Enforce Copyright As A Revenue Stream?

Have you used this Google Chrome feature? Search Google For This Image

 

First I'd like to say that my least favorite part of being a professional photographer is copyright enforcement. There is little doubt it is the

most frustrating thing I've ever dealt with. I'd rather eat barbed wire.

Second, I don't use my real name on Photo.net because I learned a while back that anonymity has some value. Some of you know who I

am and I'll ask that you not reveal my identity, my studio name, trade names or websites. If I were using my real name here this posting

would certainly alert hundreds of individuals, corporations, web design firms and other entities as to what may be coming their way soon.

This would likely ruin what some may see as my devious plan to get paid for what has been taken from me.

 

So here is the whole truth:

Over the my twenty one years in business, photo theft has been a recurring problem. My first website began in 1996 so my photos have

been out there a long time. Infringers have included my newspaper (a large, well known newspaper), then the City from whom I leased

gallery space, a book publisher. Aunt of my then best friend. A real estate developer that owns numerous large hotels and timeshares.

The list goes on and on.

 

A couple of evenings ago, while using Google Chrome on my iPad, I held my finger over a photo on one of my "right click protected"

websites. A pop up gave me the option to Search Google For This Image. The results rocked my world, the search returned over 50 hits

on the first photo I searched. Each subsequent felt like a punch in the face.

 

After about two non stop hours of utter dismay, I spent the rest of the night and into the morning laying in bed in near shock. Hundreds, if

not thousands of copyright violations.

Some come right off my websites, where the embedded watermarks should keep thieves at bay. Some taken from sites where I've

uploaded promotional photos. Others appear to be art photos I have sold and have my signature and a copyright notice with my contact

info across the entire bottom edge of the image.

 

Business hasn't been wonderful this past year and I could try to blame it on all the usual adverse business conditions, advances in digital

cameras, iPhones, whatever. Bottom line is all the thieves, and I do regard it as stealing, also hurt business. Why buy the cow when the

milk is free? I have always believed that if something is worth the risk of stealing, then it is worth paying for.

 

I have read a lot of opinions on watermarking, size of the watermarks, how they detract from the visual experience. There is no longer

room from debate on the subject because if you put your best work on the Internet, so some is going to steal it. Even with the watermark,

but with one in place it is impossible for a thief to say it was an honest mistake. That is the number one excuse I hear when I make the

dreaded phone call or send the first invoice offering to settle for a reasonable fee. Here is just one mis-use I will be dealing with this week:

A limited edition photo, stolen from my website, used to promote donations at one of the top Universities in the USA. The list of $1,000.00

and over donors is what really upsets me the most. Perhaps they'll use a portion to pay for the photo that promoted the donations. I am

not laughing, are you?

 

So I challenge each of you to do a google search for some of your most popular, best selling, images that have been on the web the

longest. Reply here, let me know what you find, your opinion, and what do we do about it. Is this the new revenue stream for

photographers, or just another frustration?

I've known photographers since the 1980s who have used copyright enforcement as part of their business model. At least

two have reached settlements in the neighborhood of a quarter million dollars for multiple infringements of their photos by

a single violator. And these are guys who are not litigious.

 

On the opposite end of the spectrum I know one photographer who embraced this model so throughly (and made a lot of

money doing so) that clients simply stopped hiring him.

 

One friend, a very well known web guru of photography who specializes in wildlife, is extremely aggressive about

pursuing every single copyright infringement, and makes no bones about, even going so far as to get liens on the assets

of individual bloggers. It has paid for not only his self assigned expeditions, but a also very nice house and lifestyle. He

works extremely hard at making unique photos and doesn't like them being used without permission. If you ask to use

one of his photos he's really nice about granting permission, but just take because you think "everything on the Internet

should be free" and you find yourself in a bear pit facing a hungry Grizzly with a lawyer.

<blockquote>

<p><em>"There is no longer room from debate on the subject because if you put your best work on the Internet, so some is going to steal it."</em></p>

</blockquote>

<p>There is an interesting video of the <a href="https://cyber.law.harvard.edu/events/2014/11/creativitywithoutlaw">"Creativity Without Law"</a> conference which examines areas such as the culinary arts, cocktail recipes, graffiti and tattoos where intellectual property rights is either not recognized or offers virtually no protection, and how these areas of creativity continue to thrive:</p>

<blockquote>

<p>"The event will focus on the growing body of scholarship examining the on-the-ground practices of creators and innovators. That scholarship challenges intellectual property orthodoxy by suggesting that incentives for creative production often exist in the absence of, or in disregard for, formal legal protections. Instead, many communities rely on evolving social norms and market responses to ensure creative incentives."</p>

</blockquote>

<p>Below is part 1 of 4; the remaining links should appear on the sidebar. The entire conference video is 6 1/2 hours and worth the time if you're interested in this sort of thing: <br>

