Category Ethics & Legal

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.

“Take as many pictures as you want. We need this to be known.”

How we deal with families after they have been through a traumatic event is a constant conversation for us. Finding the balance between the needs of individuals and the needs of a community can be brutally hard.

We never want to intrude, we never want to add to the grief a family is experiencing but, at the same time, their story can have a powerful impact on a community. That story can both explain what has happened and help a community move forward, through healing or actions of change.

Cesar Rodriguez walks us through his coverage of the slain family in Mexico over at Time.

They were telling me that we want people to know what happened because if they don’t know, if things don’t change, their deaths will have been for nothing. So something good has to come out of this. Something powerful.

Worth a read.

What You Photograph Is a Reflection of Who You Are

A sarcastic Tweet reply set off Dan Ginn at The Phoblographer this week.

As it should have.

I’m forever thankful I work with students who care about their communities and want to use photographic tools to explore and explain issues within those communities. As a general rule, the see photography as a means, not an end – our classes, workshops, discussions and goals are not based on making a photo, they’re based on making a difference.

Because I am a camera geek (I know, you’re shocked), I do spend some time on sites focused on photography. There is a significant level of, “I love how this lens made this woman beautiful” types of posts and, well, every one of those gets me a little closer to leaving that group.

I’ll grant that my reason for carrying a camera is not the same reason as everyone else’s. I use photography to record, process and comprehend my world – and, once I’ve made some sense of it, to share that information with others. It is a documentary tool, an investigative tool, an exploratory tool. If I’m going to freeze a moment in time, there needs to be some societal value to that moment that adds to our understanding without minimizing or objectifying others.

If your photos don’t educate and illuminate, I’m just not that interested.

But, hey, that’s just me and sometimes I like to photograph my dogs, too. I don’t think they feel objectified by this.

One Step Closer to a Small Claims Copyright Court

The House of Representatives passed the CASE act yesterday on a 410-6 vote, which brings the bill one step closer to becoming a law.

Why do we care? This bill has been ten-years in the making, supported by the U.S. Copyright Office and trade organizations (including the National Press Photographers Association) and is designed to make sub-$30,000 copyright infringement claims much easier to pursue.

The Senate now needs to take this up.

The Pelosi-Trump Photo

Good discussion over at the Chatting the Picture podcast about the Nancy Pelosi – Donald Trump image that the White House released last week.

A lot of analysis in the first six minutes, but they didn’t go into the sourcing issue which raises all sorts of other ethical questions – do you treat this differently because it’s a hand out photo? Does that factor into the discussion?

We Can’t Even Trust the Canadians Anymore

The Canadian Green Party has been caught editing a photo of the party’s leader, Elizabeth May – they added in a logo and a reusable straw.

All the technology at our disposal and this is what we do with it …

When We Take Away What We’ve Made


Two decades ago, Susan Meiselas published a project that looked at how the visual history of the Kurds had never belonged to them – it was made by outsiders, taken away by those outsiders and then, essentially, banned by outside entities.

Magnum has published an excerpt from the 1997 work and it has given me great pause as I wrestle with the questions Meiselas did – what is our responsibility to the communities we cover, particularly the disenfranchised ones? Do we need a cohort of visual journalists to bring the stories of disparate communities back to them?

I’ve long had concerns about parachute journalism, how we tend to drop in on the latest hot spot, blanket it with coverage for outsiders and then disappear. Where is the exploitation line?

Starry, Starry Fakes

I may have a new hero – Dr. Elisabeth Bik, a microbiologist who has been looking at ethical issues in science journals, has turned her eye to some astrophotography published by National Geographic.

One of the great losses of the last 20 years has been the relationships between photo editors and photographers. It used to be that those relationships were cultivated, there were meetings and conversations and extended editing sessions where editors went over work, frame by frame, debriefing the visual journalist who was there in the field. They built up a rapper, they built up trust.

Those days are, for the most part, gone. Photo editors in some places are more akin to photo vacuumers – they are charged with sucking up as many visuals as they can to drive engagement and clicks in the digital realm. Without those relationships, even editors at publications as vaunted as National Geographic are going to get fooled.

Independent journalists, alone with their laptops and without a structured, ethical framework surrounding them, are going to have lapses. With the volume of work to do and the lack of interactions, what else do you expect to happen?

For publishers, they need to take a close look at these situations and ensure that protections are in place. Develop those relationships, get people on the phone, ask direct questions about the work – is this the way the camera saw this? Did you alter the original file? Did you alter the scene? Did you use any special effects? How did you get this access? Is there anything about this image I need to know? Do you understand the consequences of us finding a problem with this image later?

In her Twitter thread looking at lots of images, Dr. Bik asks a simple question: “Where does nature photography end and where does art start?”

I’d replace “nature” with documentary. And if you’re publishing documentary or journalism work, then you better be damned sure it’s real.

Pop Stars and Copyright Theft

Seems like we’ve been down this road before … The National Press Photographers Association and 15 others organizations have sent a letter of protest to Ariana Grande’s management company over a copyright grad that’s inserted into their press coverage agreement.

Photo Editing and Senate Hearings

Over at the Columbia Journalism Review, Darrel Frost takes a look at how last week’s supplemental Supreme Court hearings were handled visually.

The dilemma is what can you or should you show in one frame when an event went on for more than that 1/250 of a second. My thinking has always been that you look for an image that is both accurate (meaning, it happened) and true (meaning, it represents the overall story). Does that open you up to criticism? Sure, but part of journalism is looking at the larger story and putting the individual elements within context.

The word-side has it much harder – how would you describe the nominee’s testimony? The other witness?