Fair Game. Not!

A couple of weeks ago, on 27 March to be exact, I learned via a friend that some of my whale photos were being used in an online advertisement.

Problem is, I didn’t know about the usage, and I certainly never got paid for it.

Here’s the ad (which has since been taken down):

Waterworld Werner Thiele Facebook ad with unauthorized use of my whale photos
Waterworld Facebook ad with my photos

The ad was posted on Facebook by a travel agent in Austria, Waterworld - Werner Thiele KG. It was to market trips on a new liveaboard to be based in Sri Lanka as part of the Aggressor Fleet.

In part, the ad states that the agent’s team of scouts had just brought back impressive images of whales, i.e., those pictured in the advertisement graphic, i.e., ones that belong to me.

Waterworld Werner Thiele Facebook ad with unauthorized use of my whale photos
Unauthorised use of my whale photos

Werner is a professional photographer of many years experience, not some clueless schlub. I'm a photographer; I certainly can’t imagine using anyone else’s photos without permission or payment for any purpose, much less for a commercial advertisement.

So I was shocked, confused, and angry.

Hackles raised, I took screenshots and posted to Facebook.

My Facebook post about unauthorized usage of my whale photos
My post on 27 March, accompanied by screenshots of the Facebook ad

The response was immediate and global: messages on Facebook; sharing of my post; comments on posts; emails.

So much activity, in fact, that Werner contacted me soon thereafter, apologising, but also calling the flood of communication a shitstorm, using the term as a transitive verb, implying that he was the victim and I the aggressor…the very definition of ass backwards.

Werner Thiele and Aggressor Fleet
Werner's initial reaction: "I would have appreciated if you first would have spoken to me..."

Werner and I corresponded frequently over the next week or so. Despite the circumstances, our communication was cordial. There’s nothing to be gained by name-calling.

Werner expressed the view that: “I am a victim as you are on this,” suggesting that other parties were at fault. Specifically, he named Tom Gebhardt at Aggressor Fleet as the source of the photos. As I do not know Tom, I looked on the Aggressor Fleet website and saw that he is the Sales Manager for tour operators, travel agents, and dive stores.

I conveyed to Werner that I could only assess what I could see online, i.e., his commercial advertisement with my photos, accompanied by text stating that his scouts took the photos. I emphasized that it was not possible for me to agree or disagree with him without additional information.

I stated my desire to get to the bottom of what transpired, and asked for his help to do so: “You have stated that we have to find the real badass. OK, let’s do that. As a first step, Tom needs first to confirm or contradict the statement that he sent you my photos for use as publicity.”

Here is the essence of what’s taken place between 27 March and now:

1. On 28 March, Werner said Aggressor Fleet was the source of my photos: “I got the images from Aggressor Fleets sales department, Tom Gebhardt as you know. NO indication of WHO took the images, no watermark on them.”

2. Werner contacted Tom at Aggressor for confirmation and help in clarifying. The reply from Tom on 28 March included this: “Sounds pretty bad but as far as I know, images on the web (not HR originals and not copyrighted, published on Facebook and other social media sites) are fair game, no?”

3. During ongoing correspondence, Werner became distressed at apparent inconsistencies from Aggressor. Specifically:

  • On 20 March or 24 March (not entirely clear from Werner’s communication), Tom sent him my photos, along with this text: “PS. By the way. A friend of mine was in Sri Lanka about a month ago and he sent me these pics (attached). Pretty impressive don’t you think.”
  • On 28 March, Tom’s description to Werner of the source of my images was: “I did by the way get the images from a friend of a friend, if that makes a difference. I did not know the friend of my friend.”
  • On 29 March, the explanation to Werner became: “The images were sent to me via a link in an e-mail. This link (click below) took me to the below Facebook page where the images are located.”

The bolding is mine, to highlight the inconsistencies that Werner pointed out to me. In Werner’s own words: “First it was friend who was there. Then it was the friend of a friend. Now the reality is it was a facebook page and now it is my fault that I used them?”

4. On 31 March, Werner received a message from Tom, in part stating: “This crap bugs me and this is what I get when trying to be nice and help people. In the future I won’t volunteer anything that I might find helpful in business. It just backfires big time…I hate to say it but if you had only asked me if you could use the images, I would have said no and we would not have this issue….and shitstorm…The answer from our HQ’s was basically one sentence. Werner needs to just explain that he assumed he could use but was wrong and apologize.”

5. On 31 March, I received an email from Tom. In short, he said it was all a big mistake/ misunderstanding. He stated that the my images were taken from a Facebook page, and that the link for the page was sent by a “well known photographer who is a friend of mine.” It was difficult for me to square this with the ever-morphing progression of attributions referred to in point 3 above. All very confusing.

Moreover, Tom wrote to me: "This friend of mine is a friend of yours. He mentioned to me that his friend (you, without mentioning your name) had been in Sri Lanka a month earlier to capture these amazing images."

If I follow correctly...an anonymous mutual friend of Tom's and mine allegedly said that I was in Sri Lanka in February this year and took the photos in question at that time.

I was actually in Mexico in February, and I took the photos two years ago. Any real friend of mine would've known these things. Just saying.