<a href="

</a></p>

<p>Somewhat related, I was reading a CNN article about famed celebrity attorney, Marty Singer, who talks about the challenges of going after tabloids in the Internet age. He has been retained in recent days by Bill Cosby.<br>

<a href="http://www.cnn.com/2010/SHOWBIZ/09/30/celebrity.lawyer.singer/">http://www.cnn.com/2010/SHOWBIZ/09/30/celebrity.lawyer.singer/</a></p>

<p>It seems for every artist attempting to go after an IP infringement, there is another artist finding ways to capitalize on the infringement by others. I don't have statistics, but the latter approach would seem more fruitful to me in today's climate and how business is done. </p>

<p>I'm a musician. It is just as bad for us.<br /><br />Release a recording, 5 people buy it and you may as well give it away free to 25 more.</p>

I've only found my photos infringed three times comercaily, and just went for a take down. All take down attempts were

successful, but the last one I had to use DMCA and go over their heads to their site hosting company. I've never invoiced

only because I'm just a hobbiest... but I'm considering it now that I'm making more online sales and recently have most of

my port available to license as well.

I don't think it would be worth my effort to take things further if my invoice were to be ignored, unless I was to register

each photo. Even then... I only just break even with the hopes of maybe someday earning enough pocket money to

actually have to claim hobby income on my taxes. So court would be a no go for me.

As for you treating infringements as a source of income... I'm all for it! To me, I think it helps us all. I know some would

disagree with me, but... Maybe someday people will take copyright infringment more seriously because of artists who act

on it as you do?

<p>Every new or disruptive technology that has come to existence which enabled copying has encountered this problem and none have ever been resolved through IP rights enforcement.</p>

<p>From the early days of home audio recording and photocopying through VCRs and digital audio in the 80s and the Internet, software piracy and 3D printing of today, the issue has only become bigger; what used to be a corporate problem has become every content creator's problem as a direct consequence of something becoming democratized.</p>

<p>Content creators who have benefited from this type of "theft" tend to think of infringement as free marketing and advertising thereby becoming the benefactor through its capitalization. There are many such examples including photographers even if it`s not immediately apparent that `theft`has helped increase their visibility and popularity. </p>

<p>There is no debating the legal, moral and ethical aspects of these acts, but accepting it as an inevitable part of cultural norms and thinking of creative ways to benefit from it, as many corporations and individuals have done, seems more fruitful to me as opposed to swimming against the tide. </p>

<p> </p>

<p>If you are having your work taken by commercial and academic entities, you should really consider enforcing your copyrights. The key to enforcement is to register the images prior to the infringement. In addition, have the code to your website modified to prevent hotlinking. Generally speaking, if the images are timely registered, you should be able to recover more than your expenses if you retain an attorney to contact the infringer and negotiate a settlement. The key to making this work is to be reasonable with respect to who you pursue and not to expect that every infringement will be a gold mine.</p>

<blockquote>

<p>Content creators who have benefited from this type of "theft" tend to think of infringement as free marketing and advertising thereby becoming the benefactor through its capitalization.</p>

</blockquote>

<p>I disagree - mostly. There is a place for allowing images to be spread for example where you are trying to promote a particular project and have an identified business plan/income stream that will benefit from the images getting attention - such as an artistic project where you hope to sell prints into the art market. But mostly you do better to enforce rigorously - where practicable (and it's not always practicable, there is a time/benefit/practicality calculation to be done) - rights to your IP, and remove the perception that your images are there for the taking for free. Also, when you enforce the rights to your pictures, you are doing not only yourself a favour but the entire photographic community, there are too many people who have got hold of the crazy notion that it is OK to help themselves to whatever images they want.</p>

<p>Simon, I actually agree with you, mostly. :-) </p>

<p>I'm no doubt on thin ground expressing what must be a very unpopular view, and I've been no less a "victim" of ripoffs even as a humble amateur. The problem, as we all agree, is the costly IP rights enforcement making any realistic recourse a lost cause for all but the most persistent artists, but whose outcome is often a hollow victory with questionable deterrent effect.</p>

<p>These recurring complaints of theft will persist until the day we can all become like Bert, a JD/artist, so we can enforce our own IP rights without additional legal costs. </p>

<p> </p>

<p>I recently found a large company using one of my images, so I found the CEO on LinkedIn and sent her an invoice. They just sent me payment, that was it. Doesn't really count as a "revenue stream" but you can actually get paid for this. My stock agency sends an invoice for 5X the usage fee and they always get paid. <br>

That said, 99.9% of the unauthorized usage of my images isn't making anyone any real money, so I don't worry about those ones.</p>

Thank you for the replies. Having given this a lot of careful consideration, I believe the best approach is to invoice for my

normal fee plus a nominal amount for the time involved to track down the infringers. Some are hiding behind their

websites, but I will find them eventually.

