A few weeks ago I discovered a tweet from someone who was planning on using a photo of mine as the inspiration for a new tattoo. I was floored—what an honor. I reached out to the woman and asked if she wouldn’t mind sending me a photo of the finished work so I could post it to my blog. The appointment got delayed several times, and I forgot about the whole thing, that is until yesterday, when I got an email with a twitpic of the tattoo (inked by Ellen at Chameleon Tattoo & Body Piercing).
Something about the photo in the ad caught my eye. Almost immediately I realized, “That’s my photo”. Not “I took a photo like that” or “I happened to take a photo of that same face”. No, “I took that very photograph”—during my second trip to Cambodia in May 2003. It happens to be one of the few photos of my own that I’ve had printed. It was hanging in our foyer in San Francisco.
I’ll admit I wasn’t 100% sure. It’s hard to fathom how many photos have been taken of the Bayon temple’s smiling faces over the years. I was willing to allow that there was a chance, however slim, that someone had taken a remarkably similar photo.
Later that day, I looked back at my photos from May 2003, compared the ad to the original, and sure enough it was my photo exactly: uncropped, same perspective, same shadows, same sliver of blue sky in the top left corner. A dead match. The shear improbability of it blew me away. Here I was, in Siem Reap, stumbling upon a photo in an ad in a free tourist guide that I had taken during my first visit nearly 8 years ago. Does this sort of thing happen to anyone else?
How did it happen? After that trip to Cambodia, I put some of my best photos online, including this one, to share with friends and family. I made the original versions of the photos available for download since they were only 2 megapixel files. I also dedicated my initial photo galleries to the public domain, which helped some of them find their way into Wikipedia and which may have been where this photo was found. Or maybe it was just a swipe from Google Images, without regard for my permissive uncopyright. Who knows?
To make a long story short, we took the guide with us on our return trip to the Bayon and actually managed to find the very same smiling face I’d photographed in 2003. Even that seemed unlikely, given the roughly 150 surviving faces, each a little different. Only a few were visible at eye-level, which made the search easier. As a souvenir, I posed next to it with the magazine.
If I “dedicate” a digital photo to the public domain, have I dedicated the specific arrangement of pixels that make up that photo—or have I dedicated the more general visual image, the concept of that photo, if you will?
In the case of the former, can I change a single pixel, in a way that’s practically imperceptible to the human eye, but verifiably different (from a mathematical standpoint), and reclaim copyright of that photo (thus effectively removing it from the public domain)? Can I resize a photo and relicense it under different terms?
In the case of the latter, does public domain status follow any trivial transformation of that photo, such as resizing, cropping, or color adjustment? If I were to relicense that photo, would I be stealing or cheating the public? Would I be doing something “illegal”? Just as in the application of Fair Use, perhaps a legal determination would need to be made on the transformative nature of any new work based on public domain material.
If I remove the photos from the internet, does that have a demonstrable effect on the public domain? Does it matter if they were not all very good? If I possess a copy of some public domain material that someone wants, do they have any right to request that I give them a copy? Is it legal for someone to hoard the last copy of some public domain material? Is it moral?
When I first came around to the idea of licensing my photos under a more permissive scheme than copyright, I was immediately attracted to the concept of dedicating them to the public domain because it seemed to be the least restrictive means to give others unfettered access to my “creations”. Honestly I felt very fortunate to have traveled and seen what I did, and I wanted to share that with as many people as possible. It was only later after reading some things, that I realized in some ways the “public domain” is not all it’s cracked up to be.
The truth is, with my galleries having been on the internet, some for a period of over 6 years, numerous web crawlers have cached copies of both the images as well as the surrounding license information that indicated their public domain status. On one hand I don’t want to go through the trouble of indicating that certain resized images republished in new or existing blog posts were in the public domain (and not others). Partly because I’m not even sure if that is necessarily true. And on the other hand, I don’t want to get that email in the future where someone digs up a photo from my galleries lodged somewhere in the bowels of the Wayback Machine and calls bullshit on its new By-Attribution license.
In that case, I would just point them to this post. And honor the original public domain status.