South African photographer in astronomical copyright case; A cautionary tale

A South African photographer is suing an agency of the South African government for copyright infringement. He is seeking a breath-taking 2.1 B-i-l-l-i-o-n Rand in damages. (I’m sorry. I can’t even type that number with a steady hand.) That’s north of $176,000,000 in US dollars.

So, how did this happen?

“I attach a photo you can use.”  is how.

That’s a phrase that sends chills down the spine of photo editors/curators everywhere. How many times have we heard that? And how many times have we been left with a slight sense of foreboding that something bad might b coming? Although, I have to admit, I never quite considered the possibility of a hundred and seventy-six  m-i-l–l-i-o-n USD worth of bad.

A scary story

This is a cautionary tale for any of the sorts of people who make up the readership of this blog – photographers, publishers, bloggers, archivists, designers, and editors alike. Pull up a seat by the campfire and I’ll do my best to tell the scary story. And don’t you worry. Metadata will be a character in this ghoulish tale.

From press accounts, let’s try to piece together a timeline and think about what went wrong. 

 

Our photographer is South African agency photographer Shaun Harris. The photo is of former South African President Nelson Mandela. You’ve seen it. Mandela is smiling as he emerges from shade. He’s wearing one of his signature sports shirts. He looks confident and “sunny”  – Harris’ description of the moment. Harris made the photo in 1999, when Mandela met British Prime Minister Tony Blair in South Africa.

Harris’ photo is seen at Nelson Mandela’s memorial service in this Getty Images embed photo. 

License purchased

In 2006, the South African Government Communication Information System, which is their information ministry, licensed the photo from Harris’s agency for use in a book on Mandela. The GCIS apparently kept the image in its archive.

Generally, that should be a good thing for both the photographer and the publisher. The publisher needs to keep an archive of the assets used in its publications, and it’s obviously to the photographer’s advantage if his work pops up in front of the client at the very moment they might buy a reuse license. 

Then, in 2010, specifically on February 12, at 5:32 PM, according to press reports quoting allegations in the lawsuit, someone at CGIS stripped from the image’s metadata all the information in the Description field, including the caption, byline and Harris’ photo agency’s name. That can never be a good thing.

In 2012, Mandela was in failing health. His family and officials from the GCIS decided on Harris’ picture to be the official portrait for use at Mandela’s eventual funeral, according to City Press, a South African newspaper. A new license was purchased for this new use of the photo.

And it all goes south

Mandela died in December 2013. In the early morning hours of the day after he passed, emails from the GCIS went out to every corner of the South African governments with the fateful phrase. “I attach a photo you can use.”

When I did a reverse image search on the picture, hundreds of uses returned. Within only a couple minutes of searching, I found the picture on a couple of official South African Government websites.

By the time the dust settled, according to a forensic study attached to the lawsuit, there had been 2.1 MILLION copyright infringements.

Multiply that by the statutory damages and you have TWO-POINT-ONE-BILLION Rand! That’s about $176,500,000 USD, folks. I don’t know how they roll in South Africa, but around here, that’s considerably more than a couple of beers and a pretzel at the Funky Buddha.

A big lawsuit – really big

Writing about lawsuits is always hard. Lawsuits are big piles of claims and counterclaims.  Usually, you can’t see the utterances of both sides at the same time, and if you can juxtapose the claims and  responses, you’re still likely to be in the quicksand of false equivalence. 

This is a lawsuit halfway around the world, in a country that I don’t know, under laws I can’t claim to understand. So, I’m not going to really attempt to report on the merits of the case, or its progress through the South African courts.

I disclaim

I Guess this is a good a place as any for the disclaimers. This time, there are two: one journalistic, and one legal.

First, journalism. I’m not doing any here. This blog is about opinion – my opinion – on how you and I can avoid mistakes that are likely to go 2.1 billion kinds of wrong. I have done no reporting.

I am relying on reports published in the South African media, through a process called “aggregation”. Aggregation is simply going through news reports and “reporting” on what real reporters have reported. It sounds sleazy, and it is. It’s also how most news is disseminated nowadays. It’s not a good way to get news. But it will do for our purposes here. It’s good enough to glean an outline of basic (hopefully) facts upon which to build some opinions.  That’s all we’re doing here. All our facts are second hand. We don’t know how much mileage is on them or whether they’re in good repair. 

In this post, I’ve heavily from City Press, a South African newspaper. (This story does a great job of summing up the situation) ,  That paper seems to be out in front on this story. I’ve tried to cross-check facts with other media sources as best I can.

Then there’s legal stuff. This isn’t legal advice. I can’t give you legal advice on any continent, in any way. That’s what your lawyer is for.  What you get here is best practices workflow advice that maybe, hopefully, might help you avoid needing the services of your lawyer as much.

Phew. All that said…

There are three possible ways, or combinations thereof, to interpret the (alleged) actions in this dispute.

One. The photographer might just be wrong. (This blog advocates for photographers, so I’m not inclined to go here.)

