Some may know that I’m very protective of my copyright. It is extremely important to me, and it’s no secret that I actively protect and enforce it. Why shouldn’t I? I work hard to produce my work, and if somebody thinks it’s worth making use of, then it’s only fair that I should be paid accordingly. In a Utopian society, it might be nice to think that everyone works for free and helps each other, but lets face it – life isn’t like that. The Government tax us, we have to pay to heat our homes and put fuel in our cars to get to our workplace… therefore it’s impractical, if not impossible to genuinely work for free.
So, recently I have been testing a new image search engine designed for photographers who wish to call in the lost license fees from their work which has been misappropriated.
As a ‘small’ test, I tried a batch of just over 5,000 images from my library. After a few hours, my report was ready, and to my horror, there were over 3000 matches.
That is a frightening statistic. 60% of my sample batch of images were found online. Now, that’s not to say that all 60% were infringing.. there were some images that looked very similar.. EXTREMELY similar.. taken by a photographer at the same event, stood right next to me.. thankfully though, I can still recognise my own images and can discount these from the infringing batch…
Then however, there are the infringements in Asia and Russia.. I’d approximate 30-40% of the matches were from ‘content scraping’ websites (where the page doesn’t actual mean anything, it’s just a bunch of random words and images designed to pull traffic in) and from websites/blogs in Russia and the Far East. These would be too costly and time consuming to seek any recovery at the moment.
Then about 5%-10% I’d say is legitimate usage. Those that have paid for the usage, or that I have used myself, or granted permission for use. That still leaves about 1500 potential infringements from territories possibly worth chasing – from a batch of 5000 images. 30% – WORTH CHASING.
So out of the 5000 images, approx. 3000 discovered matching.. with 250-500 of them being licensed. The rest are infringements – most of them taken from the websites of the 10% that DID pay for a license.
Those infringements are costly. I can barely afford to continue my business on those 10% that paid to use my images. I don’t normally get paid for doing my work and taking photos.. I rely on the license fees. To shoot one show late last year for example, I had to hire a long lens specifically for that job, at a cost of £63. I gambled on a decent return, given the popularity of the singer.. but then I was presented with a contract which restricted my sales to 2 months. So I had to make enough money to cover the cost of the lens hire, my petrol, parking, and other expenses AND enough to consider a wage, all within 2 months.
Then I had to wait for over a month before the royalty statement shows how much I made… and when it came, I earned the grand total of £2.64 for that night. Less the £63 for the lens hire, that left me with a £61.46 loss from doing my job. (I’ll ignore the petrol and other expenses at this point).
So you can imagine how painful it is to see the images splashed all over the internet. From blogs in Russia, to newspapers in Poland, and even Vogue magazine in Spain. All enjoying the fruits of my labour.. While I’m struggling to keep a roof over my head, and finding it hard to afford petrol to get to my next job.
Those 2500 lost sales are crippling my business. That’s 2500 lost license fees, compared to 250-500 paid fees. That’s a huge difference, and it’s not sustainable.
I have, as a result, decided to get even tougher with my copyright. I’m fed up of the excuses that infringers come up with when they’re caught..
- “I’ve removed the image now. Thanks for bringing it to my attention”
AND?? Simply removing the image does not remove the liability you have for the infringement. You have caused me damages in license fees that I am entitled to. At the very least, my damages need to be settled before the matter is considered resolved.
- “It appears an intern uploaded it.”
It doesn’t matter if an intern or your dog uploaded it. If it’s published, the site owner is responsible.
- “We’ve got SafeHarbor protection so we aren’t liable”
You only qualify for SafeHarbor protection if you are a service provider, AND if the content was uploaded by a user, AND if you have a valid DMCA policy and a designated copyright agent REGISTERED with the USCO. If your correct details aren’t registered with the USCO, you aren’t covered by SafeHarbor. Likewise, even if you DO have a valid policy and designated copyright agent, if a member of staff uploads creates the infringement, this is not covered by SafeHarbor. You are liable.
- “We’re a small site, we’re not making any money”
and that means I should provide you content for free? What you do in your spare time is your business, but when it means I’m not making the money I SHOULD be while you’re using my work, I don’t care how small your site is. Pay me.
- “It’s editorial use”
Not usually. Editorial use is when it’s a news article, or review etc. A ’newsletter’ or ’news’ post on your own website is promotion, not editorial. It’s not a public interest story if it’s promoting your site or company. You won’t get away with an editorial fee for that when it’s clearly designed to increase your business.
Some think that once they’ve apologised and removed the image, they no longer need to talk to you.. and they will ignore any further emails asking to settle the dispute amicably. This doesn’t do them any favours, especially if it reaches litigation. I don’t give up. You can ignore me as much as you like.. when the judge looks at your behaviour, you’ll pay for your ignorance. It’s best not to ignore it – but to be completely open and honest from the outset. It can save the infringer a lot of embarrassment and financial loss later on.
- “I don’t know what’s happened – it seems to be a technical hiccup from an automated system.. it wasn’t intentional”
Fair enough. I’ll consider waiving the uplift for flagrant use.. but it doesn’t mean I don’t want to be paid. The image has been used.. I expect to be paid accordingly, regardless of it being a ‘computer’ error. The ‘computer’ only does what a human tells it to do. Therefore, a human is ultimately responsible. If it’s your IT Contractor, claim the license fee back off them after you paid me.. but it’s your responsibility to pay me..
- “We allowed you in to take some shots. I feel it’s the least you could do to offer the band some shots for personal use. I’ve been in the business a long time and fully understand how photographers work. Don’t worry, your shots will never see the light of day. I don’t like being talked down to.”
This was in response to a band that asked me to give them some shots for their website – and then had the cheek to ask me for a high res version without a watermark so the front man could print it out and get it framed himself. I agreed to let them use some watermarked images on their website and Facebook page, provided that they were not used for ANYTHING else – no advertising or commercial use etc. Then 2 years later, I find the images being used to advertise the sale of exclusive merchandise.
I will probably expand this list as it goes on.. It’s certainly not an exhaustive list, but it’s growing.
As a reminder for those that might be reading this following an email or tweet from me asking to confirm an image license – one infringer tried to ignore me, then refused to accept the amount I was reasonably claiming. They offered £150 and demanded unlimited usage of my exclusive image going forward. It ended up costing them £20,000 plus whatever their own legal expenses had reached. It would have been FAR more sensible to have just accepted my request for £1351 in the first place – especially as the judge ruled that my damages were actually nearer £5,700.