3M Finds The Joys Of Social Media and Will Now Discover the Pitfalls

- - Just Plain Dumb

A photographer takes pictures of people covering a coworker’s car in Post-It Notes. He posts the shots on Flickr and they go viral. More than a year later 3M, maker of the Post-It decides to try and capitalize on the image and contacts the photographer about a license. The photographer asks people he knows in the photo industry what a fair price might be and gives them a quote. Michelle, the emarketing supervisor at 3M tells him she will just copy it instead, for much less… and does. Read and see the whole deal (here).

Now, social media is great. Word can spread fast about cool and interesting things but you have to be a complete moron to not know that it can go both ways. Not only can they get sued for this type of behavior I’ve suddenly lost my appetite for Post-It’s.

There Are 26 Comments On This Article.

  1. @1: it was probably a snapshot taken by the same employee who obviously doesn’t understand intellectual property law and came up with the idea to copy the pic.

    Call me a cantankerous old codger, but “kids these days” just seem to have no concept of intellectual property. It’s the fallout of Napster with, I fear, a halflife of a thousand years.

    Seems everybody increasingly thinks not only music and pictures but ideas are free for the taking.

    Scary.

  2. @3: if it hasn’t already happened, I have a feeling Michelle’s linkedin page is going to be updated soon (looking for a new job perhaps?)…

  3. What I’ve found the most fascinating — and appalling — as this story has been making its way around the web is the position being taken by a lot of members in the Flickr community.

    In the Flickr Central discussion board, a majority of the participants seem to think the photographer was out of line. I would have thought other photographers would have been the first to come to his defense, but I overestimated their sense of ownership in their own work, their understanding of copyright, or …something.

    Feedback on other blogs has generally been what I expected — a little bit of confusion about the rights of a content creator, what copyright covers, etc, but mostly disgust at 3M’s behavior — but the Flickr discussion just shocks me. Anyone trying to educate the public about copyrights, or trying to defend their own, will face an increasingly uphill battle in the coming years if amateur photographers themselves willingly give up their rights without any thought.

  4. The nice thing about youtube is that you can add comments why don’t we start a campaign here and now to comment on the contest page and the pages of those who entered the contest explaining what happened.

    I’d love to see the major media players pick this up and embarrass the hell out of 3M.

  5. It’s absolutely true that most big brands don’t understand how to effectively use social media and how not to poop in the sandbox they want to play in.

    And specifically, Michelle is a real liability to her employer for a bunch of reasons that a dead horse doesn’t need to be beaten over.

    But, I think this is also a cautionary tale to photographers and people who “take pictures” that end up with images on these photo sites: when a marketer of any size comes calling, don’t assume that the Brinks truck is backing up to the front door.

    Coming from the advertising industry, I used to run into this problem once in awhile – and this was years before flickr – and the situation was almost always the same: the owner of the existing image “talked to some photographer friends” or “checked out the (fill in the blank) photo association” for what they should charge. An advertiser or its agency will pay handsomely for a commissioned shoot, but they’ll look upon a “found” image in a completely different way and here’s why:

    1. the image is almost never perfect, but it fulfills a need
    2. since it wasn’t created for print/web/broadcast, there will be retouching issues and related costs
    3. usage will almost always come under question by the final decision-makers on the client side because they’re being asked to attach their multi-bajillion dollar brand to some housewife’s snapshot (in their minds) and that doesn’t sit well

    Now, that stuff is stacked up against the owner of the image before price is even talked about. He/she comes to the table armed with advice from friends and the photo industry and is expecting to be treated like any other professional photographer the brand might hire. After all, the work ends up being used in the exact same way, right?

    Kinda. The brand looks at this Post-It car idea as simply that – a good idea. While the owner of the original images has every right to be paid (and I’d think $3500 would sound right from the evidence given, but that’s just me), the marketer doesn’t think the IDEA is a proprietary one. To them, this is all about the idea of a car being covered in their product – not a photograph of the idea owned by someone they need to pay. Get me?

    And, if the campaign includes video of a car being covered in their product, they can create content of this idea being executed, etc. because they’re simply interpreting a trend happening out there in the world. For instance, if Mentos wants to create a campaign around their product being dunked into a bottle of Coke to create an eruption, they wouldn’t feel obliged to contact all the folks who’ve posted video of that exact thing on YouTube.

    SO, it’s very, very easy for a brand to walk away from an individual lucky enough to own a photo they’re interested in using. If it’s worth $1K to them and you’re asking for $5K, guess who loses? And, unfortunately, guess which party has more money to spend on lawsuits if you think that’s the next step?

    I’m not taking sides, I’m just giving a very generalized peek into these kinds of situations from the “other side.” These things always come down to specifics and I’m no lawyer, but I think it’s good for you, as a photographer (or snapshot taker) to know what all’s on the other end of the phone or email.

  6. btw – Michelle Gebbie is on facebook too. You can send her a personal message about what a bunch of vacant idiots her and her team are.

  7. @Stoner – You make a great deal of sense. Appreciate the clarification of what it might look like from the other side. BTW: I love the phrase “how not to poop in the sandbox they want to play in” ;) That’s really the point I wish 3M would have thought about a bit more.

