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Copyright in the 21st century

5 May 2012 - David Hoffman

Living in the digital age has meant an unprecedented exploitation of photographs writes David Hoffman

Let’s start with a brief history. Copyright began about 300 years ago with the Statute of Anne. This law for the first time turned something made of thought into an object that could be owned and traded and which could be regulated by the government and courts.

By creating a ‘value’ in the expression of an idea the invention of copyright set out an arena in which printers, distributors and retailers would from then on struggle to grab the profit away from the creators.

Until the turn of the last century nearly all trade in copyright material involved real, tangible, physical objects. The cost of producing these goods and getting them to their end users was many times more than the value of the copyright material in them, so there was little incentive to short change or cut out the copyright owner. The cost of the copyright licence was only a small part of the overall cost and reducing or removing it didn’t make a big difference to the overall profitability.

The digital revolution changed this completely. The digital market place, which allows instant price comparisons, has made competition fierce and the shaving of costs central to a business’s survival. Since the cost of producing each digital ‘object’ is typically low the cost of the copyright licence component of a digital product has become a significantly higher proportion of the total cost of that object. The bean counters naturally focus on what they pay for rights as the best place to cut costs.

Stoke Council not only stole images to illustrate one of their sites but even after being caught lying about it and having to pay up they then went and stole them again!

Draconian contracts

This has led to increasingly draconian contracts with falling fees being offered for increased use and wider rights packages. An increasing number of publishers now insist on all rights covering media yet to be invented in territories yet to be discovered. It’s hard to stay in business at such low levels of payment, professionalism suffers, many of the best people move into other areas of work and the quality of photography is diminished.

Look at some of the businesses set up to use our creativity for their multi-billion dollar global enterprise. Pinterest, Flickr, Youtube and Instagram are specifically image exploiters while Google is a more general profiteer of all internet content. Today these companies are worth more than many countries.

These are modern buccaneers riding high on the sea of our intellectual property. Their whole value is based on the creative output of people to whom they pay not a penny.

When the service is free it’s probably because you are the product. Metadata stripping – even though it is illegal – is the norm for these sites: the last thing they want is for the creators of their content to be claiming ownership of it or taking a profit. Anonymising (orphaning) photographs and undermining the principle of ownership is central to their business plan.

I did well in the 20th century, my work was quite widely published and I could make enough to finance the projects I wanted to work on. When my income dropped in the 21st I thought that it was just that I was getting old, that my ideas and imagery had become less relevant.

Occasionally I’d randomly spot one of my pictures being used and discover that it had not been paid for. With more time on my hands I started looking more systematically and I found that in fact I was being published more now than ever before in my life. It’s just that nobody was asking me for permission or telling me when they published or paying me for the use of my work.

I’m a small fish in this pool. There’s a fortune being lost – well, not lost, pocketed by the publishers. The 2010 British Photographic Council Survey found that the 1700 respondents had lost more than £3.6m between them but were only able to pursue £1.1m of it. And that’s only what they knew about. Just a tiny proportion of hijacked work can ever be found with current technology. The billions being made online contain many hundreds of millions due to photographers. It is unlikely that we’ll ever see any of it.

Why does it matter? Only with income from their photographs can someone work long term on a subject, build skills, build contacts, build specialist knowledge. Keen amateurs can make good pictures when they feel like it but the commitment to travel, to spend time really working on an issue requires an income. Without an income we simply won’t have the people who can devote weeks, months and years, often in difficult, dangerous and unpleasant conditions, learning their craft and producing the Minamatas, the Vietnam Incs, the Survival Programmes, the reportage and in depth studies that have sometimes changed the world and that document who and how we are.

Getting a grip

It’s fairly easy to get a photograph removed from a site that hasn’t the right to use it – but we’re in the business of getting work used. We want our photos to be seen, not taken down.

It’s when we start trying to get paid for the use that others make of our work that we find what an obscure and tangled mess the last 300 years of legal jungle growth has made for us.

Faced with dozens, perhaps hundreds of copyright breaches, each worth just a hundred pounds or so, photographers are quickly overwhelmed with the administration of maintaining their rights. Copyright cases have to go through the arcane rituals of the High Court of Chancery. That means wigs and robes and incomprehensible paperwork and delays and costs in five figures. Worse still, the courts take a very narrow view of what should be awarded by way of a remedy for the unlawful use of an image. The rule of thumb is that the compensation is simply the fee that would have been paid had the publication been agreed and licenced. A publisher who knows the ropes can tie the process in knots, soaking up your time and money.

Microsoft’s “Iconic Britain” competition promoted their search engine by encouraging competitors to use copyright photographs belonging to others as their own prize winning entries.

