AmericanSuburbX – When does fair use become a copyright infringement?

April 10, 2010 at 12:59 am

I first encountered AmericanSuburbX in 2008. My initial thoughts were – ‘hey, this is a cool site’. But gradually I became more and more uneasy with the site and it’s content. It became obvious that 99% of the content was sourced from elsewhere – often without permission of the creator. Whole essays and photographic series were being reproduced under the ASX banner.

As a standalone project, I could just about accept that ASX had a place – the fair use claim could be that the site was an educational resource (i guess?) – but when the content started appearing on Facebook, I was really surprised.

I’m all for the sharing of content, but I also feel really strongly that the creator should have a say in where his/her intellectual property appears, especially if they are getting no renumeration. I had my own run in recently with GUP magazine – this ended up on PDNpulse and several other blogs, and to the great credit of the publisher Peter Bas, they have now amended their policy for featured artists. Its not that hard – contact the photographers that you want to feature, explain what you are doing, and generally everyone is happy.

Facebook though… thats a different beast. As a photographer, I am really careful about what content I upload directly to Facebook. I have a fan page, to which I post the odd news item and every so often a photograph – but this is my calculated choice. Why am I so cautious? Well lets just say that Facebook’s terms and conditions aren’t the greatest for uploaded content:

2.1 For content that is covered by intellectual property rights, like photos and videos (“IP content”), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook.

With this in mind, why has noone had an issue with the 141 galleries of photographs that ASX editor Doug Rickard has uploaded to Facebook? If I found out that someone had taken my images from my website and put them on Facebook, I would be fuming!

It gets better – Doug Rickard has now made ASX available for mobile devices and is actively searching for ways to make ePub versions of ‘borrowed’ essays available for ereaders like the kindle.

I’m not the first one to call Rickard out on this – Bryan Formhals questioned him over at La Pura Vida, and prominent photo critic A.D Coleman was quite rightly pissed off to discover that one of his essays had been reproduced in it’s entirety on ASX. However, in spite of these disputes, the content on ASX keeps on growing, both on the original homepage and (more importantly) on Facebook.

So here’s my pitch – while I can sympathise with the popularity of ASX, the uploading of thousands of copyrighted images onto the Facebook platform is a clear breach of copyright that is of no benefit to the content creators. The Facebook T+C’s are of detriment to anyone who uploads their own Intellectual Property; coupled with this, Doug Rickard is also in clear breach of Clause 5.1 in Facebook’s terms and conditions:

5.1 You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.

I would be interested to hear from Mr Rickard how he can justify posting this content onto the Facebook platform, and also why he thinks it is okay to use other peoples intellectual property without asking permission. (disclaimer – Perhaps Mr Rickard does have permission form the content creators – in which case I apologise…)

What do you think about this? With the recent success of the Stop43 campaign in the UK, its been recognised that photographers have total control over their intellectual property. As A.D Coleman stated in his response to Rickard:

I might well agree with you when you write that “I thought that it needed to be seen rather than buried somewhere in an archive.” The appropriate way to deal with that perception is to contact the copyright holder of the work and propose to put it online. To which the copyright holder may or may not agree. Republishing it without permission is presumptuous, to say the least.

  • Rstaff11

    I just came home from watching this piece of work speak. So far yours is the only critical review I found and I wholeheartedly agree with your point and then some. The sad thing is that he actually takes pride in his appropriation of others work. Ick, excuse me, I have to go shower now.

  • http://gofeetgo.tv hannah

    Rickard does well to illuminate us on a underlying partial involvement from artists. However, I’m not seeing where he really addressed the FB issue, outside of calling his postings like those of countless blogs, but concentrated. Posting a picture to a google, etc. blog may be some kind of soft-core infringement that content-makers tolerate, with the intent to not retreat back to the internet of 1990s, with watermarked images that are as big as this reply box.

