Nerve Media, Inc. ("Babble") stole a photo of my daughter without attribution, acknowledgement, or permission

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    A warning to parents on Flickr: this afternoon I received 20-some e-mails from people either (1) telling me this picture of my daughter (one that has been viewed more than 4,000 times) was attached to a feature story on the upstart parenting site Babble.com; or (2) expressing surprise that I would sell a picture of my daughter to Babble.com.

    The trouble is, I never sold or agreed to allow Babble use of this picture. They just screen grabbed it out of my flickr stream and added it to their front page attached to some story about lead poisoning. I suppose I could count myself lucky that they didn't attach it to one of their stories about smoking pot while playing with your kids or one of their stories about throwing your kids down the stairs so you could fuck your tranny heroin dealer and how much of a badass parent that makes you.

    Babble's editor Ada Calhoun responded to my notification of infringement by agreeing to remove the photo, and told me that their photo editor had told her the photo was creative commons and therefore fair game. That "photo editor" was either lying or so poorly informed about digital media she ought not to be working with photo content for such a well-funded online magazine. None of my photos have ever been creative commons, and even if this one were, the license generally demands (1) attribution; and (2) noncommercial use. Babble's pure theft of my copyrighted material would have failed both those requirements. This is all the more troubling because (1) I have always reserved all my rights with the copyright notification that appears to the right of every photo; and (2) long ago I also chose to take all possible steps to prevent downloading of my photos from flickr (you can't just right click and save any of my photos). This was a screen grab in which the Babble employee went around these protections provided by flickr to protect its users' copyrights.

    I don't mean to be an overreactive dick, and if they had stolen one of my pictures of Detroit or some random photo of graffiti, I wouldn't be this upset. But they chose to steal a photo of my daughter and use it to promote their product. Babble is not some babe-in-the-woods new mommyblog, it's a product of the same media company behind literary smut peddler Nerve.com, which has long been a promoter of online artistic expression and has certainly protected its own copyrights vigorously. I find it fascinating that the people behind Babble.com could be so unsophisticated about online copyright that they would make the kind of mistake that even parents.com or your average mommyblogger on the street would never make. [*UPDATE* Babble has been stealing photos from flickr as long as the site has been around and when caught has always blamed the same clueless intern--- see the comments]

    Luckily, I happen to be a former corporate litigator who spent about half his legal life working in intellectual property litigation. I was able to drum up some legitimate threats and quickly resolve this with Babble to get the photo taken down within a few hours of being posted.

    They did offer me $100 to let them use it. I told them no thanks.

    It's things like this, above and beyond all those supposed creeps out there, that make me want to stop posting pictures of my kid completely.

    iheartnewyork, ~*~Sheyla~*~, Dineen, and 41 other people added this photo to their favorites.

    View 20 more comments

    1. abi_gal7 80 months ago | reply

      Dutch-- have you considered taking this issue even more "public" than this? I can imagine that a lot of news media companies would be interested in investigating a story like this further; the combination of a proven habit of copyright infringement, the display of photographs of minor children without parental consent and the company's disgustingly cavalier attuitude about all of it are certain to grab attention. It may not be an avenue you are interested in pursuing, but it's something to think about.

    2. megtripp 80 months ago | reply

      This is unreal. I just read this whole thread after Ange at Dutchblitz linked to it, and I'm so proud of all of you guys for standing up for yourselves here. Good lord.

    3. shutterblog 80 months ago | reply

      From the comments on a 9/26 entry at Strollerderby:

      "...Much of the information posted elsewhere about a history of improper use of photos is just plain not accurate. We have only had two cases in 10 years of our publishing history in which photo rights issues have come up. The first was in February when a photographer who agreed to have her photo on Babble complained that a small thumbnail version of the image appeared in multiple pages. We agreed to pay her $100 to compensate her for the misunderstanding. The second was in 2001 related to the Nerve print magazine -- it turned out that one of our advertisers gave us a photo for which they did not have permission and we got sued..." -Rufus (comment on 9/27)

      I'd be interested to see how Sesame Ellis and -Angela felt about that claim. Not to mention he didn't even get our settlement amount right.

      As for the rest of his bogus claims, I have addressed the terms of the actual contract they violated here.

      I apologize for once again bringing up the past when this is focused on the present and future - but Rufus seems to insist on tying the two together by separating them. And that's just not right!

    4. Osprey33314 80 months ago | reply

      Sorry to see you were sucked into all this drama. all I can say is, "THAT'S IT FOR ME". Do you think if I make ALL my photos PRIVATE, not just the ones of my grandkids and family, it would stop them from stealing them? You were lucky in a way, finding this out. How many others have had pictures stolen and not know it, or how they might have been used? Shame, can't even share joy safetly anymore. Does copy right help any, and how would one do that?

