One can make principled arguments about how intellectual property in the digital age stifles creativity, or perhaps an historical argument that copyright is overextended beyond what the founding fathers intended in the Constitution.
I would be impressed, honestly, if even one of my many infringers responded to a takedown request with just such a line of reasoning. Alas. Here is a far more typical reply. I received this missive just now from a pest control company owner, in response to a standard takedown form letter:
so sorry did not know about the copoy right on your ants. if you did not want to share this with anyone then you should not have it posted so folks could copoy it. da hello wake up iam probably not the only one who was useing it .
Instead, I’m dealing with people who can’t even spell “Duh.”
I enjoy the dubious distinction of being the most infringed photographer I know. Every week I send at least a dozen takedown notices to commercial entities using my photographs without permission. I’ve sent one this morning already. My photos end up in youtube commercials, on coupons for pest services, in website banners, in company blog entries, on product labels. If every commercial infringer paid my usual commercial rates, I calculated once, I’d be making a comfortable 6-figure annual salary.
Of course, not every infringer has the budget for my standard rates, and that might explain why they take without paying.
The trouble is that the photography market isn’t a single market. It is several distinct markets- an art market, an editorial market, a microstock web market, and others- each with its own culture and pricing structure. I sell primarily to magazines & textbooks, I sell at market rates (typically $60-$400/image), and I have few if any infringement problems in that market.
My pest images could also be sold in the cheap and fast microstock market. This new arena includes the folks who create local exterminator websites and who are used to paying a few cents to a few dollars for an image. Web designers think $100 for an image is insane, even though publishers routinely pay more than that. I’m not going to price my regular photos down out of the market that sustains me just because web designers trained on microstock think I’m nuts. That’d be professional suicide.
I can, however, run an experiment. What if I take a pile of forgotten, unused photographs and offer web-resolution versions at microstock prices? After all, the images aren’t doing any good gathering dust on my hard drives.
The graphic at the top shows 21 of the most common pest ants in North America, covering the bulk of my infringement headaches at the species level. None of the images appear in my regular galleries. For a variety of reasons they did not make the cut for my high-res work, but as small 400-pixel pictures they’re great for display in a blog post. The whole pest ant composite can be downloaded as a royalty-free stock image for $34.95. This works out to under $2 per ant.
Will anyone license this graphic? Beats me. But it’ll provide insight as to whether infringers take my images because they can’t afford them, or because they’re just very, very bad people*.
*Kidding! I’m just kidding! Many infringements stem from a widespread misperception that anything on Google is public domain.
Unfortunately, I contend with hundreds of copyright infringements every year. I have implemented the following policy in an attempt to maintain control over my work.
Unauthorized non-commercial uses of my copyrighted images and text are subject to DMCA takedown requests without advance notice.
Unauthorized commercial infringements of my copyrighted images will be handled by a contracted copyright enforcement organization, which may result in legal action to recover statutory damages as outlined in Title 17, § 504, of the United States copyright laws.
All of my images are registered copyright with the U.S. copyright office.
Let me disabuse you of any preconception that the online method is easier. You’ll need to clear an hour or two out of your schedule to prepare a submission. The new process involves clicking though an interminable array of confusing steps, filling out an order of magnitude more information than was requested in the paper form, and jockeying awkwardly between upload and payment sites.
Fortunately, photo attorney Carolyn Wright has created a set of directions that are clearer than anything the copyright office provides. I won’t duplicate her efforts by explaining how it works, other than to offer the following pointer: compress your images into a series of .zip files before you begin. How many files you’ll need will depend on the speed of your internet connection, as ECO logs you out after an hour. As with the old system, you can register an unlimited number of images in a single batch and a single fee.
Despite the hassle, I find online registration worthwhile. For one, it’s ten bucks cheaper. And more importantly, the turnaround time is several months faster than paper submission. So if you need your reg numbers quickly, ECO is really your only option.
Anyway, this is been an absolutely thrilling post. So here’s an ant:
15 points to the first person who can identify it.
Last week I performed my semi-annual copyright registration ritual, and in the middle of the paperwork it occurred to me that this might make an absolutely scintillating blog post. So, here’s why copyright registration is important, and here’s how to do it.
U.S. law is generous towards photographers. Photographs are automatically copyrighted as soon as they are taken. It doesn’t matter if you’re taking happy snaps of your pet cat or professionally shooting a Hollywood premiere- you have the copyright.
