US Post Office to pay $3,554,946.95 in damages to sculptor

This is second sculptor to collect for copyright infringement from the Post Office

There is a metadata angle to this story. We’ll get to that. But first, let’s vent about the outrage. Outrages. Multiple outrages. There is so much that is so wrong here.

Our tale begins as the Post Office, best known in some circles for delivering letters, and in others for infringing sculptors’ copyrights, begins production for a “Forever” stamp to be issued in late 2010. They wanted to do a Statue of Liberty stamp. They hired an image research consultant to scour stock agencies for a photo of the great statue.

Stock agencies?!!!!! Stock?! Why on earth would the Post Office use a stock photo of an iconic statue that lives a short ferry ride from the largest concentration of photographers in the world? Because they were looking for something “different and unique”, according to court testimony from Terry McCaffrey, the USPS manager in charge of stamp development at the time.

Has our culture crumbled to the point where “different and unique” means browsing the Getty catalog instead of original thought and boots-on-the-ground creativity? Apparently.

The client from…….

Anyway, McCaffrey wasn’t content to let his consultant picture researchers do the image search. He insisted on access to stock sites so he could do the search personally. Every creative I’ve ever met has had clients like that. I can feel a great world-wide cringe. That’s on top of the cringe we’ve already got going.

 

Then somehow in the fog of war, nobody noticed that the picture chosen, shot by Raimund Linke and licensed from Getty, depicted the wrong freakin’ statue! The image shows the styrofoam and plaster replica of Lady Liberty that stands in front of the New York New York hotel and casino in Las Vegas.

When I say nobody notices, I mean. Nobody. Notices. Not in the consultancy. Not in the Post Office. And the stamp-buying public wasn’t too quick on the uptake, either. It wasn’t until April 2011 a stamp collector apparently tipped a stamp collecting publication, whose story in turn caught the notice of a picture agency (not Getty, who licensed the Vegas picture to the Post Office, but some other, uninvolved, picture agency) which notified the Post Office.

Meanwhile

About the same time, a Mrs. Davidson, as in Mrs. Robert S. Davidson of Las Vegas, Nevada, brought home from the Post Office a coil of Forever Stamps and excitedly showed them to her husband. Robert S. Davidson is the sculptor who made the $385,000 Las Vegas replica Statue of Liberty.

By this time, some 1.5 billion (yes, BILLION) of the stamps had been sold. The Post Office went into damage control mode, issuing press releases and bandying about internal memos, quoted in the court’s decision, that claimed that [USPS] “still love[s] the stamp design and would have selected this photograph anyway. We were looking for a different treatment of this icon that has been on 23 different stamps.”

OK. Really?

The power of photography

I’ve written before that one of the great powers of photography is its specificity. A photo carries weight and truth because it depicts a specific reality. A photo of a momentous event or a great person isn’t powerful because it looks like the thing it represents, but because the thing it represents, in a very real sense, actually is the image. Metadata, in the form of a caption, often connects us to that specific reality.

A treasured icon of our national heritage (I’m in the US) is one thing. A styrofoam and plaster fake of that icon that advertises a gambling hall is something else altogether. They are not the same. They are not equivalent. There’s a moral issue here.

If you want “something different” on the Statue of Liberty, it’s morally fine to hire a painter to depict it abstractly. It is not morally fine to photograph something that isn’t the Statue of Liberty and pretend that it is. Issuing a weasel-worded press release to the philatelic press doesn’t even begin to get the Post Office off the hook, either.

After 44 years in the business, I guess photography has earned my respect. I am mortified to see it disrespected like that. Not to mention feeling some discomfort at the cavalier treatment of a national symbol, which, granted, at this point in America’s history doesn’t have quite the currency that it once did. But still.

Onward

What the Post Office did was sell another 3.4 billion of the stamps. What they didn’t do was pay Mr. Davidson for a license to use an image of his copyrighted work.

This is a bit odd since, at the time, they were in the throes of a lawsuit that ultimately cost a $685,000 judgement for not paying another sculptor, Frank Gaylord, for a license to use an image of his Korean War Veterans Memorial sculpture on another stamp.

