Great white shark photo: Is this your photo?

Great White Shark Cage Diving

UPDATE: This photograph was taken by Mark Marache at Isla de Guadalupe in 2003. Thanks to Shark Diving International and Mark Marache for the info. Below is a comment directly from Mark.

I just came across this, pretty fun. Yes its my photo and I have the other pictures in the sequence to prove it. But thats for another time. The photo has gotten alot of miles, and by the way, the white is named “Patches”. I let Shark Driver Mag use the image but I never gave it to Creative Commons. I always wondered how it got around. Glad everybody was able to enjoy it.


Orginal Post

The photo of above has been popping up on a lot of blogs, websites, and online news articles, due to the fact that it was posted on Flickr under a Creative Commons license that allows free copying, transmission, and distribution of the image. I have seen it appear in multiple news articles just today, under the Creative Commons link from Flickr. The problem here is that it has been brought into question whether the person who posted the image is the actual photographer/owner of the image.

The photo is part of Hermanus Backpackers’ Shark Diving photo set on Flickr, which features multiple surface shots of a great white shark cage dive in Gansbaai (South Africa). The great white shark image above is the only underwater shot in the photo set, but that’s not what really makes the presence of the photo suspicious. The color of the water in this photo certainly is not consistent with the water color of the other Gansbaai photos. The photo of above has telltale signs of being taken at Isla de Guadalupe and was previously featured on the homepage of a commercial great white shark dive operation that operates at Isla de Guadalupe, if memory serves me correctly. Additionally, this photo has been around since before the photos from the Gansbaai set were reportedly taken.

Based on some of the comments under the photo on Flickr, it seems that some of the other photographers in the Flickr community are doubting the ownership of this image. While the owner of the photo might not care that his/her photo is popping up around the web potentially with a photo credit attached to someone else, I was just curious as to whether he/she was aware that it’s listed under Creative Commons by someone who might not be the actual photographer.

13 comments

  1. TheDorsalFin says:

    Patric,

    That fake pic has gotten a lot of mileage over the years.

    Jason,

    That’s a pretty high count on the Tineye numbers, especially considering that a lot of more recent instances aren’t even in their database.

  2. drudown says:

    I posted the photograph on sharkattacks.com (along with many, many others from the same trip) after a 5 day White shark cage dive in fall 2005 through SD Shark Diving (Capt. Doc Anes).

    You can tell from the color of the water it clearly isn’t South Africa.

    Best,
    drudown

      • drudown says:

        That is absolutely not true. It was taken on Doc Anes’ group aboard the Nautilus Explorer in early October.

        Tell me, if someone else took the photo in 2003, how come it went into the public domain after October 2005?

        (cricket, cricket)

        “Truth fears no trial.” – Thomas Fuller, M.D.

      • drudown says:

        Well, Dorsal Fin, I’m a lawyer, not a tech wizard and I am not going to attempt to impugn the veracity of whatever internet mechanism you cite. Maybe it is dispositive on the issue for you, but not me.

        This much I know to be true and would testify to be true under penalty of perjury.

        I posted up to a hundred photos on http://www.sharkattacks.com and also on “Rob’s shark board” at http://www.sharkboard.net after going on a Sept 29- Oct 3 2005 trip to Guadalupe Island. The late Jimmy Hall was also on our trip (with his mom and girlfriend from Hawaii) and kept throwing tuna chunks on the cage I was in. So I swam to the other cage.

        People can disbelieve that as well, but it happened.

        Anyway, once I saw the FWD hoax that was debunked on Snopes months later, I wrote to them stating the photo was taken by "Ben [redacted by the Dorsal Fin]", who was also on that trip and was arbitrarily paired with me on all the cage dives [enter Johnny Utah voice: “it’s not easy to find friends to go on such a trip- you can’t just call a time out if things don’t go your way.”]

