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Ever had a photo stolen from your website? Did it make you angry? Did
you feel violated? Did you feel powerless? Are you apprehensive about
putting your photos on photo-sharing or stock-photo sites because you
fear the problem would only be worse? I know it'll sound like a shocker,
but you may be sitting on a small pot of gold. To explain why, you need
some background.
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Think about this scenario: A web designer is making a
web page for the corner hair salon, and there are two images to choose
from: one costs $1 and the other cost $349. If the web designer was
going to steal one of the images, which image do you think that person
would choose?
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Most people would say the $1 would be stolen. Why? According to studies
repeated in various contexts, a similar theme underlies most acts
of theft: the decision to steal is driven primarily on the perceived
"consequences." An article in the Journal of Applied Social Psychology
showed that the lower the perception of consequences, the likelihood of
stealing is pretty equal among genders and racial backgrounds. Innocently
taking a small candy at the checkout counter is something most everyone's
done at one point in their lives simply because the consequences of the
act are very low. It is only when the perception of the consequences go
up that the true risk-takers (poor single men under 25) are more likely
to steal.
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Consequences
What does this have to do with photography? In my
hypothetical question about the web designer, most people would assume
the $1 image would be stolen. Whether you're aware of it or not, your
"intuition" guided you to that assumption because the perception of
consequences is lower because the value of the image is lower. Which is
also the same rationale as the thief. Odd, though it may sound, this is
totally wrong—people attribute stealing images to stealing other
things, or for other kinds of crimes or mistakes. Consider one of these
two scenarios:
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- If you break someone's window with an errant golf club that
mysteriously flew out of your hands only seconds after the ball itself
landed in the sand pit, then the owner of the window is entitled to
"compensation" to cover the cost of fixing it.
- If you get caught
stealing a candy bar from a store, you have to pay for it.
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The common theme here is "compensation based on the value of the item." In
law, these are called "compensatory damages" because you, the evil-doer,
"compensates" the victim for whatever you did—broke a window, or stole
a candy bar. Hence, stealing a $1 image is perceived to have lower
consequences than the $349 image because people don't know of other
kinds of violations.
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Thing is, stealing an image is not really against the law, so much
as using the image is. It's like saying that falling off of
a tall building doesn't kill you—it's the sudden stop that does. So,
stealing the image isn't what gets you into trouble, it's putting it into
use that does. In this case, "copyright infringement." And here's the
part most people don't know: the law on infringements does not specify
compensatory damages, but statutory damages, which is a very big
difference indeed.
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To illustrate how big, there was an article PDN reported on November 20, 2006:
Corbis Settles With TemplateMonster; Wins $20 Million Judgment From Mystery Companies.
In short, TemplateMonster stole a bunch of images from Corbis and used
them as background images for "templates" that were sold to web designers
who would use them to create web pages. The reference to the "Mystery
Companies" in the article title is that other people and companies were
involved that were either difficult to track down, or impossible. (Turns
out that the companies were empty shell organizations.) Still, Corbis
had a nice windfall from those they did identify.
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When the article came out, photo forums were abuzz with scorn for
the notion that photos were stolen, and fear began to circulate that
their images would be stolen too. Many even proclaimed they were
going to remove images from social photo sites and microstock sites
because they can be easily stolen.
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My immediate response was "Huh? Didn't you read those
headlines? $20M! that's an 'M'! You're kidding me, right? Remove your
images from stock sites? Hey, sign me up! Steal my images! Please!"
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And that's when I started putting the pieces together and realized
something may be going on in this industry that I hadn't considered
before, which started me on a long-term hunt for stories, tidbits,
interviews, and of course, legal research into the dark world of copyright
infringement. Or, should I say, very lucrative world... for the copyright
holders.
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Statutory Windfall
In "statutory damages," the fine is based
on an entirely different formula, irrespective (usually) of the actual
"cost" of the item (or, in this case, the license fee). In fact, in the
case cited above, the judge awarded Corbis the maximum amount allowed
by law: $30,000 per image, plus $2,500 for each act. What's more, the
court may (and usually does, according to statistics of such violations
in court records) also award attorney's fees. In other words, you not
only get the money, but the infringer pays your legal bills.
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How much would the images have cost the company if they licensed them
legitimately? It's hard to say given the company and the number of photos
used. But, suffice to say, one could license the same kinds of images
on microstock sites for $1 to $10 each.
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And that's where you start hearing the click of light switches going off
in some people's heads: if you knew you could gets tens of thousands of
dollars if a kid stole a $1 candy bar from your front counter, there may
be a lot of money if you put a lot of candy bars out for hungry children
to take, especially if you make it very easy for those kids to take them,
and especially if those kids have no idea of what the penalty is,
and even more especially if we're talking about adults working
at businesses that all bear super-size responsibilities.
