Friday, December 4, 2009

PhotoBucket Merchandise, a Passionate Plea and a Warning for Artists!

We're a bit sensitive at the moment about protecting our copyright so you may find several blogposts on this theme in the upcoming weeks.

In general we're okay if people post Black Mermaid Productions™ owned artwork or Jozef's commercial artwork sourced from his DeviantArt gallery to their blogs or websites for promotional purposes, provided they also put up the relevant artist attribution and copyright statement, that is:

Art by Jozef Szekeres
Source: OR OR
© Black Mermaid Productions, [YEAR OF PUBLICATION] OR
© Jozef Szekeres, [YEAR OF PUBLICATION] .

However, if there is any doubt in your mind about the legalities of using artwork, then we do request you ask permission prior to posting it. You can you can do via this email address:

We usually say yes to 95% of requests except where they are to use images for merchandising purposes or when it comes to usage of our Black Mermaid™ logo artwork.

Having said that, we've just come across a HUGE copyright problem on the PhotoBucket website.

Before we start, we must mention that our issue is not with PhotoBucket the entity but with the users who post copyright materials onto the website without credit and without permission, especially when there is a merchandising facility attached to each page.

So here's some background for you to put you in the picture so to speak.

Photobucket advertises itself as, "the premier site on the Internet for uploading, sharing, linking and finding photos, videos and graphics."

The ABOUT page also tells us that PhotoBucket has:
  • 25 Million unique site visitors/month in the US, and over 46 Million unique site visitors/month worldwide
  • #1 most popular Photo site in the US
  • #3 most popular Entertainment/Multimedia site in the US
  • #8 most popular Entertainment/Multimedia site in the world
  • #31 in Top 50 Sites in the US
  • #41 top 100 Global Sites*
  • 18th Largest Ad supported site in the US
When users sign up they have to agree with the Terms of Use, which has similar copyright policies to social networking sites such as FaceBook. The PhotoBucket Terms of Use clearly states:
8. Content/Activity Prohibited. You must use the Photobucket Services in a manner consistent with any and all applicable laws and regulations. The following are examples of the kind of Content that is illegal or prohibited to post on or through the Photobucket Services. Photobucket reserves the right to investigate and take appropriate legal action against anyone who, in Photobucket's sole discretion, violates this provision, including without limitation, removing the offending Content from the Photobucket Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to, Content that, in the sole discretion of Photobucket...
8.8 constitutes or promotes an illegal or unauthorized copy of another person’s copyrighted work...
8.15 violates the privacy rights, publicity rights, defamation rights, copyrights, trademark rights, contract rights or any other rights of any person.
PhotoBucket also reinforces this in another clause:
15. Protecting Copyrights and Other Intellectual Property. Photobucket respects the intellectual property of others, and requires that our users do the same. You may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. Photobucket has the right to terminate the Membership of infringers. If you believe your work has been copied and posted on or through the Photobucket Services in a way that constitutes copyright infringement, please follow the procedures set forth in the Photobucket Copyright and IP Policy.
Okay ... in theory this is a benevolent website service that gives users the capability of placing all their photos, images and videos in one place to share with family and friends. However, the problem arises in the fact that there is a merchandising functionality attached to each page, whereby ANY user (family, friend or stranger) can upload these photos and images onto products available from the online photo gifts and print store. These products include greeting cards, shirts, hoodies, mugs, calendars, jigsaw puzzles, computer and mobile/cell phone skins. And here's the rub ... if you are an artist whose artwork has been uploaded without your knowledge and permission by somebody in breach of the Terms of Use, then in theory lots of people could be ordering merchandise with YOUR images and WITHOUT you getting a single cent in royalties.

Jozef stumbled on this site by accident the other day and was appalled to discover that several pieces of his artwork has been uploaded onto various users' private albums. He wrote to PhotoBucket straight away who have guidelines in place for these cases in the form of a Copyright and Intellectual Property Policy. To PhotoBucket's credit, the images were removed within 24 hours and Jozef received an email acknowledgement from the PhotoBucket Copyright Agent.

In the interim, both of us went through the site and searched on key words from Elf~Fin and WaveDancers, as well as Jozef's name. We have since discovered approximately 25 more images that have been uploaded illegally and Jozef has written to PhotoBucket again asking for action.

Realistically, PhotoBucket doesn't have the ability to patrol its own website as it contains over 8 Billion images so the onus is on you the artist to do the footwork, or perhaps should we say, the fingerwork because your little hands may get very tired checking out every possible violation of your images on this website. And you will need to do this more than once ...

What is at risk is your ability to create income from your artwork. We understand that there are some readers/fans who love your work and collect your digital images. Many of these people just sign the Terms of Use Agreement without reading it or even understanding what copyright is, let alone the implications of doing what they're doing – that is, denying the artist their rightful income from their work.

What we're objecting to is not the actual act of positioning favourite pieces of artwork together in an online album, but the lack of copyright and artist attribution information and accompanying links to the original source material, as well as the potential loss of income that comes with releasing these images on merchandise where the copyright owner gets no royalty.

Working in the Arts is exceptionally difficult and artists need to be made of strong stuff to survive emotionally, mentally and physically. We do NOT have a regular paycheck coming in. We have to take on part-time jobs which takes us from the thing we love most (our creative projects) in order to pay the rent and put food on our tables. We often deny ourselves little necessities and luxuries just to make it through the week and pay our bills. Every dollar we receive through passive income helps us get our work out to you more quickly. It also helps us do that urgent car repair job which we haven't budgeted for and that could potentially save our life, allows us to see one movie every blue moon, buy a roll of soft toilet paper instead of a one-ply generic brand, or allows us to have lunch at a cafe or restaurant with friends with day jobs who we've been putting off for months because there is no spare cash in our wallet for a $20 meal. To arbitrarily make decisions about our artwork creates great stress for us in more ways than one. PLEASE RESPECT this idea and be careful about HOW you use our creative works.

And by the way, the photo you see accompanying this blog post was one of the ones we found on somebody's PhotoBucket album! We hope it will be removed tomorrow once Jozef's email request has been actioned.


Anita Heiss's Blog said...

I'm down to the serviettes - when someone pays me I can get to soft loo roll!!!! Are we in the wrong art form???

I love your blog. More power - and payment - to you!

Black Mermaid Productions said...

Thanks, Anita.
I think we're exactly on track but just waiting for that breakthrough moment which is only a few minutes up ahead!