Slowly we’re beginning to get a grip on this flood of unlawful publishing. The NUJ, together with email based groups such as EPUK and others are developing ways more effectively to use the existing law and are lobbying for changes to the law and to the way it is administered. We have made some progress.

Innocence is no defence

A case that I took last year proved unexpectedly useful. A charity had nicked 20 of my pictures and used them for four years – despite my asking them to stop and warning of my charges. They ignored me, tried to brush me off, lied about their use of the photographs, ducked and dived and even threatened me. The case was a nightmare. Whenever we got close to a court hearing solicitors from the Department of Health would leap in, pretending to make offers to settle just to slow things down and allow the charity time to spend all its money before we reached the court room.

Despite all this we did finally get the case to court. The charity argued that it “had not intentionally or knowingly infringed the copyright” and “the Department of Health and their misleading web site were the cause of any infringement and not ourselves.” While both these statements were untrue the nature of the proceedings meant that the judge had to rule on them as though they had been truthful and that gave rise to a surprising and very useful judgement establishing a legal precedent in copyright law: “Innocence is no defence”. What this means is that the offence of publishing a copyright image is an absolute offence. It doesn’t matter what you might think or claim to think. If you publish without permission then you are guilty. End of story.

Finding infringements

So the law is clear and it can be used to get a proper payment when our work is used. But first we need to find those infringements. And now we have tools for that job.

The easiest tool is Picscout but it is costly and suited more to large commercial users. Tineye is well known, they also have a commercial service that will spot appearances of your images on the web. It is not very effective but a handy addition to other methods. There is also ImageRights which offers a similar service to PicScout. It’s free for up to 1,000 images with subscription deals for larger numbers. ImageRights will also follow up with legal action to recover the money due for infringements in the US and some other countries.

By far the most powerful discovery tool, though, is Google Image Search. Fast, free and effective it is our tool of first choice.

Recovering what is rightfully yours

Having found an infringement you then have the question of how to recover what is rightfully your money. Generally it’s easy to get takedowns – getting redress for the use is harder. Funnily enough, people don’t really like paying up for what they’d hoped to get for free.

The ‘Church’ of Scientology set up apparently unconnected front organisations exploiting social issues to draw vulnerable people into their grip. Sadly, some in Scientology illegally used other people’s copyright photographs for their recruitment leaflets.

Last year EPUK published a first class article on do-it-yourself copyright enforcement Stolen photographs: what to do? by Simon Crofts. For simple cases and small amounts that’s probably the best way but it does take a lot more time than you might expect and it’s also surprisingly stressful.

Commercial recovery services can often claim for larger amounts and even with their charges you may end up with a better settlement by using one. Intellectual Property Protection (IPP) take 25% of the money recovered, you also pay any court fees required though they should be repaid if you succeed. Be aware that small firms like this will need you to do a lot of the legwork and to stay on top of the detail and progress.

Another firm offering recovery in the UK is International Commercial Investigation Services (ICIS). They sell you vouchers in advance and you use them to pay for cases as they occur. They also keep about 42% of what they recover. It sounds a bit dubious but one photographer running a library that I know has given them five cases, four are settled and have netted him more than if had done them alone. The fifth is progressing. ICIS will take on cases internationally too, and few other firms will offer that.

With really serious infringement cases, say £25k or more, the high end IP lawyers become a possibility. Simkins, Finers Stephens Innocent, Swan Turton and others offer a full service for large claims. It’s a pleasure using such firms as they really know what they are doing and are pretty much a ‘fire and forget’ weapon. Once instructed you can trust them to do everything necessary and the work needed from the copyright holder is minimal. But their costs are high and if you lose or are unable to collect an award it’ll be very expensive.

Chasing foreign infringements

For infringements in the USA ImageRights offer a free service in return for 50% of the recovery. They’re one of very few companies who’ll take on unregistered images although you’ll have to register them once you begin. That’s not a straightforward process but ImageRights will do it for you for a fee. Picscout will also follow up registered image infringements in the US. They are more expensive and their service is aimed more at larger corporations.

DACS, the Designers and Artists Collecting Society in the UK, is looking at offering infringement recovery as a service to its members too. As a collecting society they can work with similar organisations abroad so that your case can be progressed in the publishers’ country.

Limited help and advice can be obtained from the professional organisations. The National Union of Journalists will assist and send letters but they don’t help prepare court cases or offer a full legal service on infringement. The NUJ may also be able to put members in touch with the relevant union in the publisher’s country and that can sometimes lead to a resolution. I’ve succeeded in Australia but failed in Spain.

With foreign infringements we are pretty much entirely in the hands of the agency we are using in the country concerned. That’s a worry, it’s hard enough to keep on top of a case that’s in the UK. Add in different laws and a foreign language and I can see it being a serious headache.

