After looking at their sales reports, an increasing number of photographers are deciding that it no longer makes sense to produce new images. At the same time, they are aware that many of the images that they produced years ago are being used very widely across the Internet without their permission. Some are saying, “Maybe, rather than producing new images, it is better to spend my time chasing infringements of the images I have already created.”
A French stock photographer told me recently that he had a picture that was used full page in the Telegraph newspaper in London. His royalty for the use was $20. Sometime later one of the web search engines uncovered more than 100 web sites that had published the whole text of the story along with his picture. He received nothing extra for any of those Internet uses.
Another photographer told me he used a search engine to check the uses of one of his popular images. He found 323 results. A few were legitimate licenses from his stock agents, but most were illegal copies.
While some images are taken from distributor websites, or a photographer’s own site, the vast majority seem to be taken from newspaper websites, corporate blogs, or sites where the first use was actually licensed. Pirates are more likely to be aware of an image that has been used by someone else rather than going to a stock agency or photographer site with the specific intent to steal something they can use.
Finding Infringements
There are an increasing number of organizations designed to help photographers track and pursue infringers.
Picscout, now owned by Getty Images, has been tracking unauthorized uses for fifteen years or so. In 2009
Getty said that they were unable to identify a valid license for about 42,000 online uses a year of the images in their collection. Thats number is certainly much higher today.
More recently, a number of organization have appeared that not only identify unauthorized uses, but help the creator determine which are most likely to result in a recovery and represent the creators interest in making such recoveries.
Two that I have reported on lately are
ImageRights and
Graphics Detective. Others include
Pixtrakk,
Pixsy and
Image Protect. There may be more I have missed.
Pursuing Infringements
It’s would be nice to hand the work of collecting money to someone else and just sit back and cash checks, but it is not quite that simple. There are three time consuming activities that must be done by the photographer.
1 – Organize digital copies of the images you want the search engine to look for and deliver them to the company that will do the searching.
2 – Register the images at the U.S. copyright office. This can be a time consuming process. But if the use is in the U.S. registration will probably be necessary. If you expect most uses to have occurred outside the U.S., then registration may not be that important as the copyright laws of most other countries don’t require registration.
3 – Once the search engine finds a use the image creator must determine if the use was authorized or paid. Determining this can be very time consuming.
Let me look at each of these issues in more detail.
1 – The first instinct for most photographers is to turn every image in their collection over to a search engine to see if any have ever been used. However, chances are a huge percentage have never even been seen by anyone -- even if they are in a stock agency collection. If you can determine which images have actually been licensed, and start by just searching for those, there is probably a much better chance of finding unauthorized uses.
For some photographers sorting through their collection to determine which images have been used may be more time consuming than just turning over everything, but it is worth thinking carefully about.
2 – The first thing to recognize about Copyright is that all cases must be tried in Federal Court. In order to file a suit, the image must be registered. Such cases can be very expensive to prosecute. Most lawyers will not represent a claimant until the images in question have been registered. Registration can be very time consuming. The process is also complex to understand. Hopefully, someday the U.S. Congress will simplify the process. John Harrington has put together a very informative 43 minute
Step-by-Step video that takes the photographer through the online process of registering new images.
Harrington recommends that photographers keep a database of all the new images they create and register them in batches once a month. If images are registered before they are first used, or within 90 days of first use, the process is much simpler and less expensive than when the image has been in the marketplace for some time or you can’t determine when it was first published.
Those who make unauthorized uses of images know that images must be registered before a claim can be made in court. When contacted about an unauthorized use the first thing they will ask is, “What is the image registration number.” If you can’t produce that number they will probably ignore or stonewall you.
3 – Once a use is found on the Internet there are two things to be considered.
A – Is pursuing the unauthorized use likely to result in a reasonable settlement? A huge percentage of the uses found are on small personal websites. In such cases the likely recovery is unlikely to cover the cost of sending a notice and the negotiations and claims of poverty that ensue. The photographer can probably get the user to remove the image from the site, but the cost of doing that may not be worth the trouble.
