How I Scared the Wits Out of a Copyright Infringer — and Why You Should, Too


I photographed a super-groovy young actor named Taylor Kitsch at the X-Men Origins: Wolverine premiere in Tempe, Ariz., in April. Taylor is so super-groovy that his fans express their undying love by doing stupid things like breaking the law.

I learned this because I took a peek at the stats for my Web site after the premiere and noticed that I was getting a lot of traffic from LiveJournal, an online community popular with teenagers and young adults. I clicked on the link and was taken to a page that had one of my pictures of Taylor on it, without my permission. A copyright infringement.

The user who purloined my picture went by an alias — “bloominidiot” — and had no contact information. So I left a note in a forum asking the user to contact me.

I then started doing screen grabs of the pages the image was on, so that I would have proof of my infringement claim. And I e-mailed my attorney.

In the morning, there was no reply from “bloominidiot.” My image was still up.

<i>The purloined picture.</i>

Eliciting an Apology

My next step was to send LiveJournal a Digital Millenium Copyright Act (DMCA) takedown notice. I then became a LiveJournal member — and fired a message over the bow of my pirate-friend’s ship.

I made sure “bloominidiot” understood that she could have her computer confiscated for stealing my picture. I wanted her to know that she might be ordered to pay for what he had stolen. I wanted her to realize that because I had registered the image with the Library of Congress, she might also have to pay statutory damages, including court costs.

Just before the close of business, the image had been removed from the site.

Later that night, my attorney wrote me back. She confirmed that this was a “willful infringement” and that I would be eligible for statutory damages should I choose to take “bloominidiot” to court.

I didn’t go that far.

But I did ask “bloominidiot” to post a written apology on my blog, and she did. It reads in part:

I have been burglarized in the past myself — my car was stolen and stripped and insurance only paid a small part of it, so the rest was my responsibility. I have also been the victim of identity theft from one of my own neighbours, so I DO know how it feels …

Tony, I do understand where you’re coming from. I apologize sincerely for what I did … I should have contacted you first … I made a mistake and I am sorry for it — I have learned from this, believe me. I have destroyed the files downloaded from you and will not download again without asking permission first.

Was I Heavy-Handed?

In the 4th Century, Flavius Vegetius wrote: “If you want peace, you must prepare for war.” I couldn’t agree more.

It’s now June and as I reflect, I am pleased with the outcome and the way I handled the infringement. Not everyone agrees with me.

Some have told me that I was heavy-handed and that I should have just let it go. The infringer gave me credit and linked back to my site, after all. That’s the way of the Web. Wasn’t that nice of them?

If I steal your car, but I tell everyone I got it from you, would that be OK? Probably not. (If it is OK, please send me your address — and can you fill up the gas tank for me, too?)

Some have told me that I should just protect my images by watermarking them.

When I was a child, my dad bought a new, expensive pair of binoculars. I asked him if we should etch our family name on them. He said, “No, that only lets the thieves know who they stole them from.”

To me, watermarking is a lot like that. It also messes up great images. If you’ve worked hard to create an image without that distracting telephone pole, why add a distraction in post-production?

So rather than watermark my images and hope this deters thieves, I prefer to go after the thieves when I find them.

Some have told me I should have given “bloominidiot” a break because hers was a personal use, not a commercial one. So I should sue XYZ Corp. for copyright infringement, but let Gen Y skate free? Why is that fair? I think being consistent is fair.

I used to be a member of a church where the parking lot linked with a bigger office complex. Periodically we put a chain across the parking lot, so that people from the office complex couldn’t drive through the church parking lot to get to the main drag.

The pastor explained that if cars were allowed to drive through the church parking lot with impunity, the church could lose property if the city decided to turn the lot into a street connecting to the complex — simply because that was the route people had become accustomed to.

I don’t want people to grow accustomed to grabbing my images off my Web site and using them without my permission. It sets a bad precedent. It might even hurt my chances of collecting when XYZ Corp. decides it wants to pluck an image for an international ad campaign.