But if the infringement is in the EU, Norway, Switzerland or Iceland and is under €2,000 there is a cross border court procedure that makes it possible to obtain a judgement in the infringer’s country and to enforce it from the UK at low cost and fairly informally.

Small claims court coming soon

Here in the UK the legal position is quite difficult. For photographers the majority of cases are well below £5,000. Until a few years ago we were taking such cases through the small claims procedure but a change in the rules has meant that copyright cases must now go through the Patents Court. That means complex legal procedures and language, proper lawyers, big fees and big risks. This works two ways – it makes it harder for us to take up a case but it also means that the risk to an infringer who fights is much bigger and it can encourage a publisher with little or no defence to settle quickly before the costs mount up.

This is all about to change with a new small claims track being set up later this year specially to deal with the sort of cases that we have. It will deal with claims up to £5,000, probably rising to £10,000 or more in a year or so. I’ve been calling for this for years and I think it’s going to prove crucial to us in getting a grip on unlawful use of our work and in putting out a strong message on copyright and the real cost of bootlegging images.

I do have some concerns about this new small claims court. The court service estimates its workload at 150 cases a year. That seems to me to be a gross underestimate – I could provide a few dozen myself alone. The court may well be seriously overloaded. That might lead the court to take measures to discourage claims or it might lead the court to expand rapidly. We’ll have to wait and see.

A shoplifter’s charter

The biggest problem for us with the legal system is the way that it sees the damages to be awarded for an unlawful publication. There is no penalty charged and the damages are generally limited to the fee that the publisher might have paid had they asked for permission. That must encourage a publisher simply to steal every image they need and then only pay a normal licence fee for the ones that they get caught using. It’s as if the penalty for shoplifting was that you had to pay for what you were caught with but could keep anything you got away with.

While all we can claim is the standard licence fee that we would have charged if properly asked, the real damages for a photographer with an infringement are far more than that lost licence fee. It’s not just the danger to exclusivity contracts and client trust but the work required to issue a normal licence is far less than the many hours of work to document and investigate an unlawful use.

We need to break the concept that the damages we suffer are just the licence fee. This should be a matter of public policy.

Criminal use of our work must never be a cheaper route to publication than lawful use yet that’s precisely what the law encourages. It’s also necessary for justice to be done. The illegal publishing of a photograph adds significant costs to a business.

Lawful client request:
• Submission of potential images
• Choice
• Haggle
• Delivery
• Payment

Unlawful publication:
• Search and discovery
• Screen grab(s)
• Print out of all relevant pages
• Exif Viewer (for any metadata)
• Drag image (for metadata and evidence of source)
• Image URL
• Page URL
• Copy source code (to see path to images on that site)
• Identify domain owner through a Whois service like DNSstuff
• Check with Wayback for duration of publication
• Check links from site to check for other infringements
• Google images whole site search to check for other images – some may not be visible on site as displayed
• Google Image Search for that image – other uses may be connected
Tineye for that image – other uses may be connected
• Search using Bing and other engines for that image – other uses may be connected
• Search whois and elsewhere for other sites run by same person/business
• Note credits and copyright claims for infringed and other images
• Find whether all images treated the same with respect to IPTC or is it selectively removed from pirated images?
• Then there is the series of carefully written letters to the infringer needed before a claim can be issued.

• And then there is the claim process itself.

The costs incurred by doing all this are not just a part of our normal business and can’t be recovered by simply charging legitimate customers more. They should properly fall to the infringing publisher but we have a lot of work to do to convince the court to add them to awards made.

There is an EU Directive (2004/48/EC) which states that court awards should include damages provisions that are effective, proportionate and dissuasive remedies. Our courts provide none of these.

At least one big library has taken a new tack to get round this. They offer a waiver against legal action for a specified sum. This avoids pegging the claim to a standard repro fee. Many will settle at that stage. I’ve also tried this technique successfully, getting paid amounts that more fairly reflect my real loss.

Another way to increase the claim to a value that corresponds better with the cost to the photographer is to have Terms and Conditions that stipulate additional payments for unlicensed use and/or uncredited use. I don’t know how well that would stand up in a court but as few cases get that far it can be worth considering.

Future solutions

Looking to the future there are the beginnings of micropayment systems being discussed. These are seen as a possible solution for newspapers that are finding the subscription model unworkable but their use could be much wider when combined with image recognition.

Large scale – internet scale – systems for finding and identifying photographs based on image analysis and recognition – and not on words – have been around for about 7 years. Perhaps one day every photo will have its own ID#, generated from its visual content and linked to a registry that forms the infrastructure for a system of micropayments. That could allow a tiny payment to be automatically generated every time an image is sent to a display.

