Story behind the photographIn mid March 2008 I have photographed a man shining shoes of a woman customer. The man’s name is Bryan and he is a well known personality to anyone working or visiting Sydney. He has shoe shining station placed in a very busy Pitt Street Mall. As far as I know, he may be the only person offering shoeshine service in the street in Australia, as it is not a service commonly offered in Australian streets. My photograph of Bryan and his customer, at least to me, is one of a positive attitude and enterprise. Bryan, down on luck, does not beg for money. He puts a solid day’s work to earn his living. In Sydney, where almost every corner of CBD is now occupied by beggars, Brian’s approach to life and financial misfortunes is commendable.
In mid September 2008 I start receiving emails accusing me of being racist. After few days someone with a little bit more sense makes me aware my photograph has been altered (without my authorization) to portray the shoe shine man to be at the time senator Barack Obama and his customer to be Sarah Palin, who at the time was Alaska’s Governor. The altered image was apparently distributed via email. The plagiarist chose to keep my copyright notice, and thus implying the highly controversial image was created by me. It was not.
Originally I have stated I will not publish the plagiarised work. However, now due to other circumstances I have decided to show it, so people can understand why I am trying so hard to defend my name against this plagiarised image. Please note how it still displays my name and the name of this website. I have added wording on top of this image, so if it distributed again, there will be no ambiguity about its authorship.
I have posted an article on this very blog titled American presidential elections and dirty tricks distancing myself from this unauthorised plagiarism and views it may represent. Clearly stating the alternations to my original photograph were not created by me. I have also stated that I have no comments to offer in relation to the American presidential elections.
My post went reasonably high in Google search results and although I could not identify where this photograph originated at least people who arrived at this blog could see the original photograph and could read that I have not created the controversial image.
On 3rd of January 2010 I became aware this plagiarised image of my photograph received a new breath of undeserving life. An employee of Colorado Department of Transportation forwarded this image using the email resources of her employer. The fact quickly became a news item and was published on news websites, shown on TV and eventually was republished in blogosphere. Many of these news articles attached the plagiarised image. None of the publishers seemed to research the image and thus possibly find my article on its illegal nature or the origin, lack of authorisation and finally the simple fact that I as the photographer of the original had nothing to do with it.
The news article, most frequently titled “Obama Palin Shoe Shining Email Could Get Colorado State Worker In Trouble” with its accompanying image, unlike the initial email distribution of the photograph, now has high visibility on the Internet. It is indexed by search engines and copies of the photograph are placed on many websites.
At this stage I have started to contact website owners either via email or by posting comments on various blogs, alerting people to the fact this image is a plagiarism. It was created without my authorisation or license and pointing them to the original post thus making their audiences see I was not the author of this work.
Some, notably bigger websites owners, point me to DMCA (DIGITAL MILLENNIUM COPYRIGHT ACT) form. The form asks for the work to be identified, asks for the location where the original can be seen as well where is location of the alleged infringing material. I have filled this form for a number of sites and most of them promptly removed the image.
Assuming (I know now mistakenly) that is the way to go, I sent this form to a number of web site owners. One of them is Patrick Frey of Patterico.com. Patrick replies to my DMCA notice, declining to remove the photograph, pointing me to “fair use” under the copyright act. The whole exchange between me and Patrick Frey is conducted in public on his blog.
Soon after Ben Sheffner, who is a copyright lawyer, chimes in adding that not only the use of the plagiarism on Patterico.com is a classic example of fair use, but also pointing out that technically the DMCA notice does not apply to Patterico.com or Patrick Frey, as its intended use and application only applies in cases where site or an individual has nominated DMCA agent. His opinions are echoed later on by Jonathan Bailey of Plagiarism Today web site.
I have spend considerable amount of time reading their articles, researching the information and came to the conclusion that although the information provided is typically applied to original copyrighted works and not to unauthorised derived works, the distinction is not clear in view of any information I could find. Since my objective has nothing to do with legal pursuits, as they have perceived it, I decided to respond to Patric Frey and posted the following on his blog:
Patterico’s post has generated some interest and a number of varied comments. I have decided to add this simple post, which may clarify for some of you my position.
Yes, I too think Patrick’s reply was “spot on”. That is part of the process. He has the right to answer my notice and I have not questioned his right to do so. I am not here to deny anyone their rights. I have considered Patrick’s reply, have done some research and indeed he may have “fair use” right to use this image. “Fair use” typically is associated with partial use of copyrighted material with appropriate accreditation. I have forwarded an email to Patrick, where he can add such accreditation / captioning and put the whole story to rest.
The simplicity of this ends here, what follows is not as simple.
The image presented here is an unauthorized, unlicensed derived work based upon my copyrighted photograph, another words a plagiarism. Contrary to some expressed opinions, unauthorized and unlicensed plagiarism does not constitute a new, unique, and legitimate art. Similarly to Patrick, I do not really want a legal process, as it does not serve any purpose I am interested in. However, for these interested, please read this article http://en.wikipedia.org/wiki/Derivative_work
Presence and notoriety of distribution of this image provides unjustified legitimization to this plagiarism, if it is not accompanied by appropriate, descriptive captioning to show it for what it really is. This point also addresses question of “why now” and not during the election, where this image was forwarded by email in considerable numbers. The answer is actually included in the previous sentence. Until recently, this image was distributed mostly by email, thus invisibly to me. Very few sites hosted it, or very few sites, which hosted it, were indexed by image search engines with sufficient content added so they can be found by use of identifiable keywords.