Also, what happened to this sentence, written by Tom to Werner on 28 March?

“I did by the way get the images from a friend of a friend, if that makes a difference. I did not know the friend of my friend.” 

Was it a friend, or a friend of a friend, or a friend who is also my friend? (see point 3 above, all very confusing)

6. On 1 April, I asked Tom two questions:

  • What is the Facebook page you refer to?
  • Who is your friend who sent you the Facebook page?

7. Tom’s reply the next day: Global Whales for the first question, and it’s “irrelevant” for the second.

8. I was traveling for a few days after that. I sent a follow-up to Tom on 9 April, noting that the Global Whales Facebook page has my name and link associated with all my whale photos. I also explained my reason for asking the name of the well-known photographer friend who sent him my photos—namely, fact-checking, so I can better clarify/ try to understand what actually happened.

Facebook Global Whale, clearly attributing Tony Wu
Global Whales Facebook page, my name and public Facebook page clearly stated
Facebook Global Whale, clearly attributing Tony Wu
Global Whales photo detail, my name and URL clearly stated
Tony Wu email to Tom Gebhardt
Follow-up email to Tom

As of this writing, I have not received a response. To be fair, Tom is traveling. I know how difficult it can be to deal with emails while traveling.

Trying to Make Sense of it All

It’s all a bit confusing, isn’t it?

Best I can tell, Tom obtained my images via an undisclosed person(s). He downloaded my photos from the Global Whales Facebook page, which clearly states the photos are mine. There is no watermark on the actual photos, as Tom correctly states. Global Whales took the photos from somewhere else. Some unknown person cropped my watermark out of my photos. (Never-ending chain of photo theft)

Tom emailed the downloaded photos to Werner. Somehow he forgot to mention the source of the photos, or to say that the images belong to me, as stated on the Global Whales Facebook page.

He described the photos with language that was both vague and inconsistent, initially saying that a friend sent him the photos. Then saying it was a friend of a friend, whom he did not know. Then, a Facebook Page. And finally, in an email to me, that it was a well-known photographer friend of his, who is also a friend of mine.

Also, in his 31 March email to me, Tom’s description of the text in his initial email to Werner is: “A friend of a friend of mine was in Sri Lanka about a month ago and he sent me these pics (attached).” This differs from the version of the text I received from Werner of that very same communication, which reads: “A friend of mine was in Sri Lanka about a month ago and he sent me these pics (attached).”

I can see how Werner could be confused. I am.

Unfortunately, as of now, Tom has declined doing the one thing that would make it super-easy to clarify. Namely, put me in touch with the person whom he says is a friend of mine and sent him the photos and/ or link.

So…what exactly happened remains unclear.

One statement Tom made to Werner is instructive, however.

"Sounds pretty bad but as far as I know, images on the web (not HR originals and not copyrighted, published on Facebook and other social media sites) are fair game, no?"

The most charitable conclusion I can draw is that such a misguided mentality is at the heart of this, and perhaps many other, problems related to theft of intellectual property.

No Tom. They are not fair game.

No more than if I were to find your mobile phone on a counter at a bar. I couldn’t just take it and give it to a friend, claiming that it’s fair game, then get pissed off when I was confronted, griping that: “This crap bugs me and this is what I get when trying to be nice and help people.”

I am not naive. I know people steal photos posted online. Mine get stolen all the time. That's never going to stop.

I am certain you had no intention to steal; you just considered the photos "fair game." And by all accounts, there is no indication that you suggested to Werner that he use my photos in his ad.

But really. I'd expect more professional behaviour and clearer communication from the Aggressor Fleet. You're not a fly-by-night operation. Right?

As for Werner, he’s a professional photographer. He should never have used my photos for his ad. But after all that we’ve discussed, I can and do accept that he made a Bozo mistake without any bad intent. Personally, I would never use photos without knowing their provenance, especially for a commercial purpose, and doubly especially if they are unique photos like my whale images.

For clarity though, if someone takes my photos and uses them without my knowledge, the onus is not on me to seek them out and politely ask them to stop. I can certainly choose to do so if I wish, and I have done so many times, but my property is my property.

If someone were to steal your car Werner, the onus would not be on you to seek that person out and ask politely for the return of your automobile.

At this point, I believe Werner is sincere in his apologies. I have no idea what to make of Tom’s confusing narrative or reluctance to put me in touch with the one person who could help clarify the chronology of events. But whatever.

Here’s the takeaway: Do not appropriate photos for your own use, especially commercial use, without knowing exactly where they came from and being clear on usage rights. Photos are not “fair game” especially when the Facebook page in question specifies both my name and my link.

Finally, if you are one of the people who cancelled a trip with Werner as a response to this unfortunate turn of events, please don’t do so because you want to punish Werner. The online response has delivered the message loud-and-clear to him. He gets it.

I bear him no ill will. You shouldn’t either. We all screw up.

One thing I feel important to convey though, is that if you’re expecting to see/ photograph the scenes depicted in my images, I’d advise adjusting your expectations to be more in line with reality. Caveat emptor.