What does having a copyright do for you? Not very much, it turns out. If you’d like that copyright to carry legal weight then it needs to have the extra step taken of registering it with the government. I’ve never taken anyone to court over copyright infringement (and I blanche at the thought, to be honest), but I have had several instances where being able to show the reg number to unscrupulous photo “borrowers” helped bring about speedy resolution and fair payment. I routinely register my copyright, and it’s surprisingly easy. One form and one fee can cover thousands of photographs.
A check for $45 made out to “Register of Copyrights”
A mailing envelope.
I keep a folder on my computer labelled “copyright”. Whenever I process a new batch of photographs I save small, 600 pixel-width jpgs of each image to the copyright folder. I use 600 pixel-width because I’ve already made them up for www.myrmecos.net, but the exact size isn’t too important. They just have to be large enough to be recognizable and small enough so that many can fit onto a CD. If you’ve got lots of images to process, photoshop can automate them in batches.
Once I accumulate enough photos to make the $45 reg fee worthwhile (usually around 500-1000 images suits me) I burn the copyright folder to two identical CD-Rs, fill out a Short Form VA per directions, write out a check, and send everything to:
Library of Congress Copyright Office
101 Independence Avenue SE
Washington DC 20559-6000
It takes less time than it took me to write this post. A few months later the bureaucratic cogs turn over and I get my form back with the all-important registration number. Now I can sue the pants off infringers sleep soundly.
In August I hired ImageRights International, a reputable copyright enforcement agency, to assume the routine handling of commercial infringements of my professional work. There are a lot. Starting in September 2014, companies began receiving letters from ImageRights’ partner law firms seeking to resolve these infringements on my behalf.
Q. Why are you doing this to me?
Don’t take it personally. I stopped being angry about most of these cases a long time ago. The reality is that handling copyright infringements like yours with simple cease & desist letters was costing me thousands of dollars and hundreds of hours per year. The more time I spend on infringements, the fewer new images I add to my portfolio, and the more I have to charge my regular clients to compensate.
I handled these cases myself for over ten years, usually demanding nothing but image removal, and I am tired of it. The problem is growing worse each year, and I no longer have the time to bear the costs of your infringements.
ImageRights’ system is efficient. Submitting infringements to them takes much less of my time than researching and sending a DMCA takedown notice. ImageRights offered me a way to get a significant part of my life back, and I took it. The hitch is, the legal teams cost money. Although I am also paying them a service fee, my payments aren’t enough.
Q. Are you bluffing? Will I be sued if I ignore the letters ?
I am serious. You may wish to consult with an attorney to evaluate your situation.
Q. You are wrong, I did license that image, and I resent being accused of something I did not do.
Goodness! My heartfelt apologies for my mistake. If you forward the license agreement or receipt to my lawyers, we will drop the case and I will fully refund your original license payment, while you may continue to use the image(s). I have made an erroneous accusation before, and I felt terrible about it.
Q. Why are your lawyers asking so much? Images on your site license for only $100-$400.
Paying my fee alone still leaves me on the hook for legal costs incurred by your company’s actions. Lawyers cost more per hour than I do. Our government’s copyright enforcement framework treats infringements as civil matters that generally require legal counsel. It is not a good system. Fortunately, there are proposals in the works to replace it with something less expensive, but until meaningful reform happens, it is what we have. I don’t like it either. Write your congressional representative.
Also, infringements have to cost more than regular license fees. Otherwise there would be no deterrent, and no point to copyright. Imagine if the penalty for stealing groceries was just that you’d have to pay for them when caught. If you aren’t caught every time, you’re better off just stealing by default.
I am not getting rich doing this, and I would have preferred it if your company hadn’t used my photography in the first place.
Q. It’s just a photo! Surely a photo can’t be worth that much.
It is not “just a photo.” Photography is how I supported my family for years, and photographs incur significant time, travel, equipment, and research costs. I did not travel to rural Argentina, spend weeks processing images and identifying the animals, and purchase $10k worth of camera gear to give your company free marketing materials.
Q. But I have found a lot of other companies using the image, too! You can’t single me out.
Many companies license my work to display on their websites without a distracting copyright mark. You may have seen the images on one of my client’s sites.