I cannot agree with the argument that there is some benefit in allowing the use of IP without compensation. The notion

that the theft has increased my visibility and popularity is laughable. What purpose does that serve? That my images are

free? As a photographer, I know the time that is involved to capture hundreds of images. My goal isn't to create one that

is worth stealing. It just isn't logical to not enforce my rights, failing to do so is an injustice to all photographers trying to

make a living with a camera.

<p>Tim, I don't know where you're located or aware of the following - there is a limitation to filing civil or criminal proceeding regarding copyright enforcement in the U.S. as follows:</p>

 

<p >(a) Criminal Proceedings. — Except as expressly provided otherwise in this title, no criminal proceeding shall be maintained under the provisions of this title unless it is commenced within 5 years after the cause of action arose.</p>

<p >(b) Civil Actions. — No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.</p>

<p ><a href="http://copyright.gov/title17/92chap5.html">http://copyright.gov/title17/92chap5.html</a></p>

<p > </p>

<p >In Canada, it's 3 years from the time of infringement discovery:</p>

<p ><a href="http://laws-lois.justice.gc.ca/eng/acts/C-42/page-50.html#h-58">http://laws-lois.justice.gc.ca/eng/acts/C-42/page-50.html#h-58</a></p>

<p>Michael, I believe that in the US the three year limitation period also begins to run from the date that the copyright holder ought reasonably to have found out about the infringement. The principle is called 'discovery accrual'. you can read about a recent US case about it here for example:<br>

http://www.whitecase.com/articles/052014/second-circuit-adopts-plaintiff-friendly-discovery-rule-for-copyright-infringement-claims/#.VHHrP9a5BlU<br>

Also, in any case if the plaintiff tries to conceal the infringement fraudulently, then I think I'm right in saying that the 3 year limitation doesn't apply in any case.<br>

So in practise, the 3 year limitation often isn't as limiting as it sounds.<br>

Tim, you may also be entitled to additional sums in addition to the amount you would have charged as a fee. It's possible that these amounts can be much more substantial than the fee itself. You can't charge a fee for the time taken to track down infringers, but there are other damages that you can add on. You'd have to ask a US lawyer about what they are in the US, but you can read about the kinds of things you can claim for in UK law here:<br>

http://www.epuk.org/Opinion/994/stolen-photographs-what-to-do</p>

Michael,

How does one find a benefit to having their work stolen and sold by someone else? Or having their work used without

permission, without credit, sometimes cropped, or even edited, sometimes not altered at all, to market someon else's

business? The picture used would be associated with the person/persons who stole it, with absolutely no association to

yourself or to your photography. There's no benefit to that, that I can see.

This is the only scenario I can come up with that could be beneficial if things played out well.

A blogger with a good audience sharing your work inappropriately without credit or link back. You contact them letting

them know you are "very flattered" that they like your work, and would love for them to add a link back, to create a good

situation for both parties. And I suppose it really could play out nicely.

But what if they refuse? How can this benefit anyone but the thief?

Am I just not thinking big enough, or out of the box enough?

 

I could be wrong and feel a little uncomfortable speaking for the OP, but I don't think Tim is hoping for litigation, criminal or

civil suits, and rubbing his hands together thinking "Go ahead, make my day!", but to just be more stringent about his

invoicing, and work copyright infringements into his work flow, and add some business revenue.

Tim, a link that I have found helpful

http://picturedefense.blogspot.com/

 

http://www.pixsy.com

You may be interested in this and other companies like it that have been popping up. I cannot speak first hand about the

service, but I think it looks very promising.

<p>For the german speaking you may find help here: http://www.photoklau.de<br>

where you can download a "first aid booklet" which will lead you through all necessary steps to be successful when you go after copyright infringers. I do it myself and it is now 50% of my income as photographer.</p>

<p>Sending an invoice is a good idea, although I think Ian was extremely lucky that they just paid without a murmur. Usually people who steal your pics either don't care, because they know it's too costly and time-consuming to file a lawsuit, or they simply delete it and pretent the situation never happened.</p>

<p>On the other hand, it's worth keeping the watermark and all, as it is your signature, whereverthe photo would be (even on a thief's website). </p>

<p>Btw, there is also this website <a href="http://copyact.com/en">http://copyact.com/en</a> where you can search for your pictures as well as get an instant message about your content being stolen.</p>

<blockquote>

<p>In addition, have the code to your website modified to prevent hotlinking.</p>

</blockquote>

<p>Why? Hotlinking is not infringement. Blocking it probably make infringement more likely. Or is that the plan, to increase enforcement revenue?</p>

<p>Add in that Google can put up thumbnails of all your images without your permission - and they are a PROFIT making business - and you see we have real problems here.<br>

Many of us would never allow our images to be used for some of the sites we see. The right to control use of our work is ours and ours alone. <br>

Register the images and go after the thieves.</p>