Copyright Protection For Photos Is Dead

Posted on 6/10/2020 by Jim Pickerell | Printable Version | Comments (3)

One or my readers, Amyn Nasser, recently asked, “Isn’t it about time that ALL photographers started using copyright watermarks on all images that appear on social media platforms?”

“Put a GODDAM watermark everywhere - it does not need to be heavy, it can be light however it will further reinforce the point to idiot Judges, that my rights take precedence over the TOS of IG and FB and TW and SugarBabbies!” he continued.

To a certain extent many photographers and agencies have tried for a decade or more to reduce infringement by placing watermarks on their images. For the most part the effort has been a total failure. Here are some of the reasons why:



1
– Many photographers think that a watermark, even in the corner of their image distracts from the quality of the image. The bigger you make it the more it distracts.

2 – If the watermark is small it is easily stripped or cropped out.



3
– Many people will take and post an image even if it has a watermark, particularly if they see their use of the image as not helping them to generate revenue.

4 – Having a watermark on an image where it is originally shown doesn’t solve the problem once the image is legally licensed to a user. The user will not leave the watermark on the published images and in most cases they won’t put a credit line under the image. When someone else sees the image on the website where it is being used legally used, they think it is OK to grab that image and use it for their own purposes.

5 – In the sharing world, when many people see an image they like, they want to share it with their friends. If they think at all, they figure, “I’m not making any money off of this so it can’t be hurting the photographer and anyway more people will see and appreciate his/her great image.” Of course, now, even if there is a watermark, it becomes increasingly difficult to know where that image originally came from.



6 – Even if the image is found on a photographer’s website, or is somehow identified as having been taken by a particular photographer, it is too easy for major commercial users to use it without requesting permission. Too often companies will go ahead and use an image they have found on a major social media site, even after the photographer refuses to give them permission to use it. In these cases, they are often counting that (1) the photographer will never know, (2) the social media’s TOS will cover them or (3) their lawyers can make collecting so difficult for the photographer that he/she will give up and go away.

See the case of Stephanie Sinclair vs. Mashable, Inc. where Mashable went ahead and used her photograph after she told them that she would not allow them to use the picture for the price they offered to pay. It took 4 years of legal action before a judge in the Southern District of New York decided that based on the Terms of Service if a photographer posts a picture on a “public” Instagram account anyone can use that picture for any purpose whatsoever without permission or compensation.
 
An appeal may reverse that decision, but it means more legal fees and court costs. It is highly unlikely that any court will ever award her enough to cover her costs of pursuing the case.

7 – A watermark doesn’t make it easier for honest people to be honest if they don’t know how to contact the creator to ask permission. It might help, if when the potential user clicks on a watermark information a message would appear telling them how to contact the creator, or the creator’s agent. But no one has developed such a system.

Technologically, it’s not that hard. But if such a system were implemented it would mean that all the billion or so images photographers have already placed on the Internet would need to get one of the new copyright codes. That would require taking them down and inserting a new symbol with a code that identifies the specific creator. All the copyright symbols could look more or less the same, but each one would have a unique QR code or UX UI (User eXperience/User Interface) code. Clicking on the code would take the customer to a database that shows the name and contact information of the creator, or an agent’s contact information if the creator chooses to have someone else handle licensing.

This would work just like when you go to a store, pick up a product and the clerk scans the product to determine the price. The big difference here would be that there would not be a single price. In most cases it would be necessary to contact the user because the price would vary depending on how the picture would be used. It would be very difficult to come up with a pricing schedule that would satisfy all sellers and take into account a host of different usage types.
 
Another problem would be that customers would have to agree to leave the QR code on the image whenever they use it. That way someone who sees the image on a customer site, and not the site where the photographer originally posted it, would be able to contact the photographer.

And then, of course, we have to deal with the billions of legally licensed images that are already on the Internet, or in printed products that have no photographer identification. There is no way to keep those images from being grabbed and used without permission.

Nevertheless, a system like this is the only way that a copyright watermark on a picture is going to do much to insure that creators will be properly compensated when their images are used. 
 
