Avoiding Infringements Rather Than Chasing Unauthorized Users

Posted on 7/25/2018 by Jim Pickerell | Printable Version | Comments (2)

The biggest problem for the stock photography industry today is that in order to make customers aware that photos exist they must be online. Once online, anyone can easily grab and use them.

If the image is on the photographer’s, or a stock agency site, most users would infer that they should contact the photographers or agency and ask permission.

But, more often than not, the picture is seen on Facebook, Pinterest, Instagram or some other site. Often it is on a site that legally licensed the first use, but if it is grabbed from such a site there are no more “second uses.”

Often it is not clear that the photographer expects to be compensated for additional uses of the image. The average person (not a photographer) thinks, “That’s a great image. The photographer would be happy if I use it. That shows how much I like it and lets others see this great image. My use won’t in any way restrict the photographer’s ability to earn revenue from someone else.”

Therefore, the average person grabs the image, uses it, and thinks he or she has done something good.

In fact, for a huge percentage of the images that can be found on the Internet this approach would be fine. Most images have been created by amateur photographers who are just having fun. They never expect to earn anything from their images. They don’t care if others use and can benefit from their images. And, they have never considered that the image might be used in a way that would displease them or their subject or misrepresent what they were trying to say.

So the question is, “How do we help the average Internet user know when it is OK to use an image and when it isn’t?”

Image Creator Locator

I’ve written previously about the need for a visually searchable Image Creator Locator (ICL) database that contains a copy (500px to 700px) of every image copyright holders worldwide want to protect.

If they don't care if someone uses their image then don't bother to upload.

Every creator who wants to license uses of their images should want to insure that every image they want to protect is in this ICL database. Anyone would be allowed to upload to the ICL any image they created, or had legal, contractual rights to represent.

Uploading should be easy and there should be little or no cost to creators, other than a minimum initial sign-up fee.

At that point, anyone interested in using an image they haven’t created themselves could do a quick visual search of the ICL (just like a Goggle image search) and determine if the image is in the database.  If it is there, then permission is required, period. With one click the potential user can determine who to contact to obtain permission.

If the image is not in the database, they will receive an email that says “Image Not Found.” The email will contain a copy of the image they searched for as well as the time and date they did the search. At that point they are free to do whatever they like with the image. Any use will not be considered a copyright infringement.

The percentage of images requiring permission is actually very small (I estimate about 2 billion) compared to the total images that can be found on the Internet. The vast majority of creators are not worried about protecting the images they upload. Most are personal images. If they are not concerned about controlling use of their images then their would be no need to add their images to the ICL.

Here’s how the ICL database would work.

1–  Registering

To place an image in the ICL the creator or his/her agency/representative, would first need to register with the ICL
    A – The creator would supply the ICL with name, address, email and other contact information. Ideally, this information would make it possible for any customer to contact the creator or his/her representative, anytime 24/7.
    B – The ICL would provide the creator or agency with a unique creator identifier (number).
      1 - A minimal, one-time fee might be charged in order to obtain this identifier.
      2 – Once the creator has the identifier the creator would be allowed to upload an unlimited number of images for an unlimited period of time.
      3 – There would be no storage fee charges.

    C – The creator identifier (B) would be linked to the contact information database (A) so whenever an images is found containing the creator identifier the contact information for the creator can be immediately supplied to the customer looking for information.
    D – Creators who don’t want to expose their personal information to the world can assign an agency to be their representative and give the representative the right to handle any usage negotiations.
2 – Uploading Images
    A -  To upload images the creator would need to use his/her creator identifier. All images uploaded would be connected to this unique creator identifier, and through the identifier to contact information.
    B – The creator could also supply an additional number that identifies each specific image in the creator’s collection.
    C – For each image supplied by an agency the agency would need to supply the creator name (that would be stored in a separate field) in addition to their agency name and contact information.
      1 – If the agency happens to be the copyright holder (creator transferred the copyright to the agency) then the agency can put its own name in both the agency and creator fields.    
      2 – If an agency misrepresents ownership when it makes such a registration that will be considered a violation of copyright.

    D – The time and date of initial upload of each image will be recorded.
      1 – Any unauthorized use made after the time of initial upload will be considered a violation of copyright.
      2 – Any uses made before the image is first uploaded to the ICL will not be considered a violation of copyright. (Thus, it is incumbent on the copyright holder to insure that the image is uploaded to the ICL before making it available anywhere else on the Internet.)
      3 – News photographers should be able to easily upload their image to the ICL at the same time as they are delivering the image to a publication or stock agency.
      4 – Newspapers and magazines would be able to easily enforce copyright protection of images created by their staff photographers.

