Innocent Thieves Making It Hard for Stock Photographers


In the “for every action there’s a reaction” department, the Internet is showing us how technology can backfire. And in the department of “it giveth and it taketh away,” unknowing copyright infringers are gobbling up “free” photos from the Internet for their personal and commercial use.

Photographers don’t need to fear that reputable editorial photo buyers, magazines and book publishers, will attempt to “pirate” their images and not pay properly for them. The ethics of the editorial industry, and the pressures of maintaining reputation and, indeed, one’s job, help keep everyone honest. However, once an image has appeared in a publication, calendar, or other print media or Web use, a different danger raises its head, and is becoming increasingly troublesome.

Let me make an analogy. Have you ever read the book, Bartlett’s Familiar Quotations? It’s a collection of quotes by famous, and sometimes infamous, people. The collection was first compiled in 1855, is now in its 17th edition, and includes everyone from Shakespeare to Jerry Seinfeld.

Are the quotes accurate? In many cases, probably not. Scholars today, for one example, still argue over who really wrote sayings and phrases attributed to Shakespeare. And as for Seinfeld, he’ll be the first to say, “Did I say that…. . Really?”

Stock photos are like “quotes.” Once they leave home, and travel the Internet, they are fair game. All bets are off. After awhile we’re not sure who the author — the photographer — really is.

Feathers in the Wind

All information on the Internet is like feathers in the wind. And this includes stock photos. In more and more cases, just where the information originally came from is anybody’s guess. Whom it can be attributed to is in danger of being lost the moment it hits the road. Photographers currently are at the mercy of chance — they can only hope their credit line won’t be separated from the photo itself.

As stock photographers, we have all unknowingly been drawn into a new realm of “collected works”: The Internet. Today, it’s becoming increasingly difficult to trace the original author of creative works displayed on the Internet — just as difficult as tracing the real author of a quote in the next edition of Bartlett’s Familiar Quotations. Actually, maybe there won’t be a next (18th) edition of Bartlett’s, because the Internet has made us all wary of its imprecision.

The same holds true for our stock photos. This points to the real problem for us. We tend to apply last century legal remedies to new millennium Internet problems.

A photographer can prove, yes, that he or she owns the copyright of a picture, but if the alleged infringer can prove the image is readily available on the Internet with no copyright notice attached, attempting to collect damages would prove costly (attorney and court fees) to the photographer. And more than likely wouldn’t be successful. The infringer would be designated as an “innocent infringer” by the court.

And to complicate matters, would a copyright attorney take on a case if it weren’t airtight? Rarely. Sections 106A and 107 of the Copyright Law say that fair use of a copyrighted work is open to much interpretation — which means in most every case, the infringer is going to get off scot-free.

The Image Connection

The Internet not only expands the possibility of someone “stealing” your image but also promulgates the danger exponentially. A friend, Dwight Kuhn, describes his experience this way:

Someone in a government agency copied one of my images from its first publication in Smithsonian Magazine and used it on their government website. Another division of the same organization copied a different photo (calendar photo with copyright notice) and also published it on their website. Both images were placed in the public domain — free for anyone to use. Sometime after that, they got placed on Wikipedia … and from there, published in different websites around the world.

Same thing happened with a weasel photo first published as a double page spread in National Wildlife. Someone copied it and it too was listed as in the public domain on Wikipedia. So far I’ve gotten 75 groups to delete this image from their websites (some commercial uses). There are dozens more places using this photo that I know about, and I cannot get any response to my requests for them to delete the photos. And who knows how many other places the image has been used?

This whole issue is a big problem. I cannot tell you how much work has been involved trying to get these images under control, all because of one person starting the whole problem.

Does this mean we should cease licensing our images to editorial and commercial buyers? Should we cease placing our images on the Internet?

The Internet is the only game in town. Photographers are creative people. I’ve heard of interesting schemes to confront this dilemma. One photographer teams together with an attorney and splits the difference when they get a court judgment from an infringer (with deep pockets) for misuse of a picture.

Other photographers and stock agencies use commercial “seek and find, and sue” organizations such as PicScout, a visual content monitoring provider.