8 – Many photographer’s think that because the U.S. copyright law allows for “statutory damages of up to $150,000 per copyrighted work infringed,” that if big corporation like Microsoft makes an unauthorized use of one of their images they can get a big payday. Thus, photographer Matilde Gattoni is suing Microsoft.

Given the average license fees of most picture uses today, it is highly unlikely that she will ever receive anywhere near $150,000. The average license fee charged by Getty Images is about $29. Usage fees at Shutterstock, Adobe Stock and iStock are much lower. Microsoft’s legal team can afford to drag out the case as their lawyers are on salary. Judges take market conditions into consideration when making awards, and seldom hand out the maximum the law allows. Even if Gattoni can get a lawyer to represent her on contingency, there will be court costs she will have to pay. Any recovery is likely to be a moral victory, not an economic one.

9 – Anyone who wants to upload an image to a social media site must agree to TOS. The lawyers for the companies that host these sites design these Terms Of Service to provide maximum protection for the social media company in all possible contingencies, and no protection, whatsoever, for any individual site participants. Basically, photographers can never successfully sue a social media company, and the system tends to favor big business over individuals.

So Is There A Practical Solution?

 

Basically, photographers need to accept that if they decide to show their work to anyone, they have lost all right to be compensated for it. There are still a few businesses with a moral code that recognize that creating a photograph costs the photographer something. They are willing to pay a reasonable fee for the right to use the picture in the same way as they pay for groceries when they go into a grocery store. But, the number of such businesses is declining and the fees they believe are reasonable is also declining.

At the very least creators have to make it easy for the potential users to find them an negotiate. That isn’t happening. Otherwise, it is too easy for potential user to grab any image they find on the Internet, use it and forget about it.

As I said at the beginning, there is no longer any protection of copyright. It’s Dead!


Copyright © 2020 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

Comments

  • Paul Melcher Posted Jun 12, 2020
    If there is no more copyright, than there is no more licensing. If there is no more photo licensing than there is no more reason for the existence of "Selling Stock"

  • Penny Gentieu Posted Jun 13, 2020
    Paul Melcher -- Except for Nancy Wolff, when she loses a case!

  • AC Kojreau Posted Jul 5, 2020
    Jim Pickerell wrote, “Given the average license fees of most picture uses today, it is highly unlikely that she will ever receive anywhere near $150,000. The average license fee charged by Getty Images is about $29. Usage fees at Shutterstock, Adobe Stock and iStock are much lower.”

    JP is specifically addressing copyright infringement’s “actual damages” clause, where the creative work was not “timely” registered with the USCO, and therefore not eligible for enhanced statutory money damages and potential recoupment of litigation fees.

    In certain rare circumstances where the photograph was not timely registered but was prominently reproduced in a national or worldwide commercial ad campaign or on consumer packaging (think an unlicensed image exploited on a Wheaties’ box), actual damages could easily exceed $150K+ in unlawful profits.

    On the other hand, those copyright claims that were “timely” registered (either before the infringement began or within three-months of their first-publication date) can provide the plaintiff/photographer’s attorney with the necessary LEVERAGE to push the infringer to settle out-of-court. If the infringer doesn’t settle and the copyright owner prevails at trial, the infringer is now liable from $750 to $30,000 and up to $150,000 (for willful copyright infringement) in statutory damages AND recoupment of attorney fees AND legal costs (at the court’s discretion); the defendant has to also consider his/her own litigation costs by not quickly settling.

    JP wrote, “Microsoft’s legal team can afford to drag out the case as their lawyers are on salary.”

    To mitigate their financial exposure risks AND being subject to a social media shaming campaign for ripping-off a photographer, most all copyright (corporate) infringers who are facing a timely registered copyright claim and whose use does not fall within the scope of Fair Use will want to confidentially settle out of court and put their infringing actions behind them.

    With my timely registered copyright claims, in 2012 I received a large out-of-court settlement against a billion-dollar publishing media giant for exploiting multiple stock images.

    Something like 96% of all copyright infringement disputes are settled out of court -- timely registering your copyright claims really counts! I’m living proof of that!


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