More On ICL And Avoiding Infringements

Posted on 8/9/2018 by Jim Pickerell | Printable Version | Comments (1)

Laura Annick asked some questions concerning my article about the concept of an ICL. Here are her comments and my response.
    Hi Jim. I have a couple comments and questions please. Firstly, I do not agree with your plan for dealing with a search where no match has been found. You're assuming that 100% of all creators will have uploaded their images and thus if a searcher cannot find an image, then it must be free to use. As you know there are TONS of independent filmmakers out there. It could take quite a long time to get EVERYONE to upload their images. I would rather see a notice saying "Image Not Found, Further Research Needed" or Use at Own Risk.

    I know the database is meant to be a "be all and end all" but it will take time to get there. Secondly, has anyone priced out what it would cost to build this database (and maintain it) and then had a conversation with the 10+ stockhouses about pitching in to a fund? Seems like it wouldn't take that much money on each party's part to help further protect their assets.
Hi Laura:



First, I want to make it clear that I see this site as one for still images and illustrations only. When it comes to video a very different type of site may be needed. When you use the word “filmmakers” I’m not sure if you are using that word to include video.

I understand your desire for a notice that says “Further Research Needed" or “Use at Own Risk,” but I think if photographers who want to be in business must be prepared to take a little more responsibility for protecting their work. If a potential user is willing to take the time to try to determine if permission to use the image is needed and locate the creator, then such users need to be given a “free pass” for having made a good faith effort to locate the creator. They shouldn’t be held responsible if the creator hasn’t made him or herself easy to find.

Initially, when the database is being established, there may be a justification for the type of notice you propose, but after a very short period of time if the “Image Is Not Found” then those who have searched the site should feel free to use the image, with one simple qualification.



If it is later discovered that the image is one that should have been licensed, then the customer’s only responsibility would be to cease all use of the image (remove it from any website), or pay a normal fee for continued use. No additional penalty.

In think creators must move away from the idea that “the instant an image is created the creator owns the copyright.” That 1976 concept is no longer sufficient. In the Internet environment it is not working. Technology has made it too easy to grab whatever someone wants to use. We’ve tried credit lines. We’ve tried watermarks. All are not working.



Copyright registration only solves the problem after the fact – after you’ve caught someone making an unauthorized use. If creators want to license rights to their work, they must take some responsibility for making it easier for people to be honest. Most people want to be honest and do the right thing. They don’t understand, or fail to consider, that some people taking pictures are trying to earn a portion of their living from the images they produce, not just show their work to world.

On the other hand, we cannot deny that “showing their work to the world” and being “liked” is all a huge percentage of those who post images online want.

An ICL won’t stop the dedicated crooks, but it will make it a lot easier for those who want to do the right thing to be honest.

When you go into a grocery or clothing store there is a check out counter. The store owner could save a lot of money on personnel by simply eliminating those check out counters. The owner could just open the store so anyone could walk in, take what they wanted, and go. The owner might put a little box by the door and ask people to “Leave a Donation,” but he wouldn’t be in business very long.

Photographers don’t even have a good way to ask for a donation.

If you tell art directors, and others looking for images, that they may be able to locate an image owner by using the ICL, but if they don’t find the image their risk of later being pursued for an infringement is the same as if they had never bothered to use the ICL, then there is not much incentive for them to bother to use the ICL in the first place.

Potential users must be reasonably sure that most images not found on the ICL probably do not require permission to use. The site will never get 100% of the images creators want to license. Some creators are lazy. Others want perfect protection without making any effort.

Photographers that want to protect their ability to license rights to the images they make available for viewing on the Internet must to be willing to take a little responsibility.

The theory behind the 1976 Copyright Law no longer works. There are too many images. Everyone who want to license their images knows that they must be online for anyone to find them. But if the image is online it is also very easy for anyone to take without getting permission. This wasn’t a problem in 1976. We need a new system.

Keep in mind that according to PicScout 85% of the professional images found on web pages aimed at selling a product or service have not been properly licensed. That percentage was based on research done more than a decade ago. I would not be surprised if it is higher now. If we could cut that to 50% it would mean a lot more money in creator’s pockets.

Competing With Free Images


We also need to recognize that a huge percentage of the images that can be found online today don’t require licensing. They have been shot by amateurs who have never considered the idea of being paid for the use of their images. Most would probably be happy if someone would use them.

Many Internet users believe that “if it is on the Internet they have right to use it.” The potential users are not part of our little community of professional image creators trying to earn part of our living from the images we create. The risk the users take -- even if they recognize it as a risk – is very small.

In the current environment consider the hassle involved in tracking down unauthorized uses and then getting paid much of anything for them. The trouble is usually more than it is worth. Occasionally there are big settlement, but for the most part the only people who make much money on those settlements are the lawyers.

Wouldn’t it be much better if we could make it easier for potential users to come to us and ask permission before making a use?

Granted, many photographers with small collections will not want to bother to upload their images. But, it is unlikely that most of them will discover unauthorized uses anyway. If they do, then they can take rely on the 1976 Copyright Law for protection, and take the legal course of going after the infringer. However, one of the first questions a judge may ask is, “If you wanted to control use of your image why didn’t you place it in the ICL?” The answer may have some impact on the settlement.

Building The ICL


As to the time it will take to build an ICL that contains a high percentage of the images available for professional licensing, I think it may not that long once the technology has been developed and is ready to receive images. Assume the following professional organizations agree to participate and upload their images. If Getty Images, Shutterstock, AdobeStock, iStock, Alamy, Dreamstime, Deposit Photos, 123RF, Picturengine.com, PhotoShelter, Zuma, EyeEm, Visual China Group see the benefit of joining and upload small files of their collections the ICL would have a huge percentage of the images currently available for licensing.

These companies would also need to build systems that automatically add all new images accepted into their collections to the ICL.

If two or three of these companies join most of the rest would want to follow because they tend to represent many of the same images as those who were the first to join. They will not want to be shut out of the market when customers decide to use the ICL rather than go to the agency’s regular site to search for the images they need.

In the same way, as more customers start to use the ICL smaller specialized agencies and individual photographers will want their images to be part of the collection because the images they have licensed previously, or even the ones on personal websites, may be the ones currently being stolen.

For individuals with relatively small collections uploading should not be that difficult. Much easier than uploading to stock agency sites now because the ICL images won’t need all the attached information. Each image file will be relatively small. The creator will need to create a small version of each file, but once that is done they will be able to automatically upload all the files as one batch. A Lightroom function will probably be developed for this particular purpose.

It may take a year or more to get such a large database fully functional with a significant number of image, but once it is up and running it will be easy to continuously add to it.

Check this story for other thoughts on building an ICL.

Another advantage an ICL would offer is that photographers would no longer have a fear of posting some of their images on the Internet where anyone might see them. If someone is looking for an image that they might use in a commercial way (on any site which might help them earn revenue) then they would have one place to go to determine if they need to license the use.


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

  • Waring Abbott Posted Aug 9, 2018
    The ICL is a terrible idea. Thank God it would involve so much cooperation that it could never come to pass...

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