That’s right. This is the second time the Post Office pulled the same stunt. Slow learners, apparently. Some people have to be told 4,239,946.95 times (plus interest), I guess.

What about the photographers’ copyrights?

If you’ve only worked in editorial publishing, you might be scratching your head about copyrights for artwork (statues) depicted in other copyrighted artwork (photographs). It’s a thing, trust me. If you’re curious, now is a great time to look into it because the internet is awash with lawyers explaining this very case.

The photographers in both cases, and their copyrights, are just fine. In editorial, that’s all we would generally need to worry about. But commercial use of images is a very different world.  

(This is where I say that I’m not a lawyer. Talk to your own lawyer if any of this affects your future.)   

The photographer in the Gaylord case was John Alli. He did understand the whole copyrighted-subject-of-the-photo thing. And he advised the Post Office that they needed to contact the sculptor and buy a license. They didn’t, as we have since learned.

Why we need metadata

As a side note, Alli, according to court records, sold prints of the Korean War sculpture image. He paid a royalty to a person who claimed to be the copyright owner of the statue. That person turned out to have claimed falsely that he owned the copyright. Mr. Alli went the extra mile to do the right thing and was left frustrated and at potential legal risk because it wasn’t a straightforward matter to identify who owned the statue. (Fortunately, he did not get in trouble, at least as best I can tell from court records.)

I have written often that metadata empowers honest people. Take this part as a cautionary tale. John Alli deserved to know for sure who owned that copyright. It may be difficult to embed metadata in a stainless steel statue, but it’s easy for us to label our work with proper copyright management information. Just do it. No excuses.

Back to our tale

In the current Lady Liberty case, the Post Office’s main defense was that the Las Vegas statue was only a copy of the real one. As a copy, by their logic, it would not deserve its own copyright and therefore, the only person they needed a license from was the photographer. That would seem logical on its face. The court ruled otherwise. The court spelled out in its decision that the bar for the amount of creativity required for a work to be considered new and copyright-able is very low. So a “fresh-faced”, “sultrier”, “sexier” rendition would do the trick. Those terms, by the way, are quoted from Davidson’s lawsuit.

What do you think?

While you’re at it, look up the Gaylord case. In Gaylord, the issue was in the other direction: was the stamp made from the photo of the statue transformative enough to be considered a fair use of the statue? When I looked at the photo, I thought it was. Let us know in the comments in the comments if you were surprised by the rulings. For an excellent primer on copyright in general, take a look at this video replay of a webinar on the subject. Gaylord is mentioned in it. Or check out this video, which is a rather humorous take on the Lady Liberty case, with an excellent explanation of how the amount of the award was determined. 

Wow. Almost thirteen hundred words of outrage, offense and emotional upheaval and only now do we arrive at the news-you-can-use metadata part of the story, which is:

Don’t bet your career on keywords!

Take a look at a screenshot of the Getty Images page for that Lady Liberty photo. Look at the keywords.

 

Built Structure, Freedom, Vertical, Outdoors, North America, Sculpture, USA, International Landmark, American Culture, Day, Nevada, Model, Color Image, Patriotism, No People, Photography, Travel, Human Representation, Replica Statue of Liberty - Las Vegas, Statue of Liberty Replica,

In my Keywording- Considerations Before you Start post, we talked about what keywords do, how they work, and how stock photos are something of a special case.

Basically, keywords are just search terms that people might use to find an image.

They are not necessarily descriptive of what’s in the image. They might be synonyms for things that are in the image. They might be opinions. They might be free association. They might be search engine-stuffing fluff. There are 19 keywords here. Only three of them are about what is depicted in the image. The rest are just words the photographer or the editors at Getty think people who want a picture of the Las Vegas version of Lady Liberty might use in their searches.

You’ll notice there is no caption

We’ve talked about never depending on keywords to communicate what, specifically, is shown in a picture. In this case – and these are good relatively fluff-free keywords – there are a couple keywords – at the bottom of the list – that do make it clear that we can’t assume this picture is of the real statue of liberty. But is that enough?