        Personally, I never take photos on any trip (duh, it’s all about the moment- I mean, am I really going to go back and look at a photo of Leura Falls or Brooks Falls? Maybe some do, but I don’t- so no camera required). Ben gave me his shark photos, and I never heard from him since. Do I think he cares about the copyright claim to the shark photo? Uh, no. If memory serves, he was a student in LEED architecture, not a photographer for Dive Magazine. He isn’t a shark nerd like me. I just remember he was a bro for letting me have his photos- which I then shared with other shark nerds on the aforementioned sites.

        Do I think it is counterintuitive that a photo this famous doesn’t have an owner asserting a copyright claim after all these publications? Yes, Dorsal Fin, I do. Do I think it was unequivocally best photo from all the ones Ben took and that I merely placed into the public forum? Again, I absolutely think so- and remember people uploading it and using it as their avatar on various shark sites. Do I think my Ben even knows that is his copyrighted photo being published everywhere? No, I don’t. I don’t see what “damages” he would have anyway. I mean, it’s a flipping photo of a White shark- not naked Blake Lively.

        Duh.

        In summary, because I have a photographic memory (no pun intended) for certain things, I have more faith in that than the website history apparatus you cite, than someone at SDI (whatever that is) or any other person that potentially has some commercial angle. I certainly have no financial interest in it and admittedly have no copyright claim. So I guess we agree to disagree.

        Of course, my girlfriend (and my family) will be the first to say I am wrong half the time I think I am always right, so maybe this instance is no exception.

        If it isn’t my Ben’s photo, whoever took it- nice work- but I am sticking to my guns and contend it is the same photo.

        Best,
        drudown

      • TheDorsalFin says:

        Hi drudown,

        Thanks for the info. The Internet Archive’s Way Back Machine, in layman’s terms, essentially downloads websites periodically for archiving purposes. It then stores the downloaded archive in a folder based on the date and time that it was archived. The Internet Archive is affiliated is collaborative effort between many organizations to essentially create a library of the internet dating back to 1996. It’s an automated process and completely independent of the owners of the websites being archived. It’s actually handy resource if you ever want to go back and check something out at a website that is no longer there.

        Prior to October, 2005, the Internet Archive took 4 “snap-shot” downloads of the Great White Adventure site, featuring the photo, in question. The snapshots spaced multiple weeks apart. While I know firsthand that scripts can fail (I’m an engineer turned designer & web-developer), the repeatability and reproducibility that the engineer in me looks for is there, with the multiple archived instances of the photo. I should note that I have dived with SDI/GWA several times, and it was the GWA site where I had first encountered this image, so I certainly might be biased into associating this photo with their organization.

        As a designer, though, I’m a bit surprised that the lawyer in you thinks that your friend would have nothing to gain from a copyright infringement case involving this photo. The photo has been used in news media over and over again. I see it routinely on nationally-televised news broadcasts and websites. It is also on the cover of the new shark book “Demon Fish: Travels Through the Hidden World of Sharks.” Each one of these instances of use is a potential loss for the copyright owner. Granted, I realize it would be hard for the copyright owner to make a claim against any of these news agencies, considering that most of those using the image, believe that they are doing so legally through the Creative Commons attribution license. But the potential “damages” from the copyright infringement of this photo could be quite significant, based on even low-ball freelance licensing guidelines, based on the number of times that I’ve seen this image used in the media. Of course, I’m not a lawyer (nor do I play one on t.v.).

        I certainly agree with you that it’s a wonderful photo, regardless of whomever it was who snapped it. It just rubs me the wrong way that I see it credited to a random Flickr user, who didn’t actually take the picture, almost every time I see it in the media. As you said, though, it seems that the true photographer of the photo isn’t particularly concerned over its rampant use, so I guess that’s all that really matters at the end of the day.

        (I’m going to go Google “Blake Lively” now, so that I can pretend that I know who that is.)

  3. drudown says:

    Ps. Even though I placed this photo (and all the others from my 2005 Guadalupe Island cage dive) into the public domain, I was not the photographer, nor do I have any interest in making any copyright claim.

    The photographer is not a professional photographer, nor all that interested in sharks. He has zero interest in making any kind of copyright claim.

    But please call out “Hermanus” for being full of BS. While I don’t use flicker or read a lot of marine life blogs…I would think someone that used to go to the message board at sharkattacks.com (e.g., “Helmi”; “Amediar” was the moderator) can verify that I posted the photos.

