I’d like to propose a new way of shopping. You wander through Tesco surreptitiously slipping items into your pocket. If you don’t get stopped you can keep it all. Only if a security guard stops you then you have to go through the checkout.

Ridiculous? Well that’s the current legal position with regard to photographs when a publisher helps themselves to your copyright images. UK law – the Copyright Designs and Patents Act 1988 – only allows for recovery of the fee that you would have charged had the publisher asked for and bought a licence in the proper way. A publisher who always uses photographs in breach of copyright simply has to pay up when caught and trouser the savings the rest of the time. It’s a nice law. For publishers.

Of course, there are criminal sanctions too – it’s a criminal offence knowingly to publish copyright photographs without permission. Which is no help to us at all. A criminal case has to prove beyond reasonable doubt that the publisher knew the image was copyright AND knew they didn’t have a licence. Even the flimsiest excuse is likely to make the “beyond reasonable doubt” hurdle impossible. The case will be difficult and expensive to assemble – and it’s a criminal case so it’s not a process designed to compensate the copyright owner who will still need to take civil action to actually get any money. There is simply no effective criminal sanction.

It’s not just us individual photographers who lose out. In my experience no agencies are particularly effective at recovering fees from such use and recovery is uncertain and costly both in admin and in valuable goodwill. The effort required in compliance enforcement is large in proportion to the fees involved. The resources expended could often produce more return for both agency & contributor if they were put into improving sales instead – so naturally that’s what they do.

Enforce your rights

Before you can even have a chance to enforce your rights it is essential that that you state them unambiguously. Every image that leaves your hands should have your copyright and contact details embedded in it. Fill in the file info. Put a copyright notice on your website. Add a space at the edge of the image where your ownership is clearly stated.

Every sale must have a clear licence precisely limiting the use permitted. Send nothing out without an accompanying document stating your terms and conditions. Without these basic professional precautions you are not just leaving the door open to abuse, you are cutting the legs off any moves you might later make to recover the fees due to you.

Over the years I have come across quite a few unlicensed uses of my pictures on the web and in print but always by accident. These can only be the tip of the iceberg, there must be a lot more sites and print publications that I never know about. Judging from the handful I’ve stumbled on there must be an awful lot of other fees due to me that I never get to collect.

In February last year I spent a couple of evenings specifically looking for my pictures on the web. By the end of the year those two evenings had led to my recovering more than £27,000 in fees due from seven major sites.

Google Images lets you look for image files associated with the your search terms but is just one tool for this. There are literally hundreds of search engines and they change their algorithms constantly. One that does well for you this week may be a washout next week. A9.com had a brilliant image search last year, now it’s useless. It’s well worth doing a Google for search engine jpg and taking a look at what’s available at the time when you start searching.