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.
It’s boring red-eyed work, slow and tedious; taking screen grabs and making notes. Search results lead you off in hundreds of directions so you follow a rapidly expanding and widening path. There are many dead ends and it’s surprisingly difficult to retrace your tracks.
How to find your images
I used mostly the Google and A9 search engines, looking for words likely to be used on pages that had used my drug pictures. I chose this subset of my work because someone who nicks a shot of mine of – for example – heroin is also likely to use that word on the page. That makes finding the infringement much easier for those shots than for most photographs. Other subject matter is going to be a lot harder – who knows what words are likely to be found with a shot of children playing? This means it’s best to concentrate on the most specialist subjects in your collection – named people, specific places, the less common sports – anything where the text is likely to contain predictable words.
A search result from the A9 search engine, showing one of David Hoffman’s photographs being used without permission
In those two evenings I found a dozen sites with my images being used without a licence but that was just the beginning of the work. Each page with my images had to be recorded by taking screen grabs, dating and filing them. It’s also worth taking time to record the home page, the contacts pages and sometimes other pages – like the annual accounts or details of the web designer.
The next stage was to see what other sites these linked to or were associated with so I could check them out too. There is a site at touchgraph.com that uses Google to give you a map of the internet that lets you centre on a site and see what other sites it links to. If one site is lifting your work then its relatives are worth a closer look.
Not everyone knows about the Wayback Machine, the internet archive at archive.org. This is a very nice tool that lets you go back in time to see what was on a site at a date in the past. Once I’d found an infringing site I could see when it first appeared, how it looked on different dates. The archive is far from complete and there are gaps but in many cases it has proved that the images were used before the date given by the publisher. In other cases it’s saved me time by confirming the honesty of the publisher’s response.
Of the dozen sites I found, I knew it would be a waste of time pursuing the two which were based in the States. I complained anyway and the images were removed but it wasn’t worth the time of even trying to get paid. The US have their own system for registration of copyright and it’s a total pain. If you aren’t registered you’re unlikely to get anywhere at all. In fact any ripoff outside of your own country is almost certainly going to be too expensive and difficult to enforce.
But having said that I contacted one site in Indonesia. I didn’t really hope to get anything, but legally it’s important to be able to say that you always attempt to protect your copyright images from unlicenced use. It was a radio station and they were dead straight, apologised straight away and removed the image. Taking cash from Indonesia to the UK seemed a bad idea but I didn’t want to put a zero value on the use of my work either. So, really just for form’s sake I asked them to make a donation to a local charity.
To be honest I didn’t expect that they’d actually do it but it was an easy way to close the case. It really cheered me up a month later to get a postcard thanking me for my donation from a street kids rescue home!
One of David Hoffman’s images, used after licence expiry on the BBC website
Even after I’d discounted the foreign abuses and the clearly mad home users I was left with some very respectable and substantial sites. BBC Online – a notoriously tightfisted and unreliable bunch – had used five images for three years after their license had expired. A shipping insurance company had used one image for five years on their website and on print products. Three rather large charities had between them used 25 images for about four years. Over that period those charities had turned over well in excess of £30m between them. You’d have thought they could have paid for a few photos.
One primary care trust had been using 13 images for a year. But it was Stoke Council who won the prize for blatant dishonesty. They had used had used eight of my pictures and as usual I wrote to them mentioning one. They immediately hid the other seven. They wrote back hedging about numbers and dates and so I wrote again pressing them. Their email says it all:
The email from Stoke Council admitting copyright infringement in the case of one photograph, stupid editing revealing that they knew they had in fact infringed copyright on several.
It seems pretty clear to me that Stoke Council were deliberately lying. They’d removed seven shots so they certainly knew they were there. Then they’d written an email referring to a number of pictures but didn’t even manage to edit that properly. I charged and got a 75% uplift on the usual rates for their blatant dishonesty. You think that was stupid? I just looked at the site again last week and – yes – they’ve nicked another one!
It was a lot of work, all very tedious, writing letters, arguing, threatening, repeating the same things again and again, refusing to haggle. The sentence “I cannot accept that copyright infringement can ever be a cheaper route to publication than licenced use.” is now hard wired into my brain.
It’s really important to ensure that you have a full record of all the evidence you can gather before approaching the publisher – It’s amazing that someone who has absolutely no idea that any of your images are on their site can find and remove every single one in just a couple of minutes.