    5. { Miss True } [deleted] 80 months ago | reply

      man.. this is getting ridiculous.. I'm everyday more speechless...

      it is sad.. very sad....

    6. Laney G 80 months ago | reply

      I think you make an excellent point - no matter how young or naive the "intern" was, the editor should say "hey, great photo for this story - where'd you get it? Did you get permission? Because we've had lots of issues in the past with stealing photos from people and getting caught!". Or maybe they could ramp up their training session (which apparently is - here's a computer, find a picture to go with this article) to include a 30 second talk that says "do not steal pictures from flickr. That is illegal and very bad and will make lots of parents not want to read our site anymore.".

      See, that cost me nothing to type! No need to be a big corporation to include the words "do not steal" in the training!

      But I do love the image they try to portray of these 12-year-old babysitter-type interns. They are college graduates, right? Or at least college-aged. Are you telling me they've never heard of internet piracy with music or stealing papers or anything like that? Did they grow up in Biodome or something?

    7. divrchk 80 months ago | reply

      I have started adding watermarks after this and what's happened to Joy Unexpected and Notes from the Trenches. What a pain that I have to spend time doing this. I have enough things to do in a day!

    8. pixel_nyc 80 months ago | reply

      I pulled my earlier remarks because I didn't want to get involved (again) with Rufus and his ridiculousness, but I feel obligated to chime back in. I worked at Nerve for a couple of years and ended my term there almost four years ago. These same issues were an issue when my time began there as they are now. If you really want it to stop, bring a real legal suite up against the company. They keep getting away with this by playing small time, passing the buck and thinking they're protected under obscure internet/public domain laws and they will continue to do so until someone steps up. If it were photos of my child used to promote some ridiculous/idiotic editorial content, I would sue their sorry asses off. Otherwise they'll keep on blaming interns (I guess they have final say on editorial content?), paying out nickel and dime settlements and spending their profits on trips for Rufus and family.

      On a side note, I like Bill and all but he's been drinking the koolaid. Though I do have to say in his defense that his comments seem more protective of his coworkers than the company itself. Shit rolls downhill, especially under the editorial rule of Rufus Griscom.

      I'm really going to try and not read this anymore, too many bad memories. If you need me, send me a message.

    9. arkworld 80 months ago | reply

      that sucks!!

      i had a similar issue with geeksugar and gizmodo before that stealing a pic of my daughter. with no permission or credit. both somewhat reputable websites.

    10. vandyll.net 80 months ago | reply

      Sweet juniper, on the other hand, has a very specific agenda here: he is trying to find a way to make some money off of us.

      SJ, how dare you make them illegally use one of your photos just so you could make money from all of this!! Such trickery! Must be a Jedi mind-trick. (insert a big eye roll here)

      I actually gave their CEO a semblance of credibility until he made that statement.

    11. Parentopia Devra 80 months ago | reply

      While I don't have a dog in this fight, I will say this, accountability has taken a dive in this country and it sems anytime a person stands up and says 'You know what? This isn't right. Please fix it." The victim gets crucified as if THEY are the ones who did something wrong, despite every piece of evidence to the contrary. And then when the perpetrator gets caught red handed? The perpetratos not only bullshits their way thru taking responsibility, they throw the victim under the bus AND attack the vicitm personally. Like what happened here with Dutch. What the hell do his finances have anything to do with Babble's infringement of his copyright? Nothing. It is smoke and mirrors. I find it patently embarassing when companies behave this way toward people they have wronged. Nothing but nothing pisses me off more than having my integrity questioned. I can undestand perfectly why Dutch is pursuing this issue. As I tell my children, it is imporatant to admit when you have done something wrong and apologize if you have made a mistake, but you also have a resonsibility beyond that, you need to make amends and try to repair the hurt/damage you have caused. Whether or not it is intentional, the hurt/damage is there and must be dealt with in a manner that leaves everyone feeling less hurt/damaged.

      Best of luck to you Dutch!

    12. nerve_lackey [deleted] 80 months ago | reply

      As a former designer at Nerve.com, I can attest to the fact that it was explicit editorial policy to steal photos from around the web, including random websites, Corbis, and Getty images, among other stock photo sites. I've written sweet_juniper a detailed account of what went on there, so I'll keep this brief. The mandate came from above (publisher, down to the editor, and then to the designers). We fought them every step of the way, but the publisher and his now wife would forever remind us of how lucky we were to have jobs and wouldn't budge in their policy. It was embarrassing to have swiping photos be a part of my day job. The bottom line: no photo budget, sorry.