Every upload to Facebook (or to anywhere) could be automatically registered in a universal database as an invisible part of the upload process. From then on that image would be permanently linked to the original owner. No more orphan works. Upload someone else’s image and the system would know. This would allow us to open up our websites, allowing anyone to help themselves to the images we choose to make available. If used, those images would then automatically generate appropriate payments that would trickle into our accounts.

Use someone’s image on your blog and it might cost perhaps 1/100p every time it’s seen. A busy blog might end up paying just a pound each for the pictures it uses. Take an image from a site for a major commercial ad and it might generate 1p every time it’s viewed. Automatic. The photographer wouldn’t need to bill or even to know. Images made public could just be exploited. Tags can be used to limit the use (no arms dealers or tobacco ads for instance) or to adjust the rate. The technology exists but the processing power and bandwidth are still some years away.

A tiny payment like this, a small fraction of a penny automatically taken and passed to the rights owner every time an image is delivered to a display is still some way off but the foundations of such a system are already visible.

That’s for the future though. For now we’re still losing money on an industrial scale and we need to master all the technological and legal resources available if we are to stay in business.

Text © David Hoffman 2012

This article is adapted from a talk presented at Redeye’s National Photography Symposium, Somerset House, London 2012.

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Great article. I’ve been trying to get people in my country to react to stolen images but the law does not help.Cases in court take ages and there is not yet a conscience that now, with the Internet, it does not matter much if your images are big or small. Those that steal are using that as they come for years, probably getting more money from that that from a stolen photograph published in a magazine that is gone the next month. Now, on the web, stolen images stay forever. Photographers really need to rethink this matter. And ask for higher fees on the web use, to start with.

Comment 1: Jose Antunes, 6 May 2012, 04:17 pm

Is the small claims court a light at the end of a very long tunnel as far as UK infringements are concerned? One of my infringers has been thumbing his nose at me because I cannot find a UK law firm to take on my case because it’s under 10,000 pounds. The infringer placed seven of my images (unlicensed) on a novelty product which he retailed in the UK. So this is not just a case of an image appearing on a website. This guy is making money out of my work and that really irritates!

Comment 2: Sheila Smart, 7 May 2012, 01:41 am

I’m looking forward to the small claims courts taking on copyright infringement cases.
A company was using one of my images and after several emails and phone calls where they told me my image wasn’t worth much, they offered me £50.
£50 for theft and manipulation of my image, plus 2 years use on a main page of a website?

Comment 3: Stan Smith, 7 May 2012, 09:57 am

I think that Copyright/Patent/Trademark laws were created to protect the rich from the rich and the poor. In other words it all comes down to “who can afford to buy protection”. As a photographer,I have had several pieces of my work stolen, the most blatant was a UK corporation who used my images in their advertising campaign for several more months AFTER my lawyer issued a letter to stop! The local manager then proceeded to tell me that “he had 20 lawyers in his Uk office just waiting to deal with people like me”. A Uk lawyer wanted a deposit of 50,000.00 pounds before he would touch my case because I do not live in the UK! Isn’t this a sham…Lawyers have corrupted the world by placing a high price on justice, a price that few artists and/or photographers can afford.

Comment 4: Chester B. Williams, 7 May 2012, 02:47 pm

David, micropayments for images (but also other virtual content) are not the future; they already exist. Check out http://www.znakit.com. It might work a bit differently from the Ted Nelson’s original idea but they work providing copyright protection and a source of revenue.

Comment 5: Greg Golebiewski @znakit, 10 May 2012, 03:28 pm

znakit.com allows sales for micropayments through the znakit site but that’s not the same thing as I’m hoping to see evolve. The future I’m imagining is a delocalised one where the payment is taken automatically as the image is delivered to a display. The principle being that the image is recognised by Tineye type software in the course of transmission, the rights owner found from a DCE type database and the micro payment taken automatically from either the viewer or the sender.

Comment 6: David Hoffman, 11 May 2012, 02:06 pm

Superb. Congratulations. This is the sort of thoughtful, insightful, intelligent and useful advice I wish I could offer to fotoLibra members through my blog. As you’ve done it better and more comprehensively than I ever could, I’ll simply link to it. We run a newly developed microroyalty payment system called advanceImages aimed at ebook publishers. Ebooks have no print run and titles never go out of print, so photographers get paid a royalty every six months instead of a flat fee. It’s experimental, but we hope it will work. It’s fairer for all. However I can’t see how it can be rolled out beyond the bounds of fotoLibra unless everyone adopts the same system. Which they won’t.

Comment 7: Gwyn Headley, 15 May 2012, 05:49 pm

your_ip_is_blacklisted_by sbl.spamhaus.org

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