Why would web content writers at Webcopyplus pay $4,000 for a digital photo that retails for about $10? Well, frankly, we screwed up. It’s an expensive lesson on copyright laws that we wish to share with other marketers, so you don’t make the same mistake.
Some of our web copywriters were under the impression that images on the Web without any copyright notices were “public domain” and therefore free to use. Naive? Yes. A notion limited to our web copywriting firm? Definitely not. It likely has to do with the fact that works no longer need a copyright notice to have copyright protection (you can read about the Berne Convention Implementation Act, which the US adopted in 1988).
Designers, writers, developers, marketers, business owners, and ironically even photographers, use photos from the Web without permission. Sites like Google make it so convenient. Enter your keywords, do an image search, and you’ve got an endless photo library ripe for the picking. Woman laughing delivers 5.2 million photos. Business man offers 423 million photos. And the keyword kids brings up a whopping 778 million images. You can find pretty well anything, too, from ABBA to zombies.
The Copyright Crime
While we maintained an active stock photo account for our blog with access to an array of suitable photos, one of our copywriters grabbed a photo from the Web. The image: a colour 400 x 300 pixel beach shot with some greenery in the foreground. A nice shot, but nothing spectacular.
We posted it on a client’s tourism blog to add zest to a promotional article — done. Sip some caffeine, get a little Twitter action, and then dive into the next copywriting project. Photo forgotten. That was in May, 2010.
The Lawyer’s Letter
Fast forward a few months, we got a call from the client a couple of days before Christmas, and he wasn’t feeling overly festive. He received a formal letter from a lawyer with the following introduction: “Cease and desist demand and offer to settle copyright infringement claim, and digital millennium copyright act claim, subject to Rule 408, Federal Rules of Evidence.”
Apparently copyright infringement involving images that are registered with the U.S. Copyright Office allows for statutory damages of up to $30,000, or $150,000 if it can be demonstrated it was a willful act.
The Lawyer’s Demands:
1. Immediately cease and desist all unlicensed uses of the image, and delete all copies from computers and digital storage devices.
2. Remit almost $4,000 to his trust account.
The image was removed within minutes. Lengthy discussions ensued. Two days later, a letter of apology was emailed to the lawyer to advise the photo had been immediately removed, and to express regret for the “unintentional errant use” of the image.
The lawyer responded that while they appreciated our commitment to remove the image from the blog, “removal of the image from the website will not relieve you from liability for damages arising from your past infringing use of the image on your commercial website.” The letter also stated that any further attorneys’ fees and costs incurred to resolve the matter would be added to the settlement demand.
The Defendant’s Response
With some pro bono legal advice, a copy of the Certificate of Registration and the date that the image was first published was requested. While the letter contained all sorts of legal jargon, it failed to verify the image was copyright registered and that the lawyer’s client, a photographer, owned the rights to the image.
A few notes were exchanged, and by entering a registration number at the U.S. Copyright Office’s website (www.copyright.gov), we were able to confirm the image was copyright registered and the lawyer’s client was the rightful owner. Shortly after, we provided a counter offer of $1,925, which we figured would provide the photographer about $100 per month, and the lawyer three-hours’ pay at a lofty $400 per hour. We felt that was generous and more than fair to make this problem go away.
They declined, and due to the exchange of letters (while respectful in nature and completely reasonable, considering we were merely asking for registration and ownership proof), the lawyer slapped on an extra $2,500 in attorney fees, which he subsequently agreed to remove.
The Dilemma
Had the lawyer engaged Webcopyplus, in which case our client wouldn’t be caught in the middle, we would have had options: ignore the letter; say, “Go ahead, sue us”; or respond, “$1,925 is our final offer,” which there’s a chance they’d accept. We felt — and photographers we spoke to agreed — the proposed settlement amount was excessive.
In fact, you can find articles and discussions online on how lawyers around the globe are capitalizing in technologies and laws to bring in piles of claims for copyright infringement damages. For example, check out Copyright Lawsuits as a Business Model.
The Decision
While we considered the lawyer’s demands abusive, the fact remained that our client was trapped in the ordeal, and it was costing him time and causing him grief. Plus, he’d be the one to get subpoenaed. So we opted to settle for $4,000.
