http://dougmenuez.com Commentary, ideas, inspiration and memoir from photographer Doug Menuez. Sat, 04 Feb 2012 19:13:47 +0000 hourly 1 http://wordpress.org/?v=3.2 http://dougmenuez.com/2011/07/10/slander-stupidity-the-mindless-mob-attacks-on-jay-maisel/comment-page-1/#comment-23606 Doug Menuez Sat, 04 Feb 2012 19:13:47 +0000 http://dougmenuez.com/?p=955#comment-23606 Mike, Thanks for responding and raising some good points. First, I don't think it's overreacting to be concerned about a mob attack on the web turning into physical attacks on property or possibly to the person, we've seen it happen so posting his address and inciting the mob is out of line, way way over the line in my view. Second, "made a lot of money" in regard to street shots, use in book, is a big maybe, we'd have to ask, but doubtful unless Jay licensed any of those shots for an ad. Licensing is where the money is. If he did, he would have had to have releases on all the people or recognizable stuff, which he probably did not. So your statement about making money off those is not likely true. But just maybe he sold fine art prints of those, in which case the rights are all fine under fair use - yes we all benefit from fair use and fair use is vital. Remember, the issues with KOB are not only whether it was fair use but also the fact that they used Jay's image to promote Kickstarter around the world as a concept. They all had financial gains at stake based on Kickstarter succeeding, so it was the same as if they had done a marketing or ad campaign and used the picture without paying for that. If McDonald's had taken Jay's image and with minimal changes used it in ads around the world we'd be talking about 50K, 100K or more bucks in usage fees easily. So they really made out because Kickstarter took off, they get a healthy cut of every KS project, and you can't take Jay's image out of that equation since it was featured in their publicity on CNN, BBC and in newspapers and online blogs etc worldwide without attribution or payment as I understand the case. In regard to your comments about his street photography: Just to clarify, as I understand First Amendment law, anyone can take pictures on the streets of NY and use them for portfolio, personal use, fine art, web site, and even publish them in newspapers and magazines without risk- unless there is a caption or headline or text that defames while identifying, or if the subject is identifiable, and the subject sues and a jury agrees. Of course in the case of fine art, the photographer is selling prints and making money and anyone can sue if they object so that may remain a bit of a gray area. Jay's disclaimer was based on the copyright law that allows for a minimum of 150K per infringement. Copyright law was established by our founding father's in the US Constitution to stop publishers from exploiting authors. We benefit from that. A lot of people would like to take that away. These people are not artists or if they are then they are too young to have benefited from a law that allowed them to feed their families and survive based on their work. Take it away and you take away our culture. I don't see an alternative, though I do believe in sharing images with educational use and non profits, and libraries if asked. I also agree fair use should be fairly flexible. Mike,
Thanks for responding and raising some good points. First, I don’t think it’s overreacting to be concerned about a mob attack on the web turning into physical attacks on property or possibly to the person, we’ve seen it happen so posting his address and inciting the mob is out of line, way way over the line in my view. Second, “made a lot of money” in regard to street shots, use in book, is a big maybe, we’d have to ask, but doubtful unless Jay licensed any of those shots for an ad. Licensing is where the money is. If he did, he would have had to have releases on all the people or recognizable stuff, which he probably did not. So your statement about making money off those is not likely true. But just maybe he sold fine art prints of those, in which case the rights are all fine under fair use – yes we all benefit from fair use and fair use is vital. Remember, the issues with KOB are not only whether it was fair use but also the fact that they used Jay’s image to promote Kickstarter around the world as a concept. They all had financial gains at stake based on Kickstarter succeeding, so it was the same as if they had done a marketing or ad campaign and used the picture without paying for that. If McDonald’s had taken Jay’s image and with minimal changes used it in ads around the world we’d be talking about 50K, 100K or more bucks in usage fees easily. So they really made out because Kickstarter took off, they get a healthy cut of every KS project, and you can’t take Jay’s image out of that equation since it was featured in their publicity on CNN, BBC and in newspapers and online blogs etc worldwide without attribution or payment as I understand the case. In regard to your comments about his street photography: Just to clarify, as I understand First Amendment law, anyone can take pictures on the streets of NY and use them for portfolio, personal use, fine art, web site, and even publish them in newspapers and magazines without risk- unless there is a caption or headline or text that defames while identifying, or if the subject is identifiable, and the subject sues and a jury agrees. Of course in the case of fine art, the photographer is selling prints and making money and anyone can sue if they object so that may remain a bit of a gray area. Jay’s disclaimer was based on the copyright law that allows for a minimum of 150K per infringement. Copyright law was established by our founding father’s in the US Constitution to stop publishers from exploiting authors. We benefit from that. A lot of people would like to take that away. These people are not artists or if they are then they are too young to have benefited from a law that allowed them to feed their families and survive based on their work. Take it away and you take away our culture. I don’t see an alternative, though I do believe in sharing images with educational use and non profits, and libraries if asked. I also agree fair use should be fairly flexible.

]]>