Interview with celebrity photographer Guido Karp and Karsten Gulden certified lawyer for copyright and media law
Karsten Gulden: Mr. Karp, for decades, you’ve been a globally successful representative for the art of photography. Since you got your start in photography in the beginning of the 70’s, the world, and with it the world of photography, has changed a quite a bit. One of the most significant developments must be digital photography.
What changes have you experienced because of the digitization of photography, where do you see the advantages of digitization – and where the disadvantages?
Mr. Karp: As a matter of fact, I started digitizing my material very early on – long before professional digital cameras existed – because my material had to go through a scanner at some point in order to be printed in a magazine or on LP/ CD/ DVD covers.
The big “digital” advantage for me as a tour-photographer is, of course, that I now no longer have to look for a professional photo lab in unknown cities. Russia, in particular, was always an adventure. A highlight was, by the way, the Backstreet Boys Tour in Boise, Idaho: I missed my flight because the lab’s owner couldn’t give me my negatives back on time. The films had been developed, but his daughter still needed them to make prints for her friends. 😉
That said: you’ve got to take the bitter with the sweet. The time that I had to “waste” looking for a photo lab, I now spend backstage, unspectacularly, in front of a computer. If you look at it that way, I used to get to see much more of the cities, and while the lab was developing my films and prints, I had time for a little sightseeing.
Karsten Gulden: In a blog entry you mentioned that you probably rank among the world’s most frequently “robbed” photographers. Which type of photos tend to be “stolen” most often, and by whom?
Mr. Karp: Well it spans all genres really, and people of all ages and intellect behave the same way: there’s a lack of respect for creative work and of a lack of awareness of being in the wrong when you help yourself to said creative work without asking.
Karsten Gulden: Is it possible to use pictures of yours for free? What needs to be done?
Mr. Karp: It’s not any different than it would be in your case: When someone politely asks you for some quick legal advice…. then you probably decide on a case-by-case basis, if, and how you help.
I have a lot of affection for fans and their needs. When someone politely asks me, they usually get a yes.
Karsten Gulden: Why do you want to be asked when someone wants to use your pictures? Are there reasons, besides the financial ones?
Mr. Karp: To me it is all about respect and the rights of a person’s ownership of something. The intellectual roots of the question confirm an awareness of wrongdoing at the core. A fundamental part of the upbringing of each individual should include knowing, understanding, and applying:
- You may take that which belongs to you.
- If it does not belong to you, then you need to ask the person whom it belongs to.
- If you cannot ask the person to whom it belongs – for whatever reason – then you may not take it. Respect their ownership, please.
That sounds logical and conclusive. Everyone understands that, when it comes to material goods – your cell phone, your leather jacket, your car. Why should it be any different with intangible things, whether it be music, film, or photos? Because you’re not taking anything from anyone?
For my team and myself, my photos provide for us in the same way bread does for a baker.
Allow me to make a comparison, even though it’s a bit of a stretch: after closing up, a baker has unsold bread that can’t and shouldn’t be sold the next day. In general, there’s no reason the workers can’t just take the bread with them or that it can’t be given to the homeless, for example, since when the store closes, the bread is still perfect. Nevertheless, bread still belongs to the baker and he has the right to be asked before it is simply taken, or, given away.
Karsten Gulden: Isn’t the term “photo theft” wrong though? – I mean, in the end, the picture isn’t being taken away like, for example, an apple being snatched from someone’s mouth. The photographer still has the photo, right?
Mr. Karp: No doubt, the word “photo theft” is misleading. Allow me to break down the scenarios for you:
A: Someone sees my photo – online or offline – and “takes” it by either scanning or downloading it to his computer. This isn’t, per se, legal, but it’s a behavior that I “don’t want to hear or know about”. I’ll go out on a limb and say: most of my colleagues feel the same way.
B: This person now uploads the photo to his webpage – or uses it in some way. This is a clear breach of my rights. I earn my money with the rights to those photos, and it’s not just that: the money also makes it possible for my team and myself to even take these pictures.
C: Even worse: This people uploads my picture to Facebook. Now naturally, this is the same legal breach as in B, but on top of that, it grants Facebook the rights to the photos and cedes all of my rights to the photos to Facebook. And not only that: the person also guarantees Facebook that they have the permission of all of the people in the photos and cedes their rights to Facebook too.
The German newspaper “Die Welt” was recently in outrage over the changed regulation on the Freedom of Panorama, often using headlines à la
“Will I be sued for millions for taking a selfie in front of the Brandenburg Gate?”
Profiting from fear: odious.
The backstory here was that, for example, facebook could commercially analyze the selfies and therefore a compensation claim COULD be POSSIBLY made to the photographer.