It was a tough pill to swallow, but we were the ones who messed up, and salvaging the client relationship was priority. Moreover, settling the matter would allow us to focus on writing content to market and sell products and services, and build productive relationships, rather than deal with an aggressive lawyer.
Lesson Learned
As web content writers, we work with dozens of web designers around the globe. Based on recent discussions, even after we shared our story, some continue to suggest copyright laws are blurry, and insist if you ever run into conflict and get a threatening letter, you can simply delete the image and toss the document in the trash (one designer even labeled it “delete and toss”).
While this might work with some individuals and organizations, particularly if they’re in a different province, state or country, which might make legal costs prohibitive, be aware: you could end up in a lengthy and costly court battle. For those who insist, “It won’t happen to me,” mind the fact that this beach photo was the only one we’ve ever grabbed from the Web for a client’s website. And it cost us almost $4,000. Consequently, we urge others to recognize and yield to a simple fact: If it’s on the Internet and others wrote or created it, do not use it without their permission.
As copywriters, we work with and rely on a range of creative types and specialists, including photographers. We didn’t mean any disregard for this profession and now have a greater awareness and appreciation for the fact that freely using photos from the Web diminishes a photographer’s income and livelihood. We apologize, and it won’t happen again.
Copyright Resources
We’re copywriters — not copyrighters — so this is meant to share our experience, not to provide formal legal advice. However, there’s a lot of useful copyright information on the Internet, which you can check out.
Fair Use — If you’re using copyrighted work for teaching or research, criticism or comment, or news reporting, it may be considered fair use.
Berne Convention Implementation Act of 1988 — The US adopted the Berne Convention for the Protection of Literary and Artistic Works, an international agreement governing copyright that was initially established in Berne, Switzerland in 1886.
10 Big Myths About Copyright Explained — Techie and photographer Brad Templeton touches on common copyright myths.
Free and Commercial Stock Photography Sources
As part of our updated policies, our copywriters are required to only use stock photo websites in a bid to play by the rules, be fair to photographers, and keep lawyers out of the equation. Here’s a list of stock photo sources you might want to consider, where you can get photos starting at $1 per image:
*For the record, the Depositphotos link is an affiliate link (so we can recoup some of the settlement costs and support our caffeine addictions). It’s a quality photo stock company with more than 31 million images to choose from, at affordable prices.
Creative Commons
Some photographers let people share and use photographs under Creative Commons licenses, which is an alternative to full copyright (special thanks to Vancouver photographer Kris Krug, who brought this to our attention). You can find millions of Creative Commons photos at Flickr.
Update: Another good information source is the Canadian Intellectual Property Office.
Are there images on Getty for $1? I doubt it.
There are thousands and thousands of images for $1 on Getty owned Istockphoto.com.
Is this $1 per image per usage? Or $1 per image with unlimited usage over perpetuity?
Yes there are creative commons licensed pictures but that would NOT have helped you in this case. It does NOT allow for commercial use. You make money off my pictures? You have to pay me. You are a using it for a non commercial use – fill yer boots
@Stephen Rees: there are many different types of Creative Commons licenses, some of which allow commercial use: http://creativecommons.org/licenses/
Unless, of course, your use of “my pictures” isn’t hypothetical and you are the one who sued because you only offer your images under a Creative Commons non-commercial license… in which case, that’s your right.
That’s not actually true. On Flickr there are creative commons pictures which are licensed for commercial use. You just have to tick a box when you search for them.
Not true! There are several types of licenses under creative commons. Some turn the images over to the public domain permitting any use of any type and others expressly permit commercial usage with or without photo credit as may be specified.
The lesson is simple and should be common knowledge by now.
Everything, EVERYTHING, unless otherwise specified, is copy written.
you mean copyrighted?
It would appear common knowledge of the correct terminology is rather uncommon.
no, the lesson is that the law is written to favor copyright trolls and should be changed!
Written by someone who uses other people’s photography, we can assume.
Would you feel the same way if we said people should be able to copy your web content and that if you protest and try to recoup some of the money you lost you’re a web content copyright troll ?
