Stolen Photos (thousands) in Apple and Android Apps

[nmbugs]

While I am in NM this problem is Global and the photographers involved, well that we know are involved at this time live in the US and abroad.

This problem crosses so many issues but I guess this is the place to start. A few weeks ago I purchased a few Apple apps thinking they were identification apps for insects and spiders. I was shocked when I opened them and found images of macro photographers I know. I contacted one to ask him if he knew his photograph was being sold in an Apple and Android app and he said no. I then contacted others and they too had no idea their work was being stolen and used for profit.

I contacted Apple thinking they would understand since they have pages dedicated to theft of their property yet I was told to go take a hike. The legal department at Apple even suggested that I buy more of these apps (182+ being sold) until I find my images so I had the ability to file a complaint with them to get them to review the apps.

In several of the apps the photographs had copyright watermarks on them and Apple is aware of this but refused to do anything until the copyright holder contacted them. Apple and Android claim to have strict reviews of apps to prevent this from happening. According to documentation they are supposed to have requested written permission from all the photographers whose work is being sold but they have none.

All the Images are being hijacked from Flickr from both amateur and professional photographers. Some people have Creative Common License attached and others have copyright notices attached. The Creative Common license is also being violated as the photographs come on with music and just images scrolling by. The user has to know how to turn on the credits for the Flickr username to be displayed in small type sometimes at the bottom and in a few apps in the image a little higher up. There is no linking to the photographers Flickr page in the app, on the app details or even on a website for the "company" selling it. Matter if fact the company, an LLC in Utah has a domain name but no website up, it's just a parked domain at godaddy.

One photographer contacted the developer who blamed the Flickr API however he never took down any of the apps to correct "this problem" or contacted any photographers to explain himself. My husband who has an IT business and is also a programmer joined the Flickr developer community and created an app using the same Flickr API and everything pulled just fine. There was no "error", just a slimy excuse from a creepy guy, a guy who has made thousands already stealing the hard work of others. He is just trying to protect his little goldmine and will say whatever and hope he is not sued. He has no excuse to claim ignorance, after all he has a masters in physics, although ignorance of the law is not a defense...lol, correct?

According to one site it was documented that the number of downloads (as of 2-3 weeks ago) from Apple App Store only, this developer has made over $4,500.00. I have no idea how much he has made since or on the Android Network. From my understanding this should, probablly for the first time) trip the criminal code for copyright theft of "unknown, not famous" photographers as a whole. Usually when our work is stolen on individual levels the criminal codes doesn't apply because the thief hasn't made enough profits to trip a criminal charge but this should, should it not? It seems that since Apple turned a blind eye and Android has a form that makes you electronically sign "under the penalty of perjury that you are the copyright holder" prior to hitting submit, that should could be held civilly liable for allowing this? Using some sort of excuse or law to skirt around people reporting THEFT, not reviewing apps with watermarks on stolen work in the apps, while at the same time begging people on their site to report stolen software, logos and images. Detailing and reminding people on those pages about the same law that protects us? Yet they knowingly turn a blind eye to the thefts until the owner can be contacted and report it. Then when that person does, they only do what? Remove that app or that picture allowing the rest of the stolen work to be sold and not reviewing any other apps hoping nobody will buy the apps and contact the owners? It seems sort of nuts, doesn't it? Oh if we don't see if, the work isn't stolen, hear no- see no- speak no, I guess!

Finally another issue and one that might get this ball rolling is one app selling on Apple (haven't checked Android which he has a little fewer there at last check) is an app called "babies". I purchased it and frankly it gives me the creeps.

Who the heck besides a pedophile would want snapshots of other people's kids in an app! Can this fall under child exploitation laws?

