Sinclair vs. Mashable and the Consequences of a Lack of Focus

There are dangers to writing before finishing the morning coffee and I entered that realm today. I saw a link online to something that had been brewing, I tapped out an impassioned response with a call to action on Facebook and hit the post button.

Within a few minutes, it had a couple of shares and likes. Then the phone rang. The caller ID said it was the general counsel from the National Press Photographers Association.

First Rule of the Day: When your attorney calls, answer. Sending them to voice mail is never, ever a good idea.

Mickey Osterreicher had seen my post and wanted to walk me through some of the issues. Within seconds, I could feel the sandpaper on the brain, rubbing away my shiny surface words and explaining the nuances of the copyright infringement case that Stephanie Sinclair had brought against Mashable.

Then I removed the post. And I hate removing posts. So, here, for transparency, is what I had written:

The dismissal of Stephanie Sinclair’s copyright suit against Mashable is … stunning, really. Living in our current “sharing society” is providing a lot of challenges for those who make a living creating things, be they photographs, videos, writing or graphics.

I know some of my friends here will scream that information needs to be free but I’d counter that it needs to be both accessible and sustainable. I can’t walk in to Target, pick up a pair of sneakers and walk out with them – there were expenses involved in sourcing material, building manufacturing equipment, assembling them, packaging them, shipping them and displaying them. The fact that I need sneakers or want others to see these sneakers doesn’t relieve me of a theft charge.

When photographers post images to social media that is part of their marketing, it is designed to show what they can do so other entities can pay them to do more. In the Sinclair case, it’s especially egregious because she had already said no to this usage case. I’m not a lawyer, but that seems to indicate a willful infringement case.

This decision contradicts several other cases that have been decided regarding the lifting of images from social media posts (see Morel vs. AFP). I am hopeful there will be a successful appeal, but, until then, my existing Instagram posts have been set to private (which prevents embedding) and my willingness to post images there or here, to Facebook, Instagram’s owner, has dwindled significantly.

Thanks to Alicia Wagner Calzada for sharing this NPPA post and the work she and NPPA continue to do on behalf of the visual journalism industry – this is why membership matters.

Why did I pull it? Because I confused ethics and law.

Legally speaking, the case was decided correctly. The terms of service allow for the embedding of non-private posts. Sinclair, myself and what I assume are the vast majority of Instagram users (and we are users, not clients) agreed to let Instagram’s API give the option of embedding our posts into other mediums. The image wasn’t infringed, it was uploaded onto Instagram’s servers and, to do that, Sinclair had to agree to certain terms.

Again, we are users of their service – they set the terms and conditions. We don’t negotiate with them, you click a button and whatever is in that end user license agreement is what you’ve agreed to.

Now, ethically, that’s a different situation. Mashable requested permission to use the image and offered a (paltry) fee, which she declined. Which is within her rights – she controls the right to copy and display her work.

So, Mashable having seen the image elsewhere, did what it was legally allowed to do – it embedded the entire post in lieu of the individual image.

Does that create an ethical issue? Well, yes – if you approach me and ask if I will talk about your passion outside of the grocery store (whether it’s your faith or your football team) and I say no, yet you then start talking at me … ethically, there’s a bridge you crossed. You asked me to participate in something, I said no and yet you went ahead, anyway.

And here’s the other rub on this situation, as Mr. Osterreicher pointed out – due to the nature of the article Mashable was assembling, they probably would have been in the clear under the fair use doctrines of copyright law. The article was commenting on her work and that is allowed.

So where does this leave our industry and, well, me?

It’s a reminder that we have to read all of those pesky terms of service agreements. And, yes, Sinclair’s argument that they are incomprehensible is legitimate – but it is incumbent upon us to seek clarification prior to agreeing and not nullification after usage.

And as for me … I still believe that social media can be an excellent marketing tool for creatives. I’m luck that, in my current role as a teacher, I’m not our marketing my work to generate revenue. I push my images out on social media because I want my students to see I can still (kind of, sort of) do this and because it gives me access to an audience I no longer have.

Is this worth a tradeoff of allowing the embeds? Given what I’m posting on a regular basis, which would have little monetary value to other sites, it probably is. Will I be financially harmed if one of my posts is embedded? No.

But what about my colleagues who are out there, creating work that needs to be paid for so they can create more work? What’s my ethical responsibility to them?

This week, in my now-online classes at the University of Georgia, we’ve been talking about business practices. Everything from calculating your cost of doing business to how do you negotiate your fees. Part of that conversation is what is the impact on the market when you take a low fee for work.

The answer is it drives the overall value of everyone’s work down, that’s basic supply and demand. If, as a publisher, I can pay someone $1,000 for this set of images or $200, I’m going to go with the lower cost provider.

And before you get up in arms about this, realize we do it, too. Buying a car? You’re negotiating for a lower price. Selling a lens you don’t use anymore? You’re negotiating for a higher price. This is basic economics. When there an excess of supply (which, hey, look at how many people own DSLRs out there and call themselves photographers), that lowers the value of the work.

So what’s the takeaway here … a couple of things:

• Read the terms of service. If they don’t make sense, ask for an explanation from someone else. If you don’t like them, ask for a change. If they won’t change them, don’t use the service.
• Think carefully about what you make freely available. That doesn’t mean you don’t want to post to social media, but there’s a cost to doing it and you have to calculate what that cost is. If you’re a professional photographer, your social media feed should be an active part of your marketing strategy. It needs to show what you have done and what you can do, but it shouldn’t give away all the value of your work.
• Lastly, you need to think carefully about your own decision making processes. Does this situation sit well with me? Nope, read my (pre-coffee, pre counsel counsel) rant above. But, when looked at from a bit of a distance, yeah, legally, Mashable was in the clear here. Pushing this probably created some case law, law that we, as creators, probably don’t want out there.

I still stand by my belief that creators need to be compensated for their creations – that is an absolute. We don’t want doctors or carpenters who do their work for fun, we want them to be totally focused on doing their work with a high level of expertise because the consequences of them getting it wrong are massive.

Same thing goes in journalism – the consequences of inaccurate, unsustainable journalism are massive. You want accountability in journalism, which means the journalists have to take it seriously.

And that means they have to be sustained.

Now, I’m going to make another pot of coffee because the consequences of not doing that are not pretty.