Pay people for their work, it’s just not that hard to figure out. That’s why we have copyright protections, to reward creative people for being creative, so we don’t end up like China where nobody makes money for being creative, so nobody is …
I can’t help but notice the misplaced hurt expressed in this piece. You got paid by the client for your work, why should the photographer not be paid also?
If you steal his work from the web, make him spend time and money on detecting and following up your infringement, then why shouldn’t he also get paid for that time?
Yes, you had to pay a lot for using that image, but the net result is you’ve learned and others have learned. The next 5 photographers can focus their efforts on making pictures and not chasing up infringers who are quite literally taking the shirt off their backs.
Well SAID!
I think you might not understand the literal meaning of ‘quite literally’.
I have a photograph of an infringer quite literally taking a photographer’s shirt off his back.
Unfortunately my photograph is subject to copyright proceedings and can’t be shown at this juncture.
Agreed — the tone of this (informative) piece does paint the lawyer as the “bad guy”, and the photographer as well.
“A nice shot, but nothing spectacular” is particularly editorial.
The point is, as a company you did something wrong, did something illegal and were made to pay for that. Ignorance doesn’t absolve anyone of crime. Thank you for sharing it, though, perhaps this will make the next person think twice about lifting something from the web.
These lawyers are no more than “ambulance chasers.” They make a career out of chasing down people who unsuspectingly use copyrighted images. They are exactly like lawyers in the U.S. who run around with measuring tapes to measure handicapped parking stalls and then sue the business owner if they are an inch too small.
$4000.00 was extremely excessive. Had the client not been involved, I would have told them to eat dirt.
They may have done something illegal, but it was hardly “wrong”. KNOWINGLY infringing on someone and causing damages is wrong. Accidentally using an image is an innocent mistake.
Morally speaking, the WRONG in this case is the law which ought to require the lawyers to ASK people to TAKE DOWN images first before they demand money. It’s ludicrous that they should be allowed to run around suing people for petty infringements.
Please…4000 dollars for a picture worth maybe 20 bucks at the most. It is an abuse of the copyright laws. Should the photographer get paid for his work? Of course. What he shoudl not get is OVER paid for a crappy photo. Its a scam being run by getty images and anyone getting their letters should ignore them. Just delete the picture and let them prove you stole it in a court of law. Good luck on that one.
Indeed, this is a scam, and it seems webcopyplus allowed themselves to get scammed through (a) a pretty unbelievable ignorance to 20 year old copyright laws for a copy writing firm, and (b) an embarrassing lack of legal representation (pro bono? you’re incorporated but don’t know a lawyer?) for a company doing business on the internet.
Complying with a C&D is something you should have done– the first part of it anyway– the C&D part. Paying damages is the part where webcopyplus got scammed. You do not need to pay any damages if you respond immediately to a C&D. I don’t mean this from a legal standpoint, but from a practical one. In order for them to bring this to court and order you to pay damages, they would have to prove intent. The defendant probably doesn’t care enough to pursue this.
Copyright lawyers are always aggressive about C&D’s– this is their bread and butter. They don’t make money in the court system. Their goal is to attempt to scare you into submission using shock and awe tactics from the get-go. It seems to me that webcopyplus took the bait, having no prior experience with legal problems. This is why you ALWAYS go to a lawyer FIRST. You never respond to a C&D prior to getting advice. This was webcopyplus’ first mistake. Responding to the lawyer without representation probably allowed the lawyer to see the fear in your eyes, and he decided he could gouge you for as much money as he did. If you want to run your business paying off every lawyer who sends you a C&D, that’s your choice, but good luck with that– you won’t be in business long.
Anyone commercial business following this advice is just asking for trouble.
First, most lawyers are going to get the proof before they ever contact you … meaning they’re going to get a group of witnesses together, probably get a video recorder, record themselves going to your website and looking at the images in question on your site, etc. They’re going to document the time, date, the content in question, print out copies of it, get witnesses to sign a document saying that they too see the images on the site, etc, and they’re going to document all of that before they EVER contact you.
They KNOW that you’re going to remove the images once they contact you, but it’s already too late for that … they already have all the evidence they need to present in court, that on such-and-such a date you were involved in copyright infringement.
