Dilemma: Chasing Unauthorized Uses

Posted on 10/19/2018 by Jim Pickerell | Printable Version | Comments (1)

Photographers trying to earn a portion of their living from the images they produce get very upset when they discover that someone has used one of their images without permission or compensation. But, pursuing and collecting from such users can be a very complex process and raise some difficult issues.

It is relatively easy to discover online uses of images with Google Image Search. In addition, there are a number of organizations that will search the web for photographer’s images and then help them recover for unauthorized uses. These include:
Photoclaim says that 94% of its clients images found on the Internet are unpaid uses. However, locating a use is only the beginning of the battle. The organization doing such searches must go back to the photographer and determine if the photographer has ever been paid for the use and what the terms of the agreement might have been.

If the photographer handles all licensing of his/her images directly and has never placed any images with a stock photo agency it may be relatively easy to determine if a particular image has been licensed. However, that is seldom the case.

Most photographers have their images with one or more stock agencies. If the image is exclusive with only one agency that may make it easier to determine if the image has ever been licensed. But in today’s marketing climate, and given today’s prices, most photographer find that the only way to earn decent revenue from the images they produce is to have them represented by multiple agencies.



This means that photographers must maintain a very detailed database of every sale ever made of their images, or they must carefully go through all their old sales reports to determine if a particular image has ever been licensed, and what the terms of the license might have been.

Even when they discover that there has been at least one license, it is often very difficult to determine if the particular sale allowed the use in question. Most agencies don’t supply detailed information on their sales reports about who the customer was, or details regarding the license granted. If there is information it may indicate that a graphic design firm licensed the image, but often there is no information about who the end using client, on whose website the image might appear, really is.

Often the sales report provides the number the agency uses to track the image, but that number can have no connection whatsoever with any number the photographer might use to track his/her own image. Every agency tends to use a different system.

What all this means is that once a use has been identified the photographer must spend a huge amount of time and effort to determine whether the image has actually been legally licensed by the organization using it. Only then can the collecting organization begin to pursue collection for unauthorized uses.

In addition, if the use is by a company located in the United States, the image will need to be registered with the U.S. Copyright Office before the collecting organization can begin pursuing collection. Most of the collection organizations will assist the photographer in the registration process.

What’s Required Of The Photographer


All to often photographers do a cursory examination of their records and then tell the collecting organization that found the use to go ahead and try to collect for an unauthorized use. Some of the collecting organizations are more diligent than others about waiting to begin pursuing payment until the photographer has assured them that the use wasn’t authorized.

In most cases the photographer does not see the first, or any of the communications between the collecting organization and the image user.

The first letter might be as benign as sending the user a copy of where and how the image was used on the Internet and saying something like, “Our records show that no payment has been made for the use of this image taken by John Doe. Please supply us with information about who and when you paid for this usage. If we do not hear from you in 14 days we will send you our bill for our normal fee for such a usage. Thank you for your attention in this matter.”

In other cases, the initial letter may be much more threatening and ask for much higher fees than the photographer might have asked if the customer had come to him/her initially.

Collection services tell me that in the vast majority of cases customers that have made unauthorized uses tend to settle for a reasonable fee rather than forcing the collection organization to go court. Seldom is it necessary to bring legal action in court.

Customer’s View


At the very least the customer must spend time and effort going back through the project records they thought were finished and done with in order to determine where they got the image and who they paid for it use. If, in fact, they had properly licensed the image then the customer is not happy that they have to go through this extra hassle on this particular project.

Frequently, the end user shopped the project to a 3rd party graphic designer for a fixed price and the designer grabbed the image off the Internet in order to avoid reducing his/her fee by the amount it would have cost to license the usage.

Sometimes, if the amount being asked is not too much customers will just pay rather than going through the hassle of trying to determine how the image was acquired for the project in the first place. This is often easier and cheaper than possibly getting involved in a legal action. As a result, the majority of claims are settled without legal action. The percentage of instances where the customer might have paid twice for the same use is unclear.

Sometimes when the customers do go to the trouble of tracking a use they discover that, in fact, they did everything properly and it is the photographer or the collection agency that has made the error. At that point the customer may get upset and threaten not to do any future business with the agency.

Stock agents tell me that increasingly they are being asked to supply additional information to their customers to help prove that the stock agency received payment from the customer and paid the creator his/her royalty share.

Alternative Solution


It is great that the law provides photographers with ownership rights (copyright) and a system for redressing grievances. But wouldn’t it be great if there was a system that enable anyone who finds an image on the Internet they would like to use to quickly and easily determine if the image is free to use or if it requires permission and licensing. And if it requires licensing where to go to get such a license.

Check out the following stories on an Image Creator Locator (ICL) database here and here.


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

  • Sabine Pallaske Posted Oct 22, 2018
    what´s about copytrack? are Copyright-Holder sure in handling infrigments?

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