Wednesday, June 22, 2011

Ethics and Writers

At the Suite101 forums, a writer posted that she is threatened with a lawsuit by a photographer whose photo this writer used, without permission, to illustrate a Suite101 article. The writer says she didn't check for the reuse licensing when she grabbed the photo off Flickr. It was on her article for some number of months before the photographer found it and demanded she remove it and pay her $125 for the use. Since then this writer took the photo down and begged forgiveness, pleading carelessness at not checking the licensing, but the photographer stills says the money is owed, and if it isn't paid she'll sue.

Aside from the fact that $125 sounds a little steep, I'm pretty much in sympathy with the photographer on this one. The posts on the forum have generally concluded that it was an honest mistake, and since it would cost the photographer to sue, the writer shouldn't pay anything. Here's my take on it:
There's the law, there's what you can get away with based on practicalities, and then there's the higher standard of ethics.

By the law, you used a copyrighted photo without permission. You did it inadvertently, but ignorance is never a valid excuse. By law the copyright holder is due compensation for the several months her photo illustrated your article.

But the practical matter is for her to sue you and obtain a judgment against you and then collect that judgment is cost prohibitive. So you can probably get away with it if you will just endure the shouting.

But by ethics, once you were made aware of the situation, don't you need to compensate her? The law defines the lowest acceptable standard of human behavior. Ethics defines something higher, something better, what's really right and wrong. Paying something will be a tough lesson to learn, but it's the ethical thing to do.

I agree with those who suggest making an offer. How many months was the photo illegally used? Offer her so much per month, maybe $5 or $10, in full compensation for the use and for her statement thereto. Print and file all e-mails. The payment will be a tax deductible business expense in the USA, probably in most countries. That should help offset any writing income you may have.
A costly lesson for that writer. Right after I posted a man, who might be a lawyer as well as a writer, posted to say that the photographer couldn't prove damages either through loss of income or beneficial income to the writer as a result of illegal use of the photo, so the writer shouldn't pay. He demonstrated exactly what I said in my post. He recommends the writer fall back on the lowest acceptable behavior, rather than hold to an ethical stand.

I'd be interested in what my readers think about this.


Aleah said...

I'm with the photographer on this one. It makes me worry though. In my articles and blog posts, I always look for pictures which have been licensed for commercial reuse. What if the photographer changes the license? How can we prove that he/she did? >_<

David A. Todd said...

Thanks for commenting, Aleah. You raise a valid concern. I like what someone said on the Suite101 forums (Malysa, maybe?). She said she always e-mails the photographer, says how the photo is being used. It seems that would protect the re-user of the photo, and would prevent misunderstanding of what the license is.

Most of the time I try to use public domain photos, government ones, for example.