Protecting Your Copyright

Posted on 3/16/2016 by Jim Pickerell | Printable Version | Comments (1)

It is getting harder and harder for photographers to protect their copyright. With PicScout, TinEye, Google Image Search and other reverse image search solutions it is easy enough to locate uses of specific images online. But, it can be very laborious to search one-by-one for particular images in a large collection, and it can be costly to have someone like PicScout do it for you.

However, knowing where the image has been used is only the first of a very difficult chain of steps. Once you’ve found a use the first question is “Did the customer license use of the image?” If you handle the licensing of ALL your images yourself, and never place your images with an agency or distributor, then you will know if someone has paid to use the image in question. But there are two problems with this strategy.
    1 – If you’re really trying to earn revenue from the use of your images, there is very little chance that any potential customer will ever see, or be aware of your image if it is only available on your private website. For that reason, most people trying to license their images place them with stock agencies or distributors.

    2 – Most photographers hoping to control the use of their images license them as Rights Managed (RM) and charge based on use. The other licensing option – Royalty Free (RF) offers very broad rights with every sale. Very few photographers licensing their images as RF find it practical to pursue potential copyright infringers. I estimate that less than 1% of all the images licensed annually are licensed as RM. Most images are licensed as Royalty Free.

Dealing Through A Distributor

When dealing through a distributor there are two option – either dealing with one agency or distributor exclusively, or placing the same image file with multiple distributors in an effort to maximize potential sales.

Today, very few photographers have exclusive contracts with a single distributor. Those who choose the single distributor option often do so because of lack of time or energy to distribute them more widely.

However, having an exclusive RM contract with a single agency doesn’t mean that agency alone handles all the licensing of the photographer’s images. Most agencies make part, or all, of their collection available through multiple distributors around the world. In some cases, as many as 200 different distributors around the world represent the same images that have been supplied to the prime agency on an exclusive basis. This can lead to a much higher sales rate but it becomes much harder to determine if an unauthorized use has occurred.

Sales Reporting

If a distributor licenses rights to use a particular image the distributor reports the sale to the prime agency and sends a percentage of the fee collected to the prime agency. However, there are three problems.
    1 – Typically, the distributor does not supply its customer’s name to the prime agency so that agency, and the photographer, have no way of knowing who the actual end user is.

    2 – While the price charged for an RM license is based on usage, normally the distributor does not report the exact usages allowed for the fee charged. In todays environment there are cases where huge usages are allowed for very low fees.

    3 – The sale is usually not reported until the distributor is actually paid. This can be months after the customer is authorized to use the image. There is an additional time lag between the time the prime agency receives the money and the photographer is notified of a sale of the image in his/her monthly or quarterly sales report.

Determining Whether A Use Is Authorized

What happens if an agency discovers the use of an image for which they were paid no fee?

The agency must first determine that none of their distributors made the sale. The fact that they have not been paid anything for use of the particular image does not mean that an authorized use is not still in the pipeline.

If the agency represents the image non-exclusively they must ask the photographer for all information about the licensing of that particular image. In order to supply that information, the photographer must maintain an accurate record of all licenses of the images in his/her collection. The photographer may have a unique number that identifies each image, but most agencies will use a different numbering system to identify the images they represent. The systems of each agency or distributor tend to be unique. Thus, in order to be able to answer the question, “Has image XX12345 ever been licensed,” each photographer must maintain a list of comparative numbers for each image supplied to the agency, and each time he/she receives a sales report correlate the new sales with the master list.

This information might be useful in planning future productions, but the cost of maintaining such a list could be massive compared to the likelihood of ever finding an unauthorized use of an image. Few photographers maintain such a list.

The fact that the photographer has no record of a sale may just mean that the sale may not have been reported by one of his/her many distributors yet.

Who Is The Customer?

If a photographer has made no sale to the end user in question, that does not mean the use was unauthorized.

The image might have been licensed for use by a design firm working on behalf of some other organization. The website where the image was found may be owned by the organization the designer’s customer.

The end using customer may operate several web sites under different names and the license allowed the use of the image on multiple websites.

The Demand Letter

If after doing all the checking the agency believes the use was unauthorized, they will probably send a demand letter to the website operator.
This results in a huge amount of work for the customer in tracking back to determine where and how they obtained the image in question. If they cannot prove they properly licensed the image, then a claim can be made against them. If, on the other hand, the user can show that the image was licensed then the agency has undoubtedly angered the customer and is unlikely to get any future business from them.

Are There Any Solutions?

1 – Handle all representation of your images yourself without any agency or distributor representation.

2 – All sub-agencies, or distributors could be required to supply detailed licensing information and the name of the end using customer to the prime agency.

3 – Seller should be required to supply the name of the end user (not just of the design firm making the purchase) and the web site where the image will appear. The problem with this is that the customer may license rights to place the image on multiple web site, but not know the URL’s of all the possible sites at the time of purchase.

4 – All agencies reporting directly to photographers should be required to report the agency’s asset number, the photographer’s asset number, date of sale, the name of the customer, a detailed explanation for the allowed use, the gross price charged and the photographer’s royalty.

5 – This information should be reported at least weekly, if not daily. Microstock companies are able to do this type of reporting because the customer must pay for the image before receiving the file. In the traditional system, where the file is delivered before payment is made, invoicing and payment often take weeks making reporting when downloaded impractical. Unfortunately, this is the way most RM imagery is licensed.

6 – The information reported to the photographer should be in an electronic format that makes it easy for the photographer to transfer and store the information in a digital file that contains a historic record of all licensing of his/her images including detailed information about the allowed uses.

Unfortunately, none of these solutions are either practical or likely to be implemented. Thus, much as we would like to be able to better enforce our ownership rights, such an event seems unlikely in today’s business environment.

Copyright © 2016 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, 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:  


  • Uri Lavi Posted Mar 22, 2016
    Dear Jim,

    Thanks for the article but I wished you had consulted with PicScout before publishing it.

    PicScout is far from being a cost to our customers – on the contrary, it is actually a revenue generator (and even a lead-generator in some cases), which brings in tens of millions of dollars every year for the benefit of agencies and photographers.

    In your article, you only cover the tip of the iceberg, which is the license check part. Many of our customers carry out license checks in a quick and efficient manner with little resources. To customers for whom this procedure is more complex, PicScout offers an automated license check process in order to ensure this step will be as seamless as possible.

    But there is much more beyond the license check – the work PicScout does for our customers together with our License Compliance Services team (LCS), entails handling all of their copyright claims on their behalf. With us, agencies can now focus on sales and not on copyright claims – and they get a check at the end of each month! LCS communicates with infringers and contributes to educating them about copyright, receives the remuneration fees, and sometimes even converts infringers into customers of our clients.
    With regards to angering existing customers where a demand letter is sent in error, rarely does this happen, and when it does, our solutions offer both automated processes, as well as trained professionals, that allow us to rapidly treat the matter and close it.

    All in all, it is in the best interest of agencies and photographers to enforce their copyright. By choosing to do so, not only do photographers get remunerated for their work, but they also contribute to defending copyright. Choosing not to pursue infringers actually encourages infringement: the licensing model is significantly devalued if people can just take images without being educated and pursued. PicScout offers a solution that encompasses streamlining the license check, handling the infringement claims and even assisting with the registration of images with the copyright office. And these solutions generate benefits that are in the best interests of photographers and agencies.


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