When Art Becomes Advertisement
by Galen Rowell
Outdoor Photographer, July | August 1996

I wasn't concerned when my staff first told me that one of my posters was hanging in the photofinishing area of a Costco discount store. Businesses from restaurants to brokerage firms use wall art to create a desired ambiance. Many posters and photographic prints are sold by our own Mountain Light Gallery for business decor.

This use was significantly different. Those who sell finished photographic art rarely if ever call into question a proposed use as a condition of sale. Photographers and their agencies, however, normally control how an image is to be used. Fees are based on how a raw image will be transformed into a thousand posters, a million magazine pages or an ad campaign to sell a product or a service. Commercial uses are strictly controlled. For example, I wouldn't sell rights to an image of my wife trekking in Tibet for a tobacco ad. Nor would I sell an image taken with a Nikon for a Pentax promotion. And if a company purchased limited rights for a single use, I wouldn't allow them to use that same image in a new way without prior approval and an additional fee.

As the true nature of the Price/Costco company's use of my poster image unfolded, I was appalled to discover violations of photographer's rights that parallel each of the three hypothetical situations mentioned above. The company took a firm corporate stance that they had every right to do so because they described their use to the poster company and received no objection before purchasing an assortment of hundreds for the same purpose.

I would have been pleased to see one of my all-time favorite images, "Wild Horses below Fitz Roy, Patagonia," hung as an example of fine outdoor photography, even in a Costco discount store, but it had not been chosen for esthetic decor. A photographer had recognized my image in what "seemed to be an uncharacteristic and rather incongruous setting" and sent me a snapshot that clearly showed its use as part of a commercial photofinishing display in a Seattle store. He went on to describe, "Featured prominently, just inside the entrance is their one-hour photo processing operation. The rear partition of this cubicle is really a billboard that shouts the advantages of their service. Arranged in a line across the top are four or five photos, each about 16" x 20" in size."

The snapshot clearly shows what appears to be part of a great roll of processed film. My name and the photo caption have been trimmed off the borders of the poster and replaced with simulated sprocket holes to appear as strip of film in a carefully designed exhibit that is known in the advertising trade as a point-of-purchase display. Within the same sprocket holes are other top images by Carr Clifton and Al Giddings, who had also licensed images as posters to Portal Publications and are presently pursuing individual settlements with Price/Costco. I might never have known about the unauthorized commercial use if Price/Costco had chosen a lesser known image. The wild horses had been shot on assignment for National Geographic in 1985 and subsequently copyrighted in 1990 as a double-page spread in my Collins book, "The Art of Adventure," due out this fall in a revised Sierra Club paperback edition. More than twenty other uses have been authorized and paid for, including limited rights for Portal Publications to print a Sierra Club poster. The original slide had been processed through National Geographic and later returned under the terms of a contract that gives me rights to a copyright and all future uses.

I initially expected the situation to be quickly resolved. My stock photo manager, Gary Crabbe, began by asking Price/Costco to cease displaying my image in a way that represented their processing services and trying to ascertain the extent of their commercial usage to bill them for it. He had amicably settled a less blatantly commercial case regarding a different poster used as an identifiable part of the set of a network TV series.

Price/Costco simply refused to make any legitimate disclosure or to negotiate a settlement. Gary was told by the director of their Photo Service Division that by purchasing retail posters, Price/Costco had bought the right to display them in any manner that they pleased.

The American Society of Media Photographers (ASMP) referred me to Jeffrey Berchenko, a San Francisco lawyer who specializes in artist copyright and trademark law. His talks with Price/Costco's legal representatives failed to yield any satisfactory settlement. On March 6. 1996, San Francisco TV news covered the two of us filing a lawsuit against Price/Costco in U.S. District Court.

Our case has far greater implications than basic copyright infringement and false attribution of a direct or implied endorsement. The unauthorized appropriation of my photograph for a series of point-of-purchase displays goes to the very heart of the kind of usage of photography that keeps stock agencies and photographers in business. To let Price/Costco get away with cutting and pasting advertisements without paying use fees is only one small step away from doing the same thing with digital scans. Imagine the future of photography as a profession in a world where any published photograph can be scanned or otherwise appropriated as someone else's intellectual property for promotion or decorative use.

My discretionary rights to decide how my work and good name are commercially used are also at stake. I have never used Price/Costco processing and never will. Nor have I ever endorsed a product or a service that I do not personally use in the normal course of my work. In fact, I already endorse film processing by The New Lab in San Francisco in an ad that states that I use their professional services "exclusively to process my film because of their proven consistency."

However clear the issues seem to be, Jeffrey Berchenko wanted to know that my image had a registered copyright before he would take on the case, because legal fees are then automatically added to the judgment. I used to naively believe that registration was a minor issue, because copyright law also applies to unregistered images and violators tend to either settle out of court with low costs or escalate what might have been small settlements into major amounts that seem as if they should be more than high enough to cover legal fees.

Hidden costs include the months or years of court dates, the uncertainty, and the potential conflict added to your life from false accusations that so often emerge from the other side. After all, they have given you a glimpse into their true character by the nature of the act in question and their refusal to settle it amicably. The odds of a personal smear escalate if you exercise your rights by media publicity, as we have, or by publicly advising photographers to boycott the company in question, even when every detail of your claim can be verified.

I'd much rather be out there taking pictures than donning a tie to meet with attorneys, but I recognize that the rights we all enjoy as photographers in America are not inalienable or intrinsic. They exist because other photographers–as individuals or as members of organizations–have put down their cameras and put themselves on the line to establish and defend legal precedents.

Galen’s columns are reproduced on our web site courtesy Outdoor Photographer.
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