Unauthorized Use (Theft) of Photograph Admitted

Finally there is some word from Mr. Ceniza (or someone who purports to be him – his email address does not work and I cannot reply to him as it bounces back with a fatal error). In my previous post, he posts three comments professing ignorance that using my photograph without my permission was wrong. Even at the tender age of 21, and regardless of educational or other background, I would have hoped that Mr. Ceniza could distinguish between basic right and wrong. Certainly he would have little difficulty knowing that stealing a handbag or cellphone is wrong. In one paragraph he insists that the recipe is their family’s and that he did not copy that, but in another paragraph he claims innocence with respect to taking my photos as being wrong… I don’t buy it, and the apology, though it may be sincere, is not enough at this point. It’s not that I want to extract blood from a stone, it is that I wish a particular principle, that of intellectual property rights, to be handled correctly. I also wonder why he is so repetitive in absolving the Inquirer of any wrongdoing. Considering that he claims he doesn’t understand what he did was wrong, how can he absolve others in what is clearly an interrelated and relatively straightforward case now that he has admitted to the world that he did, in fact, steal my (and Karen’s) photograph. This morning, before I headed off the to the Marketmanila Eyeball, I sent the following letter to Ms. Chelo Banal-Formoso, the Lifestyle editor at the Inquirer. It is lengthy, but for those that are interested, worth reading. I spell out my understanding of the situation and propose several possible options to resolve the key issues. I hope to hear from the Inquirer soon.

Dear Ms Banal-Formoso,

Thank you for your email acknowledging receipt of my email and for a subsequent cc: on an email response you sent to fellow blogger Karen at Pilgrims Pots & Pans. Allow me to outline my understanding of the situation and propose several possible options to amicably resolve the issues at hand.

Situation

On November 17, 2005, The Philippine Daily Inquirer published an article with a byline James Anthony R. Ceniza entitled Melt-In-Your Mouth Yema Balls. The same article was and still is on the on-line version of the paper on INQ7.net. The brief article turns out to be the “winning entry” in the weekly PDI Family Recipe Contest. With this article are two photographs of yemas. The two photographs are apparently “stolen” from two food blogs and I am the photographer of the yema with the pink cellophane wrapper. My photograph was published last April 20, 2005 and has been on my website ever since.

I wrote you an email on Friday morning, November 18, 2005 while Karen apparently fired off an email to you Thursday morning, shortly after reading her Inquirer. Despite these emails, my photograph remained on the on-line version for at least 36 hours and was only removed after Karen contacted the editor of the on-line version directly. As we all know, it is too late to withdraw the printed version of your newspaper as millions of copies have already been distributed throughout the Philippines and beyond.

I received a brief email from you early Saturday morning and I quote:

The yema photos were submitted along with the winning recipe. We would have given you or any blog proper credit if we had done the downloading ourselves. We will clear this matter up with the winner and get back to you.

Thank you for informing us about this.

Chelo

Despite my initial disappointment at such a lukewarm response to a very likely act of plagiarism, I decided to wait a little longer to see what else would become apparent and how you and your newspaper would handle the situation.

In the meantime, I would like to point out the following issues as I see them:

1. Your contest rules published on July 7, 2005 specifically state that “the accompanying essay must be your own original work…” However, the rules fail to explicitly state that the photographs must also be the author’s original work. This may open the rules to an interpretation that suggests you can submit any photo, regardless of provenance or accuracy at representing the recipe in the essay. In my opinion, this simple but critical omission is possibly negligent, irresponsible or just plain sloppy on the part of the Inquirer.

2. In a later email to Karen, on which you copied me, you blithely state that “there was no way I could have known that they were taken from your blog and the other blog as I don’t read blogs. We deal with our readers in good faith and we had hoped they would do the same with us.” And it is here that I have decided to chronicle the entire episode in detail and to quote your comments for the scrutiny of others. First of all, nobody expects the editor to actually know that the photographs were stolen and stolen from our blogs specifically simply because the editor doesn’t read blogs. The absolute, incredulous lack of logic in your statement frankly pisses me off. As an editor working for a major newspaper with supposedly high ethical and journalistic standards, IT IS YOUR ROLE TO ENSURE that the policies and procedures are in place to prevent situations like this and if they still occur, to quickly resolve them to the satisfaction of the offended parties. Whether or not you read blogs is NOT THE ISSUE. Further, saying that you deal with readers in good faith as though that would absolve you and the paper of responsibility is a complete cop-out. That would be analogous to saying that when a great painting at the National Museum or a lowly wristwatch for that matter is stolen and brought to a pawnshop for money its okay because the pawnshop doesn’t know it is stolen. So the pawnshop clerk gives the thief money and later when the thief doesn’t return they attempt to auction the painting or watch. When it is pointed out that it is a stolen work of art, the pawnshop merely says they didn’t know and that’s okay??? Of course not! And particularly not when it is a newspaper and the issue is plagiarism. You are held to higher standards than even pawnshops. Further, if you deal with readers in good faith, why was it necessary then to state that “the accompanying essay must be your own original work…”

