Note: this post was inspired by a similar article written by Austin, TX-based photographer and entomologist, Alex Wild back in 2015. His original blog post appears here. This version has been adapted to more closely reflect my personal and professional realities.
Image misuse and abuse is rampant on the internet. And unless you’ve been living with a colony of similarly-minded Luddites, this is a no-s**t-Sherlock type of statement. The media is full of stories of huge image corporations like Getty, huge music publishers like Universal Music, and huge media companies like Viacom and Disney in legal battles to enforce their copyrights.
But for every Getty, Universal, Viacom, or Disney, there are literally tens of thousands of individual, small-business creators who rely on the provisions and power of copyright law to earn their livings from practicing their arts and crafts with their words, designs, images, paintings, software code, music compositions, and video games. I am one of those small businesses.
Every time an image of mine is used without permission, not only does it erode my income but it erodes my ability to charge other clients for the use of the same image. And by using an image of mine without a license, your firm has also stolen from my clients who have paid for the rights to use the image, and from the ones who paid to have it photographed in the first place.
Why Did I Get this Letter/Email?
For several years, I’ve been working with a reverse image search company called PIXSY, who works with a legal team to resolve issues of unauthorized image use on the web. PIXSY’s web crawler constantly browses the internet in search of matches to their clients’ photos. An image that appears on a website controlled by you was flagged as a match to one of my images. I try to personally check every match to determine if it’s been authorized but I occasionally make mistakes. If I have, please accept my apologies and get in touch with me right away to correct the record and we’ll resolve this immediately. But if you do not have a license from me or one of my authorized stock image licensing partners to use the image, then you’ll need to sort this out with PIXSY’s agents or lawyers. I have hired them to find and resolve issues like this and take this off my plate.
Why Didn’t You Just Contact Me Directly?
Because there are just too many of you – there literally is not enough time in the day. As of February, 2017, when I log in to my account of online search results, I have over 17,000 online matches to more than 5100 of my images that I need to review. Dozens, or hundreds, of new matches are added every week. This may seem like a single-issue, one-off kind of a problem to you, but to me and other individual creators it’s like drinking from a fire hose. In the past, I did try to resolve these issues directly and individually but each incident involved multiple emails, phone calls, negotiations, invoicing, follow-up — and often hurt feelings and resentment. There had to be a better way. When companies like PIXSY came along (and others like PicScout, ImageRights International, TinEye, and more), we individuals finally had a tool on our side to help enforce the rights to our intellectual property. Unfortunately, that efficiency has come at the expense of the personal interaction that I would prefer. Please accept my apologies for the abrupt letter or email from the agent or attorney working on my behalf and again, if you have a license to use the image either from me or from an authorized licensing partner of mine, just get in touch with a copy and we’ll sort this out quickly.
But I Found the Image on the Web, Doesn’t That Make it Fair Use?
I Didn’t Use Your Image, my Web Designer Put It There!
How Was I Supposed to Find You?
The web is a giant marketplace, full of millions and millions of wonderful stalls all offering colorful, shiny trinkets. Every one of these trinkets is there for looking at, but not all of them are there for the taking. In fact, many of these trinkets are displayed for sale. You wouldn’t browse through the gorgeous displays of an autumn farmers’ market and assume you could just grab a beautiful-looking apple without paying for it, would you? Of course not. Displaying an item, or an image, doesn’t equate with giving it away.
Regardless of who put the image on your website, or where you got it from, in most cases you need a license, written or otherwise, to legitimately use my, or anyone’s, images. If my image ended up on your site without your knowledge, then I suggest you take that up with your web designer while you work to resolve this issue with my agent or attorney. For more information on what does, and does not, constitute Fair Use (which are fairly specific circumstances where prior permission may not be required), see the US Copyright Office website’s section on Fair Use here or check out this blog post from the non-profit Copyright Alliance that debunks some common misconceptions about Fair Use.
As for how to find me, many of my images appear on the web with my watermark on them listing my name and company. A quick internet search on my name turns up hundreds of hits, all leading to my web pages with my contact info readily available. Or, images often appear without marks on a client’s website who could easily have pointed you in my direction. And if there wasn’t a watermark on the image or any way to identify me, then maybe you should have considered using another image. As I always told my kids, if you have to ask whose it is, then it’s not yours, is it?
Why is Your Lawyer / Agent Demanding So much Money?
Fees for image use are based on many factors including, but not limited to, size and location of placements, frequency and duration of placements, media the image appears in, the nature of the use, whether the user would like exclusive or semi-exclusive use, the rarity or complexity of the image, and other tangible and intangible factors. Had your firm been in touch prior to using the image, we could have discussed an appropriate fee based on all these factors and I would’ve been happy to hear any special circumstances you think might have applied. Roughly 10-20% of my annual income is derived from re-licensing existing images so I’m quite familiar with the relative value of various uses.
Unfortunately, when an image of mine was used by your firm without a license I immediately lost potential revenue. And, because I had no say or right of refusal in how your firm used my image, my business was exposed to potential conflicts with legitimate license-holders of my images as well as my stock image licensing partners. In addition, I have had to hire both a professional search firm and lawyers to find and resolve these matters. Both of those services cost money. And finally, every resolution should also act as a deterrent to a future incident with my own, or someone else’s, image. Now that the unlicensed image use has been discovered, all of these factors need to be taken in to account to resolve the matter.
But I Already Took the Image Down!
If you’ve heard from my agent or attorney, then your firm’s use of the image has already been documented. It’s already been used by your firm, possibly generated revenue or marketing attention, and served as content on your website and/or elsewhere. That’s precisely what other firms pay for. Your usage of the image has already happened, taking it down now is irrelevant to the fact it was already used without a license.
What If I Just Ignore You?
Please don’t, let’s just resolve this and move on. The system for enforcing copyright claims in the US is ponderous and outdated, nevertheless it’s what we have to work with and it’s why I’ve hired professionals to pursue these cases for me. I am protecting my livelihood, my relationships with my paying clients, and the principle of copyright law and I do not intend to let these instances go by the wayside. My images are registered with the US Copyright Office and I have registration certificates for all of my images. The penalties for copyright infringement can be severe, and they can be worse if your firm attempts to cover it up. Taken to an extreme, these matters need to be resolved in federal court which has jurisdiction over copyright cases. Let’s not let it get to that point.
Please don’t take this personally, this is not about you or me as an individual and whether or not we’re good people. This is simply a matter of my right to earn a living from the images I’ve spent 20+ years creating, plain and simple. If you would prefer not to deal with this yourself, then I suggest you contract with a lawyer who is skilled in intellectual property involving photographs, and have them negotiate with my agent or attorney on your behalf. Let’s simply settle this and both move on.