Will We Ever Prevent Unauthorized Uses?

Posted on 1/12/2010 by Jim Pickerell | Printable Version | Comments (0)

A friend who has been on the periphery of the photo industry for decades now works for a company that manages social media and search engine optimization for a variety of clients, including law firms. She said her office mates disagree on what they are allowed to do with pictures they find on news Web sites. She asked: “Are bloggers allowed to illustrate their blog entries with photos they find on news sites, such as a photo of a sinkhole? What are the rules about using editorial images in a blog post?”

My response was “no.” Photos on news sites are copyright-protected. Anyone wanting to use it should get permission from the news organization.

In many cases, the picture will have come from the Associated Press, Reuters or Getty Images; these companies license rights to use their images and sell reuse rights.

In some cases, pictures will come from microstock sites such as iStockphoto, Dreamstime  or Shutterstock. These sites license blog-use rights for very little money, but the news organization only paid for its own right to use the image. Anyone else who wants to use the image must license it separately from the microstock agency, usually for a fee of less than $2.00.

The fair-use doctrine of U.S. copyright law allows free reuse of images for the purposes of education, news reporting or commentary, but it is difficult to determine what qualifies as education, and the reporting or commentary would have to focus on the image to qualify for this narrow exception. In broad terms, commercial businesses using images to illustrate their blog posts will rarely be able to justify it on the grounds of fair use.

While the law says an image’s owner controls its use, the vast majority of bloggers ignore it. PicScout tracks Web use of images distributed by several traditional image suppliers. The company has discovered that approximately 85% of the uses they uncover in the U.S. lack an image license.

When people who know something about the photo business do not understand the law, how can we expect the average blogger to abide by it?

iStockphoto probably licenses between 25 and 30 million usages a year, a high percentage of them for blog uses. All the other microstock sites combined probably license an equal number.

Given the price variations between micro and traditional images, it is easy to see how a much higher percentage of micro images used on Web sites might actually be licensed for blog use, rather than stolen. Given the total number of microstock images licensed, it would not be unreasonable to assume that 15 million micro images are licensed for blog use annually. I estimate that a total of 3 to 4 million non-editorial images are licensed at macro prices annually and probably no more than 5% or 150,000 to 200,000 are licensed for web or blog use. If this is only 15% of all the images used for Web purposes, then there might be several million used that are not licensed.

While it is terrible to think that there might be this much unauthorized use, the revenue that could be generated from this number of illegal Internet uses at existing prices is really minimal. Certainly, it is going to be impractical to bring a legal action in nearly all of such cases. This leaves image producers with the choice of either trying to educate the general population, or accepting the reality that most customers are going to use the images without paying for them.

Photographer Michael Grecco, who actively pursues copyright infringement, recently revealed a problem he faces. “I get a daily Google alert for my name and for my Naked Ambition project. In the four months since Warner Brothers released the Naked Ambition movie as VODS/PPV with iTunes, Amazon, etc., it has showed up on 28 Torrent sites for free download, and two very professional sites that do not have a license to use it. I have spoken to the FBI and the MPAA, and since both of the pro sites are based in Somalia, there is little anyone can do.
“It’s the Wild West out there, and I don’t know if we will ever be able to stop it. Even with a huge well-funded ad campaign, you would only raise the conscience of people in the U.S. The rest of the world would continue to steal content,” Grecco added.

Copyright © 2010 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.  


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