Photographers have to be EXTREMELY careful when photographing children and getting parents signed permission to use the photographs in a portfolio or on the web. In this app there are a few images by professional photographers but it's mostly snap shots taken by moms, dads and grandparents. No Annie Geddes photography here, just picture of kids not related to the buyer or seller. In the images that are taken by a professional photograph perhaps/hopefully that photographer has a signed release from the parent to show the pictures on Flickr but it's doubtful that the photographer has the ability/right to give right for another use not documented in the release.

I have not contacted the parents of this children because I don't know what to say to them. So many people have no clue what their rights are, sadly many professional photographers fall into this too with a false words of message board understanding of copyright law, registration verses non-registration copyright noticed images. All registering does is gives one statutory damages but that doesn't mean you cannot recover financial loss or file a criminal complaint.

Any suggestions would be greatly appreciated, especially in the "pedo baby app". Apple and Android need to be accountable too, not only did they not follow protocol in screening the apps but turned a blind eye to my report just because I haven't purchased the right app that may have my work in it. Heck on apps where my work could be in it say in description "hundreds of images for hours of enjoyment" the way the app purposely throws in a few new images every few "rotations" who knows if my work is in there or not? This just isn't right and it needs to be stopped and hopefully some precedence set! I am tired of having my rights used and abused.

 

[army judge]

I'd tackle this for you, but if you wait, Law Professor will give you a better answer. He's one of the founders of this site.

He's also a scholar and author on this subject. Give him a day or two and he'll answer your query better than I could.

 

[Michael Wechsler]

Thanks Army Judge - I was busy with the major upgrade to the site, currently taking place. You are also far to kind.

numbugs - I haven't seen the correspondence with Apple but you did say one very important thing:

In several of the apps the photographs had copyright watermarks on them and Apple is aware of this but refused to do anything until the copyright holder contacted them.

Therein lies the problem - nobody who has been harmed has contacted Apple. Just giving you a hypothetical -- for all you know, some of those pictures that are in that app were licensed to the developer but without your knowledge. Apple cannot and will not go on a wild goose chase because some third party who has no claim is telling them that he or she believes there could be a copyright issue. What they told you was that since you know who the copyright holders are, just have the copyright holders write them a letter informing the store that they are the owner of certain photos and this application is violating their copyright. Wouldn't that be the most logical way of handling this matter?

I used to work as counsel and an executive at one of the largest user generated content sites for mobile phones. As a matter of fact, their Android app is the #1 app for mobile phone customization. The amount of material uploaded to the site was and is ridiculous. We would never have been able to make it work if we had to jump every time some yahoo said "I think there is a problem!" Not saying you're a yahoo, but now that you know, the logical course is that you'll tell the owners who, if they care, will do something.

Regarding Apple's accountability - now we're running into a very grey area. I always wondered about the paradox that exists online and the law is still struggling with how to handle it. Take YouTube for example. How could the founders not have known that the site was used primarily for a way to upload and distribute TV and movies? That was Viacom's argument. But it has progressed over time. There are "DMCA safe harbors" (Digital Millenium Copyright Act) for sites like YouTube to operate which provide "online service providers" with the ability to provide such services for content but they would be immune to liability. Think of it the same manner as your telephone company - telephone fraud may have taken place on the telephone company's bandwidth but they aren't responsible just because they provided the infrastructure making it possible for you to talk. The reason behind these laws are simple -- if such service providers were held responsible for everything uploaded onto their site, these sites could never exist. The cost of preventing copyright infringement would be too high and the Internet and its creative progress would come to a crashing halt. The compromise is that sites that feature user generated content must adhere to certain guidelines in order to be within a "safe harbor" so as not to be automatically liable for copyright infringement every time some user uploads a copyrighted item.

Does Apple fall under the protection of the DMCA safe harbor or have another valid defense? The answer doesn't matter if the dollar value of the case isn't large enough. The cost of prosecution is far too high to make it worthwhile for anyone to find out. But in the end, if you think about it, there isn't much of a good reason why the copyright owners couldn't do the exact same thing you did and probably would have avoided the investment in time. That's really all.