This picture represents a relatively common real-life hazard for editors. Search terms can exist – in keywords and in captions and other metadata, too – that don’t correspond to what’s depicted.

On the newspaper desk where I worked, I once had to write a correction because someone (not under my supervision, fortunately for me) searched for a picture of a murderer. What came back was a talking head of the police chief saying “we just arrested [murderer]”. Add in a small system malfunction and you get the police chief’s picture under a headline and over a mugline naming the murderer, one very unhappy police chief, one unhappy desk chief, and one grumpy picture editor pounding out something that ends in “we regret the error.”

Editors

If you’re looking for a stock photo, be mindful of the way keywords on stock photos work. There are always lots of them. Many are associative rather than descriptive. Some may be synonyms.

Different search engines and digital asset management systems treat keywords differently.

Beware!

Look at the keywords here. “Statue of Liberty” was not a keyword. “Statue of Liberty Replica” was. Apparently, though, this image returned on a search for “statue of liberty”. That phrase was part of a keyword.

Some systems treat keywords as literal strings, so “statue of liberty replica” would only return if the searcher entered the whole phrase. But here, a portion of the phrase returned the picture. Even if we searched for the exact phrase ‘ “statue of liberty” ‘ (using double quotes around the search terms to indicate an exact phrase) the picture would still have returned.

This does not mean, by the way, that there is something wrong with Getty Images’ search functionality. System designers have choices to make. A common philosophy is that it’s better to make return sets overbroad so they don’t miss the item the searcher seeks, rather than miss the target with a too-narrow return. The contrary consideration is that if a return set is way too big, the target will be lost in a sea of noise. Every system faces this compromise, whether it’s for selling stock photos or organizing your personal collection.

All of this adds up to

You can’t assume that results that return from your search really match your search, especially if you’re searching on keywords.  And often – usually, really – default searches will run across multiple fields. So usually, you are searching keywords, even if didn’t intend to. Advanced search can be your friend. Check your results carefully to make sure they really match what you intended to search for.

It’s not just keywords, either. Our police chief example was searching against the caption. That sort of unexpected response can happen a lot. A subject might be talking about another person. An actor might be pictured portraying a historical figure. First and last names might be mixed up. “john smith” will return a picture of John Jones standing with Sally Smith, neither one of whom is really John Smith.

Photographers

If you’re a photographer or the curator of a collection, you’ll do the best job you can with keywording, but it’s a tricky thing. Be mindful of possible confusion. Please be careful of “keyword-stuffing” synonyms. On some stock sites, every search, no matter what for, will bring back at least one cat picture and one woman in a bikini. Don’t be that keyworder.

Give us a caption!

Keywords tell us what we might search for to find a picture. We need to know what is in the picture. That’s what captions do. Don’t leave ambiguity. Tell the viewer/reader/editor exactly what the heck is depicted. When it comes right down to it, that’s a moral responsibility.

Agencies

If you’re a stock photo supplier, police your keywords so there isn’t too much “fluff”. Insist on captions, and display them. Yeah, I know that most stock photos don’t really depict anything. That’s why so many of us think that stock photos are usually a waste of space. And it might have something to do with the precipitous decline in stock revenue over the last few years.

Seriously though, if “two models pretend to enjoy the surf” is what you’ve got, be upfront about it. If a picture really does show a Haemagogus mosquito, that’s an opportunity. It will be a lot more valuable if you say so, specifically and unambiguously.

 

 

If you visited the link in this post to last year’s Meditation on the Caption post, you may have noticed that I used an example picture of some random guy in a suit to illustrate the idea that such a picture is value-less unless we know, now and in the future, exactly which suit-wearing person we’re looking at. My random suit guy was Congressman Joseph Crowley. Last week, Crowley became big news when he was unseated in a stunning primary upset and that picture suddenly became meaningful. Which was my point, exactly.

And what of the Post Office’s multiple licensing failures? How about this business of two “layers” of copyright? Is the judge crazy on the fair use issue? Three and a half million bucks from an institution that’s losing money? There is sooo much that’s soooo wrong. Jump in the comments and give us a license for a piece of your mind.