Tuesday, November 17, 2009

Why Don't I Drive A Prius?

You may have noticed that I haven't had much to say the past month or so. Some have speculated that I fell victim to the H1N1 flu and wasn't up to writing, others thought I stayed in NYC after PhotoPlus Expo and took up residence in an SRO hotel sans wi-fi. Actually, it's nothing more than writers' block. It happens from time to time. The fact that I haven't written doesn't mean I have nothing to say.

During my hiatus I've been searching for a villain in the Toyota 4Runner/flickr.com scandal, where Saatchi & Saatchi Los Angeles (Toyota's ad agency) linked to the images of some photographers with flickr.com galleries and made the images appear to be part of Toyota's mini-site. The problem is not that Saatchi & Saatchi didn't have permission to use the images, the problem is that with all their many years of experience Saatchi knows they have to pay the artists whose work appears in their ads, they've been doing it for years. The result is that Toyota got a black eye and appears to be a villain. After all, the Saatchi name is nowhere to be found on the web site, all anyone sees is the Toyota name so Toyota must be the villain.

The flap began when Michael Calanan, a Denver photographer, learned through a comment on his flickr.com page that one of his images of a couple of bears walking down a trail had appeared on the 4Runner mini-site. It was news to him as he'd never been contacted by Toyota. I first learned about this two weeks ago when Mike posted a note on the ASMPproAdvice listserve looking for advice on what to do about it.

"Now I realise [sic] that the first response," Mike wrote, "will likely be 'get a lawyer' but I still want to pose this to the group, both for its sage advice and because I don't have a lot of extra money to invest in retaining a lawyer."

There were a number of replies suggesting that it's his own fault for having a flickr.com page, he was just asking to be ripped-off... blame the victim. Others wanted to know if the subject image had been registered with the Copyright Office and noted that, other people, who have been similarly victimized, have not been able to interest a lawyer since the damages are limited without registration, you're not entitled to statutory damages or attorney's fees.

From my vantage point, and I realize this will not endear me to the advertising community, the villain is the person at Saatchi & Saatchi who made the decision to use the pictures without so much as asking Mike Calanan and the other photographers if they'd be interested in licensing their images for the Toyota site. Toyota was left in the unenviable position of having to apologize via Twitter, where the whole thing went viral, as well as on flickr where they were roundly trashed. Nobody knows if Saatchi & Saatchi fired the professional who caused all the trouble to begin with, and that should have been done very publicly.

In the meantime, it's worth noting that even though Calanan's image wasn't registered he's (as well as the others) not necessarily out of options. Jeff Sedlik, photographer and very generous copyright maven, pointed out the not-so-obvious: "the photographer might not even want to seek statutory damages in this instance. Actual damages and disgorged profits might prove to be a better route, as the photographer may be entitled to profits resulting from car sales resulting from the use of the image." The entirety of Jeff's comment can be read here.

Toyota have removed the infringed images from the 4Runner mini-site and a spokesperson for Saatchi & Saatchi acknowledged that they worked on the campaign and that they're in the process of rectifying the situation, though two weeks have passed and nobody's been paid. I can only imagine a settlement offer might have been made if the photographers had registered their images. Have you found the obvious lesson here?


Blogger calanan said...

Thank you for sharing our story, Joe.

- mike
Calanan Photography, LLC
Denver, CO

6:30 PM  
Anonymous One of the photographers involved said...

You say that no-one has been paid, but Saatchi did contact us with an apology and an offer of compensation. Some of us have accepted this, some haven't.

7:59 AM  
Blogger Joe P. said...

There's some good news! Would you say the offer of compensation was sufficient, and did you accept?

10:19 AM  
Anonymous Richard Weisgrau said...


When you wrote: “And very recently Highton has enlisted Dick Weisgrau, former Executive Director of ASMP, in his campaign to sling a little more mud as regards tax reporting issues that, stopping just short of making an accusation (why? because libel is a slippery slope), imply criminal behavior.” You must have been delusional. First, you have to know me well enough to appreciate that none enlists me.

The idea that I in any way implied criminal behavior is absurd on its face. Learn to read carefully, Joe. Here are two quotes from my blog posts.

"Was the ASMP’s failure to report to the IRS illegal?

I am certainly no expert but I think that it would be harsh to characterize a failure to comply with IRS regulations as “illegal.”  People and companies do it unintentionally, and the IRS gives them time to correct their errors.  While a fundamental precept of law is that ignorance of the law is not an excuse for violation, there has to be allowances made in the complex world of tax law. The ASMP has acknowledged that it was unaware of the requirement imposed upon it by the IRS.  That is not a crime, but it is lapse that one has to wonder the cause of.  The requirement to report payments to directors starting in 2005 was highly publicized.  ASMP did not know it.  Why?"

It is well within the ASMP Board’s authority to pay members even when those members sit on the Board that is making such approvals.  I expect that the Directors who were paid for non-Board duties earned the compensation they received.  However, it inconceivable to me that the ASMP did not let the sun shine on those payments. 

How you can construe those comments to imply criminal behavior is beyond. I think you are guilty of acting the way you accuse Scott Highton of acting.

I undertand you are running for the ASMP Board. If you are elected, I hope you learn to read more carefully. Being an ASMP Director is a task of great responsibility and requires good cognitive skills rather than rushing to judgement because you don'f understand the facts.

Dick Weisgrau

10:10 PM  

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