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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?
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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: for infringements of photos registered
with the copyright office, damages are not compensatory, but statutory,
which is a very big difference.
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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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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 link is a well-written, easily
understood list 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 $150,000 if the infringement was willful or intentional.
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.
- If your photos have had a visible watermark on them with
your name and/or copyright notice, then the act may be deemed willful.
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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. Soon, the copyright office's new online system for
filing your copyright registration will be available, which will
make the whole process easier. Details on their website at http://www.copyright.gov/eco/index.html.
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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" or "prevailing rates" (the price the infringer
would have paid had they licensed it properly the first time). 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.
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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.
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In determining what the "potential" was, 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 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: http://www.ideeinc.com, and
http://www.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. 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? Not anytime soon. And this is
partly for cultural reasons: there's a strong stigma associated with
filing copyright infringements. The general public feels it's slimy,
that it takes advantage of loopholes in copyright law that were intended
for much bigger, more evil schemers. That those who sue for copyright
infringement are "trolling" for free money. There's no question that I've
characterized this article almost as a new business model, but that's
mostly for effect. The reality is that there are infringement trolls of
another kind: companies that don't care at all about copyright and just
steal content from pro photographers and the general public alike. They
troll sites like Flickr and just take what they like. Going after these
guys is not only within your rights, but it's a way of protecting your
business and your interests. If I were advocating trolling to file many
infringement claims, I'd talk about deceptive ways to lure buyers into
stealing photos, by using misleading promotional language to dupe users
into believing they could use your photos for free, or by writing traps
into your license agreements to trip users into infringing without their
knowing it.
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So, protecting your assets is very different from being a "copyright
troll." The aforementioned image-recognition companies (Idee and
Picscout) have a long time to try to build their businesses in the
efforts of helping people find infringements. 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. But the trend does indicate that there
is growing recognition of the problem that companies are infringing
n photographers' images are exponential rates.
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Hypothetical Future?
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 there would be nothing but a cesspool
of infringement claims. The availability of instant search results for
infringements would generate a lot of money for copyright holders,
but only initially. It would quickly evaporate as news hit the presses,
and companies would take a very close look at the images they use and
whether they've been properly licensed. 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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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 dried.
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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 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 that the number of corporate copyright
infringements are growing exponentially, and the only disincentive they
have for stealing is statutory damages. All photographers should register
their works with the copyright office. Yes, there's big money in copyright
violations, but what keeps this from becoming a more prominent figure in
the industry itself is the lack of awareness of how lucrative it can be,
and the "resources" available for tracking the infringements.
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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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