1 DOWNSIDE TO PICSCOUT
March 8, 2005
Everyone in the stock photo industry is excited by the potential PicScout is offering in identifying unauthorized web uses and making it possible for many to collect additional revenue for the use of their images.
Zefa was able to collect in excess of 20,000 euros for the unauthorized uses discovered in the first ten days of using PicScout. Index Stock Imagery located about 300 questionable uses in a month, and Superstock says they uncovered a potential of $140,000 in unauthorized uses in the first month of using PicScout.
But let's consider, for the moment, the dilemma facing some of those unauthorized users - our customers.
I recently talked to one who operates a small Web Site Development company in the mid-west. There are two things that go into the development of good web sites - programming and design. My source said, "Most designers don't make good programmers, and most programmers don't make good designers." In most cases it is the programmer, or the programming side of the business, that initially obtains the contract to develop a web site. In many cases the programmer then sub-contracts the design work to a freelance designer. It is the designer who chooses the photographs.
Often the designer is not located in the same city as the programmer. They communicate mostly through the web and occasionally by telephone. The programmer has little way of determining whether the designer is well established in his or her profession, or will be out of business next week.
This particular development company has a term in its contract with designers saying, "You fully warrant that any images you include in layouts are royalty-free images that you own the rights to or have purchased for the project and assume the legal responsibility of all images used unless otherwise specified in a quote." But that term is useless if they can't locate the designer after the job is complete.
My source also pointed out that even if the designer was required to provide receipts upon completing the work, they may not cover the actual images used. If the RF CDs were purchased at a trade show the receipt may just say, "5 royalty-free image CDs". This programmer has received such receipts from shows such as Photoshop World and in some cases the trade show sellers won't even provide a receipt unless the buyer specifically asks.
Another problem is the growing tendency of many designers to use Google to search for images. By doing such a search the designer may find an RM image that was used on another company's online brochure or web site. That image may have been properly licensed for the initial use, but if the designer grabs it "because it was on the web" (and many think that anything on the web is public domain) how does the producer know.
Image sellers might point out that many of these problems could be solved if the development companies would simply do all their design work with in-house staff, fully under their control. But skilled designers are very expensive and need to be kept working full time to justify their salary. Many companies that produce 15 to 30 web sites a year can't justify this expense. In addition, developers working in small town America often don't have access to good designers in their local area.
All this came to a head recently when I received a call from a web site developer asking for advice as to how she might protect her company in the future. She had just discovered that one of her designers who had done work for her two years earlier had used a RM image that wasn't properly licensed rather than RF. The image was not used just once, but small (as a logo) on every page of the site. PicScout located this use while doing searches for a major stock agency. The agency calculated the value of the usage and penalties at $18,000.
Unfortunately, the web developer is stuck with the obligation. The designer she used cannot be located and is probably out of business. The total fee her company received for the site it developed for a small local company was $3,000. An $18,000 hit could drive her company out of business. Once notified the developer immediately removed the image from the site, and is now trying to negotiate a settlement she can afford.
No Simple Solutions
Unfortunately, I was unable to offer this woman a simple solution for the future. She had a contract with her sub-contractor but the sub-contractor has disappeared. Doing everything in-house is not an option in her location.
As an industry, if we are really concerned about the customers, we need to do more to help them be honest. If any of my readers have suggestions as to what the industry should do I would be very interested in publishing them. The following are a few of my thoughts.
We need to find a better way to help our customers identify whether a particular image is RM or RF, the name of the company that owns the image, the name of the company or distributor that licensed usage rights to the image and the duration of the license. If this information were to appear in the IPTC header of every image licensed and stayed with that image or any part of the image no matter how it was cropped, and if the customer could easily access this information at anytime, it could go a long way toward solving the problem of innocent infringement.
To a great extent this is a software problem that is fixable. Based on discussions that have taken place in industry association meetings, I believe the problem is being addressed by Adobe. But once the software is available, then all sellers must use it.
Granted, it would probably be impossible to supply the buyer information when a CD is licensed, but if the name of the company that produced the CD and the title of the CD were in the image header of every image on the CD it would be possible to track all sales of that CD and determine if it had been purchased by a particular customer. This won't solve the problem for all the images already out there, but it would be a positive step moving forward.
We need to do a better job of educating customers as to why some images are RM and the risks they assume in using them. For most web site uses there are very few companies that can justify the expense of a RM image when the pricing is based on time.
On the other hand, most RM suppliers can't afford to cut their prices down to where web site developers could afford to use them, given the costs of producing and delivering
these images. Going forward, there needs to be an easy way to determine if an image is RF or RM.
Part of the purpose of using PicScout is to educate customers and identify potential new customers, not put customers out of business. It is hard to get a handle on the percentage of total stock photo revenue that is generated from relatively small sales to small design firms, but I think it is significant and a segment of the market the industry cannot afford to alienate. Sellers will probably need to exercise great flexibility in how they charge for unauthorized web uses and develop penalties in each case that fit the crime.
I'm not saying that we shouldn't charge for the online use of our RM images. Certainly we must do that and the fee must be high enough that it discourages any production company from doing the same thing again. But, maybe, there should be a cap that the fee is no more than the total amount the production company received for doing the project. That's a severe penalty, but not enough to drive a small company out of business.