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So what does that mean for photographers and for photo agencies?
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Opportunities for Everyday Photographers
I recently got this
email, which is similar to a constant and frequent stream I get on an
ongoing basis:
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On Jun 25, 4:24pm, jrus424@msn.com wrote:
Two
of my photos were lifted from Flickr and are currently being used on a
hotels' website (w/o authorization). Should I take any action? My photos
on Flickr are all rights reserved but others have told me to just forget
it.
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I get so much of this, that it's staggering for reasons that will
become clear soon.
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First, let me point you to an invaluable resource: The website for
the US Copyright Office
This site has well-written, easily understood discussions of the most common
topics about copyrights that can be understood by most anyone, including
photographers and even those who work for our own Attorney General.
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Statutory awards can range from $750 to $30,000 per infringement,
or even be as high as $150,000 if the infringement was willful or
intentional. (Sound effect of Vegas-style slot machine bells going
off.) To determine your situation, consider these two steps:
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- If you have registered your photos with the copyright office, you
can sue for statutory damages, and even recover your legal expenses.
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If your photos have had a visible watermark on them with your name and/or
copyright notice, then the act is considered willful and intentional.
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If you have done one or the other of the above, you should
find a lawyer specializing in Intellectual Property and start
letter-writing. Don't contact the hotels first—you don't want to
say anything that may make negotiations harder for you later. Make a
screenshot of the website that's using your photos for archival and
legal reasons, then shop for lawyers. (If it's printed matter, just
make copies.)
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If you haven't yet registered your photos, or put watermarks on
them, do it now. While it won't have an affect on this case,
do it for future cases. And always do this for new photos you
put online. Also, the copyright office's online system for
filing your copyright registration is available, making
the whole process easier. Details on their website at
www.copyright.gov/eco.
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Even without having registered your photos, you could have a lawyer file
a claim, but the likelihood of a recovery is less certain, and will be
considerably lower. According to the law, you still own the copyright,
but unregistered images that have been infringed are only subject to
"compensatory damages." That is, a $1 photo can recover $1. The hotel's
lawyers are going to look at the two points noted above and realize you've
got a harder case to prove. Still, if your lawyer is good, you might eek
out several hundred, especially because most larger companies don't want
stuff like this hanging over them. Your mileage may vary, but it does mean
that your lawyer is going to have to do the cost-benefit analysis
of time vs. money recovered (since he's the one doing all the work).
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If you do not plan on filing a claim, you could try to contact the
hotels and state that you "will" a file a claim unless they want to
settle early. Here, you risk having your bluff called.
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In fact, this is what I did in my early days, and I found that some
paid, others didn't. Big companies were more likely to do so, and to
pay better; little companies usually said, "Go ahead, sue us." In the
end, the time and energy were draining, not to mention the constant,
distasteful "conflict," which made the whole practice... well, not to
my liking. Perhaps it was because I was doing this without a lawyer, but
also because I was making far more money dealing with honest licensees,
that I didn't really want to pursue the thieves. And let's be honest:
you grow your business by working with the paying clients because they
turn into better paying clients. Catching thieves may be morally
rewarding, but it doesn't "grow" your business. Of course, it's a great
side-business for an existing business, if your sources are such that
you can have these lawyers working for you on the sidelines.
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Recently, due to finding just one-too-many infringements of my own images,
and inspired by Corbis' windfall, I finally got around to using a lawyer
to do this work for me. And, because I have registered my images with the
copyright office, and because I have my copyright notice on all my photos,
I have a "slam dunk" shot at every single case I bring forward. (It's
more slam dunk than the last time that phrase was used back in
2003, but we won't get into that now.)
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Although I'd implied there are pretty substantial awards to be had for
infringements, "common" violations by smaller companies and less serious
uses probably yield much smaller payoffs that may range from $2000 to
$5000. Given my own back-of-the-napkin calculations of the bona fide
infringements of my images that I currently have documented, I could
add another $70-100K to my bottom line.
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In determining my bigger opportunities, I used Yahoo's site-search feature
that lists about 90,000 sites that link to mine from around the web,
5000 of which use my images and link back to my site. Some of them
are personal web pages and such that I wouldn't pursue, but imagine the
number of image uses that do not link back to me and that use my
images. Simple math would suggest that if I got 1000 violations at $2000
each, that's $2M. Not a bad kitty for a single photographer. (Suddenly,
my company's valuation is higher.)
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The Hurdles
So, if it were that easy, why doesn't everyone do
it? One stumbling block is that it's hard to find the violators. Sure,
I've done brute force Google searches and found many violations that could
be worthwhile, but it's very time-consuming. The real business opportunity
is if you can automate the process so you don't spend your time doing it.
