Jesse Chen is a UC Berkley graduate and a current engineer working on Facebook’s photo team. However, he became the bane of the photography community this week when a two-year-old post written by him and a friend, Jonathan Tien, caught the eye of various photography blogs and forums.
The tutorial, which has since been removed, instructed users how to download graduation photos from various websites, including defeating any anti-copying technology, and then use Photoshop (or a similar program) to remove the “Proof” and other watermarks on the image.
The discovery of the post has made Chen a near-instant target. With headlines such as “Facebook Photos Employee Posts Step-by-Step Instructions for Stealing Grad Photos,” “Facebook Engineer Teaches Grads How to Steal Photos in Step by Step Guide,” and “And the Award for Guy Most Likely to Make Me Say a Bad Word This Week Goes To…” he doesn’t seem to have made many friends among photographers and artists.
Chen and Facebook, so far, have not responded to the controversy. Chen’s only Tweet since the controversy was on an unrelated post and Facebook has had no comment.
But while the photography community is understandably upset at Chen and what he did, his tutorial seems to come from a common misconception people have about copyright and photography, one that Chen’s tutorial is an excellent opportunity to teach on.
Why Chen’s Tutorial is Illegal
The tutorial itself started from the premise that you were a recent graduate, either high school or college, and had been sent proofs of your graduation photos, most likely through a site owned by the photography company.
You, the reader, wanted to post your photos but you couldn’t access the full photo and, even if you could, the watermark prevented you from posting a clean image.
The tutorial then was in two parts:
- Obtaining the Image: A step-by-step guide using various browsers about how to circumvent any copy protection on the site and download your image in full size.
- Removing the Watermark: A tutorial that shows how to (roughly) remove the watermark from the photo, making it ready for sharing on social media.
The problem, however, is that the steps Chen were demonstrating, using his own graduation photo, were against the law. In fact, if one were to follow Chen’s guide, they would potentially break the law at least three different ways:
- Circumvention of DRM: If one circumvents copy protection schemes to gain unauthorized access to copyrighted works, that’s a potential violation of the Digital Millennium Copyright Act (DMCA) anti-circumvention rules.
- Copyright Infringement: Unauthorized downloading, copying and sharing of the image is a copyright infringement.
- Removal of Copyright Management Information: Removing the watermark, which contains information relevant to identifying the copyright holder, constitutes removal of copyright management information (CMI), which is a separate cause of action.
In short, over the course of the brief tutorial, Chen potentially violated the law in three different ways and this says nothing about the Shutterstock image that he used as his sample (watermark intact).
This means that anyone who follows in his footsteps is likely doing the same and, though it’s unlikely they’ll ever face any for of legal repercussions, the consequences for infringement can be dire if they are found out.
So, given all of that, why did Chen post the tutorial? And why did photographers lash out so strongly against it when dozens of similar tutorials already exist online? The answers are in the post itself.
The Cause of the Outrage
The backlash at Chen seems to stem from two sources. First, Chen’s current position as an engineer working for Facebook’s photo team. Facebook is by far the largest image hosting site and one that many artists already have very mixed feelings about, including concerns over EXIF data and whether the site is doing enough to discourage infringement.
Second, Chen didn’t help himself with some of the language in his post. For example, the last paragraph of the post began with this:
We went from a picture that was covered in an ugly copyright overlay and a disgusting yellow proof watermark, to a beautiful and majestic picture that is clean and polished. No need to “print screen” or take a picture of the monitor in order to share with your family. We hope that this tutorial helps you by freeing your graduation pictures so that you can take back what’s yours to begin with.
Through the entirety of the post, Chen shows a very callous attitude toward the photographer and/or copyright holder, calling the watermark an “ugly copyright overlay” and indicating that it’s just in the way of him accessing what he wants.
Chen seems to believe, mistakenly, that because he is in the photograph, he has the rights to it. We saw this previously with the Michael Crook case, where he believed he owned an image that featured his face and filed false DMCA notices over it.
It’s a frighteningly common misconception that being in a photo makes it yours even though, under the law, copyright transfers to the photographer. This, like many other copyright myths, need to be attacked before there can be any hope of widespread compliance.
There’s no easy solution to this, but when a large number of people believe that an activity is both legal and ethical, there’s very little stopping them from doing it, no matter how illegal or harmful it really is.
The photography community is completely right to be concerned and even angry about this tutorial. It teaches students (and others) how to violate the law at least three different ways and makes no mention of the laws that are broken or why it’s important that photographers be paid for their efforts.
However, it’s important to remember that the attitude and views Chen expresses don’t appear to come from a place of hatred for photographers, but ignorance of the law.
Furthermore, in Chen’s case, it’s particularly important to remember that the post is two years old and was published (most likely) before he began working with Facebook. It’s very likely that he has learned the error of his ways and either forgot to take the post down or just didn’t bother. As controversial as Facebook’s photo team is, it is also highly unlikely that they share these views.
In short, while being outraged and upset is understandable, it’s important to remember where Chen’s piece fits in with the larger picture. With that, we can find ways to take this moment of anger and turn it around for a greater good.