Most search engines can help the photographer qualify the users so time is not wasted chasing uses that are not likely to produce a worthwhile recovery.
B – When a use worth pursuing is identified the photographer must determine if it was an un-paid or unauthorized use. This is something technology companies can’t do for the photographer. It is often much more difficult and time consuming than it sounds.
If the photographer handles all sales directly to customers, and has never distributed the image through an agency then the process of going back over all previous sales statements may not be that difficult.
But, what is more common is that one or multiple agencies will have been representing the image and may have licensed it. In some cases, the agency’s image file number reported to the photographer at the time of sale is different from the photographer’s number. In some cases, the photographer will know that the image has been licensed by someone, but the agency has not reported the name of the end using client so the photographer doesn’t know if the use found on the Internet was made by the client who licensed the image or by someone else.
Seldom is a photographer represented by an agency told the exact terms of a specific license. A customer may have licensed use of the image in a brochure, but the fee didn’t cover using the image in a different way on the Internet.
If the Internet use is relatively new the photographer may not have received notification from the agent of the sale. The photographer may need to contact the agency that represents his work to see if the use was authorized. Agents may not respond to such requests in a timely manner.
This is where pursuing unauthorized uses often breaks down.
Things To Think About
1 - It is important to recognize that copyright damages are intended to be compensation, not punishments, except in willful cases that are rare.
When negotiating compensation for a use, the fee should usually be based on what you would normally charge for such a use. It would seem reasonable to also include a fee, or some multiple factor, that covers the additional cost of finding and pursuing the user, rather than the user coming to the image owner to make a purchase as would be a normal transaction.
Often, photographers will have very inflated ideas about the value of their work, and no evidence that they have ever received such compensation for similar uses of an image. This can make getting any settlement much harder.
It is also clear that prices for the use of images has declined, dramatically, in the last few years. That will certainly have a bearing on the possible recovery amount for an unauthorized use.
2 – It is important to recognize that a user may have licensed a use years earlier, but the terms of the license were so broad that the customer may be allowed to continue to use the image in many ways over a long period of time.
In recent years there has been an increasing trend by agencies to give customers broader and broader licenses. Thus, a customer may have purchased a usage years ago and the current Internet use is still covered under the old license.
If the user has ever been a customer the photographer should try to review the actual license before making a claim.
3 – When it comes to
3B (above) some photographers will do a cursory examination of their records and make a determination that they have not been paid for the use. Then they may tell the search engine operator that found the use, to go ahead and pursue collecting for the infringement. It is very important for the photographer be “absolutely sure” that no payment has been made before telling the search engine or go ahead and contact the user.
If the user is a company, then at the very least the company will have to spend time reviewing its records to determine if it did, in fact, license the use. If they didn’t license the use, then the photographer’s representative can pursue some type of settlement.
If the company did license the use, they will need to produce some record of that payment and they may not be happy to have been forced to waste time to review their records when they handled the transaction properly in the first place. At this point the company may decide that they don’t want to get imagery from the same source in the future.
There are rumors that a few years ago Getty actually pulled back on some of the unauthorized use claims it was making because the claims were causing them to lose clients. They weren’t gaining enough revenue from the infringement settlements to offset the client loss.
If the first letter to the user is friendly and says something like, “We’ve found this image on your website and our records show that the use has not been licensed…” then the user may not be too upset, particularly if it was an oversight. On the other hand, some users may simply ignore a friendly letter.
In some cases, the letters sent may immediately move to the more accusatory and include high demands for immediate payment in an effort to get the users attention. In such cases, if it later turns out that the user had a legitimate license, or that it was a rare oversight not a systematic practice, the user will probably not go back to the same source for images again.
If the photographer falsely accuses an organization of unauthorized use when, in fact, the use was legitimately licensed, it might lead to a damages claim against the photographer.