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In fact, there are some companies that currently do just this:
ideeinc.com and
picscout.com
both have image recognition software (that they have each respectively
patented) that can find identical matches for photos, even if they've
been rotated, shifted, colored, cropped, or mangled in many ways. The
process is simple: they first analyze all your photos by doing an analysis
of the pixels and coming up with a kind of "fingerprint" ID. Then they
crawl the web, or look at printed material (that they scan) and generate
reports for where your images are found.
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Sounds great, right? Here's where the next hurdle lies: it's really
expensive and time-consuming to crawl the web. So much so, that the
resources necessary to do so are so prohibitive that the fees these
companies charge eat away at your bottom line. This, almost to the
point where, again, it's still more cost-effective to let the thieves go
and just continue working with the honest people. (Actually, there's a
cross-over point where the number and nature of the violations is high
enough that it becomes worthwhile.)
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With their limited resources, it takes months and months before actual
matches are found, largely because the searching algorithms are rather
dumb—they just search randomly. As a human, I can make more intelligent
searching decisions, like going to images.google.com and searching on
keywords that I know will match my specific images. And true to form,
I can usually find several infringements if I put the time into it. But
again, there's that time thing again. Too bad those companies don't
use more intelligent search methods to come up with more likely matches.
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Why don't they? To do so, you have to have already crawled and index the
web before searching with keywords makes sense. This begs the question,
why not just crawl google's already-indexed search results? Primarily
because they are not allowed to. (Google once had an API and an
agreement mechanism available to do this, but they've since terminated
the program.) So, these visual-search companies crawl the web like
"ships passing in the night." A very foggy night with no compass or GPS.
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So, although the small image-recognition companies have really great
technologies to find the matches, that's not the barrier to entry. It's
the mere indexing of the web. Once you do that, the image pairing is
simple. So much so, they could probably find all copyright infringements
by all photographers in a matter of a few days if they were only allowed
to churn through Google's warehouse of data.
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Hold onto that thought for a moment.
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Opportunities for Agencies
What about agencies and/or
photo-sharing sites? Flickr hosts hundreds of millions photos—let's
round it off to 1 Billion images. If .1% (one tenth of one percent)
of these photos had infringements, that's 1 million violations. Even
a low estimate of $500 per violation yields $500M. That's a half a
billion dollars. And think of what that would do to sign-ups at
Flickr, not to mention Yahoo!'s stock price. People would be Flocking
to Flickr! (I've been dying to use that expression.)
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Best of all, that barrier that plagues me and everyone else doesn't
apply to Flickr because they are owned by Yahoo!, who's indexed the
entire web. They could very easily scour the web at the blink of an eye.
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Suddenly, the business prospect of Flickr is more interesting. I've said
before that Flickr should enter into the licensing business directly,
and while I still believe that to be a rosy picture, it's even rosier
if you add their natural ability to police infringements. Best of all,
NO ONE ELSE COULD COMPETE WITH THAT! (Sorry, I hate using all-caps,
but in this case, it's warranted.) They would literally corner the market
in stock photos by simple virtue of their back-end infrastructure and
existing photo assets.
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Nevertheless, would Flickr ever do it? Sigh. Not anytime soon. The New
York Times has had daily articles about how Yahoo! is imploding faster
and faster: they're losing their vision, having serious upper management
problems, and all business units suffering for money, resources,
and personnel. Rumor has it that are executives waiting for stock and
options to vest (so they can leave). Each business unit within Yahoo is
choking for air, and Flickr is not anywhere near the top of the pecking
order. So, no, I don't expect to see anything "new" from Flickr, let alone
anything innovative, until the bigger company gets it house in order.
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This then leads to Google.
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Would they get into photo licensing? Not without acquiring a pretty big
player, and that isn't quite likely, mostly because the photo industry
isn't perceived to be important enough because even the biggest players
are having problems making money. (This is a topic for another blog
article, I promise.) Given Google's size, this article alone wouldn't
even get past a receptionist's desk.
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On the other hand, Google does have interest in the social side
of photography through its Picasa products, so while we might not see
much in the way of photo licensing, it's not totally inconceivable they
could be interested in the photo matching game. Why not: it would
be a natural fit for their general offerings of search tools, too.
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Yet another potential benefit might be its own public relations
boost. Google has been the target of many copyright violation claims,
ranging from very public ones, such as the YouTube case involving Viacom,
all the way to publishers and universities whining about Google's project
of scanning books and documents found in libraries to help make the world
more comprehensively indexed. Though none of these claims are sticking,
simply introducing a mechanism that helps people find "exact matches"
of photos on the net could be precisely what the Public Relations
doctor ordered.
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But, again, there's been nothing even hinted at about Google blinking in
this direction, so for the moment, the aforementioned image-recognition
companies (Idee and Picscout) have a long time to try to build their
businesses without being usurped by major players who could take them out
with a flick of a switch. (Oh, and add cognisign.com to the mix: they have
great visual-recognition technology as well, but have already expressed no
interest at all in pursuing a business in tracking copyright violations.)