      Luckily, I had the sense enough to genderbend photos whenever I could. So while the policy was to have as many half naked women on the site as possible (while they'd sometimes feature men, they tried to keep the ratio skewed towards naked women - which, as a woman, bothered me to no end - many of the shots of "women's legs" were actually men and vice versa. Thank god for andro models. Oh, and we had to keep the site as non-gay as possible...I'm happy to say that lots of the photos were actually gay couples that looked like a guy and a girl...men, women, trangender, all of the above. I think we made lemonade with what we had there :)

      I wish you people all the best with whatever you pursue with these people.

    13. LeahK 80 months ago | reply

      And now this: secret-agent-josephine.com/blog/2007/10/01/stop-theif/

      Not just a stolen piece of original art, but one used without permission as a masthead for an entire web magazine AND plastered all over their CafePress shop.

      Where did the thieves get the image? Flickr.

      It makes me sick.

    14. okie okasan 80 months ago | reply

      What a great way for Babble to up their readership numbers—develop a rep for stealing images, then watch their hits rise from people visiting the site to check for stolen photos! Surely this translates into higher ad revenue for them. Bravo, Nerve assholes!

    15. Mr. Biggs 80 months ago | reply

      For what it's worth, shockingly, there are companies doing things right. I got a phone call two month ago from a Detroit ad agency asking to use a photo I posted on Flickr for an ad campaign for a large, um, mail carrier this winter. They sent model releases, license agreements, and a purchase order. I sent an invoice for a LOT more than $100. I've had my share of pictures of my kids getting used where I would like them not to be, so this was a real surprise. The art buyer at the ad agency told me that they have never used Flickr to find images, but in this case they needed the kind of thing that they coudn't commission and that can't be found on Getty. Less slick and produced. I'm not sure what to do with the image they used now, as it includes my kids. I'll probably make it private when the campaign begins.
      As has been stated here, Babble's error (beyond using the image in the first place) is the blaming-the-intern game. I've never run a media company, but I know as an illustrator that the intern (nor even the art director) never gets final say on what appears on the front page. The fact, er, assertion that the editorial and legal staff just took the intern's word for it that rights were either cleared or nonexistent is absurd.

    16. PCat 80 months ago | reply

      Mr Biggs, I've asked photographers for permission before, too. I was doing some ad work for a friend's very small company, and I found a photo on flickr that was perfect- it even had a friend of mine in it. I emailed him, explained that we had zero budget and would he mind me using it for local distribution. He said yes, I did up the posters, it was painless.

      It's amazing what a bit of respect and good manners will get you in this world.

    17. Paula Wirth 77 months ago | reply

      It seems to me that Babble's tendency has been to not pay too close attention to copyright, try to get things for free, break copyright law, then wait to get slapped/sued.

      After the very first time this happened, they could very easily have instituted policy to make sure this never happened again, by 1) only using stock photography that was paid for, or 2) if they wanted to use a photo for free, to obtain written consent from the owner/photographer for each and every image BEFORE publishing.

      Using the "we are only a small business with not enough staff" excuse doesn't cut it. If you are a small staff, it is much easier to communicate with all of your staff than a bigger corp. Just because I have a small business doesn't mean I don't have to play by the same rules as other businesses. Nor does it mean I don't have to pay recompense when I screw up and don't pay for the use of images used by my business. The cost of doing business, eh?

      I am really not impressed with rufus' comments, and that kind of commentary is only likely to make folks side even more closely with sweet juniper. Very bad PR decision, IMHO.

      As for the "intern", not only is the intern at fault, so is all of her/his management. They are responsible for the work of their subordinates, and for following the law when doing business.

    18. Jeannette E. Spaghetti 77 months ago | reply

      Thanks for turning down the $100. How insulting!

    19. sucka pants 76 months ago | reply

      Just wanted to chime in a bit. I have a lot of friends who work in the web/publishing/design industries, and have done my time there as well. While my work didn't cross paths with any online research, my friends that do have been pretty upfront with me on some things.

      1. "The intern did it" is a very popular and very false excuse. Having to take a screen grab should also be pretty indicative to the implausibility of the "oops" factor.

      2. Flickr has become like an over-populated valley of antelope to image-seeking predators. The majority of users are amateurs who actually can be flattered by being given a photo credit. Those that aren't often don't know their legal recourse options, or don't bother. And those that do can often be bought off with the $100 "whoops, sorry" payment. And not to get too off-topic, but the way things are going that's not going to be that insulting of an offer in a few years.

      3. Stealing from Flickr is a lot like gambling, just playing the odds. Unless people get a lot more vigilant, and actually pursue legal recourse and fair payment, it's only going to get a lot worse. On that note I have been seriously considering making my stream private and/or heavily watermarked. And what does that say about our wonderful photo-sharing community in the new modern information age?

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