Second, it’s dangerous to antagonize a copyright lawyer in a case like this. It’s one thing if the image is not registered with the Copyright office, which most aren’t, but it’s a completely different matter if the image IS registered with the copyright office. Once the image is registered, statutory damages could be six figures, YES SIX FIGURES, and it has absolutely NOTHING to do with how much money you as the infringer made. Even if you just stole the image and put it on a coffee mug and sold that mug for 1$us, you could still be hit with a six figure judgement because it’s STATUTORY, meaning it’s just what the law says, the copyright owner doesn’t even have to show they lost money because of you, they just have to prove you didn’t have a license.
Antagonizing an intellectual property lawyer in this situation is REALLY STUPID.
Hear hear. I am fed up with tackling copyright thieves who – even after accepting their culpability – seem to think the most they should have to pay is the licence (UK spelling) fee they should have paid in the first place, with no recompense for my time and hassle and the lack of attribution.
I was almost banned from a business group for arguing the same, Gary. It is not the copyright holder going who is a scammer but the one using copyrighted images illegaly… it is absolutely shocking.
oh please! Clearly people should be careful about using images but the civilized way to handle an infringement is to ASK FOR REMOVAL. If that is ignored, then fine, sue away. It’s shockingly reprehensible that these lawyers are allowed to do this. They are sick, immoral people.
Well said.
Back in the day, a company would have had to hire a photographer per job or keep one on staff. If you wanted to advertise your business with photos, you either had to take the photos yourself or hire a professional.
Both involved time, equipment and money.
Photographers were compensated for their work.
Just because it’s easier for more people to see the photos, doesn’t mean the photographer shouldn’t get paid.
“Borrowing” without permission is still a crime.
Thanks for posting this. I’ve linked to your story over on my blog, Legally Sociable (http://legallysociable.com/2011/02/15/a-4000-mistake/).
It’s all too easy for intellectual property issues to become very abstract and removed from the real world of business. I’m sorry you had this experience (and had to settle for so much), but I hope that it does help spread the word on free resources available (including Creative Commons).
Using a pic without permission is foolish, and of course everyone should be aware that every photograph is protected by copyright in almost all circumstances unless explicitly released. But occasional mistakes can and will happen even when people are well versed in copyright law.
If you didn’t attempt to disguise the provenance of the image or refuse to remove it when asked, a mistake is exactly what this was. There is no excuse for the copyright owner to demand such a disproportionate amount. An image used generically at that size would normally cost you a two-figure one-off fee from a stock library. (The number-out-of-thin-air legal costs would be thrown out by a UK court; I don’t know how these things go in the US.)
In my view, as a copyright owner and staunch defender of copyright, this photographer and his lawyer are scammers and their actions bring their respective professions into disrepute. Carelessness is one thing; exploiting the law to shake down the careless is another.
Wouldn’t you say though that this photographer’s work has set a precedent so that:
a) you’re a more attractive resource
b) this infringement doesn’t happen to you?
Sure it’s a high fee based on usage. But it’s no longer about usage – it’s about infringement. I too work in stock and have for quite some time. And I think this is what needs to happen from time to time in order to keep companies that use IP to market, promote, etc.
Afterall, in the end you make $10 but the company you licensed the image to makes much more than that.
Actually, there’s a very good reason to demand compensation in excess of what the licensor might otherwise have received: it teaches people it’s cheaper to do it the right way. It’s why the Copyright Act provides for statutory damages and attorney’s fees.
If that weren’t true, there’d be zero economic incentive to do clearance or license in advance. If you get caught, you pay what you would have paid, and if you don’t get caught, hey, free image rights. It also encourages willful ignorance, in that it’s much cheaper not to ask in the first place.
This is nonsense. The people being attacked by these shake-down artists are generally small bloggers who do not have the means to defend themselves. This is done ON PURPOSE because they know many of them will just panic and pay.
Scammers? Really? As a photographer, if I have a photo I share but value too much to sell and be allowed to use commercially, I am, as an artist, able to set its value (the way a painter would) as anything I like. Value on creative work is subjective. When you take intellectual property without permission, getting the bill for it later is the risk. Just because some photographers sell certain photos for $10 doesn’t mean that ALL PHOTOS are worth $10 for commercial use.