Be Passionate in Protecting Your Work

It’s simple, really. I should have been given the opportunity to give “bloominidiot” permission to use my image. It’s mine, after all, and I should be the one who decides where and how it’s displayed.

If you ask permission, I might say “yes” — as opposed to you having to flip through the Yellow Pages in search of a copyright attorney to defend you. I am willing to fight because I know that I will be able to recover my attorney fees and court costs. I am confident that should I decide to put on the boxing gloves, I will be awarded damages.

I’m an easygoing guy until someone makes me mad. Then the can of worms you’ve opened becomes a can of snakes — and you’re going to get bitten.

I love this photography thing that I do. I’ve been doing it professionally since 1984 and have photographed seven U.S. presidents and shaken hands with rock stars. I recently went through an old box of negatives and found pictures of Gerald Ford and Frank Sinatra, among others. I once assisted Eddie Adams while he photographed Sammy Davis, Jr.

My photography is dear to my heart, so I pay the $35 fee and register my images with the U.S. Copyright Office. Copyright laws are worthless unless you are passionate about protecting your work.

A Lesson Learned

If a teenager walked into a convenience store and stole a candy bar, would the store go out of business? No. It wouldn’t have any impact on the store’s bottom line.

But if that teen were caught, what would happen? The police would be called, and the candy bar would be used as evidence. (Later, some attorney would eat the candy bar. The attorney is usually the only one who wins in these situations.)

It doesn’t matter whether your property is tangible, like the candy bar, or intangible, like a digital image file.

And it doesn’t matter whether the store, or the photographer, is forced to shutter their business because of your crime.

It’s still a crime.

In the case of “bloominidiot,” I was fair, ethical — and firm. The person who broke the law was able to see her error and learn from her mistake. I’m guessing she won’t repeat it.


28 Responses to “How I Scared the Wits Out of a Copyright Infringer — and Why You Should, Too”

  1. Hear, hear!
    Too many photographers are soft on pictures stolen "for personal use", so the bar is lowered every day.

  2. I see your point Tony and a photographer should indeed be paid for the use of his/her images. It can be a little more complicated though don't you think?

    Using someone else's image in say, a blog with a link back without even permission seems fair to me provided that the blogger is not going to make any cash out of it. It could in fact be beneficial to you.

    Just suppose that an advertising agency spotted the picture in a blog, used the link back to contact you with an offer to buy the image. Nice one, money in the bank. Would you feel obliged to offer the blogger a fee for being the instrument of enhancing your wealth? I suggest not and that would be fair enough. It would be a quid pro quo.

    Just another way perhaps of looking at it?

  3. No, you were NOT too heavy-handed. ALL copyright infringement MUST be fought.

    Your case sounds similar to mine. I'd taken a very nice photo of a plane on a snow-covered airstrip in Alaska. It's one of my best shots. I showed it off on my blog, as I normally do with my favorite photos. A few days later, I found it on someone else's blog. To be fair, the thief did mention that I'd taken the photo and he even linked back to my site. But I was bothered that he'd taken the photo without my permission in the first place and contacted him. He removed it immediately and apologized profusely. HE DIDN'T KNOW he'd done anything wrong. He wrongly assumed that any image (or text, for that matter) on the Web was "public domain," free for anyone to do with as they wished.

    We need to EDUCATE the folks who create content by taking ours. A good scare is a great way to make a memorable lesson.

    As for watermarking, I now place a conspicuous © watermark on all of my images. Yes, it detracts from the image, but it also makes it very clear that the image is copyrighted, which could help me fight an infringer in the future.

    Good post. Keep fighting!

  4. Hi

    Firstly, whether or not your actions were over the top or just, the fact you took action is positive, most don't and that is where the rot starts.

    Secondly, the reason, I suspect, that you were getting lots of hits from this site was due to the way the image was being loaded on the 'LiveJournal' site. The user 'bloominidiot' had linked to your image instead of copying it, then uploading to their or the 'LiveJournal' site. This is where the web spins it's sticky complications. They haven't copied the image per se, but linked to it, which requests that your website serve up the image. So it's a sticky, grey area, issue.

