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In October 2011, two men wearing George W. Bush masks robbed a bank in Seattle. Christopher Boffoli grabbed a camera and rushed to the scene for West Seattle Blog, a hyperlocal site. The next day, a Huffington Post video flashed a screenshot of his article for its own story. Most reporters covet attention from a larger news organization. Not Boffoli.
“I had a problem with it,” he said. “If they want to send someone to stand out in the rain for two hours, then they can do that … I did the work, I should be paid for it.”
On the Web, people use and share photographs all the time without permission or attribution, and without paying for them. Boffoli hates this. Ever since his fine art photography went viral in 2011, he’s spent hours each month policing Facebook, Twitter, and other sites for his photos. If more photographers and journalists did the same, he figures it might remind the public that someone worked hard to create the content they’re sharing. While his own efforts haven’t stopped new people from posting his images online, Boffoli is able to make a living from his photography. And he’s one of the few photographers to haul the biggest internet companies into court to remind them that photos are not free.
Boffoli, 44, is a prodigious creator: He’s a photographer, writer, budding documentarian, and an artist. In addition to contributing to West Seattle Blog, he spent a decade photographing tiny figurines juxtaposed against food. In 2011, an editor in Europe stumbled upon examples he had posted on 500px.com and emailed him an offer: How would Boffoli like to syndicate the series, and be compensated for the wider exposure?
The photo series was a hit, eventually published in 95 countries and in a book, Big Appetites. Afterwards, fine art galleries in New York and London suddenly could sell them for thousands of dollars apiece. Licensing the use of these photos, for advertisements or background art in magazines, constitutes his main income, but he also does photo shoots for brands, and sometimes magazines such as Lucky Peach. And he still contributes to West Seattle Blog.
His online piracy problem also exploded, however, as the sudden popularity of his work lead people to start plastering them on Facebook, Twitter, and other sites. Those sites can sell ads against the traffic his photos generate without ever compensating Boffoli. His only recourse is to send an official takedown notice to the website, alerting it that a user posted copyright-infringing material. As long as Facebook removes the infringing material, it’s protected from copyright liability, under the Digital Millennium Copyright Act.
“All they have to do is take it down when they’re asked,” said Boffoli, “It’s like being pulled over for speeding, and saying, ‘Okay, sorry’ and driving away. They don’t have to pay for it. They could have it up for a year before I find it.”
He ignores posts with only a few of his images. But some posts contain 70 of his photos, often attributed to another artist. Boffoli has to copy and paste all 70 URLs in his takedown notice. Sometimes, still, the website ignores his takedown request. That’s what Boffoli said happened in 2012, when between July and August, he sent Twitter four takedown notices covering dozens of tweets which contained his photos, in violation of copyright law. The company never removed the photos, and so in September, Boffoli sued for copyright infringement. He went on to sue Google, Imgur, Pinterest, and four other sites for ignoring his requests.
Earlier this year, Boffoli received a default judgement of $56,500 against Vingle.net, a social media site apparently based in Korea that never appeared in court to answer his lawsuit. That may roughly indicate what happened in his other lawsuits, which settled on confidential terms, usually weeks after being filed.
Martin Robins, an attorney who has written about the history and evolution of the Digital Millennium Copyright Act, said there’s little defense for a company ignoring a takedown notice on a copyrighted image. But there have been very few court decisions interpreting the DMCA. “There’s just a lot of vague terms and room for interpretation,” Robins said.
Perhaps the only similar case to reach a jury involved Daniel Morel, who photographed the bloody, exhausted survivors in the aftermath of Haiti’s 2010 earthquake and posted the images on Twitter. Agence France-Presse discovered them and provided them to Getty Images, which disseminated them around the world. Some of the images were misattributed to another Twitter user who had posted them, and Morel never gave permission to use them. AFP and Getty argued the pictures were free because they were on Twitter, but Morel filed a claim for copyright infringement. In November 2013, a federal jury in New York awarded him $1.2 million.
“Just because you put something on the internet does not give people the right to steal it,” Joseph Baio, Morel’s attorney, told me.
But many people continue to believe that images posted online should be free. This September, Boffoli sued Imgur for ignoring his takedown request on 73 of his photos, only to face a backlash from online detractors who concluded he was a copyright troll, abusing the court system to obtain publicity and money. In an act of retaliation, someone anonymously uploaded 20,000 images from Boffoli’s Flickr account onto The Pirate Bay, an illicit file-sharing site. Those were low-resolution images, but Boffoli said there have been anonymous threats to upload high resolution images of his photos there. (The site was shut down by Swedish Police last week, allegedly for unnamed copyright violations, but was quickly resurrected at a new URL.)
Boffoli insists his motivation has always been the same — to protect his livelihood by reminding companies that his photos hold value under the law, and to remind other photographers and content creators that online exposure shouldn’t be their only goal. “It’s bad enough that the consuming public thinks that everything should be free, but to have photographers, or journalists or artists say, ‘Okay, I need the exposure,’ — if they said, ‘No, I should get paid a living wage,’ we’d be in a much better position.”
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