Fighting Copyright Infringement
Practical advice for photographers — and creators of any kind — on protecting their intellectual property
In the course of my career I’ve written several pieces about copyright. The best, frankly, was right here in these pages. Another was written for Sony. And the other… never saw the light of day. I was tasked by [REDACTED] to write about the challenges of fighting copyright infringement. I found a prominent photographer whose producer agreed to tell me all about their peculiar experiences. I thought it was a great interview. But then the photographer changed their mind, deciding they didn’t want to seem predatory, and [REDACTED] didn’t want to push it. So the story never saw the light of day.
Until now.
I found it quite interesting to learn how a prominent photographer polices their intellectual property. So I want to share the story with you. I’ll keep [REDACTED] out of it, and will protect the photographer, of course. Otherwise, this is what was reported to me.
Share an image online and anyone can use it. That’s the prevailing wisdom, anyway, among too many people who should otherwise know better.
In the United States, photographs are protected by copyright even if the photographer has not registered the work with the U.S. Copyright Office. Whatever you create — a painting, a poem, a photograph — it becomes your intellectual property the moment it’s made.
When it’s created, it’s copyrighted.
Your work is your own, and when someone wants to publish or share your work, they need your permission. In the world of editorial and commercial photography, that permission is typically sold as a license to use the image in a particular way for a particular amount of time.
When an entity reproduces your image without permission, they’ve violated your copyright. Infringement prevents creators from earning income from their work, their intellectual property. Defending copyright may seem like a daunting task, but it doesn’t have to be.
It’s surprising how many people incorrectly believe online images are free for the taking. According to an industry insider with whom I spoke — a producer who handles copyright and licensing for a prominent photographer — professionals who most definitely should know better simply don’t seem to understand that ease of access does not equate to permission.
“Because I’ve found so much of this,” the producer told me, “I was forced to take action to defend our copyright. People just pull images off of Google and think it’s okay. One of the few times I’ve been in court, for the opening argument the defendant’s lawyer said, ‘We have used images that we got from Google exactly 31 times and we’ve never had a problem!’ That was his opening statement! I looked at the judge, I looked at my lawyer, and I sat back and shook my head. I’m thinking, you’re supposed to be a copyright lawyer? That was pretty amazing.”
Amazing, yes. But unfortunately also indicative of the sorry state of affairs when it comes to understanding copyright. In less than a decade, the producer examined thousands of possible infringements — everything from design students who drop images into mockups to companies deliberately copying images in an effort to avoid the expense of a license.
Distinguishing between the two, and all the possibilities in between, is difficult. This producer’s approach serves as a model for those who may be unsure of the appropriate steps to take when defending copyrights.
“I’ve only been to court four times [in a decade],” the producer says. “I’ve looked at about 8,000 individual reports of my images being online. About 35% were valid uses and we’ve settled — and when I say settled I mean I may have just worked it out with a client who forgot to take an image down — about 300 of them. I have around 300 cases in process right now but some of those are going to fall by the wayside, because some of those are mom and pop shops and they’re just not worth the time and resources to seek a settlement. However we always stay consistent and send the initial take-down letter.”
It’s up to the photographer to first understand what type of infringement has occurred. This can be the most challenging part of the process.
“The first thing I do is to very meticulously make sure it’s an infringement and not a client who forgot,” the producer says. “There are a lot of mistakes out there. When you find an image online, it’s one of four things. One is a client and they forgot. You call them up, be nice and work it out. I’d rather this is the case. ‘Hey guys, you forgot and left this online. Do you want to create a license for it or take it down?’ I do my best to go find the contact in the marketing department and say hey, who’s managing this website and I’ll do my damndest not to create a bad relationship.”
In such cases it’s likely best to defer to the previous license and give the normal rate to extend it. It’s what stock giant Getty practiced for a long time, and what the producer was taught as best practice.
“Those people who initially paid you, they get it. Your imagery costs money to create. They get it, they value it, they valued it the first time they bought it two years ago.”
The second kind of infringement is not quite so straightforward. Still, it’s not likely to warrant legal action.
“Two may be a designer or an agency that got fired by their client and whatever happened in that relationship leads to, ‘We forgot this was online and no one’s tracking that anymore.’ It’s a similar situation but harder to track down. Especially if it’s a big company that has changed agencies. There are so many layers. I spend months trying to find people and not have to sue them. I chip away at it with a phone call here and there and maybe someone will call me back, but in general they don’t. I never want to sue the hand that feeds me.”
Sometimes a designer or agency may use an image in a mockup that makes it online as a pitch or portfolio piece. In these cases, it may be best to simply write a letter.
“In the letter,” the producer explains, “I would say, ‘With all due respect, our customers pay a lot of money for our images and we appreciate that you’re a fan of [our work]… At least give me credit.’ If you’re going to make a fake ad out of my image and try to promote yourself as a designer to a new boss or a new client, just include our copyright or something. Give me something. Don’t just swipe it. I’ve always said, I don’t care what designer you are, if you’re in my business and you could potentially buy stock, you’re a potential customer. Just call and ask, don’t just take.”
The producer doesn’t bother with that kind of letter any more. Instead they focus their attention on the third and fourth types of infringements: the most egregious violations. These call for a lawyer.
“The ones where I more quickly send it to legal are the ones where I can clearly see they’ve doctored my image. There’s this thinking that if you change something by 20% you own it. There are people out there who think that’s okay. But people don’t know the law. This is somebody who has clearly manipulated the image trying to get away with it — in my opinion. I’m guessing they think no one is paying attention. In these cases, I send it to the lawyer.”