Interesting that you would consider the photographer and lawyer “scammers,” when they have pointed out that a “crime of theft” was committed.
When you get pulled over for speeding and receive a ticket, is that considered a scam or did you break the law? When you get caught stealing an item from a shop, then have to pay restitution and court fees (and possibly serve time in jail), is that a scam or did you break the law? So when you steal someone else’s creation/work and
RECEIVE money for its use on websites you designed and GOT PAID for, then are caught red-handed and required to pay restitution and legal fees for having BROKEN THE LAW, how is this scam?
It’s the same as if that very photographer broke into Webcopyplus’s office/website and stole some of the copy that they wrote to sell for a client’s use. The photographer posted it on his or her own website to sell, say, books that he was publishing. Webcopyplus’s lawyer discovered this and put the hammer down.
It all boils down to one thing: YOU DON’T STEAL OTHER PEOPLE’S WORK. If you do, it should cost you…in dollars, in reputation, and possibly in jail time.
Thanks for your comments, everyone.
@sagescape We, too, hope others learn from our incident. Thanks for spreading the word!
@darrenhector Thanks for your note. It’s embarrassing to admit, no less announce, you screwed up — but we did. And others will, too, without ill intent. That’s why it’s important to make others aware of the issue, and to have these discussions.
I have NEVER seen a company react this way. I’m SO IMPRESSED at your integrity!!!
I wasn’t aware of webcopyplus before this, but I will DEFINITELY keep you high on my list of providers because of your ethics, morals and professional actions!
Thank you, Thank you, Thank you!
I agree with David Swann. I appreciate the info you have provided. We just received a letter from a lawyer about a photo that we shared and are trying to resolve the matter. I will keep webcopyplus at the top of my list as well!
In today’s day and age, it is smart to publish your side of the story and try to control your reputation by being honest about the situation. However, I dont feel sorry for you about the $4000.
I think it was great that the lawyer contacted your client and place them in the mix, as that probably added the necessary friction for you to act on the situation.
As a content creator I do not appreciate individuals using content without permission or compensation (we already have enough trouble with the site scrappers as is).
You have a copyright symbol on this site. You obviously care about your work.
Unfortunately you are not the only one that does this, either inadvertently or while being completely aware.
I follow this blog to keep tabs with other abuses of copyright.
http://youthoughtwewouldntnotice.com/blog3/
Hopefully you will eventually take full ownership about this situation and be thankful that it was only $4,000 and not a higher amount. While most people seem to despise lawyers :) they obviously are needed.
Per the tone of your post It appears if the image owner had contacted you directly without involving a lawyre you probably would not have attempted to compesate him/her.
Regards
Please note that Creative Commons License does not necessarily mean you are free to use the picture as you please. Many of them have conditions attached. You may still have to display it as the owner of the photograph specifies. You may need to search their website or contact them to find out what that is. Additionally the creative commons license I use, for example, to protect my work, has a Non-commercial stipulation meaning you would not have been able to use it in this instance for your client’s blog which is a commercial concern, promoting his business. Be wary of that too.
For example – this is written on my Flickr Profile Page:
Regarding my Creative Commons Conditions:
You may freely use any of my Flickr photographs if you meet all three of the following requirements:
1) Attribution: Must include the words, clearly visible; “photograph by My Name” and include a link back to this Flickr Profile so that your audience is also aware that the photograph is protected by these conditions.
2) Noncommercial: Must not be used on a commercial website without my permission. If you are not sure whether your website is commercial or not then please ask me before use.
3) No Derivative Works: Do not recrop, recolor or change my photograph in anyway.
If you do not meet the above requirements but would still like to use my photograph please contact me and we can negotiate commercial or other usage.
“Had the lawyer engaged Webcopyplus, in which case our client wouldn’t be caught in the middle, we would have had options: ignore the letter; say, “Go ahead, sue us”; or respond, “$1,925 is our final offer,” which there’s a chance they’d accept. We felt — and photographers we spoke to agreed — the proposed settlement amount was excessive.”
This paragraph is where you go awry, and is why people perceive your tone to be “hurt.” If you’re caught violating copyright law and you can be punished via statutory damages for up to an amount, you got off easy. It’s not excessive if the guy can win, and in this case, he can.