    What level of infringement is the unsolicited act of a making facebook archive? Soft turning to medium? But, if anything Rickard’s taking his concentration of photo-pellets and sprinkling it over shark-infested waters. The likelihood of a hard-core infringement perhaps is then multiplied. You’ve concentrated the risk in the place where risk is highest. It’s the potential of further, more damaging infringement from unknown parties that we’re all concerned about, not the well-intended blog-like infringement that Rickard himself has commited.

    To what extent, Rickard, are you complicit for what potentially can happen to the images in FB?

    (btw, sorry for any ambiguous minced modifiers. Your wife’s sister isn’t lame, I was referring to the 3-11 times of her. )

  • http://www.zoewiseman.com/ZW Zoe

    I would flip out if someone posted my photography on facebook, google, or any other CORPORATE thieving giant site without asking me. Even if they asked me, I wouldn’t give them permission.

    person a, the artist, posts their work on their website, or is published in a magazine or book.

    person b, the admirer, takes the work off the website or scans from the book or magazine and puts it on their blog which is owned entirely by a corporation, or posts it on a social network, without asking permission from the photographer.

    person c, the opportunist, sees the image from person b and takes the photo and starts using it for himself.

    person d, the corporation, takes the image because person b and c clicked on something that said they had full rights to publish person a’s work even though person a knows nothing about it. person d (corporation) starts using screen grabs of their social network which includes copies of person a’s work.

    person a finds out person d is pilfering their photography to use for advertisements which promote their social network (let’s say they are google or facebook). person a is horrified, angry, feels used, hires an attorney. after several back and forths, months and years of litigation and HUNDREDS OF THOUSANDS OF DOLLARS later, person a finally receives a settlement from person d which doesn’t even cover all of their attorney fees.

    in short, this shit ain’t cool.

  • http://wecanshoottoo.blogspot.com/ J. Wesley Brown

    @Bryan – Yes, please post my work to the LPV FB site. I’d be happy for the exposure and if the company that built the platform that allows you to give greater exposure to my work makes some of their investment back or profits a bit, that’s ok by me. I’d prefer you posted it to your blog, but if FB gets greater exposure, then fine. If I have an issue with it in the future once I don’t need the exposure, I’ll request you take it down. Common courtesy and we’ve solved any problem.

    “What if I don’t want my work showing up next to shitty web advertisements?”

    Again, Doug said he’d take down whatever people ask him to.

  • http://unusuallight.com/members/members/benroberts/ benroberts

    hi doug,

    many thanks for visiting the blog and leaving such a detailed response. I’m sorry that your wife’s sister was labelled as ‘lame’! :-)

    a couple of thoughts…

    - it might be worth having some of this explanation, and maybe a list of ‘partner’ photographers and writers, on the ASX site. This would lend the site more weight and make observations like the ones that I have made redundant.
    - regarding being ‘liberal’ with posting photographers images on facebook – I still think thats something you shouldn’t be doing. Its not too hard (and its also ethically correct) to contact the copyright holders and ask for permission before doing so.

    cheers

    ben

  • http://www.americansuburbx.com Doug Rickard

    Hey Ben,
    I just had someone send a link over to this post and I wanted to send a quick note over to you – figured that it may be something that you were looking for.

    Here are some areas to shed a bit of light. You can get some insight into my approach and thinking.

    On the ASX site, most of the content is older, as you have noticed… with a few exceptions, Paul Graham’s essays, Shelby Adams essays, my essays (probably 30 or so there), etc. but it is spreading out into other areas rapidly. It is becoming much, much more. Certainly, I have no interest in reposting current blog posts from others… it would not make for great publishing to say the least, everyone is doing this already with links to each other and it is a bit boring, at least for me. My only voice on my site is with a different approach – read the essay here to get a guage on this:

    http://www.americansuburbx.com/2008/09/todd-hido-new-work.html

    More on the poetic lines. I will bring some of this style of writing to Foam Magazine (nl) and some other publications in the upcoming months.