Two. The clients are total sleaze weasels who intended to steal. (Hmmm. Maybe. But a dark-ish view of humanity. We’ll go light on this one, too)

Three. Everybody was trying to do their jobs and this is just one big – very, rather, big – misunderstanding. (Ouch)

I’ll assume that my readers are people of good will and intent, and we’ll extend the parties to the suit a bit of benefit of the doubt. Let’s go with door number three.

What went wrong

So, what happened? Let’s take another look at that timeline.

Photographer Harris made his picture in 1999.

Some years later, in 2006 CGIS bought a limited license to use it.

The photo remained in CGIS’ archive. Okay. That’s usually good.

We don’t see any obvious problems so far. We don’t know how clear and precise the contracts were, and we don’t know how well the parties communicated. But we’ll assume they were doing fine up to this point.

Then there was the alleged metadata stripping in 2010.

By stripping the metadata (assuming they did), CGIS made it harder to manage, or even find, the asset. Striping data like that could turn an asset into an in-house “orphan work”.

One practical consequence would have been that the photo was no longer labeled with what we would call copyright management information. That had to diminish CGIS’ ability to know what rights they did or didn’t have to that photo. And it meant that when and if the photo might be published again, it would be published minus its CMI.

Stripping CMI

And it made it harder for eventual honest would-be users of the photo to understand its rights and ownership. (I was unable to find any example of this photo that did have proper metadata.)

It’s very likely that South African copyright law includes a prohibition against stripping CMI. Most countries’ do.

And on top of all that, in Harris’ lawsuit, stripping the metadata is cited as evidence of ill intent.

Did I mention that the lawsuit refers to criminal infringement, too, according to press reports?

I don’t know how criminal infringement works in South African copyright law, but the mere inclusion of such an allegation just can’t be a good news for anybody but lawyers. Plaintiffs have to pay their lawyers to make allegations and defendants have to pay to defend against them. More and bigger allegations mean more and bigger lawyer bills.  

We have no way of knowing if stripping the metadata was a deliberate, nefarious act, if it was an accident or just a stupid mistake. Well, stupid. Yeah. That we can pretty well assume that, whatever the intent.

Preserve metadata

I’m sure I’ll mention it again before the end of the post. But really. Don’t mess with metadata. It’s just not a good idea.

So, the most benign view has to include, ahem, some deviation from best practices at this point.

Then, in 2012, we have CGIS and the Mandela family looking through photos and choosing Harris’ to be used at Mandela’s funeral.

Another license was purchased, according to press reports. It was a limited one, only for use at the funeral, according to Harris’ agency.

CGIS claims that they thought it was for more. From their behavior, we can assume that they were under the impression they had a buy-out, or a very broad license.

To me, that sounds a lot like walking away from the Hertz counter thinking you just bought the car, while Hertz thinks you’ve rented it for the weekend. If it was a misunderstanding, it was quite the misunderstanding. I can’t say who was right and who was wrong in this case, but somebody usually is. 

(Way back in the seventies,  a co-worker of mine did have a misunderstanding with a rental car agency. Their solution was to add the full retail price of the car to his credit card bill.  Back then, a car cost only about $4,000 USD, but reporters made less than a couple hundred USD a week. It’s always a good idea to reach a clear understanding of a transaction before the stakes escalate. Just sayin’.)

Back to the plot….

From here, we pretty much know what happened. Two-point-one million times, apparently.

“I attach a photo you can use.”

Everybody in any kind of publishing has heard that sentence.

The designer or photo editor needs pictures for a story. They turn to somebody a couple of salmon-lengths upstream.  “Do you have a photo I can use?” That person contacts the PR firm. “Do you have a photo I can use?” The PR firm contacts its client. “Do you have a photo we can use?”

Somebody in Marketing at the PR firm’s client rummages around and comes up with some assets. Which they pass on to somebody downstream, who passes them on again. And then again. Finally, the designer or editor has a picture in their hot little hands.

In a perfect, or at least reasonable, world, that designer or editor has the time and presence of mind to check the photo’s metadata and any available records to make sure that the unseen entity way upstream really does have a license that allows for that image to be redistributed for publication on our website (or whatever).  

Otherwise, it’s a matter of gut instinct. Or the tiny little bird chirping on your shoulder. Is this picture a ticking bomb? Place your bets….

“I attach a photo you can use.”

And you thought that you really needed to be a stone cold thief to be caught up in a copyright suit?

It’s easier than you think. I can’t tell you how many infringed pictures came across my photo desk. I wish I could say that I was so diligent that I never published one. Good instincts are good, not perfect. The best you can do is make sure your workflow catches as many bad ones as it can and that your gut helps you catch the ones that are really likely to hurt you.

Stuff we can do

Photographers –

You’re reading this blog. You already know to do best practices metadata. Let everybody know what’s in your image, who you are, and if possible, what rights are being licensed. Even if it ends up stripped, that metadata will help. Worst case, if gives you a claim for destruction of CMI.