3. Your contest rules specifically state that “recipes will be chosen every week after being kitchen tested at the San Miguel Purefoods Culinary Center.” Was this testing actually done before the article of Mr. Ceniza was published? May I see the documentation of that test on the Yema balls? Did you bother to document the test with photographs? Because only two things could be truthfully correct… 1. You did in fact test the recipe as it is written and because they have brilliant chefs they were able to tweak it to result in great tasting and looking yema. But you conveniently forgot to edit the recipe to make it more accurate for the sake of the readers, because as it is written now, in my humble opinion, it is less than accurate or less than illustrative when you consider your huge and varied readership base with differing culinary skills. If you didn’t bother to edit the recipe after the tests, then I would think that was merely a sign of laziness or lack of attention to detail. What are the chances the recipe is exactly as Mr. Ceniza submitted it? High, in my opinion. But that would be easy to verify, wouldn’t it if you compared your printed version with the original recipe submitted by Mr. Ceniza? 2. You didn’t even bother to test the recipe, in which case you didn’t even follow your own rules. And what credible and responsible food editor would EVER PUBLISH a recipe in a national newspaper and on the internet that hadn’t been tested? Don’t you think the Inquirer has the responsibility to follow its own published rules and to edit the recipe to make it the best it can possibly be? That, I would think, is the primary job of an editor. If not, why would anyone want to buy, trust or use the planned cookbook of compiled recipes that you are publishing in December?

4. It is quite obvious to me that nobody is disputing that these photographs are indeed “stolen”. You seem to be unable to reach Mr. Ceniza despite having left “messages with his family” and it is not clear if you even know where he resides. The evidence is quite strong. And I would like to add that my photograph was slightly modified and altered. I hope such modifications were not done by the Inquirer art department as I would again draw the analogy of a major painting being stolen then altered to suit the needs of the eventual buyer. That is wrong and the person who damaged the original should accept responsibility for their actions. Did the Inquirer alter my photograph by removing the outline of the plate behind the confection and adding some cellophane on the top of the photo so that it would fit better into your layout?

5. As for Mr. Ceniza, I confirm that I have not given any explicit permission for Mr. Ceniza to use my photograph as part of a recipe contest for the Philippine Daily Inquirer and that I strongly believe that my photograph was copied, stolen or plagiarized if that word can indeed apply to a photograph. Mr. Ceniza has not bothered to contact me since the article was published and you have been unable to reach him.

The damage has already been done. You have apparently picked a winning recipe and published the recipe without testing it and documenting the test OR having testing it but without editing the recipe to improve it. You have published photographs without any explicit insistence that they be original photographs. These photographs turn out to be “stolen.” You state you are reliant on contestant good faith. Now that you know or are aware the photos are stolen, you have simply pulled my photograph from your on-line site without attributing the photograph to me. You maintain the article on the site despite failure to resolve the issues at hand. You have been unable to contact Mr. Ceniza for nearly 70 hours.

I do not believe I am making a mountain out of a molehill. There is a highly serious issue at stake. The violation of our (Marketman and Karen’s) intellectual property rights. Frankly, I would label this as “blog rape.” And it is a national newspaper that is at the crux of this issue. If I plagiarized my thesis at graduate school and was found out, then I should not be allowed to graduate. If I joined a beauty contest and stuffed my speedos with toilet paper and won, I should have my prize stripped. I am wondering what actions you will take with respect to the winning recipe entry.