    Here are some of the sources for content on ASX and also some comments on areas of concern for some of you on this thread:

    - http://findarticles.com/

    (“Find Articles” his is actually a major source for ASX. I noticed that there was such rich content in these open source magazine article archives, mainly from the early 90′s and into 2000′s, old print mags, and I started to put them together to allow fresh eyes to read them. I do make these quite “shiny” with editing, etc. and incorporation of imagery and I post only what I think has “weight” and also fits into the ASX narrative)

    - Content with active and explicit partnerships (I will name just a few of them – Gil Blank, JH Engstrom, Bruno Chalifour, Martin Jaeggi, Shelby Lee Adams, Todd Hido, Paul Schiek, Robert Hirsch, Bruce Jackson, Roswell Angier, Danny Lyon, John Divola, Ed Templeton, Scot Sothern, Tanyth Berkeley, also many of the major photobook publishers) is also a very large portion of the content. There are so many people in the industry that are thrilled about the site, I can’t even begin to list them all. The readership is at roughly 100,000+ visitors per month to the main site and growing rapidly and everyone who has been in contact with me view this as a win for themselves as individuals and for others as viewers. As you pointed out, AD Coleman did not and I removed his essay immediately. There was one other individiual and then literally this thread here that you posted. That’s it – over the course of a year. Other than that, everyone has gone crazy over the site and wanted to be part of it, even waiting in a waiting list to be part of it.

    - Photographers own portfolio sites with interviews and essays that have run (I usually reach out to the photographer to see if they want to run those). Many photographers run all of their publication content essays, interviews, etc on their own site)

    - Facebook galleries are often a joint effort (Pieter Hugo, Mike Brodie, Todd Hido, Shelby Adams, All of the Bill Charles Represents photographers: Stephen Shore, Larry Sultan, etc.,) and many are not. I am a bit liberal in this area with the “Canon” as Bryan F. referred to them. I have no interest in commercial photographers and for the most part journalists – these are the largest stakeholders in the area of web licensing for their imagery. As fine art photographers, most of the photographers in the FB galleries are not concerned over FB advertising dollars or “clicks per view” on their photographs for lo-res viewing of the images – their revenue is coming in massive fashion 95%+ from print sales in galleries, the web lo-res galleries are the least of their concern. To date none have asked to be removed or deleted. Magnum artists are gone as I rethought this and they DO have a concern over web viewing. As a side note, these galleries on FB are parallel to the use of these images on individual blogs across the web, but in more concentrated fashion. Blogs also have ads, as does Google Images if you do a search, etc. FB is just a place that made sense to do this, as a companion to the ASX site…

    Other sources:

    - PDF’s for essays that Google posts in their entirety – do a search on Google for Diane Arbus for example and you will find Google’s own trawler versions, HTML and PDF’s, Google Docs, etc

    - Essays and images directly from galleries and gallerists who represent the photographers. Again, they are not concerned over ASX and viewers diving with fresh eyes on to their artists. They are concerned with selling prints. Many galleries are able to provide approval for image use and essays.

    Hope this helps. Obviously, we disagree in some areas but this may help shed some light into questions that you have above (your disclaimer area).

    I didn’t want to get too wrapped up directly in a lengthy debate on the shifting landscape of the web and copyright but wanted to get some info posted for you guys to talk about further. Have at it!

    (P.S. – The blonde in the banner up top, that is my wife’s sister. The photograph looked to be cold, superficial and raw, “Star-80′ish” with an edge… much the way that I view America itself – superficial, desperate for stardom and with an edge. I added in the other icons purely to connotate this very “American” vibe. I did not want a “highbrow/Academia” feel to the banner and title even though the content was going to be weighty. The visual look had to be edgy and a bit “in your face” to counterbalance the weighty diatribe. I may refresh the banner up top at some point… )

    Best,

    Doug Rickard

  • http://bryanformhalsphotography.com Bryan Formhals

    Good points Hannah. I agree with the design and overall attitude. This is why it feels more like a vanity project than anything.

    What would be more appropriate would be a wikipedia style open source, collaborative amongst the photography community for archiving this type of work.