Who owns the website ?
Another tool that some of you will know about is whois – if not just Google it. This shows who owns a website and gives a second line of investigation if the contact addresses on the site itself don’t work.
It’s much easier to track down abuse on the web than in print but Amazon gives us one nice tool that’s worth mentioning. They have scanned a lot of the books they sell and you can search the text inside. While writing this I had a quick trawl for ‘cannabis’ and found a book from a publisher that I have previously found using my photos without getting round to mentioning the fact. There are three photo credits to me. I’ve never licenced the use. It’s nice to be credited. It’ll be nicer still when they pay up.
Only after you have amassed all the evidence that you can think of should you approach the publisher. If there is more than one image I’ve found it best to only mention that I’ve seen one and not let on that I know how long it’s been online. It is very useful to be able to judge how honest and open the site owner is at an early stage. My initial approach is very gentle and bland, I just mention that I can’t find a record of a licence for the use and ask them to let me know the terms of the licence they have. If they come clean at that point I can expect an easy ride. If not then I can give them every opportunity to stitch themselves up thoroughly before I start to shake them down.
I think that photographers are losing far more money than we realise, maybe we’re losing more than we make. The infringements we find can only be a tiny proportion of what is being used behind our backs. Following up these abuses can take significant time from what we want to be doing – taking photos.
Frustrating and depressing
It can be frustrating and depressing and sometimes difficult to know how to proceed. The NUJ can offer little help, the once reliable “legal service” has crumbled to dust when I and many others have tried to make use of it; and while our freelance organiser is a rock he is very limited by the union in what he can do. Thompsons, the union lawyers, have proved in my own experience to be generally useless and, even worse, I’ve seen them wreck a potentially winnable case. I’ve now had had two complaints against them for poor service upheld.
Thompsons’ own copyright expert can give helpful advice on a specific query but that help is generally limited to two hours and it can be surprising just how little that provides. The union’s deal with Thompsons gives no ongoing legal support for copyright matters.
I want to finish on a positive note but it’s not easy. I think that we can be optimistic about the future of rights control, if not about making any money from it. Technology is making it easier to find images on the web and in print. Military technology filters down. The computer algorithms designed to show up a Scud in the desert can be retuned to show up your image in a mess of other pictures. The beauty of these systems is that they do not depend on hidden watermarks or on your details being left untampered within the file info. It’s the actual image that is picked up. Even if it’s cropped or rotated or manipulated.
Assert your rights and ownership on every photograph
Use Google images to find jpg files
Use Google to find other search engines
Check the related sites with Google maps
Concentrate on your specialist subjects
Use the Wayback Machine
Find WHO IS behind the site with “whois”
Search the text inside books with Amazon
Join EPUK and get help from over 700 other editorial photographers
Companies like PicScout offer this as a commercial service although their terms of business aim at large libraries and make them too expensive for us. No doubt the technology will become more widely available and perhaps offer us a system that could crawl the web on our behalf, reporting back when it finds one of our images. Polar Rose are making face recognition technology available on the web. Show it a face, it’ll remember it and point out matches when it finds them.
Our best weapon, Google, may prove to be a two edged sword. Last year they bought a little known company called Neven Vision who are specialists in image recognition. Imagine the power of Google’s search and database storage combined with fast, accurate image recognition. Just like with text, if it’s on the web Google gives it to you in a fraction of a second. If you are tracking your own work it will instantly find your picture. If you are a buyer it will find the pictures you need and it will find others like your picture so you can haggle with the sellers.
I can see nothing to stop Google becoming the new super agency, gobbling up everything from Getty on down – and you won’t even need to submit your work to have it included. That’s a scary prospect, we’ve already seen how rapidly rates drop when the supply increases, Google could make just about every image there is available and could still make a good profit licencing them at a quid a pop. That’s the end of professional stock, it would instantly move every collection into microstock.
We’re certainly in for a very bumpy ride. The ground is moving under our feet but editorial photography is still a great job and with care and mutual support I believe we can continue to make a good living.
We may still be running our own personal supermarket with no doors and an honesty box instead of a till but at least we can make sure our security guards are frisking the customers. Good hunting.
Note added June 13, 2011:
Jeremy Nicholl has written a very useful blog on how to use the US Copyright Office registration system to greatly enhance the chances of recovery from US infringements.