It’s been a few months since I’ve posted a rollicking internet copyright yarn. Not that there haven’t been infringements. Those are constant. It’s just that most are overly pedestrian- a pest control coupon that’s removed on request, for example. Not worth blogging. This one, however, involves a barely literate YouTube host pretending to be a lawyer, and his messages are simply too bizarre to pass up sharing.
I won’t bore you with the details of the infringement beyond the basics: 6 photographs of driver ants, most with my name cropped out, uploaded twice to a popular YouTube tabloid without being credited or licensed. The infringer responded to my formal copyright notice by committing perjury, claiming to Youtube that he had rights to my work and that my notice was mistaken.
Thinking the rights grab a bold move, I emailed him. Our correspondence follows:
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.
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.
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.
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 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.
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.
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.
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.