Also, copyright enforcement is nonexistent in many developing countries. I have no way of dealing with infringements on the part of Vietnamese companies, for example, but they are still visible via Google.
Q. Why aren’t you answering my messages?
I am contractually obliged not to speak with you. Once you have settled the issue with the lawyers, then we can talk. Again, it’s not personal.
I am not Getty and my lawyers are not Getty’s lawyers. Considerably more effort and attention went into researching and vetting your case than went into Getty’s ham-handed, largely automated process.
Q. Why didn’t you just contact me directly? I would have removed the image.
There are dozens of you every month. I don’t have that kind of time.
Q. What if I just remove the image?
Since you already used the image, you owe license fees. Plus, I’ve already incurred legal costs and I would like those back.
I probably shouldn’t tell you this, since it is legal-ish advice and I’m not a lawyer, and since it is against my financial interests to tell you, but if you plan to deal with the letter by ignoring it, you may be best off not removing the image at all. If you remove it after receiving notice, then the legal team knows you’ve read the notice and have knowingly chosen to duck the fees. Should we end up in court, a willful infringement may put you on the hook for substantially more damages than you would face from a blissfully ignorant infringement.
Q. How do you decide to enforce a case?
If the infringement appears on a personal blog, forum, or web page, I usually ignore it. If I have time, which I generally don’t, I may issue a takedown notice to remove infringing copies from personal sites most likely to feed downstream infringements. If the infringement occurs on a corporate or organizational webpage, product, broadcast, or similar, even if it is just a small internal image, I generally submit it to ImageRights.
Q. I am hiring my own lawyer, so there.
All the better. Lawyers are trained to deal with these situations. You and I are not. Things will go more smoothly with lawyers.
Q. You are a horrible person, and I will tell everyone how horrible you are for this.
Please do. A reputation for aggression may deter future infringements, and that will save all of us a great deal of trouble going forward.
Our plan to produce public domain images at the University of Texas has drawn the ire of professional photographers, several of whom have emailed me privately or commented publicly expressing concern for how the project will affect the insect photo market. For example:
I’m an insect photographer as well. The market for my photographs will decline with ideas like this. Can you explain how this is going to benefit the photography market by giving out free images? Too many photographers these days are doing work for free just to try and build clients and now you have this plan to give away free high quality insect images? Well, I see that as a huge negative blow to all other insect photographers out there…
I do love your work by the way…but I never saw this coming. Help me open my mind a little. What am I not seeing? How is this going to be a benefit and not negatively impact all other insect photographers?
I wish I had time to write a proper response to these queries. As it is, UT has me briskly busy during the day and mini-Myrmecos, at 18 months, keeps me plenty occupied during off hours. But, here is a short version on why I doubt Insects Unlocked will be a net negative for commercial insect photographers.
Obviously, a basic reading of supply and demand suggests that increasing supply by adding a couple thousand free photos to the market would depress prices. But buyers aren’t looking for generic insect photos. Or rather, the buyers that matter aren’t. Those looking for generics already use .30 cent microstock images. That market long ago collapsed to the point of irrelevance for pro shooters.
Buyers that matter, buyers with money, are looking for specialty images. They want photos of Apis florea in flight with a forested backdrop, a close-up of a cutworm eating lettuce, or a third instar triatomine assassin bug photographed in dorsal view. Insects Unlocked may intrude somewhat into this market, but let’s be realistic about how much it will intrude: not much. Our planned 1,000 to 2,000 image output in the pilot year is barely going to make a dent in the face of overwhelming insect diversity. Even working our hardest, we’ll be lucky to image 0.01% of the world’s 10 million species. Hell, we’ll be lucky to manage .1% of the insect fauna of just Texas.
Buyers that matter are looking for rarity, too. I know this from interactions I’ve had over the years. Buyers commonly ask if I have unpublished photos, or photos that aren’t licensed very often. New, unseen images have special value. Public domain images do not. Nothing says “I’m nearly bankrupt” like a company splaying public domain images across their products. Even if the Insects Unlocked output is visually spectacular, most high-value buyers will still buy from copyrighted stock, as copyright ensures the coveted rarity.
Buyers in the print market- the ones with money- are similarly not looking for generic insect photographs. They’re looking for a Piotr Naskrecki or a Darlyne Murawski. Insects Unlocked does not plan on producing any of those.