    However, there is a simple way to stop this happening, your hosting company/account can stop direct linking to certain file formats, i.e. jpg's. This will stop any existing linking and prevent further linking.

    This is great but will not stop those filthy beggers who copy the image and then upload it elsewhere. Which in my opinion is a far worse scenario. However tools like http://tineye.com are there to help find those copied images.

    Well done for taking a stand though.

    Jools

  5. Jools,

    In Tony's case, it wasn't actually a hotlinking as you describe. They had pulled a screen grab of an image from a slideshow on Tony's site, then uploaded that themselves. The link to Tony's site was a text link "bloominidiot" had added so people could go see more images from the premiere at Tony's site.

    Scott

  6. The example of the church parking lot illustrates a component of law that comes to us from England. If a property owner does not halt or control a use of their property by another, that usage becomes a right enjoyed by the other after seven years. I have heard of this as regards to easements and mis-placed property lines; I expect it also applies to intellectual property. If as photographers, we allow copyright infringement we are giving up our right to have that control over the use of our work.

  7. @Richard: I would agree with you, Richard, but permission needs to be asked in the first place. If I don't control who uses my image, then what happens when someone sees it on your site and takes it, then someone takes it from there and then some company comes along and says, "Can we use this image for our brochure?" I will probably lose out because the company wanting to legitimately use my image won't know how to find me (as I'm sure that the links will all go back to the previous page — or somehow get messed up).

    I'm flattered that people want to use my image. Let's just become friends and chat about where you want to use my image. Easy.

  8. Were you too harsh? Overall, I say no. But there is a paragraph that does worry me:

    "I made sure “bloominidiot” understood that she could have her computer confiscated for stealing my picture. I wanted her to know that she might be ordered to pay for what he had stolen. I wanted her to realize that because I had registered the image with the Library of Congress, she might also have to pay statutory damages, including court costs."

    While all of this is technically true, most of it is also extremely unlikely. I understand that you were playing out a worst-case senario to intimidate this infringer, but this does take it a bit of an extreme.

    The problem is that the odds of this happening, even if they hadn't removed the work, are slim. Suing, even with a registration, probably would not have been practical and it most likely would have been settled long before any computer confiscation took place.

    What I typically do is highlight what the law itself says and let that do the talking for me. Granted, the higher end of the damages are rarely ever awarded, but this is something more tangible and real. This isn't a threat that someone might think you made up.

    Making threats that aren't based on the law itself or what is common practice, to me at least, seems a bit empty. There are plenty of ways to sabre rattle and scare people without that. I'm not disagreeing with what you did, just wondering if maybe some retooling of the threats may be in order.

    As far as protecting your rights, you were well within them. Many people are fine with their works being used so long as it is linked back, but that is the decision of every copyright holder. If you are comfortable with that, I encourage people to clearly license their works as such so that others will not assume that people, such as yourself, who don't want it are ok with it.

    Bottom line is this, I've been very aggressive in many of my cases too and am not against it in any way. It's your work and your decision. It's that simple to me.

  9. It's nice when you can track it and have a recourse. I recently found a case that I was quite disturbed by. Flickr allows people to set a standard license for everything they upload, i.e. everything can go up as a creative commons license. So, what happens if someone uploads a photo that they do not own and release it under a creative commons license? Talk about a way to lose control of your images...

  10. In Tennessee, we don't threaten that way. We take a shotgun, stick it in the offender's face and it's usually over quickly.

    But, that's Tennessee.

  11. Elliott, that's a great illustration of "practicing for peace by preparing for war." It's also a great example of hyperbole.

    (Note to self: Route North Carolina trip via Ohio)

  12. Just wondering... All those famous actors, presidents and rock stars... you do have permission for the photos you are making money off of, right? Not like you'd expect the actor, rock star or president to object to you making money off of their face.... Goes both ways man, lighten up. Give the benefit of the doubt, ask it to be removed, if its not removed, then go after them if you see fit. Umm do the wildlife photographers consider the money they make off the wildlife, do the birds have a say in their picture being taken? Like i said, lighten up a bit.