    @WDOphoto – 3M is deleting all comments about this episode from their YouTube channel about as quickly as you can post them. If you do post something critical on that page, take a screenshot, because within 2 minutes it’ll be gone.

    I don’t, however, think anyone should be harassing Michelle Gebbie. She’s just some poor schmuck of a front-line manager who was probably only doing as she was told. It’s one thing to embarrass the company, quite another to make an individual’s life miserable.

  8. @ #9:

    Also, there is a downside to these “social networking” sites — you risk coming off as a juvenile and unprofessional. With all due respect, FaceBook is not the place to responsibly deal with this matter, or to educate someone. Any communication needs to equally include 3M, maybe even moreso than this one individual. Who knows the whole story — maybe someone above her forced her to deal with this matter in that way. Don’t attack her (or anyone) until you know the facts.

    This is a Business deal; not a personal thing. Well, I guess you could make it a personal thing, but no one really gets educated and no one really learns anything, and photographers risk coming off like uninformed children.

    Also remember, you can’t copyright an idea — you can only copyright a physical creation of an idea. And it depends on how identically this new photographer “copied” the original photograph, in terms of angle, perspective, lighting, etc. Just because it’s a Jag covered in StickyNotes does not necessarily mean it’s an open and shut case. How many bad photos of eggs have you seen? Or bad nudes? Or bad sunsets? All of them, almost identical.

    What blows me away is that 3M didn’t take the quoted $1k fee and send a PO immediately. What a deal that was, and now they’ve got egg on their face, for wanting to cheap out on the fee.

  9. There will always be a noobie who will work for nothing thinking that more work will follow. In reality though they will only call him/her again when they need something done for free.

    I banned post-its long ago. The always come unstuck and blow away. Ring-bound index cards are the future.

  10. Melanie, I hear what you’re saying about expecting photographers to defend copyright.

    But Flickr is comprised of so many people, from those with one photo in their photostream to those with thousands of professional-quality images, people from dozens of countries around the world, and any of them can post on the Flickr Central board, so you’re likely to hear a variety of opinions over there, some quite lucid and thoughtful, some quite insane.

  11. It stinks, but stoner hit the nail on the head. Also no sides taken, but it is the way it is. 3M is feeling/will continue to feel it.

  12. @RT: The difference between this and the piles upon piles of photos of an egg, or nudes, or bad sunsets, is that this is a construction. There are elements combined here by a creative person to make up a work. If this was just a picture of just any old Jaguar, it would be a different story.

    And Stoner makes a good point on the delta between how much money the parties have to deal with litigation. I’m sure 3M could handily bury the photographer in question under towers of legal paperwork and be done with it.

    Overall, I think it’s a lost opportunity for 3M to use the viral attention effectively and instead turn it into negative attention. Thanks for highlighting this story – I just mentioned this in my blog as well.

  13. @ 19, quoting: “If this was just a picture of just any old Jaguar, it would be a different story.”

    With all due respect, you are dead wrong.

    The only upside to this story is that the internet has brought power to the individual, and the wealthy corporation does not have the only public voice, and cannot silence the dissenters.

  14. “If it were just a photo of a jaguar, it would be a different story.?” True, as ruled by judges in prior cases. The first is Fournier v. Erickson, which involved a photo that Microsoft was going to license from the photographer, but negotiations broke down for the price, so MS hired their own photographer to shoot the same “theme” idea. The judge ruled this was copyright infringement because the spirit of the photo was copied, even if not the photo itself.

    Another case is Louis Psihoyos’ photo of a wall of 500 computer monitors that Apple was going to license from him for their AppleTV ad campaign. Again, negotiations broke down, Apple hired their own photographer to shoot the same thing, and Psihoyos sued.

    The details of the judge’s opinions are critical: these were “HIGHLY ORCHESTRATED” photographs, where it’s not just something one sees everyday or by accident, but considerable time and effort had to go into its conception AND into its execution. So, @19’s statement that “construction” had a lot to do with it is dead-on.

    I cite more cases and examples in my book: http://www.danheller.com/model-release-book

    Essentially, the 3M lawyers were simply unaware of the court precedents that have been set, and therefore, subtler aspects of law that govern this obscure aspect of copyright. I fault their lawyers more than anyone else, as they should have done their research properly to establish what their legal footing is. But, of course, it’s all besides the point now since the photographer isn’t taking legal action.

  15. anyone who would like to contact Michelle and let her know how smart her team at 3M is can email her at mgebbie@mmm.com

    I sent her a polite but negative email telling her how low she went by stealing an idea and getting another photographer to do it. Sorry folks but I think they did find an idiot to shoot it for 1 grand if they didn’t jus shoot it themselves with a point and shoot.

    I can’t believe they are going to get away with this.

    J

  16. I sent 3M a lovely email on their wonderfully creative marketing idea… :/

    Also made sure to include some quotes pulled directly from their web site to shove in their face.

    “Act with uncompromising honesty and integrity in everything we do.

    Respect our social and physical environment around the world.

    Earn the admiration of all those associated with 3M worldwide. “

  17. Flickr Central is the worse place to find opinions on copyright. The group has a small number of vocal inhabitants (4 or 5) that are anti-copyright. All copyright discussions in FC will be derailed.