Fixing the problem of NWS-donated images and video becoming public domain

[Dan Robinson]

Many chasers don't realize that when providing photos and videos to the National Weather Service for storm summaries, spotter training or other uses, that those works may subsequently be considered to be in the public domain and therefore lose their copyright protection.

The legal doctrine on this is admittedly murky. In principle, works created by a U.S. government agency are in the public domain. That means that anyone can take and use the material either in part or in whole without permission or license, including for commercial use. When a chaser's imagery is part of those works, they are often considered to be a part of it and therefore covered by the principle.

There are legal arguments to be made that external third-party works included in a government publication retain their copyright protection, but these are so far untested in court.

Regardless of what opinion one may have about the issue, the real-world implication for chasers is that lawyers - particularly contingency-fee attorneys - may not be willing to take an otherwise-solid copyright infringement case against a commercial infringer if the image or video in question was published in an official NWS document, video, presentation, web site or social media page with your explicit permission. This is because there is the potential for the infringer to raise a defense alleging the work to be in the public domain. Since there is not enough established case law on this, how successful that defense will be depends on the court, the judge or the jury in each individual case. Those potential challenges can raise the cost of pursuing a case beyond what is viable. I myself have encountered this more than once and can confirm it does indeed happen.

For example, you might see your video used in a Hollywood movie without permission or license. You registered with the US Copyright Office in plenty of time. You contact attorneys and they are eager to take on such an open-and-shut case. That is, until they discover that you gave the video to the local NWS office for a spotter training video that they subsequently published on their Youtube channel. They very likely will decline to take the case based on that unless you cover all of the costs and fees up front. The end result of that decision to help the NWS is that you effectively have no copyright protection on that video, even if there is a good legal argument that you still do. If you can't find an attorney to take your case, you in effect don't have any protection or recourse.

This is a really unfortunate situation, and I don't know what the solution is. I want to help the NWS is any way I can with photos and videos, but I can't afford to in effect give away that same material to commercial and corporate interests that can then exploit it for profit with no recourse.

I am curious to hear thoughts on this issue.

 

[John Farley]

My solution is I do not chase to make money. As most of you know, only a handful of people actually make much money that way. I do not think that in any way photos or videos that you share with the NWS should become public domain, and in my experience they are pretty good about crediting the photographer. All that said, this issue would not keep me from sharing pictures or videos with the NWS, because 1) realistically the chance of any of my photos or videos being used in a feature length movie without my permission are pretty small, and 2) I think the educational value of NWS use is worth the risk. And as I said, I do not chase to make money, and I have never made much more than pocket change from it. I have never even tried to monetize my Youtube videos (even when you actually could) because I find ads highly annoying and do not want them to appear with my material. I am fortunate enough to sufficiently financially secure that I do not need to try to make money off of chasing, but I do understand that not everyone is in that position.

 

[Dan Robinson]

I also don't chase for money, but money I make from chasing does impact how much of it I'm able to do. despite my mediocre skill, I still manage to capture very valuable footage and pictures a few times a year. All of us have the potential for that to happen by the virtue of the subject we pursue. I want to help the NWS. But I don't want to make five-figure donations to big multi-million dollar corporations. Even though I'm reasonably financially secure myself, a five-figure sum for a video license isn't a throwaway thing for me. It does still make a meaningful difference in my life. I'm hoping there is a good way for those two things to coexist.

 

[Drew Terril]

I've never made a sale off of any of my footage. To be fair though, I've made very little effort to do so. With that said, on the occasions I've been asked by a commercial entity to use anything of mine "for credit," the answer is always no. I'm not going to subsidize their future advertising budget with my footage. For me, it's a matter of principle on that. While I do make a good income at my day job, I wouldn't want a commercial entity to make money on my stuff without me getting a cut of it.

 

[Warren Faidley]

I've donated many images to the NWS over the years, but I always provided them with a release for the exact use and nothing beyond that. The problems occur when the files become separated from the original release and yes, they can be accidently labeled as "public domain."