    If she (or anyone) has them saved, feel free to post them in their entirety on your site or anywhere else. Looking for them on my old files, I came across a post of mine from the site:

    “Everybody can access the studies and data tracking great whites,” and “I have better things to do in my life than float aimlessly around the open ocean tracking fish, even my favorites. Besides, other people have made numerous discoveries from which we can use to make sociobiological theories from– about their hunting and feeding behaviors– that is, they feed rarely, yet can live 45 days on a single bite. Therefore it should come as no surprise that these sharks often take a large portion of a human leg and resume their affairs in search of more preferred prey, seals and sea lions. Of course, seal and sea lion kills attract other white sharks, increasing the chance of mating opportunites. Because no such opportunities exist at human kills, it is yet another reason why white sharks often display ‘hit and run’ human predation tactics. There is simply no real incentive for the white shark to return to feed. If anything, they are better off taking a large portion and leaving, unless the victim is alone in the open ocean. Oftentimes, however, these victims are the ones who are eaten completely.”

    Some things never change!

    peace

  4. drudown says:

    @ Dorsal Fin-

    If memory serves, copyright cases involve statutory damages and can be capped at very low amounts (e.g., $30k). Given that it costs upward of $75-$100k to litigate any civil claim to completion, and without rendering any legal advice, I fail to see what the use of pursuing a claim here would be, i.e., strictly in terms of cost benefit analysis. If there were statutorially prescribed attorneys’ fees (a la ADA cases), well, maybe some plaintiff’s lawyer might (ahem) take the bait. Not applicable in these disputes.

    Moreover, here the alleged owner of the copyrighted photo willingly allowed me to place the copyrighted material into the public domain (internet) with no express or implied request that his work be deemed protected. Like I said before, I doubt he has ever given the matter any thought- much less pay an attorney on an hourly basis to prove any infringer’s use was, in fact, “willful”.

    Of course, I work on much different kinds of civil disputes (e.g., wrongful death), where the damages are much easier to calculate, i.e., based on past earnings. Or in catastrophic personal injury cases, the claim might be for roughly 4 x the medical bills. In the latter cases, it is easy for a plaintiff’s attorney to dispassionately evaluate whether it is a case that makes sense to do on a contingency fee basis. If there is no settlement or verdict, there is no reimbursement of costs and hourly fees. I highly doubt a jury is going to award the actual owner a million dollars because kids across the world are using the image for their wallpaper or avatar.

    Conspicuously, it’s not as if the alleged owner could sell the rights to this White shark photo (indeed, just about any photo not involving a celebrity other than Flipper) for a large amount of money. Nor does it appear that the most common unauthorized uses are hurting him. I mean, if SDI uses the alleged owner’s photo of a Guadalupe White shark on its website, nobody can credibly contend that, in fact, SDI’s customers signed up because of the copyrighted photo. Or the book you referenced. What, is a lawyer going to sue them claiming a share of the profits for either venture?

    An old maxim of law is that “it is more important to know what cases NOT to take.” I think most people apprised of the facts can see there is no money in it on any side of the equation. Not for the lawyers, much less for the underlying parties.

    In summary, (and contrary to common public misperception about “frivilous law suits”), the amount of readily ascertainable (read: provable) damages dictates whether or not a plaintiff’s lawyer can realistically take a case. Here, I can’t imagine any lawyer having any interest whatsoever in the case because the harm to the alleged owner is very speculative.

    Again, what was the alleged owner going to do with the photo?

    “Uh, sell it to Ralph Collier?”

    I rest my case.

    take care,
    drudown

  5. Mark Marache says:

    I just came across this, pretty fun. Yes its my photo and I have the other pictures in the sequence to prove it. But thats for another time. The photo has gotten alot of miles, and by the way, the white is named “Patches”. I let Shark Driver Mag use the image but I never gave it to Creative Commons. I always wondered how it got around. Glad everybody was able to enjoy it. I was a fantastic day in Guadalupe.

    Mark

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