  13. So that picture of President Obama on your website, means you actually got his permission to sell that and make money off of it? It goes both ways dude. I've known a few famous people who might have a bone to pick with you in regard to taking their picture and then you making money off of it.. kind of like the shoe is on the other foot.

  14. So what, rules don't apply to you?

  15. I disagree, it is not a crime. A "crime" is a serious offence against the law. Murder is a crime, if you need an example. Copyright is a market regulation, breaking it is certainly noting criminal.

    If you want to protect your copyright, i think its in your own interest to not look crazy while you do it. By scaring someone, you DO get that person to take down your picture, but at the same time, you undermine your pro-copyright cause.

    Which is fine with me.

  16. It is my understanding that patents and copyrights are mainly designed to protect the economic interests of the holder of such rights. Neither patent nor copyright owners try to, or are successful at, deriving possible or anticipated economic benefits from their creations. These right establish "ownership", and to a considerable extent, rightful indignation is the response to a sense of violation of the sense of ownership more so than to see the flow of revenue tapped into.

    A patent is a sizable document, crafted by experts that MUST state specific claims in addition to meeting other requirements, and even then it is exceedingly difficult as well as costly to defend.

    Neither a patent, nor a copyright,is a grappling hook one can throw into the world in hopes of elevating one's income stream. Instead, it is mainly used as a wall and moat to defend against intentional or not-so intentional intruders.

    A picture oftentimes captures a fleeting opportunity. In that sense it is uniquely attached to its creator. At times it requires considerable skill and effort to create, much as some work of art such as a painting does. If one wants to protect a picture, one can do so and pay a fee for it. Even then it only entitles the registered owner to spend additional time and much money to defend that right.

    A sizable piece of writing is more of a highly specific composition of letter-pixels that create an 'image' after many letters and words have been assembled in proper order. It is statistically virtually impossible to create an identical piece of writing accidentally or coincidentally. And even then the concept of "fair use" allows someone to cite a portion of such writing.

    What it comes down to is that we cannot legislate civility of conduct any more than we can legislate the limits of pride. All of us can violate, and most likely have, some laws we were ignorant of.

    Confrontation, even rightful confrontation, is a last resort. A helpful advice to a violator might be the most civilized first response, followed by, if necessary, a warning shot fired across the bow.

    Personally, I opt looking for underlying motivation by the 'offender' before selecting my weapons.

    The "real world" is fuzzy-edged. Striving for perfection calls for a world defined by neat lines, and that can only lead to much frustration for ourselves. But we do have the right to draw such lines. How we respond says as much about ourselves as disregarding either fuzziness or straight lines. It is how we define ourselves, and self-definition is an inherently personal choice.

  17. Bella: you don't need the subject's permission to take a photo and sell it for editorial use (such as event coverage). If you re-read paragraphs 3-5, you'll notice he did try to contact her, but she did not respond.

    I don't like doing it, but it works. One polite request, followed by the DMCA legal-speak if I get no response.

  18. And the definition of 'editorial' is too vague. As in the trashy mags, the photohogs that follow Britney and other stars around, hound them then sell them in their magazines as "editorial".... You're barking up the wrong tree man. I do agree if someone were to take a picture you clearly took/photographed and was trying to sell it as their own and making money off it, you certainly have the right to demand it to be stopped. but dude, you are going to loose potential customers, advertisers and free advertising. Your approach sours my stomach. Lighten up.

  19. btw sounds like a 'loophole' you DON'T HAVE TO GET PERMISSION for editorial use? But if someone found a pic you took, somewhere on the wildly vast world wide web... you jump down her throat. You even stated it was a site frequented by teens and young people. When I was 20 I had a lot to learn. Remember the old saying, "you get more bees with honey, than with vinegar"???

    I see a pic of the prez on your page, i don't see how your posting his picture, making money off it,is any different and it doesn't seem 'editorial' to me.