Consider a no-strip clause in your contract. If your client can’t honor it and you still want to do business with them, strike the clause. (No good can come from having junk in your contracts) But just having the conversation will help.

Make your delivery contracts and documents crystal clear. Does the client understand the license? Do they know when – and how – to buy a reuse license?

A chatty post-delivery email that emphasizes how convenient it will be to buy that reuse license might help.

Sending Fast Eddie and Joey Bagadonuts over to bump the client around a little is probably going too far. But be creative. Something in between the extremes would be good. Communicate. Drive the message home.

To archive?

One of the issues in this suit was the matter of the client keeping the image in their archive system. In general, you want this. You want your image to be at the customer’s fingertips at moment they decide they want to buy a reuse. With your phone number staring right at them from the metadata. Just ten digits away from that fee in your pocket.

Some contracts do prohibit archiving photos. I don’t think that’s a good idea. Doing that can get in the way of the client running their business, which isn’t good. And there’s the business about that easy reuse fee… But the option is there.

Publishers-

Well, for starters, don’t strip metadata. That’s a dumb move under any circumstances. If we’re talking about an asset in your archive, stripping the metadata off it strips the value out of the asset. You don’t know what it is. You might not be able to find it. If there was rights information, now there’s guesswork. Don’t let your website strip, either. That could lead to CMI liability when or if the asset is published, especially if the work turns out to be, ahem, infringed.

And, as I have often pointed out, the karmic implications of metadata stripping are bad.

Clarity. Crystal.

Make sure you are clear on rights and licenses. If you are buying work, know EXACTLY what you’re buying, specifically, for every picture.

Make sure your archive records – somewhere, in embedded metadata or elsewhere –  exactly what rights you own, how to contact the copyright owner, and where to find the original contract.

When images come into your shop, take a moment to review them. Is there a caption? Contact information? Rights information?  If not, paste that information right into the photo, right now. If something isn’t clear and the photographer’s contact information is available, call them and ask.

(A tip: Paying the respect of asking has many times earned me a license to use the picture, gratis, never mind that the original client didn’t really buy the rights needed to pass the image on to me. Amazing what a friendly phone call can do.)

Treat any photo that wasn’t shot by you or an employee like it was a bomb that could destroy your business. Because, well, it can.

The stock photo at the top of this post come to me with no information identifying the agency or photographer whatsoever. There were a zillion keywords (Read about keywording and stock photos in this post) and a very brief caption.

If it’s broke, fix it

So, I just went ahead and added ownership information to the caption, including the fact that the license is a royalty-free one. And I added some detail tying the photo to this post. Nothing fancy. It took me twenty or thirty seconds maybe.

The photo will live in my archive until such time as I need an image of South African Rand again. Now there is enough information in the caption to hopefully surface the picture when I search for it. And if that day comes, I’ll know what the license is, where I can find a copy of the actual license, and where I can get more microstock pictures like it.  Now that’s one less potentially fatal-to-my-business threat I have to worry about.

Trust your survival instinct.

When that little tiny voice in your head says “there might be something wrong here”, listen up. Check everything very carefully indeed. Everything might be OK, or there may be a 2.1 billion-ton freight train bearing down on you. Finding out the hard way is undesirable.

Don’t trust your recollection.

“I think I bought a royalty-free license. Or maybe it was rights managed one-time….” You may have bought three of each the day you bought that photo. Nobody really keeps this stuff straight in their head. Don’t play Russian roulette. Check before you leap.

If you followed my advice a couple paragraphs ago and made sure the information is right there with the photo, checking won’t take but a sec. If not, it could kill your afternoon and burn up time you could have spent preventing some other horrible threat from attacking you. But check anyway. 

Be very suspicious of your recollection of legal rules and the like, as well. If you don’t use a particular piece of information every day, the brain plays tricks and mashes things up. “You can’t libel a dead person” can morph into “You don’t need to worry about copyright after the subject is dead.” It’s easy to see how that could be a very, very bad thing.  

(By the way, I have found that a surprising number of people confuse issues that involve the subjects of images – libel and privacy concerns, for example – with issues concerning the use of images – like copyright and breach of contract issues. It happens a lot. Be warned.)

Don’t put your employees in a position where their memory is the only thing between your business and a disaster, either. Build a culture of if-in-doubt-check-and-double-check. With you. With the vendor. With your lawyer, if need be.

The tale will continue

I’ll keep an eye on Shaun Harris’ lawsuit in the South African press. If I learn how it comes out, I’ll report back here.

But no matter how things play out in Pretoria, this scary story will have served us well if it helps us focus on keeping vigilant so we don’t fall to a similar fate.

Enough scary stories. The campfire is moldering down now. Remember to pour water on the coals before you go.

 

What is the scariest thing that almost happened to you with “a photo you can use”? Disguise the details a bit to protect the guilty and unburden in the comments.