I have conferred with lawyers but have not really decided to go that route yet despite the fact that I believe this is an important matter of principle to pursue in earnest. At this stage, day three, I would very much like to find a win/win solution that will benefit all parties…

Marketman’s suggested options:

1. In my opinion, the apparent culprit who submitted my photograph as his own (unless he shows otherwise and I would be most open to a credible explanation), should be asked to make a formal public apology published in the Inquirer in Thursday, Nov 24, 2005 Lifestyle Food section. He should also voluntarily give up his prize money and donate it to a charity instead unless the Inquirer withdraws the prize first. Since his recipe was given about 1/8th of a page last Thursday, I think it is fair that he take out a 1/4th page ad with wording along these lines… If Karen concurs, a second ad should be taken out on December 1, 2005 in the PDI Lifestyle Food Section.

I, James Anthony R. Ceniza,

apologize profusely for using two photographs that did not belong to me
in my winning entry to the PDI Family Recipe Contest entitled
Melt-In-Your-Mouth Yema Balls published last Thursday, 17 November 2005

By submitting those photographs without indicating their original source, I
infringed on the copyright of the authors of two Filipino food weblogs :

Pilgrims Pots & Pans
(karen.mychronicles.net/)

Market Manila
(marketmanila.com)

Please visit these two websites to view the original yema photographs and read their blog entries on yema recipes and sources.

While two 1/4th page ads at approximately PHP100,000 total cost (unless the Inquirer discounts them) may seem harsh, I understand that any person found guilty of infringing on my copyright by using my photograph under the current Intellectual Property Code of the Philippines might be subject to a prison term of 1-3 years and a fine of PHP50-150,000 for the first offense. And for a second offense (as in, one who stole two photographs), the consequences could be a prison term of 3 years and 1 day to 6 years and a fine of PHP150,000 to PHP500,000. Now that is a bit harsher, don’t you think?

2. As for the Inquirer, I think there are several potential solutions:

a. The easiest of which is that you review your policies and procedures to ensure that they protect intellectual property rights and that you have sufficient control and checks in place. Contest rules should be specific and comprehensive and you should rely on sound rules and requirements in addition to reliance on reader good faith.
b. You provide Marketman and Karen with copies of the kitchen testing and tasting done on the yema balls featured last week and if you did not do the kitchen testing then simply admit that and apologize for that violation of your own published rules.
c. For Marketman, I would like a public apology and proper attribution for the photograph used in both the print version and the internet site. I would like to see my photograph in the Thursday, November 24, 2005 Food Section of the Inquirer with a notation along these lines… “This photograph appeared last Thursday in the article Melt-In-Your-Mouth Yema Balls and it was not attributed to the original source which is Marketmanila.com. The photograph does not depict the result of the recipe for yema submitted by James Anthony R. Ceniza. The Inquirer apologizes for this oversight.” In this apology, the photograph must appear in the same size as the original article. I would like a similar post on your website in the lifestyle section with a link to my website for your readers. I am not sure what Karen would seek in this regard and I trust she will contact you directly.
d. Finally, instead on focusing on the negative, perhaps we should all consider doing something positive for a change… For Marketmanila, I am about to begin a monthly long special on food associated with the Christmas holidays. I have tried over 8 different commercially sold ensaimadas, and spent over 50 hours in the kitchen trying to perfect an ensaimada recipe that is more 1960’s than the current soft sweet version. If the Inquirer would like, I would be happy to share that recipe with some history, some musings, photos, the tasting notes, etc… (as long as credit is given to Marketman and Marketmanila) in other words, a fairly comprehensive article that would be of interest to your readers as well as mine. Other items I am covering include a run down of many of the queso de bolas and hams in the market, classic favorites like bibingka, puto and cuchinta bought from market stalls,etc.

Another area close to both Karen and Marketman’s hearts is a monthly event of Lasang Pinoy which features food bloggers from around the world cooking up Filipino food. Over 40 bloggers typically participate and the breadth and quality of entries frankly often exceeds those that you choose to publicize as part of your Family Recipe Contest… perhaps we can find ways to link and cooperate so that ultimately the readers benefit. Both Karen and Marketman’s sites are completely non commercial in nature so we only stand to gain readership while the Inquirer stands to get access to interesting articles, events, recipes for its large subscriber base. Karen may have other ideas of how she wants you to make up for this incident.

I am certain that something reasonable can be agreed upon. I hope that we can iron out a comprehensive response to the issues raised within a day or two. I was going to wait until Monday to send email this as I need to obtain the email addresses of senior editors and business managers at the Inquirer and GMA7 so that they are all made aware of the issues under discussion. However, I will just copy them on this email on Monday and will go ahead and send it to you now so that you can respond accordingly.

Many thanks for reading this lengthy email.

Sincerely,

Marketman