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?