Another photographer promises impecunious infringers such as non-profit agencies a “no-reprisal” if the infringer places the photographer’s name and Web site address in prominent view along with the image.

The reality is that this problem is not going to go away. The ease now with which photos can be uploaded to the Internet, the advances in image-scanning technology, the ever increasing numbers of Internet users unschooled in the essentials of copyright law — all make stock photos vulnerable to being picked and used on one site, then another, then another, then mistakenly considered public domain when they appear so far down a chain of placements that they are hopelessly separated from any identification to the copyright holder.

What are some of your ideas for dealing with this issue?

[tags]photography law, copyright[/tags]


7 Responses to “Innocent Thieves Making It Hard for Stock Photographers”

  1. I should add that he ultimate dream would be to include metadata, sort of a barcode to ride along with each digital image. Organizations such as PACA and CEPIC, and other companies connected with stock photography have begun to research this aspect of how the metadata of digital photos can provide precise and reliable information about each image, plus describe it properly without causing ambiguity and misunderstandings among photobuyers.

  2. This from the say guy who said to take Library of Congress images ( not public domain) in license them..Funny
    http://rising.blackstar.com/public-domain-photographs-can-be-a-source-of-revenue-2.html

  3. In fairness to Rohn, he had included a footnote to his article that I neglected to include, which addresses government-acquired images. Specifically, Rohn states:

    "Unless certain provisions are previously made, photos acquired by federal and state government organizations, such as a Bureau for Economic Development, or federal or state Tourism Department, fall into public domain. The images, in effect, become royalty-free. That's why it's not a good idea to lease your images to government agencies, unless unambiguous stipulations (favorable to you) can be made."

    That means that Dwight's experience may not be the best example out there from a legal point of view, but it expresses the frustrations shared by many photographers. I can't speak specifically to the Library of Congress images you reference.

  4. Royalty free and public domain are not the same thing. Acquired and licensed are also not a same thing either. Cepic and PACA are not the PLUS coalition either.
    Finally, the library of Congress images on Flickr are NOT public Domain but rather copyright unknown, also not the same.
    Nevertheless, he told his readers to take those images from Flick and license them and today complains of other stealing images...mmmm..

  5. A commercial website used one of my images of a friend of his, in violation of my agreement. He claimed bitterly and was abusive when I asked him to take it down (unless we could come to some other agreement.).
    When the image was gone, I checked his web source code and found he had only commented out the HTML. The image file was still on his web server!

  6. Thanks.
    My point in this article (and it’s an uncomfortable one to talk about)is to raise awareness of the gap that is growing between what was protection for analog images in past years and what we can expect in the future regards protection for digital photography on the Internet. Yes, we have to be aware that “innocent infringers” aren’t going to go away. We all know that “if you build a bigger lock, someone will build a bigger hammer.”
    One possible safety net is the software that is being developed that can effectively imbed the copyright holder’s name and contact information into an image. Such software is being discussed next week in Malta at the CEPIC conference.
    See: http://www.cepic.org/english/news/2008/080312_metadata.php?navid=104

  7. "Innocent thief?" No such animal. The mere fact that something is on the Internet doesn't mean it's available for anyone to take and reuse in any fashion, particularly when it involves making money for the thief. The real problem is the attitude that "I can take whatever I want and do whatever I want with it." Guess there are millions of people out whose parents never taught them not to take things that don't belong to them! As Rohn pointed out above, a bigger 'lock' just incites someone to build a bigger 'hammer' to break it... because there are always people who think it's okay to take something that doesn't belong them. Attached metadata doesn't help because it's possible to copy the pixels of an image without copying the metadata embedded in the file. Now if metadata were steganographically embedded in the image pixels...

    I post on Flickr to share images with friends. I do put a copyright notice on the images and in the metadata, but I've decided not to be overly concerned about image theft primarily because photography is not how I make my living. That doesn't mean I won't be making some phone calls and sending some e-mails if I see one of my images show up in calendar for sale at Amazon.com, though!

Leave a Reply