copyright infringement and the 2013 cobra ironman 70.3

[ialman]

i was in cebu 2 weekends ago to cheer for friends participating in the cobra ironman 70.3. it was the 5th time that the ironman is being held in the country, and my 2nd time to be a spectator and supporter. last year, i managed to find a good, shaded spot somewhere on the manicured pathways of shangri-la mactan that allowed me to get very good pictures of the triathletes as they reached deep inside their reserves to finish the last few hundred meters of the race, which combined a 2-kilometer swim, a 90-kilometer bike ride, and a 21-kilometer run. i posted most of the pictures i took, and i was pleased by the reception: celebrities left encouraging words, a few photos were grabbed (some with permission) for personal use, and one was even made into a life-size print.



this year was no different: i was armed with my full-frame DSLR camera and maxed out 2 8 gigabyte CF cards despite the gloomy weather. but although i took many fantastic pictures from this year’s edition of the race in such locations as the marcelo fernan bridge, punta engaño, and the narrow alleys inside shangri-la mactan, i’ve decided not to post any of them on my facebook page. although i’ve long held firm to the position that i do not wish to be a party to the visual pollution of the internet, my reason for denying these athletes access to my images is that upon my arrival in cebu, i realized that one of the photos i took from last year’s cobra ironman 70.3 was used without my express authority by the race organizer on several marketing materials, including directional signs, promotional banners and commercial billboards.

i was, in short, a victim of an act that constitutes copyright infringement, which is punishable by law.



this is officially my second billboard, but one which makes me angry
how i came to discover that one of my pictures had been used without my consent and knowledge is an interesting story in itself. this summer, a triathlete sent me a message of facebook asking for the high-resolution version of a photo i took of her during the run to be used by sunrise events, the organizer of the cobra ironman 70.3. i said i would agree to the use of the picture on the fulfillment of a condition. the athlete never came back to me so i never sent the high-resolution photo, and eventually i forgot about it. i thought perhaps the condition i had imposed (which i will later reveal) was too much for the organizer.



all vehicles coming in from mandaue city and entering mactan island will be greeted by these two giant billboards
but upon my arrival in cebu, i was aghast to find a familiar photograph of a female triathlete, visibly in pain, but in fighting form, running as best she could, along with two other athletes, plastered on a tarpaulin banner that spanned the length of an entire overpass, somewhere on the island of mactan. i thought it looked exactly like the photo i took of the same female athlete who asked if she could use my photo. i whisked out my iPhone and logged on to my facebook account to verify if i had not been mistaken, and compared the image on the banner and the one on my album. they were the same photograph.



my image was used multiple times, even for online campaigns, as i would later find out
a few years ago i would have been flattered at finding my photo reproduced on a huge banner, but things have changed. i am tired of giving out my images for free to people who think that photographers are undeserving of either compensation or recognition because they do nothing but press a button. they are unwilling to acknowledge that we too are both artists and investors: we hone our craft and spend on expensive equipment. the photos are sharp and good not because we just stood there and snapped a shot. the images are amazing because they are a result of many hours of study and practice. i made my anger known through social media, and told a few friends about it, all of whom encouraged me to pursue a case, where it was appropriate.



i am making this comparison, even though there is no need for it
after the race, and interestingly enough, the athlete who first asked if she could use the photo got in touch with me, still through facebook, and presented some contradicting arguments. first, she said that she had asked for photographs from many photographers -- not just me, some of whom gave high-resolution photos without conditions, whereas she just grabbed my low-resolution image from my facebook page and submitted it to sunrise events. she argued that it was impossible for my photo to have been used because it would not have been possible to blow it up on a billboard three-stories high. she insists that the photo was taken by another photographer.

1. i do not care if other photographers did not impose any conditions. they were probably just like me a few years ago. i do not personally know this athlete so i was not about to make her any favors.


2. it is true that any photo grabbed from facebook would already have some significant loss in resolution. i for one cannot imagine it being used in anything more than a webpage. but with the technology that’s available to us today, i do not find it impossible for any image, regardless of size, to be blown up to larger-than-life proportions and plastered on a wireframe overlooking the entrance to lapu-lapu city.