People searching for this image, because they have heard the story, may find a number of versions of it present on the Internet websites. Some of these images imply I am the author of this altered image. I am not. Many websites chose to use text instead of the image for the story. They used descriptive similar to this sentence: “photoshopped photograph of Obama shining Palin’s shoes”. Since they do not qualify, who did the “photoshopping” or that this activity was carried out without my authorization or license and they do not accredit and caption accordingly my original work, it still leaves interpretive doubt as to who created this image (thus leaving the possibility that I have).
I have not singled out Patterico. Patterico is the only site that chose to publish the DMCA notice. I have asked numerous sites to remove this image. Majority of sites involved have complied with my request. After few simple emails, some of them pointed me to DMCA form and thus this is what I have used since (in good faith). I am not here to “get” Patterico or any other web site or company. I have not used a lawyer, as I did not think it is justified for the purpose I wish to achieve.
And here we arrive to my reasons why I would like this plagiarism of my photograph removed.
1. As long as this image can be found on many sites without proper captioning and accreditations, many people consider me as its author.
2. This image is an unlicensed, unauthorised plagiarism of my photograph and does not deserve any legimatisation.
3. Its content (because of lack of proper captioning and accreditations) may imply I have views and comments on political and social environment in USA, which polarise and enrage the viewers. I do not hold any views on USA’s social and political environment, as I do not know them. I have never been to USA and I do not follow political or social scene in USA.
4. I receive hate mail and I am being called racist because of the content in this plagiarism.
5. Many viewers of this image regardless of the location of articles it accompanies do not differentiate between me, as the author of the original photograph and the author of this authorised plagiarism.
Therefore, this is why I have gone public by adding comments to posts containing this image. People need to see the original work and clearly distinguish my authorship from the plagiarist. There are no other hidden, sinister agendas to my action. If anyone thinks I am sicking [sic, should have read seeking] my “15 minutes” think again – this image involuntarily places my name in bad light – just look at responses associated with it.
PS: I do make spelling mistakes, I apologise for these. Although reasonably fluent, English is my second language.
I have republished this post in whole as I believe it summarised my position on the issue quite well. After few more posts on Patterico.com and now understanding that Patrick Frey is still concerned that the DMCA notice implies some legal action and that in his view it was my attempt to censor his views on the image I have posted a clearly stated retraction:
In summary of this posting and discussion I would like to retract the DMCA notice (published above), as it is clearly not applicable to you as an individual.
Additionally, and irrespectively of the DMCA retraction, I would like to assure you I have no legal issues with you personally or Patterico.com website in regards to the use of the image, which was the subject of this DMCA notice.
I would also like to ask you to caption the image using wording to the meaning “This image is an unauthorised alternation of original photograph by Ted Szukalski” linking the words “original photograph by Ted Szukalski” to http://www.digital-photo.com.au/gallery3/index.php/People/Street-Photography/Shoeshine_homeless_and_woman_client_MG_6348-27
I have outlined the reasons behind my action extensively in the post above for all to see. At no point I intended to censor your opinion of this image or the issues discussed in relation of this image.
In a way, I am glad I came across Patrick Frey as he took the issue seriously under his consideration and he has offered a very clear explanation to his actions, which was not obvious to me and I suspect is not obvious to many photography copyright owners.
I am now reconsidering how I am going to continue my efforts to clear my name on so many websites. In some cases I have no option but to use the DMCA notice. Companies behind these websites are not interested in dialogue, and in their cases the DMCA does apply. In cases of individuals I will continue posting comments but I think I have to reword my standard posting considerably learning from the dialogue on Patterico.com.
I have also a task of retracting a number of DMCA notices I have issues against individuals, which now I know are not applicable.
Photography to me is a very enjoyable and rewarding past time. Due to action of an unknown person, my photograph and more importantly my name was placed in the midst of highly polarising public opinion controversy on subject of racism. I am not a racist person, and I do not want to be seen as one as a result of some anonymous coward’s actions. I do not deserve this opinion and treatment.
This blog is often read by many photographers. I hope this article will make these photographers aware they need to learn more about what they are entitled to under the copyright legislation of their respective countries and what protection does the legislation offer over their works. This is a very complex example and may not apply in many cases, but it should be clear that applicable laws may not be what they seem. It also shows that that your intention may be easily misinterpreted. When I was sending the DMCA notice, my sole intention was to make authors aware the plagiarism infringed on my copyright not their use or opinion on it. I had no intention of suing them, or censoring their views.
My legal naivety has not helped me here but accidentally led me to people who offered a broader opinion and views on the subject and for that I am thankful.
I have just realised the new copy of the plagiarism does not contain word “Whoopie” on the bottom right, and thus indicates it is older than the distributed image from 2008 USA presidential election, and perhaps closer to the author of this plagiarism.