Correct. However, an aspect that remains completely unnoticed is that everyone who has ever posted a selfie with a third party is in the same danger too, particularly when it’s a selfie with a celebrity: facebook COULD, on the basis of the surrendered rights, crop the photos and “run” ads using the photo of the celebrity. I made a conscious choice to capitalize the word COULD. They don’t do it. They probably will never do it. But: they COULD – and, therefore, the danger is much greater – depending on how popular the celebrity is – than the scenario with the Brandenburg Gate.
Then there’s the opposing argument that no one runs ads with poor-quality photographs, which selfies usually are. You see – this is where I come into play: what happens when someone uploads a high-quality set of selected, exclusive artist portraits of mine to facebook and invites people to share them?
In general I don’t have much “fear” that facebook (or whomever) will use pictures posted there for advertisements. It’s just not legally sound, whether it’s a celebrity photo or a panorama picture.
I find the thought of facebook eventually using its billions to buy Getty Images far more “threatening”. What if it then begins to exploit my pictures, having gotten the rights to them via a third party? NYTimes, Newsweek, Time Magazine or the tabloids _ truly the full intellectual spectrum – are already filled with stories that have been “taken” from Twitter or facebook, pictures included.
Doing so doesn’t just take the fruits of photographers’ labor from them, it also “kills” the, in my opinion, essential industry of high-quality journalism. I could stay out of it – it makes no difference to me, I’m too old for it to still concern me. Nevertheless, I still encourage people to think about it once in a while.
Karsten Gulden: How do you react when a photo of yours is stolen?
Mr. Karp: With measured friendliness, and by following up. Most people understand – and delete the picture. Others make a fuss – parents are the worst: without understanding, they use lots of “?!?!?!?!?!?!?!” to illustrate their point and rant, “and how should my kid have known?” My answer: from you, dear parents, it’s called a decent upbringing, more importantly that word, respect again. This brings us back to the above:
You may take that which belongs to you.
If it does not belong to you, then you need to ask the person whom it belongs to.
If you can’t ask the person whom it belongs to – for whatever reason – then you may not take it.
This is simple, and children can understand it. It’s not about my pictures, it’s about having a basic respect for life, other people, and their rights. May I again say, respecting people’s ownership of what they have worked to produce or own.
Karsten Gulden: How much does stealing one of your photos cost?
Mr. Karp: Though it’s impolite to answer a question with a question: how does one punish a thief? The question in itself is, sorry, journalistically unprofessional. Highly unprofessional, unfortunately. 😉 Here you have to differentiate between people, who can be educated – and the growing number of infringements. In fact, right now I’m suing a stock market-listed German company for copyright infringement in at least 144 cases.
Hand over heart: I don’t like the question. It has the ring of “greed” to it, of profiting from someone’s mistake. That it is neither my intention, nor my business. I have no desire to spend any of my energy looking for other people’s mistakes. I am a photographer. I take pictures, and do so passionately. On the other hand, I have to react when others “help themselves” to my work without asking.
Let’s start at the bottom: someone “steals” (to use your wording) my photo, and publishes it without knowing that doing so could have criminal and civil penalties. When that happens, I politely and, in no way threateningly, make the person aware of the situation – and they admit it, feel ashamed, understand the unfairness, and stop doing it in the future. Wonderful – conflict resolved.
It continues from there, with varying degrees of escalation…. many years ago a big German automotive group “used” four of my images and published them on a CD box without obtaining the rights to them. I asked, politely, for an explanation. Once, twice, and a third time with strong emphasis. The tone that they used while answering became outrageous “…we find your inadequate commercial and legal knowledge regretful…. The case lapsed long ago….I don’t have the time or the desire to handle the matter…..” The suit had to reach the chief executive before it was given consideration. We came to an agreement – a price that, at $100,000, was many times more than that which they would have paid had they handled the mistake upfront.
Karsten Gulden: What do you make of the argument that photo theft is also advertising our work and that there’s consequently no damage to you?
Mr. Karp: Aside from the fact that term you keep using, “photo theft”, can never be advertising, can never be anything other than copyright infringement, an (illegal) publication: Sorry, but advertising for what? Do you honestly think that Robbie, Tina, Mick and Co. book me because someone posts my picture?
Karsten Gulden: Do you think that laws protecting photographers are adequate?
Mr. Karp: In the U.S., yes, in Germany, no, on the contrary, where courts always likely to use the license analogy. In practice, this means that the copyright infringer has to pay the creator of the content the amount that he would have paid if he had duly obtained the rights (Usage License, hence the license analogy). It sounds plausible, but let me explain it in other terms:
I go to a restaurant and order a dish. I leave the restaurant without paying. When I get caught, I have to pay the amount listed on the menu. Punishment: none.
