Instead of apologizing and compensating the photog, AutoWeek Art Director Ken Ross made this claim in an e-mail reprinted by Lawrence Lessig:
... this image was obtained through the savethe76ball.com uncredited and in public domain. Our customary payment for this type of shot is $50.
When I wrote Ross this weekend and said they should admit a mistake and pay the guy, he responded that the dispute has been forwarded to their legal department. I hope it reaches the desk of someone with a basic understanding of copyright law.
Nothing created from 1978 onward in the U.S. is in the public domain unless there's an explicit declaration that releases it. Everything's automatically protected by copyright from the moment it is "fixed in a tangible medium of expression," to quote one primer.
Actually, I was just reading Wikipedia the other day on the Berne Convention (I was looking for the signatories) and the U.S. didn't sign the Berne Convention until 1 March 1989.
Interesting no one has picked up on the parallels in this one.
This illustrates the problem with the current copyright law. The public domain has disappeared. It used to be hard, and deliberately so, to hold onto a copyright. In the early half of the 20th century, courts spoke of the two goals of copyright: (1) allow creators to protect their work if if was important to them to do so, for a short, limited period of time, and (2) protect the interests of society at large in having access to the large store of common culture, by forcing anything into the public domain that did not have a proper notice and that was not renewed at the 26-year mark.
Now, since 1989, notice is no longer required. The standard immunity you had before for publishing something that had no copyright notice is gone. There really is no public domain anymore.
As for Flicker CC photos: some idiot on Flickr could change his settings and deny he put something under CC, and your lawyers would be scrambling to try to see if the Wayback Machine works with AJAX sites.
We're using Flickr photos, but who do we attribute them to? We end up doing attributions like "Photo: big-weiner-daddy/Flickr" since we don't know the idiot's real name. We haven't been screenshotting the CC license, but we may have to start.
Of course, in the end the copyright law doesn't have much teeth for Flickrites. They can get an injunction against future use in these cases, but monetary damages will be pretty difficult, unless they are professional photographers who sell stock or the like. That guy should take the $50 and be happy.
Corbis holds up sites for bigger bucks in settlement, but that's because they threaten to sue for amounts roughly equal to what your attorney's fees would be. They have never actually sued and won in a blogger case though, so it remains open whether their claimed damages would hold up.
If someone wants to use a picture that's on Flickr, all they have to do is ask the photographer. If you click on "Profile" and "Send FlickrMail".
I'm the person who's picture was published without permission. I would have been more than happy to let AutoWeek use my picture as long as I am given credit for taking the picture. AutoWeek Magazine didn't ask and then lied about where they found the picture. In the end, I was paid for the shot.