3. the argument that sunrise events was spoiled for choice with “better” photos with higher resolution is easily debunked by a simple comparison of the two images. believe me, i counted even the creases on her trisuit. it is simply impossible that two photographers situated in two different places, using two different cameras, having two disparate skills, working under two different lighting conditions, could take exactly the same photograph of a subject who was constantly on the move. i will let the public decide if my claim is right. besides, i already got the admission i needed: that she in fact submitted my photo to sunrise events.

the athlete concerned then double-backed on her statement denying that it was my image that had been used. she used a different tactic, arguing that it was her on the photo and that she could use it, and that by extension, so can sunrise events, because she signed a waiver in favor of the race organizer releasing her claims to any images where she appears. she even mentioned that she had also consulted some lawyers.

1. i don’t need to consult any lawyer. i am a lawyer. and if this athlete in fact consulted lawyers and they gave such counsel, they must not have graduated from UP, or barely passed the bar, or don’t know jack about intellectual property law.


2. i am not a party to the agreement between sunrise events and the athletes, so i do not give a flying frack about any such waiver. i am not one of sunrise events’ photographers. i have not assigned nor surrendered my copyright to them nor to anyone. and this point actually depresses me: that despite having an army of well- (or maybe under-) paid photographers with such juicy places where they can capture pictures, sunrise events would deign to use one from an amateur photographer. it’s mind-boggling. or maybe not: an amateur photographer would probably either be flattered or not mind at all. well, times have changed, and i’m a different photographer now.


3. the subject of a photo has as much right to the copyright of that photo as a midwife has to any couple’s child. just because you had some contribution to the outcome of an image does not mean you may exercise a right over it to the same extent as that of the artist. to some extent, this is understandable, that is why i did not particularly mind that some of the athletes in the album of last year’s race used their photos as facebook profile pictures with neither attribution to me nor permission from me. some are very decent people: they sent me messages asking if they could post their pictures on their pages, and i always say, sure, provided you state i took it. in fact the subject’s right to a photo may only be restricted to limiting its exhibition; in many cases, it is necessary to obtain a model’s waiver to allow the photographer to exhibit and publish the photo through whatever means. this right, however, has limited application in so public an event such as the cobra ironman 70.3.


4. the athlete concerned did not argue this, and it’s a good thing she didn’t because it finds no place here, but she could have mentioned fair use. i know a lot of artists, particularly photographers, who are very sensitive about their work being used by others, such as when these are posted on blogs or in articles. but fair use allows reporters, journalists, writers, teachers, researchers to mention or even display the creative works of others without fear of committing the grave mistake of infringing on another’s copyright. but this defense would have been untenable precisely because of the commercial nature of the photograph's reproduction.

a few days later, i received a message from the secretariat of the cobra ironman 70.3. they admitted that they had used my photo, contrary to the obvious lie offered by the athlete stating that another photographer's image had been used. they also claimed that the condition i imposed had been fulfilled: they prepared a media pass for me (yes, this was the measly thing i requested) for the event. they even wondered why i had not showed up to claim it, admitting at the same time that they had not exerted any effort to get in touch with me (believe me, they could have just googled my name and my contact details would have appeared). even assuming that this were true, it was too late. in so far as i was concerned, the condition i had imposed had not been met, and i had not expressly given my consent for my photo to be used. having seen the extent of its utilization, i certainly would not have allowed it without any attribution. truth is, i would have allowed them to use my picture, had i been asked nicely, just like when condura asked to use my photo of the skyway run.

the athlete concerned refused to apologize for being an accomplice in the violation of my copyright. she even barked at me, asking what i wanted: fame? money? it sounds all too melodramatic a question, something you might hear in a sappy afternoon soap opera but let me answer the question. i seek neither fame nor money, although i admit i could use a little more of both. what i do demand is respect. respect for people like me who toil just as much, perhaps not in the same way as the athletes, or in the same manner as the organizers, but who struggle daily in the pursuit of perfecting our craft. photography unfortunately is not such a valued artform, and its practitioners are seen more like trigger happy peeping toms out to violate the privacy of private individuals. so it is no surprise that hardly any worth is placed on the copyright of photographers over their images. it is perhaps one of the most violated among all rights held by artists and creative people. that is why sitting back and being thankful that my photo was used by such a huge event -- as suggested by the athlete herself -- will not by my recourse. rather, i choose to take sunrise events to task for their blatant disregard of my copyright. it confounds me, really, why sunrise events, despite the resources available at their disposal, would choose to use the image of an amateur shutterbug. perhaps they thought one small photographer would not matter. what they didn't realize is that i have a really loud voice.

for now, i submit this case to the pulpit of public opinion.