Now it gets ugly. The Regional Court of Oldenburg, Germany has decided to offer a “bulk discount” for multiple cases of unauthorized use. This creates an assumption that this is common practice when one comes to an agreement for “normal licenses” with clients.
For my example, it means that I repeatedly go to a restaurant, repeatedly neglect to pay – and when I’m caught, I get a discount for the repeated visits to the restaurant. Absurd, isn’t it?
The perfect example of this type of legal judgment is that of a big German photo agency buying an archive. There used to be “an original”, a slide or a negative, that you had to give away. Today you give away a hard drive or grant access to a web space. The agency now advertises material, my material for example, without knowing who the creator is. In my case, they didn’t even try to identify the creator of the content (Google knows the answer ;-). When I protested, I first got back a bunch of legal nonsense that they used to try to “bluff” me and get rid of me. They then argued that that the photos were jobs I’d completed for magazines and that I’d given up all the rights, blah,blah,blah. They had gotten the pictures from the bankruptcy of the magazine and could exploit the picture through an agency without any difficulty.
Leaving all that of the nonsense aside – fact is, that according to German law, German photographers have a right to a part of the royalties generated by their photos. There’s no risk to the agency: it exploits material that it doesn’t actually have the right to and pockets the money. The creator of the content will only get a share when he notices the infringement, and even then, only after a lot of nagging.
That’s the law in Germany.
It’s different in the United States. There – as in Germany – there’s a right to royalties. Additionally, additionally there are punitive damages, the penalty. It is calculated according to the scope and intention of the infringement. It could very well be $150,000 per image, per use.
I can see people screaming in my mind’s eye – one hundred and fifty thousand dollars!!?? Correct: a big French photo agency “took” the image of a colleague of mine and distributed it thousands of times. On purpose. Without obtaining the rights. Hand over heart – in this case, I didn’t think $150,000 was enough.
In general, we tell too many urban legends and exaggerate the numbers when it comes to the millions of lawsuits in the U.S., like the person who allegedly put a hamster in the microwave and then sued the microwave producer. For millions. Funny stories, but unfortunately, they’re not true. Even the story about the “stupid old woman who spilled coffee on herself at McDonald’s and sued for millions” is, in reality, very different from the story that’s told. If anyone’s interested in that story, the details are presented here in a clear and easy-to-read way: http://www.out-law.com/page-3396
Karsten Gulden: Should the “penalties” for photo theft be more drastic than they currently are?
Mr. Karp: Definitely, penalties have to punish. Let me give you a completely different example: parking in a well-known hotel’s garage in Berlin costs 25 Euro a night. In front of the door: there’s a restricted parking ban. The ticket: 5 Euro – if you even get one. My experience: three tickets in five days. That means 15 Euro vs. 125 Euro. 110 Euro saved.
In the U.S., an expired parking meter costs $63. After an hour, you’ll be towed. This means that I park “properly” (that is: according to the rules). I’m happy to discuss the sense and senselessness of the rules, but when they’re there, there has to be a reason to want to follow them. I think we can agree that it’s just wrong that someone who willfully violates someone else’s rights – regardless of whether it’s photo usage rights or any other – ends up in a better financial position than the person who legally obtains the rights.
This all makes it sound like I’m always in court pursuing copyright infringement claims. But, in fact, I can count the number of times in my 52 years that I’ve been in court for copyright infringement claims on my fingers.
I’m a harmony-seeking individual, and I fight extremely reluctantly. But when someone forces me to it, then I am ready to use everything I have to back up my rights.
Karsten Gulden: What do you think about the adoption of a “Fair Use Rule” in Germany?
Mr. Karp: It would be so unbelievably easy to scream yes! yes! yes! yes! But really: what for? I “love” the German Rewe grocery store for its act of humanity, helping the needy, and thereby sending a message (Details: Rewe räumt die Regale leer – die Kundschaft findet es großartig)
But seriously: should that action create a precedent? My photographs are the fruits of my labor. They are all that I have. What does “fair use” mean? And above all: fair for whom?
I am happy to discuss this.
Karsten Gulden: Do you wish you could go back to the analog world?
Mr. Karp: I used to always hear from my grandpa that everything was better in the good old days ;-). The beauty of having both digital and analog is that I have the choice. And there’s nothing greater in life than getting to choose, is there? No one, not even my customers, can force me to use digital photography. I have great esteem for my colleague Vernon Trent (vernontrent.com) and he only photographs using cameras made before 1900. Amazing!
If there’s anything I’d like to have back, it’s the regard and respect for photography. These days we’re mutating into an “I can always delete it later” society, and I think that that’s a real shame.
Karsten Gulden: Mr. Karp, sir, thank you very much for this honest and open interview.