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Returning to the viability of image-recognition companies, one might
argue that image matching is not that hard—or rather, not hard enough
to command a secure role as the "leader" of the industry, because the
real barrier is still the searching/indexing of the web. Whoever
figures that out will be the clear winner.
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The other side of the coin
For the sake of argument, let's
say Google or Yahoo unleashed a simple mechanism in their image search
that says, "find all instances of this image on the net." Click it,
and you instantly see every page that uses that image, or portions
of it. If you're a photographer, you've just found all (electronic)
infringements. What would such a world look like for photographers and
agencies, and how would it affect the stock photo industry?
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The cynical view would be that the major agencies are really playing a
baiting game, and this would pull the rug right out from under them. If
they are selling cheap candy bars to kids who they know will steal them,
the game will be up. Well, not immediately, but quickly thereafter. The
availability of instant search results for infringements would generate a
huge influx of money for copyright holders, but quickly evaporate
as it became so ubiquitously known what was going on. It'd be like having
a police cruiser sitting at every stop sign in your city. There would be
a huge inflow of revenue from traffic violations at the start, but within
a day or two, there would never be another violation again—people would
just know the cops are sitting there.
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The less cynical view is one that reflects more of what we're seeing
in the licensing world now. For example, Getty's images are so easy to
"copy" because the licensing is based on the honor system, but it may
be for reasons other than to "entrap" users into infringements. I have
personally spoken with many of their clients who tell me they use Getty
images all the time for short little pieces without paying for them
because they feel justified. This was how the candy bar analogy came up:
a client said to me, "Getty will look the other way if I steal a candy
bar now and then so long as I do my major shopping at their grocery
store. If you did the same thing, you'd get more big buyers like us,
too." I wouldn't do it, but not because I didn't believe in the strategy,
it's because such a strategy only works for a large company like Getty. It
doesn't work on small scale operators.
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If the "search switch" were turned on, what would that do to Getty's
business model of "give a little away so you can collect the big
clients." And therein lies the real question: do you pursue your
violators for large sums of money? What if they are also spending
large sums in groceries? If they aren't, can you convert them? Do you
take the short-term win (of pursuing infringements) at the expense of
potentially alienating your clients and long-term growth? And what
about the photographers the agencies represent? Whether Getty or a
microstock, if they don't pursue infringements, then they can be a
contributory infringer. (I alluded to this in an earlier blog about
Flickr's liabilities in this area.)
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Making it even more complicated is the inherent value of having your
images stolen in the first place. In fact, Viacom's claim against Google's
YouTube has generated a stir by television industry analysts, as well as
within the walls of Viacom itself: the fact that TV shows are available
online has actually helped viewership, and thus, increased
advertising rates for those shows. Speaking of my own experience, the
fact that so many sites use my images and link to me is one of the main
core reasons why my site ranks so highly, which is what brings me the
traffic that converts to buyers. So, a little copyright violation can
actually do your business good.
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Converting a criminal into an honest buyer is warm and fuzzy, but what
about the tactic that made them a criminal in the first place? It'd be
interesting if a defendant actually tried to use the legal excuse of the
attractive nuisance doctrine.
"They don't prevent me from downloading it without paying for it! It's
too easy! I didn't know! The rules are cryptic." That's hard to say,
and perhaps somewhat of a stretch, but if that magic switch were ever
pulled by a search company, and thousands upon thousands of copyright
infringement cases suddenly came up, the courts would have a lot on
their hands.
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Suddenly, the business aspect of copyright infringements isn't
so cut and dry.
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On the darker side again, there's this:
in an article by Bug Shell
Getty purchased the negatives to the National Archives, and is now on a
litigation spree against those who use those images, regardless of the
fact that owning the film does not grant ownership of copyright, and the
fact that the photos are in the public domain. Getty claims that their
"scanning" of the negatives (dusting and other corrections) creates a
"derivative work," but many legal observers are taking great exception
to this claim.
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And the industry pendulum continues to swing back and forth.
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Summary
The net-net is there's big money in copyright
violations, especially if photos are registered with the copyright office
and they are watermarked. What keeps this from becoming a more prominent
figure in the industry itself is two-fold: the lack of awareness of
how lucrative it can be, and the "resources" available for tracking
the infringements in the first place. But, like anything that has the
potential for money, there will be those who start down those paths to see
where they lead. For those playing the home game, keep in mind that the
issues faced by agencies are not shared by individual photographers. That
is, while an agency may have business risk by being too aggressive in
pursuing violators, individuals certainly do not. Even as I type
this, yet another email has just trickled in from another concerned
photographer, "I'm going to take my images off Flickr because I don't
want them stolen." My response to him will be to read this article.
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