I’m not sure why you felt the need to tell us that you’d let him sue you — because if this was on your website, you’d settle instead of risking liability. I know this because you didn’t reproduce the image here, on your site, telling him to come at you. If you are stating that a judge would throw the case out because damages were “excessive,” that is a reach, because he is within his rights to sue for that much.
Well said!
Well said? please. He should get no more than $500 bucks, and give the lawyer half that. If it was with “ill intent” sure, throw the book at someone. But if it was an accident, and they complied immediately to demands, the law’s being manipulated to extort people. It creates a scenario of two victims.
I see the point of going after people who disobey the law, but there are varying degrees of punishment. I think requesting such amounts is foul. It creates an industry where lame photographers are just going to start suing people to make up for their lack of talent or creativity. I commend these guys for having the courage to share their mistep to help other people, including photographers, so why crap on them?
Actually they are not within their rights to sue for whatever amount they want, just the amount they would have normally made. Again, all you people that think it is ok to sue for excessive amounts, you are whats wrong with this country. It’s not ok. I do think that people should be compensated for their work, just not over compensated. And I doubt these companies liek Getty would sue anyway, they simply cannot afford to lose. Once they lose then the cat is out of the bag and NOBODY will pay. What these sleazy people do is send these threatening and “scary” emails out to a ton of people. Some pay up, some don’t. They know they will get paid by a certain percentage and the rest will tell them to “F” off, as they should. Now if these people asked for a reasonable fee then ok, everyone should pay up. And what is reasonable? All you have to do is look for the same image on a pay for image site, whatever site that may be and see how much they are charging. THAT is how much they should ask for. 4000 bucks…are they smoking crack. Next time you guys get “busted” just ignore them.
You didn’t make the image, you simply don’t get to decide what you think is just compensation, end of story. It isn’t your property!
If I take a photograph and want to charge 100,000,000,000$us for it, that’s my right. I created the image, I own the copyright to it which is the right to reproduce it, the right to modify it, license it, etc, it is COMPLETE OWNERSHIP of the image, it’s MINE. YOU have NOTHING to do with it!
Stealing the image doesn’t suddenly give you rights to decide what is and isn’t “just compensation”. It isn’t your image! You didn’t make it, you didn’t register it, you didn’t do anything but STEAL IT. You have no right to even have an opinion about what it should be licensed for, IT ISN’T YOURS!
With all of that in mind … the law protects people and their property, and in this case that protection comes through copyright, trademark, and other intellectual property law.
I blame the educational system for people’s warped sense of entitlement to other people’s intellectual property. Because of “fair use”, educators and students get to use images and other materials with much greater freedom, and the same is true of editorial use, so news outlets for example, but educators SHOULD be teaching students that this is not true once students leave school and start using images to make money in the commercial world. Too often students leave college and think they can just keep taking images anywhere off of the Internet that they want and use them in commerce as if they were putting together a collage for their University art project. It just doesn’t work that way people!
“f you’re using copyrighted work for teaching or research, criticism or comment, or news reporting, it may be considered fair use.”
But not copyrighted photographs, hardly ever. Go read the law: it talks about using brief extracts from a work. What would a brief extract of a photograph look like?
“…copyright laws are blurry..” Not really. Copyright protects real property. If you went joy-riding in your neighbour’s car without permission, and they reported the theft of the car, would you expect the police just to walk away when you returned the car? Similarly taking down a picture when you’re caught doesn’t let you get away with it.
Overall I’m appalled that a bunch of copywriters (whose own livelihood is protected by copyright, for god’s sake!) can be so stunningly ignorant about fundamental aspects of copyright. ‘Naive’ doesn’t begin to describe it!
Wait a minute!! You have to compare apples to apples here.
Let’s try a more realistic comparison.
If a man is driving down a dimly lit road on a stormy night and accidentally hits and kills someone, which they most likely would not even get a slap on the wrist for. This is much different than the same man driving down the road, eyeing a person and then accelerating and intentionally hitting and killing them, which he would then go to jail for.
Purposely steeling a car and then returning it expecting to get a slap on the wrist is unrealistic. And not what we’re talking about here.