This, particularly, is what frustrates me most about the notion that Insects Unlocked will weaken the market. The despair would make sense in a bland, uncreative world where the works of all insect photographers were interchangeable. But they are not. Each photographer has a unique style. I can pick, for example, a Laurie Knight photo from 100 meters out. We are not Laurie Knight, alas. We’re Insects Unlocked. The buyers who matter are discerning enough to tell us apart. If you think Insects Unlocked will weaken your market, what does that say about your photography?
Likewise, the professional photographer most likely to take a financial hit from Insects Unlocked is me. In spite of my new university position, I still earn a substantial proportion of my income from licensing images from my copyright-protected libraries, and from print sales. If buyers have a choice between a $250 copyrighted Alex Wild print from my galleries, or a public domain Alex Wild printed for $5 from Walmart, will they choose rarity over cost? If I am short-changing anyone with Insects Unlocked, it isn’t other photographers.
Finally, and perhaps most importantly, we rise and fall not as much on how we compete with each other, but on how our subject matter competes with other cultural concerns. If the general public’s entomological interests declines, we’re all screwed, public domain or no. If public interest doubles, we all do well. Rising tide, ships, you know the metaphor. To the extent that a small public domain image campaign buoys the public perception of insects, we all benefit.
And now, because I am exhausted and behind schedule on other projects, I am publishing this post without proofreading. Fair warning.
A while back I wrote a feature for Ars Technica on the dysfunctional online copyright landscape. The piece was personal. My photographs average around $50 each to make, mostly in time, equipment, and travel costs. These costs have traditionally been covered by commercial users who buy permissions, as copyright law requires.
Yet fewer than 10% of the online commercial users of my work have even asked permission, much less paid. Such low rates were not sustainable. What was remarkable about my situation, also, was precisely nothing. A great many professional photographers see similar exploitation. That is how it is, it is frustrating, and if we knew an easy solution, we would be doing it already.
Among the varied reactions to the Ars piece was a persistent suggestion that maybe I ought try a different approach, one that asks the community to pay the costs up front in exchange for open images. Like it or not, science and nature photographs online are most often treated as a public resource, not as a tradeable commodity, and perhaps their production should reflect that reality.
I can see the logic. Science images are informative about the world around us, they are data as well as art. Perhaps, with a shift in perspective, the photo-using community might be convinced to share the costs of a public resource, as we do with other public services. NASA and USGS, for example, already make fantastic public domain images from taxpayer support. Could crowdfunding similarly serve as a copyright-free foundation for science imagery?
I don’t see why not. Neither does my new employer, the University of Texas at Austin, which has generously thrown their support behind our new, crowdfunded public domain initiative called Insects Unlocked. Here’s the pitch:
We’ll be supporting a team of UT students as they produce thousands of public domain images, both of live animal behavior in the field and of detailed microscopic structures in preserved specimens. We hope you consider helping us as we create a stream of open science images, free for anyone to use.
While we’re on spider debunkings, Piotr Naskrecki’s “puppy spider” story is making the media rounds this week, spawning the usual juvenile Nopes and Kill It With Fires! With every re-telling the spider gets bigger, of course.
they weigh up to 170 g – about as much as a young puppy.”
170 grams is big. By arthropod standards, it’s huge. But the spider is not, say, the Shelob people are imagining. For perspective, I’ve marked 170 grams on a standard puppy growth chart.
Puppy spider is not a 3 week old Labrador. It’s the weight, at birth, of a Chihuahua. Big, sure, but you’re not going to saddle this thing up and ride it to work.
The spider looks huge in the photographs for another reason, too. Piotr used wide-angle lenses that exaggerate the size of foreground relative to background objects. This wide-angle macro effect is a technique that Piotr does especially well. And it makes big spiders look larger than life.
Anyway, if you’d like one of Piotr’s puppy spiders for your living room wall, he’s just puta print on sale for prices so low he can’t be making any money:
Enforcing copyright is normally a great deal of unwanted drudgery and web forms, but now and again a feisty infringer breaks the tedium by responding to a standard notice with an enlightening salvo of insults. Meet Zornitza, who runs a website called Our Breathing Planet. I sent the above takedown notice to her host on discovering one of my field ant images, misidentified, in a blog post as an Argentine ant. It was the second time I’d found their organization using my work without permission or credit. Our correspondence is pasted below.