    E – If an agency or representative uploads an image and the creator later uploads the same image only one copy of the image will be stored in the ICL database, but the contact information of both up-loaders will be attached to the image.
    F –The contact information of two or more agencies that upload the same image will be connected to the image in the order that the images were uploaded.
    G - The creators contact information, if available, should always be listed first, even if the creator uploads his/her version of the image after one or more agencies has uploaded it.
3 – Reviewing Collection
    A -  At any time the creator would be able to do a search for all images connected to his/her identifier to determine the number currently in the collection and if they are all there.
    B – In addition to the creator number, the creator would also be able to enter one of his separate, unique ID numbers to see a specific image.
    C – Creator or agency should be able to search his/her collection and see a list of all companies claiming to represent each of his/her images in the collection.
      1 – A registered creator or agency should then be able to search the ICL identifier database to determine full contact information for any company listed as representing an image.

    D – The creator could designate any image for removal from his/her collection at any time by inserting the creator number and image number and confirming the creator’s unique identity.
      1 - This feature would be particularly useful if a creator decided that he no longer wanted to be represented by a certain agency.
Customer Use of ICL
    A – Customer Does Search – No Match found.
      1 – Customer receives E-mail with copy of image searched and No Match Found
      2 – Customer retains E-mail to prove that a search was conducted
      3 – Customer is then free to use the image, without any legal liability
      4 – In the event customer is contacted later the customer can then present evidence that they were not required to get permission
      5 - Those who upload images to the ICL agree that, in the event that it is later discovered that the image "Not Found" should have been licensed, the only liability the customer will have is to discontinue use of the image or pay a reasonable fee for the continued use of the image.

    B – Customer Does Search – Match found
      1 – Customer is sent e-mail with copy of image and contact info for the creator (if available) and a list of all representatives of that image.
        a – The representative list will include agency, name, city and country.
        b – If the customer wants more contact information for a particular agency they simply click on the agency name and the detailed information is supplied.

      2 – Customer can choose which representative to deal with.
      3 – Each representative is sent an email with customer’s contact information so the representative knows who has been interested in the image.

Advantages For Creators

Contact between creators and customers has been facilitated. If a creator later discovers that a customer used an image without making contact the creator has a strong legal claim for restitution.

Governments and individual creators will be responsible to make the public aware that if they find an image they want to use; before using it, they must check the ICL to see if the image is in that database. Otherwise users may be making an unauthorized use and be legally liable.

Recognizing that occasionally visual search does not find a match for an image in a database, creator participants would agree that if they later find use of one of their images, and the user can produce a valid, dated email showing that the user searched for the image and it was reported “Image Not Found” then the creator will not hold the user responsible for an unauthorized use. However, the user will be required to remove the image from its site unless the user agrees to pay a normal usage fee.

A service such as the ICL should eliminate most of the need for copyright registration.

Instead of focusing on tracking unauthorized uses and trying to get paid after an infringement  has been discovered, creators would be encouraging customers to get permission and make reasonable payments before using the creators image.

There are probably fewer than 10 large agency databases that could easily seed the ICL with close to half of all the images in the world where permission or licensing is required before usage.

The difficulty is not in building an operating the database, it is getting someone to set it up and do it.

Copyright © 2018 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  


  • Laura Annick Posted Jul 28, 2018
    Hi Jim. I have a couple comments and questions please. Firstly, I do not agree with your plan for dealing with a search where no match has been found. You're assuming that 100% of all creators will have uploaded their images and thus if a searcher cannot find an image, then it must be free to use. As you know there are TONS of independent filmmakers out there. It could take quite a long time to get EVERYONE to upload their images. I would rather see a notice saying "Image Not Found, Further Research Needed" or Use at Own Risk. I know the database is meant to be a "be all and end all" but it will take time to get there. Secondly, has anyone priced out what it would cost to build this database (and maintain it) and then had a conversation with the 10+ stockhouses about pitching in to a fund? Seems like it wouldn't take that much money on each party's part to help further protect their assets.

  • Sabine Pallaske Posted Oct 22, 2018
    it seems to be smilar to the YouTube-solution. in my mind the best solution: in view of the current copyright debate in Europe: there must be an unambiguous allocation of the first upload of a photo/graphic/film with indication of the author and the available license rights. The technology exists, youtube can do it with notification, blocking and other restrictions. The generation of the copyright IDS and their administration must be carried out by independent service providers who are not involved in the media business.

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