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Your photos are being used on someone else's website. What do you do?
Many websites offer advice on how to get sites to take down the images,
but from a business point of view, this should be your absolute last
resort (if at all). It's very time-consuming, and assuredly doesn't
result in income. Only your honor is preserved. While that might feel
good, there are many other actions you can and should take first.
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First, understand that we live in a culture where online access to
photos is presumed to be a free-for-all. There are hundreds of millions
of consumer citizens who upload their photos online, pass them around to
others, share them on social networks, and generally engage in a classic
human past time.
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The problem is, many such people also work at companies (or for themselves),
and apply the same attitude about photos to their work. That is, they see
an image they want to use for an ad, a website, a news story, a book, a
blog article, or a host of other uses, and they just take it.
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Accordingly, most copyright infringements are not ill-intentioned.
Most people are unaware of copyright laws, and even when they are,
there's often an innocent mistake behind it: an employee was unaware of
the process, your image was found on some other site, your own site
doesn't have clear licensing instructions or procedures (or, they don't
work properly), or perhaps the site licensed the image under the wrong
terms of use. Remember the first rule of disputes: don't assume malice
that which can be as easily explained by stupidity.
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That said, there are a lot of people who steal images intentionally.
Some do so with the shrug of the shoulders, thinking it's a victimless
crime, like a teenager illegally downloading music from the internet;
others do so with the very clear intention of stealing as part of a
broader strategy of cost-cutting. (Sites that use thousands of images
on a regular basis can cut thousands of dollars from their expenses.)
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In the broad range of reasons why people intentionally steal, they all
share one common awareness: they'll get away with it. Oh, they may not
get away with every infringement, but the cost to deal with those
who catch them is more than offset by the cost of licensing every image
legitimately. This is not just a cynical view, I have personal, direct
experience in dealing with such companies. (And, as an industry analyst,
I've also looked into the practice in detail from the inside of both
stock agencies and the companies that perpetrate these acts.)
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So, the real questions are: what do you do, and in what order do you do them?
In this article, I'm going to begin where most other articles leave off.
That is, most other articles suggest contacting the company to inform them
of the infringement and to get them to license it properly. Failing that,
they say, you ask them to remove the image, and if that doesn't work, you
get the company hosting the infringing site to remove it.
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In those two cases, I strongly disagree. If someone doesn't want to
legitimately license an image, there are two options: sue them, or
let it go. Forcing someone to remove an infringed image should only
be part of a legal proceeding that involves damages. Otherwise, you're
investing time, money and emotional capital into a process that has
absolutely no value whatsoever. If anything, it can hurt other business
objectives. In my case, there are hundreds of thousands of websites around
the world that are using my images without asking (and without permission),
but their collective use increases my rankings in search engines, and
that leads to genuine buyers finding my site in the first place.
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(Note that my site has been online since 1996, and I've got well over 50,000
images on my site, with over 15,000 visitors a day. I've benefited from
the effects of time: people have discovered my site and linked to it a lot.)
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When I find an image of mine on another site, I do the following analysis:
- Should the site have known better? Is it a big company? Do they
do substantial business?
- Is the site "consequential?" That is, could they even afford to license
the image in the first place? Is the use of my image valuable enough to
make it worthwhile investing the time into this infringement?
- What's my worst-case scenario? That is, how far am I willing to go
with this case? If I ask them to license it, and they say no, what would
I do next? I don't bother with anyone unless I am also willing to invest
the time and resources into suing them if they don't comply. If not, why
waste any time with it?
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If you were to follow this same rationale, then you can easily handle
things up to the point where you've asked them to license the image,
and they've declined. Now what? The most common and worst decision
most photographers make is to threaten the infringer. Or worse, to
attempt to take legal matters into their own hands. So, let's talk
about that.
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The stories about photographers who've tried in vain to get copyright
infringers to "pay up" incite great emotional empathy, but I would be
remiss if I said I shed anything but crocodile tears. Rule #1 of all
legal skirmishes:
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DO NOT REPRESENT YOURSELF!
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Here's why:
- You will never, ever recover as much money alone as you would with
the help of a lawyer.
- You will never, ever be as persuasive to an infringer as a lawyer would.
- You will spend more time on the matter than spending time building
your business, thereby ending up losing more money over time than anything
you may gain in the short term.
- You are too emotionally involved.
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Even lawyers never, ever represent themselves in cases. They
hire other lawyers to represent them. There's a really old and famous
quote, "A lawyer who represents himself in court has an idiot for a client."
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The common response to this is, "I can't afford a lawyer." True. And this
fact can be very useful in your assessment of whether you've got a case
worth pursuing in the first place.
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How can you tell whether a case is worthwhile? Not just by
whether a lawyer will take it, but by whether they will take it
on contingency. That is, they get paid only if they win the
case (or get the infringer to settle). Remember, lawyers run businesses
too, and yes, they are often paid by the hour. Any lawyer will take your
money and represent you in a case that you want to pursue. That's
their job and their legal responsibility. But this is also a point of
danger because the lawyer has incentives to tell you want to hear: that
you have a case. But, do you really? Wouldn't it be nice to know whether
the lawyer himself would be willing to invest his own time on the case
and only be paid if he collects money? That would surely be the test
as to whether your case is good. Obviously, no lawyer will invest time
on a case that has little chance of success.
