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*.
Individual ants in the graphic appear at this resolution.
*Kidding! I’m just kidding! Many infringements stem from a widespread misperception that anything on Google is public domain.
The last post was rather blunt. This was intentional. I wrote it as a statement to link from my sidebar and my “Image Use” guidelines, rather than as a stand-alone post.
Clarifying my infringement enforcement policies is overdue. I’ve been dealing in recent years with a great many commercial entities using my photos, without my knowledge, to sell all manner of pest-control services and products. The problem is bad and getting worse. More surprisingly, I am now getting pushback from a few infringers irate at being questioned, something that has never happened previously.
Five years ago, on the rare occasion when I’d find a pest control company selling their service with illicit ant photos, the owner would be unfailingly courteous and apologetic, immediately removing the image and/or offering to pay for it. Most of my infringers remain polite and reasonable. But internet social norms are changing, especially in the era of social media and extreme SEO practices, and in the past few weeks I’ve had not one but several pest control operators claim that all internet images including mine are public domain, refuse to remove images, repost images after DMCA takedowns, question my ownership rights over my own photographs (even after I’d provided 100% crops, U.S. copyright registration certificates, and links to blog posts where I even explain how I took the photographs), and accuse me of being a predatory copyright troll out to hurt small businesses.
I needed a written policy to point to in my increasingly frequent conflicts with unrepentant infringers. I can’t pretend this will stop thieves from thieving, but having another tool in my corner can’t hurt.
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 online are subject to DMCA takedown requests without advance notice.
Unauthorized commercial infringements of my copyrighted images will be met with invoices covering my regular commercial-use fees (at a minimum of $95/image) plus a $50 infringement handling fee per image.
Infringement invoices are non-negotiable, and non-payment of infringement invoices will result in legal actions to recover statutory damage 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.
If the terms read anything like they do in the National Pest Managment Association’s new pest photo contest, avoid like the plague:
By entering this Contest and uploading your Submission, you irrevocably grant to Sponsor and its agents the unconditional and perpetual right to post, display, publish, use, adapt, edit and/or modify such Submission in any way, in any and all media, for any purpose, without limitation, and without consideration to you. Finalists agree to irrevocably assign and transfer to the Sponsor any and all rights, title and interest in Submission, including, without limitation, all copyrights and waive all moral rights in Submission. All Contest entrants further agree to release and indemnify and hold harmless the Sponsor and the Contest Parties from any and all claims that any commercial, advertising, presentation, web content or any other material subsequently produced, presented, and/or prepared by or on behalf of Sponsor infringes on the rights of Entrant’s work as contained in any Submission.
A bunch of cheapskates representing a large and profitable industry don’t want to pay for images they can use in advertisements. So they host a contest, hoping to play people’s vanity into scoring some freebies.
I’m not intending to single out the National Pest Management Association. The scam contest is a common corporate strategy.
Reputable photo contests, in contrast, allow photographers to retain ownership of their own images. Always read the fine print.
This past few weeks I’ve been performing the unpleasant annual ritual of combing the web looking for instances of unauthorized commercial use of my photographs. My rationale for controlling copyright infringement is two-fold. First, infringement deprives me of the revenue I need to host my websites, repair my equipment, and travel to insect-filled jungles. Second, infringement is unfair to my honest, paying clients. Why should they fork over cash for images when their competitors use the same ones for free?
The results of this year’s infringement hunt were disheartening. Much more egregious than previous years. I am watching volumes of my work slip away into the ether. I’ve seen my images branded with the logo of other companies, appended to coupons, banner ads, and pest ID charts.
A few of my images have been copied through enough intermediaries that they appear in multiple search results, stripped not only of attribution but often of even the correct species name. This image of Formica oreas, for example, is now a leading search result for “Argentine Ant“.
In the possibly futile interest of heading off future infringements, I’ve made the following watermarked compilation of my most frequently abused images. All of my photographs are legally protected, of course, but these are the ones that have most often worked their way off my galleries and proliferated across scores of third-party sites.
Continue reading →
A couple years back I posted a short bit on how to register photo copyright with the U.S. government. That turned out to be the last time I filled out a registration with pen and paper. For all subsequent submissions I’ve used the new ECO system at http://www.copyright.gov/eco.
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:
this photograph is registered copyright VAu 979-301
15 points to the first person who can identify it.
This morning I had to deny a scientist permission to use my photos of her ants in a paper headed for PLoS Biology. I hate doing that. Especially when I took those photos in part to help her to promote her research.
The problem is that PLoS content is managed under a Creative Commons (=CC) licensing scheme. I don’t do CC. Overall it’s not a bad licensing scheme, but for one sticking point: CC allows users to re-distribute an image to external parties.
In an ideal world, non-profit users would faithfully tack on the CC license and the attribution to the photographer, as required by the CC license, and then the downstream users of those projects would faithfully continue to do the same.
But this is the real world. Continue reading →
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.
Here are the ingredients:
- The Short Form VA, available from www.copyright.gov.
- 2 blank CD-Rs, preferably high-quality archival grade.
- 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
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.
For all the gritty details, see The Photo Attorney.
People occasionally ask why I don’t assign my photos a Creative Commons license. Dan Heller explains. And adds a horror story here.
The short of it is, while Creative Commons was established with the best of intentions it is easily abused in the photographic setting. Users unknowingly open themselves up to large legal risks, and I find photo licensing by traditional means to be both more secure and more professional.