  • http://straightfromtheden.blogspot.com straight from the den
  • http://gofeetgo.tv hannah

    I never spent more than 3 seconds on ASX. The hollywood girl on the banner 3x over is lame, not to mention the title, hackneyed, and it looks like a glut of everything. Like a photo history 7-11. Is there something wrong with not wanting everything potentially amazing for discovery on your plate in one fell swoop?

    Platforming it to facebook, without mention of its property issues, is even more of a affront to any kind of real sophistication. Maybe we can all agree that we need to ween people off of facebook rather than giving them more reason to suck heavily on it.

    Where does one start in a place like ASX anyway? It’s one of those everything-you-need-to-know-about-photography is here, so you should read this whole thing if you wanna play photoball online, and be cool, and X-y, whatever that is. Ironically, in the about section Rickard lauds the sites heavy-editedness; and its clear now that this might just be a disclaimer in euphemistic double-speak for his “editing” of other people’s content.

    No need for any of that.

  • http://bryanformhalsphotography.com Bryan Formhals

    @Wesley: So may I take your work and post it on the La Pura Vida Facebook page?

    And you do know that Facebook sells advertising against the pages, right? What if I don’t want my work showing up next to shitty web advertisements?

    And what if I did this with all the original content that’s published right now on blogs? Could I take Jorg Colberg’s essays and post them verbatim on LPV? Or what about just downloading the Fraction essays and re-uploading them to the LPV Facebook page?

    For whatever reason, there seems to be this impression that work from the “canon” is pretty much fair game as if these photographers and writers are dead or simply don’t care.

    I mean, that Graham essay was written just a couple months ago. It hasn’t exactly been buried in some archive somewhere.

    Clearly, I post photos around the web and don’t always get permission. For the LPV blog, we always contact the photographers. Tumblr is a bit of a different story, but I think there’s a clear difference between one off photographs and entire galleries.

    But Facebook is an absolute no no. Not now, not in the future, not ever. They are doing everything they possibly can to make it the only place you go for content on the web.

    If you don’t understand how corrosive Facebook is becoming then you’re not paying close enough attention to the internet. And if we simply are lulled into complacency by laziness and convenience, we’re going to lose many of the things that make the internet frickin awesome.

  • http://www.prisonphotography.wordpress.com Pete Brook

    Has Doug posted any interviews posted on blogs? From my recollection, he has not. It’d really create a brouhaha if he started pilfering recently published blog material – which is often of high quality but rarely remunerated.

    Perhaps we should examine Doug’s use and reuse of old media/new media

  • http://wecanshoottoo.blogspot.com/ J. Wesley Brown

    It’s pretty easy to set up a google search alert for one’s name and receive an email each week pointing you to new instances where your name crops up.

    Doug said he’d take down anything people asked him to. He credits everything.

    Ben – I may be playing a bit of devil’s advocate here. These are all new questions.

  • http://unusuallight.com/members/members/benroberts/ benroberts

    “I’d be willing to bet that most of the authors aren’t so upset with the extra exposure.”

    and I’d be willing to bet that some of them would be – particularly the facebook content.

  • http://wecanshoottoo.blogspot.com/ J. Wesley Brown

    What I mean, is that I come across things there I wouldn’t discover myself there.

  • http://wecanshoottoo.blogspot.com/ J. Wesley Brown

    Perhaps I could but I’m pretty busy having a day job and all. Maybe these things are available with a google search, but I like the curated aggregation. Sorry, but it’s true. It may be lazy, but I’m not lazy in other ways so I forgive myself and I’d be willing to bet that most of the authors aren’t so upset with the extra exposure.

    And let’s not forget Doug’s original content. No one writes from the heart like he does. This is a curator writing from the soul. Not even 15 min?! Come now.

