Are You A “Copyright Troll?”

Posted on 10/12/2018 by Jim Pickerell | Printable Version | Comments (1)

Creators take note. Are you a “Copyright Troll?” For people in the tech industry and many Internet users this as a term of derision implying that the troll has no right to expect compensation for small uses of their copyrighted material.

On the other hand, for those trying to earn a portion of their living creating the images that people need to promote their businesses and the services they offer, maybe this should be a badge of honor. Maybe you should be proud to be referred to as a “Copyright Troll.
 
According to Wikipedia, “A copyright troll is a party (person or company) that enforces copyrights it owns for purposes of making money through litigation, in a manner considered unduly aggressive or opportunistic, generally without producing or licensing the works it owns for paid distribution” (italics are mine).



Read what Wikipedia has to say about Internet trolls and understand how terrible they are considered.

Showing Previous Licensing Of Works


Many think that if a photo has not been previously licensed for a lot of money then no creator should ever expect to be paid much of anything for its use. This fails to take into account how commercial photos are created and what is involved in trying to license their usage.


    1 - Many photos are created on speculation by photographers who hope to earn a portion of their living from the images they create. In order to make potential users aware of the existence of such images creators often find it necessary to post the images on their own web sites or Pinterest, Facebook, Twitter, or a stock photo agency website. In doing this they hope someone will see an image that they would like to use and eventually be willing to license its use.

    2 - Even when images are the result of a paid assignment the license and the fee charged is usually for a specific use, not unlimited use by anyone else for any purpose whatsoever. By law, the creator retains the right to license other uses of the image to other customers.
Thus, eventually, in today’s world, virtually all images created by professionals end up on the Internet, regardless of whether they were produced on speculation or a paid assignment. This includes wedding photos, images of news event or photos designed to be used to promote the activities of small businesses or major corporations.

In the early 2000s PicScout determined that 85% of the “professionally produced” images that they found on the Internet had not been legally licensed by the person who posted them. Certainly, that percentage is much higher today.



Thus, it is not surprising that photographers can’t demonstrate that they have been paid much for previous uses because many people use their images without even thinking about the fact that they are the property of someone else who has the right to control the use.

Since users won’t contact the creator to ask permission the only way the photographer has of getting any money for such uses is to contact the users and ask for compensation. The fact that many photographers can’t produce much evidence of previously licensing their work is because so many of their images have been used without permission.

The fact than an image is on the Internet doesn’t invalidate its copyright. It doesn’t mean it is now free for anyone to use for any purpose. Many in the tech industry who complain about Copyright Trolls are the same people who get very upset when someone in China steals their intellectual property and uses it in a way that dramatically reduces the potential revenue they can earn from something they developed.

Sharing is fine. Many individuals who post images want to make them free for anyone to use and distribute in any way. But, not every image found on the Internet is intended to be shared without compensation. Some people are using the Internet to communicate information, but in many cases they will only collect and create the information if they are sufficiently compensated to justify making the collecting effort worthwhile. There needs to be a better way to determine if certain images found on the Internet are intended to be freely shared, or if compensation is required

Issues


There needs to be clear distinctions between “commercial use” where the image is being used to generate revenue and “personal” use where the use does not generate any revenue for the person doing the posting.

Once a photo appears online it is very easy for anyone to grab and use it for their own purposes. When photos only appeared in magazines, newspapers or books people were limited as to what they could do with them. If you tore out the page there wasn’t much of a way to reproduce the image because the quality of reproductions was so bad. Now, technology has eliminated that problem.

If the image grabbed online is used on a site designed to assist in generating revenue for the individual or organization doing the grabbing that use is “commercial.” Permission should be requested, and is legally, required.

The problem arises when the person who grabs the image posts it on a site like Facebook or Pinterest. Often the individual doing the sharing receives no direct compensation and is just hoping to share the image with friends. Think of someone clipping a newspaper and handing the story to a friend. This is “fair use” by the person who originally purchased the newspaper.

But Facebook earns a huge amount of money from tracking the interests of individual users and placing ads next to the information shared. Should Facebook compensate the original creator for the benefits Facebook receives?
 
If the person who created the photo isn’t interested in compensation, then OK. But if the person who created the photo is trying to earn a portion of his/her living from the photos created then that person should be compensated.

The European Union says copyright holder should be compensated, and will probably pass a law in Jaunary. Once the law passes it will require Internet hosting companies to share some of their revenue with copyright holders. Exactly, how that will work is still unclear.

Another big problem is that there is no easy way for the average consumer to determine if permission is required to use a particular image. There needs to be some way for consumers to easily determine if the image creator intends to enforce his/her copyright and where to go to get the required permission.

For still photos and illustrations, at least, this problem is not that hard to technologically solve. I have described how an Image Creator Licensing (ICL) database might work.

The major flaw in our current copyright registration system, designed in the 1970s before today’s Internet existed, is that it is aimed to remedy a copyright holder after an infringement has occurred, not help image users avoid infringing copyright in the first place.

Currently, the U.S. Congress is moving toward passing a law that will make it easier for copyright holders to enforce their rights in Small Claims Court. But that will only help redress a right after the fact, not make it easier for people to avoid making an unintended mistaken in the first place.

Redressing grievances is not the whole answer. There needs to be a system aimed at helping honest user avoid making unauthorized uses of images that require permission.


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.  

Comments

  • John T Fowler Posted Oct 12, 2018
    I am proud to be a copyright troll - as I am when trolling for thieves who steal my photos and use them illegally.

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