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Accordingly, you can imagine that if your case doesn't appear strong
enough to win—or to win enough money—then the lawyer is probably
not going to take it. And this is a great way to assess whether you
should invest any time into it either.
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And if that's the case, then just how far do you think you're going to
get pursuing it yourself without a lawyer? Yet another reason
never to pursue a case yourself.
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Also note, it's not just the case itself, but other details, like who the
client is. One guy told me a heart-wrenching story of his claim against
a copyright infringer in Russia that ultimately got so fed up with him,
that they sent a big guy to his house to say, "stop it or bad things
will happen to you." Hint: you don't want this, and neither will a lawyer.
If you take any legal matter in your own hands, you're going to get
exactly what you paid for: nothing.
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Oh, and one more thing: not all lawyers can handle these cases.
When seeking a lawyer, find one that specializes in copyright law.
Yet another reason you should never handle a case yourself.
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To assess whether you have a case worth pursuing, the following should
be true:
- Your photos are registered with the copyright office.
If you are at all serious about your photo business, you must register
your photos with the copyright office. It's simple and inexpensive.
I gather up a year's worth of images (usually about 15-20 thousand photos),
create a single DVD of low-res thumbnails images (250pixels wide) and send
it to the copyright office with a check for $35. I do this once a year,
maybe twice if I'm shooting a lot. Start here: www.copyright.gov/eco
You do not have to be a US citizen to do this, nor do you have to be a
US citizen to file copyright infringement claims against US companies.
Photos registered with the copyright office are eligible for statutory
damages between $750 and $30,000 per image. Damages can increase to $150,000
if the judge deems the infringement to be willful (such as intentionally
removing a copyright watermark you placed on the image). Note that proving
willful infringement is not easy, but keep in mind the perception of the
infringer: if he gets a letter from a copyright lawyer (not you), explaining
what his liabilities are, you're going to get someone's attention very
quickly.
- The use of the image is actually an infringement.
Don't confuse unauthorized use with copyright infringement. These are
two different legal concepts. Someone can "copy" your images without your
permission (unauthorized), but use the image in a manner that is protected
under the Fair Use provisions of the Copyright Act. Simplistic examples
include posting images on photo-sharing websites, using your image to
critique it, or if a teacher uses it in the classroom of a public school.
(There are some exceptions to these, too.)
Suffice to say, Fair Use provisions are intentionally vague and complex,
as they are there to preserve competing objectives: rights of free speech
and expression, while also protecting the rights of the creators of works.
Accordingly, most Fair Use cases have to be judged on a case-by-case
basis.
Since Fair Use is not easy for everyone to understand, both for the
infringer and the photographer, there will be disputes about this.
In fact, you can be assured that the infringer will either "insist"
that this use of your image is Fair Use, or that he thought that
his use was Fair Use. Since you can rely on this response, it's
inconsequential what they say. You should address this well in advance
with your lawyer. Indeed, the lawyer's assessment as to whether he'll
take the case on contingency will be how far away from Fair Use the
infringer is. Which leads to:
- If your images are represented by a stock photo agency...
Some stock agencies reserve the right to pursue infringements ahead of
you. You should review your legal agreement with the agency on this
point. (And if you haven't signed up with one, you should understand
what these terms are ahead of time.) There is no "rule" on this matter,
nor is it a given that it is better or worse if an agency owns these
legal rights. It's entirely a matter of your personal business objectives.
If your images are with an agency that reserves the exclusive right to pursue
infringements, you should notify the agency of your finding, and work with
them on pursuing the case. You should also understand what—if any—damages you can collect if the agency collects money.
Note that just because an agency may have the right to pursue
infringements, it does not necessarily assure they will. Agencies make
these financial assessments as well, and accordingly, may not think a
particular infringement is worthwhile. You may disagree, in which case,
you can ask for an exclusion for this case from your legal contract.
Chances are they'll grant it, as it's no skin off their nose if you
pursue a case on your own. However, you should not be compelled to share
damages with them if you collect anything; they had the right to do so
first, and they waived it.
- You have a lawyer
If I didn't stress this enough, you should never pursue an infringer
yourself. It's one thing to notify someone that they've infringed on your
photo(s), and to ask for a license, but never threaten to sue. That's a
sure sign that you're naive, and thieves can see right through it. Passively
mentioning that you may pursue legal alternatives is enough of a hint that
anyone who would be compelled to do anything will see that as a serious
sign that you'll take action. (If not, there's no good outcome to be had
from giving them any sign at all.)
There's also no sense in looking like a fool by threatening to sue and
then going silent.
Personally, I ask people to license legitimately, and if they don't,
and I determine that they're not worth pursuing legally, I request
that they link to my website from the image itself.
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While it can be alluring to see high dollar amounts for infringement
damages, and many see such opportunities as winning lottery tickets,
understand that this is not a ticket that's easy to claim, and it's
certainly not a business model one can pursue without having a huge
inventory of images that are infringed upon by thousands of vulnerable
companies.
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In summary, the internet has evolved into a culture where people believe
that if images are online, they are free for the taking. Accordingly, you
need to be aware of the mindset of infringers: some are unaware of the law
and willing to comply, while others intentionally game the system. Keep
these in mind as you navigate through the dialog you have with potential
infringers, and seek the outcome that seems most appropriate.
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If you're a photographer, your business is to sell images. The less time
you spend with infringers, the more you'll have in pursuing legitimate
clients. Infringements should be taken seriously, and those cases should
be handled by a lawyer, not you.
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