I should add that I am a songwriter and completely understand the value of art and copyrighted materials. And I have many songs on file with the US Copyright office.
However, there is also a reasonable expectation of justification for damage and loss of income claims that should be considered with these infringement cases. If a song I wrote is aired in a television commercial to millions of viewers that’s a completely different discussion than if someone posted it as background music on a website that received a couple hundred visitors in the past month.
Many of us have Google Analytics now that track our website traffic, which can’t be altered once it’s captured and therefore could use that data to help value the damage and loss caused by an accidental copyright infringement. Note that I’m saying ‘accidental’. An intentional infringement is a different discussion and requires sufficient punishment to stop the accused from doing it again in the future.
Getty recently sent 3 of my customers a copyright settlement demand notice for the same exact image on 3 different websites. And all 3 claims were for different dollar amounts!! This is where I begin to have a huge problem with how this is all being handled by Getty.
(See my post below for more on this phone conversation)
What you’re talking about – proving damage, showing how much revenue is lost, considering how much the infringer made in profit, etc, IS part of copyright law … that’s what happens in court cases of infringement for unregistered works. When you don’t register your copyrights you have to prove things like this in order to get a settlement, and the reason you probably even think in these terms about copyright is because that has been true for over a hundred years in the United States.
That said, if the copyright owner registered that copyright then it is statutory damages, meaning money required BY LAW be paid by the infringer to the copyright owner, and it has NOTHING to do with how much was made or lost in commerce, and has EVERYTHING to do with THEFT as a civil matter. That’s why statutory law has such steep penalties, SIX FIGURES, even for “minor” infringement when little money was made or lost in commerce. One thing has nothing to do with the other.
I know the figures seem extreme, but how low could they be and yet still get the message out there that the internet is NOT a vast free resource there to be plundered by commercial interests? What about the commercial interests of the creators?
Copyright infringement fees have got to be big enough to deter thieves and teach the stoopid people, or there will be no incentive to pay for anything on the basis that IF you get caught, the consequences will be bearable.
As for the lawyer’s letter going to the client, in the eyes of the law it’s the client that published the work and is therefore liable. The client can then choose to sue the copywriter/web designer/whoever dropped the ball.
Simple lesson people, stop pretending that internet theft is a victimless crime. Photographers ARE trying to make a living; they ARE having to diversify to survive, but take away their only source of income (licensing of images) and within a few years the only pictures you’ll be able to find on Google will be kittens, steam fairs and dandelions.
Finally, don’t ignore the fact that the image you lift off someone else’s website might have an exclusivity clause, might be context sensitive or have other issues related to it of which you will not be aware.
There does not have to be a fee at all to “get the message out”. Believe me, if someone told me I was accidentally infringing on their copyright I would immediately stop. The only thing these lawsuits do is make me hate lawyers and NEVER want to deal with any professional photographer.
I think your opinion would be completely different if yours was the work being stolen. Yours is the message of every music ripper, software pirate, and copyright infringer on the Internet, people who just want to keep using other people’s work for free to do what they please without any penalties.
I applaud the way you’ve handled this. However, you must realize that photographs are misused all the time and it’s something that we as photographers have no tolerance for. While the amount demanded may have seemed excessive, the amount owing to the photographer will automatically be much higher in the event of image theft (even if it was as a result of plain ignorance).
For someone in your line of work to be unaware that photographs are automatically copyrighted unless explicitly released is pretty astounding. Hopefully this story will help others in your place to do the right thing in future!
Cheers,
Peter
How nice of you to write that the image was “nothing spectacular.” I guess that takes some of the sting out of your infringement?
Man that’s a lot of photographers climbing on this soapbox to bleat and whine.
Truth is you photogs are a dime a dozen and millions of teenagers with half-decent cameras are pushing your ‘art’ to the margins. Your ability to monetize and marginal value gets closer to zero every day.
Yeah, these guys stole a photo. That’s wrongo. But $4000 is extortion, not restitution. You photographers need to stop unloading here because you’re suffering for your art.
I’m a writer. If you can steal my stuff and make money from it, go for it. Shame on me for being good enough to have my work stolen and yet average enough that I need to protect my past work in order to continue eating.
