly famous shooters.
"It's damned if you do damned if you don't," she said. "If you don't share your work online, then no one knows to license it."
Krum may not have gotten rich off his Hudson landing picture, but he did turn it into a new career. He was a casual photographer working on tech start-ups when he snapped that picture, but today he’s a social media consultant.
“I was kind of pushed into this realm after the photo, and I kind of embraced it,” he said. “It’s a great conversation starter.”
Gordon realizes she probably missed out on the opportunity to earn some good cash with her photo, but she is remarkably positive about it.
"There's more good than bad here," she said. "Through Twitter, I was able to make some amazing connections." Connections that, she hopes, will soon lead her to a new job in events planning or sports marketing.
RED TAPE WRESTLING TIPS
Gordon has one simple piece of advice for the next person who finds themselves in her spot: Get advice.
"If you know anybody who specializes in these kinds of things -- a journalist, a lawyer, a friend in PR -- if they have the one minute to do it, call them and ask for advice," she said. When you are in the middle of a media crush, it's nearly impossible to understand what's going on, and to make good decisions, she said.
Even after a photo has been published, it's not too late to file with the U.S. Copyright Office (you have 90 days -- see below).
After the photo has been published online, it's up to you to watch for infringers. Software can help. A free tool called TinEye looks for digital signatures of images -- a sort of alert service for pictures -- and will report if a picture is being used.
Links to Carolyn Wright resources:
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