Notifying the lawyer is not indicative of intent to sue. In fact, the producer says, the goal is always to settle on a fee. They simply allow the attorney to do the heavy lifting with a cease and desist letter and suggested path to mutual agreement. Having the lawyer take care of this helps to persuade infringers to settle since, for the most part, cases are clear cut and the lawyer letter shows they mean business and the law is on the photographer’s side.
“We try to settle,” the producer says. “I think we’re always very reasonable. We’re not like ‘You’re screwed and you’re going to owe us a bunch of money.’ Every single one is a slam-dunk case. Copyright’s on our side and our images are registered with the copyright office. I think the power of the internet just sort of snuck up on everybody and the inability to manage and track imagery snuck up on everybody and combine that with not enough people know the law. All of that equals your images are being used without your permission. It’s up to you to decide your level of defense. It’s really defense because I’m defending intellectual property that we spent tons of money creating and you’re using it willy-nilly thinking it’s okay. But you didn’t have to pay the talent, you didn’t have to hire location scouts or casting, the crew, maintain the equipment, the staff, all of that. You didn’t have to take the risk to create a photo shoot.”
The producer suggests taking the approach of only pursuing infringers with whom you have a chance of reaching an agreement. In instances where it doesn’t pay to pursue them — for instance, when it might create bad blood with a good client — the producer may ask for a photo credit or simply ignore the issue. The sad fact is there are a lot of infringements out there, from anonymous overseas entities to local businesses too small to bother with.
“It’s hard to tell sometimes,” the producer says. “What if it’s a dog-grooming company that has seven locations in the greater Ohio area? Do I go after that? Or it could be some sort of upstart healthcare company. The thing that really pisses me off and makes me more willing to go after a person is if they stole my image from my valid and good customer’s site to try and copy them. That I don’t like. That’s number four right there. That one I don’t like and that one goes to the lawyer.”
The producer told me they’ve only been to trial one time in nine years. It was a strikingly deliberate infringement, from a business owner who refused to believe they had done anything wrong. The photographer’s legal team offered a reasonable settlement, which was rejected. It would have been a small fraction of the eventual cost when the court ruled the infringement was deliberate and awarded maximum damages to the plaintiff.
In the United States, if you do not register your copyright you are limited to receiving actual damages from an infringement.1 Registering an image with the copyright office costs $45 (or up to $85 for an entire group of images) but enables statutory damages — up to $150,000 per image if an infringement is deemed willful.
Just because you haven’t registered your copyright doesn’t mean you can’t pursue legal action. According to a photography-focused intellectual property attorney,2 images can often be registered after the infringement is discovered as long as the photographer acts in a timely fashion.
“The biggest mistake photographers make,” the attorney told me, “is they wait. It’s a mistake and it could cost them. If they wait to register the image and it goes beyond three months from first publication, then you’re not eligible for statutory damages. Second of all, if you wait and the statute of limitation is used, which is three years from when they find the infringement, that’s a second issue. I really think waiting is the issue. You don’t want to wait for an infringement to occur, you want to register an image when you put it on your website.”
You can’t fight infringements if you don’t know about them, and finding them in the first place can be a challenge. It’s made easier by tools such as Google’s “Search By Image,” which lets users scour the internet to find instances where a file exists, as well as services such as Copytrack, Pixray and Pixsy to which photographers can subscribe to track images online. These companies handle all of the necessary correspondence to reach a settlement or, ultimately, pursue legal action. Intellectual property law firms often offer similar services.
Another defense against infringement is visual watermarking — even an unobtrusive copyright notice at the edge of the frame. The producer told me they made the early mistake of disseminating unmarked images for positioning in drafts, and it led to the widespread dissemination of their copyrighted works. Today they use a small watermark in the corner of the frame to permanently brand the photograph, which also provides helpful evidence of a willful infringement should it be erased or cropped out.
The I.P. lawyer and producer both told me photographers can take a few additional steps if they believe an infringement may require a legal remedy. Namely, do not send invoices or letters to infringers directly.3
“I tell my clients not to do that,” the attorney says. “Never invoice anything. Because then that’s present in their mind. In terms of valuing the case, the infringer is looking at what the licensing fee would’ve been. If it’s $500 then that’s in their mind. So the best thing to do is not do anything. Document the infringement, make sure you have all the evidence, the screenshots, the printouts and make sure it’s all dated. That’s very important. Then we file the case and then we hear back from the infringer and they want to settle the matter.”
It’s a sad reality that many photographers believe enforcing their copyrights takes too much time and effort to be worthwhile. But it behooves creators collectively to defend our intellectual property. In a world in which photographers no longer challenge those who abuse copyright, such rights cease to have meaning. In that case the ability to easily reproduce an image will in practice equate to the legal right to do so. Photographers and creators of all kinds should take care to defend the value of our intellectual property if we hope for any semblance of that value to remain.
“Actual damages” being what the licensing would have actually cost, based on the evidence of what you actually charge for such things.
Since everybody else here is anonymous, we’ll keep them anonymous too.
The producer sends such letters only when they have no intention of taking an infringer to court.
And what to do when your “good client”, despite your many attempts to explain copyright, repeatedly shares your images with third parties without your permission? You fire them. 😊
"What's mine is mine."
John Goodman as Walter Sobchak
in The Big Lebowski, 1998.