Photographer Loses Copyright Infringement Lawsuit Against Mapmaker That Used His Photo With His Explicit Permission

A far-too-common story of alleged copyright infringement by a corporation comes to an unexpected resolution. Photographer Art Dragulis took a photo of a rather rustic Maryland scene and uploaded it to Flickr. (from the filing)

Roughly four years later, he discovered Kappa Map Group was using his photo for the cover of its Montgomery County atlas, unbeknownst to him, and as such, also unrecompensed.

Lawsuit-filing ensued. Dragulis claimed Kappa Map Group had no right to use his photo commericially. Seems an almost open-and-shut case, what with any number of entities deciding “anything showing up in a Google image search” = “royalty-free stock photography.” And in most cases, this would have been rather straightforward if the photographer himself hadn’t undermined his infringement claims years before he ever raised them.

As the opinion notes, any copyright protections Dragulis might have enjoyed were explicitly waived by his choice of licensing back in 2008.

Plaintiff alleges that defendant infringed his copyright in the photograph because it “copied Plaintiff’s work and made derivatives of the work without Plaintiff’s authorization in violation of 17 U.S.C. § 501.” Id. ¶ 22. But plaintiff uploaded the photograph to a public photo-sharing website, where he did not assert exclusive rights to his copyrighted image, and he instead opted to license the work and make it available for use by others without compensation.

Dragulis chose to license this picture under Creative Commons BY-SA-2.0, which allows commercial use of the photo in exchange for attribution. As Kappa pointed out in its initial response to Dragulis’ filing, it followed the terms of the license explicitly.

Kappa used the image in the Kappa Map in good faith based upon the representations that the image was licensed for use in commercial applications. On the back cover of the map, Kappa provided the “Attribution” and “ShareAlike” data for the Work dictated by the CC BY-SA-2.0 license: “Photo: Swain’s Lock, Montgomery Co., MD; Photographer: Carly Lesser & Art Drauglis, Creative Commons, CC-BY-SA-2.0.”

So, everything was exactly what Dragulis wanted, except that he apparently never expected a commercial company to take him up on his CC offer. When one did, it was time to sue. The final opinion notes that Dragulis seems upset with what happened but can’t really blame anyone but himself for the outcome.

Plaintiff repeatedly voices consternation in his pleadings about defendant’s distribution of the publication that displayed his work on its cover for profit, but of the many licenses available to choose from, plaintiff selected the one that specifically authorized commercial use. So the only issue before the Court in Count I is whether defendant – which gave plaintiff full credit for the work it displayed on the cover of its publication – complied with the technical terms of the license under which plaintiff published the work. The Court finds that it did.

Dragulis heads a little further into the weeds with his arguments, claiming that the “share-alike” portion of the CC license demanded Kappa Map Groups offer its atlas under similar terms — i.e., for free and with a similar license attached. The court finds this unpersuasive, pointing out the CC license terminology Dragulis invoked only refers to “derivative works,” which KGM’s atlas isn’t. Instead, the court finds the atlas to be a “collective work,” one that incorporates the photo “in its entirety in unmodified form.”

Dragulis loses on all counts, even with the court entertaining his very belatedly-raised argument that the minimal cropping of his original photo by Kappa somehow made the use of his photo a “derivative work.”

If there’s a moral to this legal incident, it’s this: know the terms of your licensing before you agree to use it. If you want to use a more altruistic licensing form like those offered by Creative Commons, by all means, do so. But don’t act like a commercial entity owes you something for complying with the terms you expressly agreed to. Licensor’s remorse isn’t a legally-recognized tort.

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