  • http://waxyphotography.com John Goldsmith

    What’s interesting to me is that some guy can do a better job of repackaging an article than that produced by a major media outlet. That doesn’t make it legal or right but it makes the material more easily digestible. Take the following Fred Herzog article that was originally published in the Vancouver Sun:

    Vancouver Sun (original):
    http://www.canada.com/vancouversun/story.html?id=02286fd5-d6ab-4c03-aada-e965332b0781#

    ASX:
    http://www.americansuburbx.com/2009/06/theory-fred-herzog-in-his-own-words.html

    Now, I suppose that the poor editing (and HTML coding) is a result from the newspaper’s primary focus of making a print copy and only later haphazardly compiling a web version, but it is not an excuse. This article was first published in 2007 — not 1997! From this, I think newspaper publishers could learn a thing or two from Rickard, though stealing content should not be one of them.

    That said, and it is a big THAT(!), what ASX is doing is wrong. I disagree with the practice even if it takes some time, energy and bandwidth from Rickard. Even worse is this Facebook trend. What. The. Fuck.

    While there is a place for fair use, it is clear that ASX is overstepping the law and common courtesy by not back-linking to the original source and artist. Of course, Rickard won’t do that because he knows the IP abuse is morally wrong, illegal and more people would object if they realized what was going on at ASX. So, on top of being illegal, it is rude.

    Finally, while I loosely followed the site for a year or so, it took this Herzog article before connected the dots and realized that ASX was a total cut and paste job… which pretty much offended me and turned me away from the site.

    Boo!

  • http://unusuallight.com/members/members/benroberts/ benroberts

    would any of the featured photographers know they are on facebook? Maybe I’m wrong, but I can’t imagine Daido Moriyama has a facebook account.

    I’ve heard a rumour that Magnum were furious when they found out about ASX – hence the lack of Magnum photographers work on the site.

  • http://www.fractionmagazine.com david bram

    First, Facebook now has 411 million members. That is 6% of the world population.

    Second, have any of the ASX featured photographers complained about being on ASX?

  • petebrook

    For me there’s two things going on at American Suburb X. The writing and the photography. Both are nicked most of the time.

    I’ve often wondered where Rickard gets some of his images because many of them are not elsewhere online. He is tapping some exclusive sources to illustrate the texts, no?

    I’d be more forgiving of Rickard if he was just posting on his own site, but his extension to Facebook is not something I support – particularly with images. It is crass more than anything. Photographers and artists didn’t make work to have it shunted into the FB silos.

    Many of the photography online communty have treated Rickard as the stupid kid at school who takes all the risk for the stunts everyone else wants to pull. We don’t dare but we can’t wait to see what happens if someone else does it.

    It took an old school fellow like AD Coleman to ream Rickard because the rest of us were enjoying ASX content so much.

    We all know the internet is changing, but we needn’t use all the utencils and recipes it throws at us especially when the ingredients aren’t even ours.

    Last thing. Bryan Formhals was right to bring this up last year. Perhaps the fact no-one took it on shows the level to which we are all prone to turning a blind eye when it suits?

  • http://unusuallight.com/members/members/benroberts/ benroberts

    “I’m super grateful for the content he posts because I thoroughly enjoy it and wouldn’t come across it elsewhere”

    hang on – of course you could come across it elsewhere… are you or I not capable of going to a library, researching a photographer or author, using google?

    i can honestly say that I have never spent longer than 15 seconds on ASX, and have never read an article on there. And yet I still get my fill of good writing, photography and commentary by doing my own research, reading books, and visiting gallery shows.

    relying on someone else abusing other peoples intellectual property is an easy (and lazy) way out.

  • http://wecanshoottoo.blogspot.com/ J. Wesley Brown

    Personally, I’m super grateful for the content he posts because I thoroughly enjoy it and wouldn’t come across it elsewhere. It’s perhaps my favorite photo site, even. That being said, yeah, it’s probably not legit and if someone wanted to spend the time and effort to sue, they’d probably win.

    As for FB, he’s in violation of the terms as you mention. Thus, the photos are not available to FB to do what they wish with them, as would be the case with photos you or I would publish that we took ourselves. He’s broken the rules so it doesn’t count so who cares? Free publicity is nice, right? That being said. they can kick him off for that but they haven’t, most likely because no one has complained.