  20. In response to Bella. Mark Twain once wrote: It is better to keep your mouth closed and let people think you are a fool than to open it and remove all doubt. Your comments show that you have little if any knowledge and understanding of basic photographic usage laws. Do yourself and us a favor and spend a little time informing yourself about these issues. There are plenty of resources on the web where you can learn about what "editorial usage" is and how this business works. And finally, Just because something is there, doesn't make it right to take it if it doesn't belong to you. At least that's what I was taught, way back in kindergarten.

  21. Tony - you were perfectly within your rights to take that action. I agree with a couple of responders that a slightly less heavy-handed approach would have been just as successful, but overall you chose a valid option.

    Bella - you are clearly one of those people who don't understand copyright and ownership pertaining to photography. It is you we need to be educating, "dude".

    Thomas, copyright infringement is theft. Theft is a crime. Period.

  22. A photographer friend just sent me the link to this and I say THANK YOU to both you and she! I have had continued problems in getting people to respect my rights as a photographer. This article made all the same points I feel so strongly about and yet you have worded them in ways that others can better appreciate and understand! I'm certainly going to share this with others, and keep fighting for my rights!

    I agree that crediting and linking back is not always enough, depending on the photographer. Some photographers are perfectly fine with this.

    The most common flaw all photography copyright infringers share is the lack of common courtesy. This is partly because of how easy it is in the digital age to steal and repost. It should be just as easy to send an email and ask for use of the photo.

    I have a whole different kind of disrespect going on with my photography involving musicians, record labels and their fans. I've had to put my copyright and contact info on 1000s of digital images by hand before putting them online because they were being stolen so often. Sadly, I can't honestly afford to register them or have a lawyer fight for my rights. So I'll just keep sending out emails asking my photos to removed.

    One thing that keeps happening is that a local newspaper keeps using my photos without my permission online. I've asked them to remove them, they don't. And yet they have a "buy this photo" option on my photo which just drives me nuts. And my copyright info is right there on the photo they've used! Amazing right? Do I have the right to send them a bill?

    I'm going to check out this great website some more now!

    A comment for Ian on his previous comment: You can set different copyright settings for each and every photo uploaded on Flickr.

  23. Bella,
    Presidents and other elected officials who run for office are public figures.

    That means anyone can take their pictures and sell those pictures without their permission. That is the tradeoff when you consciously choose that line of work and thrust yourself in the limelight.

    Tony, you or I can use any president's picture and sell it without any problems as a result.

    Jana,
    Flickr is great for photosharing. I think long and hard before I upload to something like Picasa, Flickr and those free image sharing sites.

    Thanks for an informative and thought-provoking post Tony!

  24. I totally agree with you. I've had whole articles on web pages stolen in the past and I've come down like a ton of bricks about it. I wouldn't be relaxed about it if someone took my purse so why should I do nothing when they steal my work?

  25. You wasted more than the price of the picture in being heavy handed with a blogger. You must have a lot of free time on your hands.

  26. Wild Handyman - there goes yet another fool with a false understanding of right and wrong.

    What scares me most is that people with his point of view are actually reading this blog, meaning they must have a genuine interest in photography. The average computer user is clueless when it comes to the internet and copyright, but people who actively read photography blogs and still feel this way make me shake my head in exasperation.

  27. I sued a very large AZ corporation for copyright infringement a few years ago and won the moral victory, but lost the financial one.

    A link back from a non-commercial infringer with an acknowledgment from them is the best case scenario.

  28. What about photos that have not been officially copyrighted? Flipping through a boating magazine I found an ad for Horizon Motorsports using my photo of Greg Olsen, winner of the Desert Storm Shootout,doing 174 mph in his Eliminator in their for-profit ad. He must have copied and pasted from my website, or was giving the image from Performance Boats Magazine, who I gave the image to so they could run it in an article. I sent an e-mail explaining that I would be happy to authorize use of the photo long as he also published my logos in the ad. Almost three weeks and no repsonse. Now what do I do?

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