I don't lose sleep over honest, accidental publication anymore. The market is flooded and no one gives a rat's arse about weather photography now days. This is because (thanks to social media), the half-life of a picture is about a day and the rates commercial and editorial clients pay is silly. There were multiple images from the outbreak last week that were fantastic. Back in the day, they would have made serious money for many years. Not now days. There are no more magazines and books, and the few that exist use stock images for pennies. I've had pictures up on several "art" sites for years and I've never sold a single one!

The exception is if you can keep a gatling gun flow of outrageous images and footage on social media. No doubt it will boost your PR and following.

I'm no longer making a profit from storm photography / videography, but the inertia from my journalist days (that actively spanned over 30 years) keeps a camera in my hand.

 

[Dave C]

I've only sold a couple images for decent money and some weather video for a pittance to a known stringer company. The photography I have sold was of obvious dramatic and artistic impact and rare for an event; I had captured something unique and done it well. I protected those types of items by not giving them out easily. If I had wanted to share something with NWS or another entity where I thought it would compromise a sale important to me, I would simply give out some other images instead that did not have that type of value.

That said, I think sharing with careful rights declaration is solid copyright protection and any lawyer would sign up for a case with an invoice or other written correspondence where you made rights usage / as well as rights declaration and publication expectations clear. For example, I have sold landscape photography images into a book before. I made sure the rights were made clear in the book with a "all photography copyright Dave..." etc statement on the ISBN/contributors page. This ensures no one using the book should get the idea that I gave up rights to the author and they can take images at will from any version of the book. I then verified in the first proof that the copyright statement was well placed.

As others have indicated, there is not a lot of money to go around anymore anyway for weather or other photography. Good cameras are everywhere. If someone with a pulse can point a camera vaguely at a subject, the camera itself (phone, action, DSLR, mirrorless, point and shoot, etc) may correct several mistakes itself for the user. So there is an abundance of decent images nowdays of all kinds of things humans are interested in. Most weather events near people are becoming widely documented. With population exploding and good cameras everywhere, it seems the only money is in rare footage or imagery or something that truly stands out in quality. If you have that, and want/need to try to monetize it, I would avoid risking/diluting it sharing to anyone but paying parties anyway unless you really need to get your name out there or something. In that case, watermark if possible, and declare rights and pubclication rules carefully and hope they do it right. It's all we can really do.

As Warren points out, an image or video is in the attention span of the public for a very short time now. People are addicted to that next like, that next 'entertain me'. So the overall value of imagery is down due to saturation, and really special imagery must be protected, sold, and viewed with its elevated value in mind.

For myself, I only sell anything as a bonus, I am out there documenting just because I love being out there experiencing, and becuase I love the artforms of photography, timelapse, videography, etc. The few times I tried out stringing footage (winter weather) or sold images to magazines or book, it was a real mixed experience. Stringer companies I personally interacted with were invariable greedy and fairly awful to work with, and the networks paid them for footage poorly already, so my cut was pathetic for my expended effort. Books and magazines publishers can be quite pleasant to work with at times, and well paying, but are much harder to sell to in my limited experience. I enjoy chasing and adventuring much more without connecting it to business hassles or worrying about image theft too much, and I just take any sale opportunity as a welcome surprise.

 

[Dan Robinson]

I still make a couple of four-figure video sales each year with the occasional five-figure video license every 5-7 years or so. I still manage a handful of multi-hundred dollar photo licenses each year (I have had some larger ones in recent years also) as well as some print sales. Not enough to live on of course, but it pays for my chasing and allows me to do much more that I could without it (longer Plains trips, better cameras and such). And I'm not one that goes all-out with live streaming and social media either. Nor is money the reason I chase. If I wanted money, I would get my CCNA cert and go get a multi-six figure income doing more IT work. Video in particular is a financial asset akin to your investment portfolio. Yes, there is a lot of competition these days, but it doesn't mean that everything is worthless. Maybe this should be another thread.