Getting those photos required investing thousands of hours on the ocean, years of reading/ studying, and many hours of physical training over a lifetime to keep up with large animals in the ocean. Not to mention photography knowledge/ skills and a lot of luck. The photos didn’t just happen. They won’t just happen.

Note: On 7 April, I sent a message to both Werner and Tom offering to post any statement they wished to send me, in the interest of fairness and giving both of them a chance to have their say. I have not received a response from Werner. Tom advised me to use his email to me dated 31 March, which I’ve appended unedited below, except to remove Tom's email address and the Dropbox link.

From: Tom Gebhardt
Subject: Sri Lanka Whale Images - Water World
Date: March 31, 2016 at 11:21:54 PM GMT+9
To: "[email protected]"

Dear Tony,

Greetings from Tokyo, Japan where I am about to start our participation/exhibition at the MDF Tokyo 2016 and then shortly thereafter exhibit at ADEX Singapore. Wish I could meet you at one of these events to talk about the current issue in regards to your Sri Lanka whale images having been used in an completely mistakenly unauthorized manner for promotions of one of our highly respected resellers/tour operators in Austria.

To make it absolutely clear. I did send Werner Thiele of Water World the images of the Sperm whales. I received the link to a Facebook page where the images could be found ( no watermarks, no photoshop used...there were none ) from a well known underwater photographer who is a friend of mine.

They were of course very impressive.  This friend of mine is a friend of yours. He mentioned to me that his friend (you, without mentioning your name) had been in Sri Lanka a month earlier to capture these amazing images.

Mr. Werner Thiele has several weekly full charters lined up for 2016, 2017 and 2018 with the new Sri Lanka Aggressor which is due to start operating in September of 2016. As a matter of fact, the very first charter he will on-board himself.

As a very valued re-seller and client of the Aggressor Fleet, I would hereby like to apologize for the misunderstandings on his behalf. It was a total and completely misunderstanding from his point of view. This is the reason why.

When we, Aggressor Fleet, announce a new destination and especially a destination where we still are in a collecting stage of images and videos for our online library, which our re-sellers have access to, in order for them to download images and videos to use on their own websites for promotional purposes when selling their trips, we, or I, sometimes send images received from the scouts or individual yacht owners to specific re-sellers such as Water World, so that they have the images before they get loaded up on our re-seller website. This way and especially if they have full charters already booked, they can then add these images/videos to their websites or social media to get their promotions going.

In this case, I have sent Mr. Thiele and Water World images of the construction phase of the new yacht (Sri Lanka Aggressor) and the progression it was going through for completion as well as images of our new Aggressor Tented Safari Lodge that is currently being built in Sri Lanka.

What happened here is truly a complete misunderstanding by Mr. Thiele. When sending him the images I found on Facebook, he truly and mistakenly thought it was images that he could use for promotional purposes, just like the images our team had taken before and which I had sent him showing the progress of the yacht build and the Tented Lodge. He had no idea whose images these belonged to and he also let his guard down (so to speak) not double checking where the images came from.

In no way, shape or form, did I suggest for him to use your images in any promotions for his trips. This was decided by himself and in complete innocence as he thought they were sent to him like the yacht and lodge images before.

As an example (see below), I sent Mr. Thiele this email back in early March just like many others and again, it was images for him to decide to use or not in his promotions. 

Hi Werner,
Just received these.
[Dropbox link]

A few days later, I received the link to the Facebook page from a friend of yours, I copied the images on the page to my computer as not just to send Mr. Thiele a link but the actual images. My intent was to boost his excitement of what he and his clients may be able to see when traveling to Sri Lanka by showing him your images. As can be seen, it was not a suggestion to use the images for promotional purposes. That was completely his own decision and as we now know, a total and innocent misunderstanding.

"PS. By the way. A friend of a friend of mine was in Sri Lanka about a month ago and he sent me these pics (attached). Pretty impressive don't you think. Sperm Whales"

Tony, with all due respect. Mr Thiele is running a longstanding, reputable travel business and is himself a very reputable underwater photographer and since I know him personally for years, he is in no need to "steal" images from someone else. This whole thing has come about because of some ridiculous and silly misunderstandings that we as professionals should be able to resolve without further complications. I am sure that Mr. Thiele would welcome any help or assistance from your side to help stop what is now going on in Social Media and elsewhere. He would also of course welcome any of your suggestions as what he can do to resolve this issue and I am sure he will comply.

I would welcome your comment and hope for your understanding in this whole misunderstanding.

Best Regards, Tom

Second Note: Many friends and also people I don't know shared my original post. One of my friends sent me this screenshot:

Facebook censorship of fact
Facebook censorship prompted by an anonymous Loser

Someone reported the shared post to Facebook and had it removed, allegedly for violating Facebook Community Standards.

This is sad on two counts: First, that there is someone out there in the underwater community who feels it appropriate to censor fact; and second, that Facebook agreed and decided to remove the shared post as a violation of Facebook Community Standards. Seriously.

Facebook did not remove at least 124 other instances of my post being shared though. I guess Facebook isn't consistent in its application of censorship.

Update on what eventually happened to Aggressor's Sri Lanka boat. It wasn't good.