Oh and please stop using the ‘steal a car’ analogy. I don’t know where to start telling you how wrong that is.
This is a weak and old argument. While agree that anyone that can afford a half-way decent camera can make $1 an image from the safari their parents took them on when they were 9 years old, we’re still not at that point yet. Until then this is the reality of IP infringement. It’s your choice and your right to allow your work to be used for free but in a sense – that’s part of the problem. You’re involved in the “race to the bottom” so that copyright and IP protection become null and void.
Lessons need to be learned regarding infringement. This is how they are taught – with a $4k bill.
It’s copyright itself that is becoming weak and old, and copyright wasn’t created to protect artists, it was created to protect publishers.
Also, it’s not a race to the bottom, it’s simply the reality that photography is no longer high art.
Yes, it can be, but this isn’t Annie Leibovitz being ripped off, it’s just a $10 stock photo.
@copywryter
“Oh and please stop using the ‘steal a car’ analogy. I don’t know where to start telling you how wrong that is.”
Oh do please start telling us! Copyright *is* a form of real property, it can be bought, sold, leased… or stolen. Just like a car.
Copyright is a legal protection for intellectual property, not real property. A car — not even the rusty undercarriage — of your mind is not intellectual property.
Furthermore, stealing a car is dangerous and criminal for dozens of reasons, most of which don’t have to do with protecting the worker or company who created it.
Comparing stealing a digital image to stealing a car is specious, lazy and wrong.
Those of you on here who think $4000 is excessive need to realize something. The copyright registration allows for $15000 per infraction. And on the web, an infraction is when the image is served. So the photographer and lawyer were making it easy on this company. They could have easily asked for a million.
And Copywryter, if I ran into you on the street I’d kick your butt.
Rick, you’re a simpleton. RIght and wrong are not inline with the law in this case.
15000$us per infraction is WRONG.
Try 150,000$us per WORK, statutory damages.
Well said!
If you find him in the street, call me. I’ll be there to hold him down!
And for Copywryter and other REAL copywriters: This legal protection is for you also. I don’t understand why you would throw stones and evil, selfish comments about IP protection for photographers! As soon as you destroy THIS protection, the rats will be coming for you next!!!
Great – if you can get the photo you want by paying your teenage neighbour 0.84 cents (a dime a dozen), then go for it. But if you want to use *my* photo, then you’ll have to pay the price I set. And if you use my photo without permission, then you might get a letter from my lawyer demanding an excessive amount. Why? There are simply way too many people with this kind of attitude ripping off my photos for me to go at all of them, and I recover I’d rather get a lot from a small number of infringers than waste all my time going after a small amount from all of them. That way, I can concentrate on taking pix instead of arguing with idiots over how much my work and time is worth.
I am glad that you are fessing up to the details. I quite agree that $4,000 US is a very large price to pay. But it should be clear to one and all that it is necessary for that price to be sufficiently huge as to serve as a deterrent to the crime. And we can expect you are herewith deterred. Thank you for posting the saga, I will help spread the word by pointing folks to your blog.
As a guy who makes a living through my photographs, I appreciate you sharing ths story. Thank you!
There are certain circumstances where a photograph may be used in journalism and be fair use. For instance, if someone does an article about me and uses one of the photos off my Web site, it might be considered fair use. If they do an article and use ALL the photos off my site, it’s probably going to be infringement. As somebody noted already, fair use is for using a portion of the work.
As for a $4,000 fee? That’s quite small compared to what it could have been if you’d gone to court and been found liable for using a registered work.
I, for one, am delighted that you’re publishing your story, even if you do seem a little miffed at what your error cost you. Here’s hoping lots of other offenders will learn from this.
Thank you for your your candid and humble acknowledgement of this all too common error.
I have had to educate many clients about using images from the web and the copyright issues that can ensue. Your experience hits very close to home and although I feel badly for your team’s expensive error in judgment, your story will be a good example of just how badly a situation like this can go.
Hard lessons learned, but handled like a true gentleman. ;)
Ten dollars or ten thousand dollars, few working photographers sell prints *or* electronic files at those prices. Instead, working photographers sell (or give away) *licenses*.
Sheesh, these copywriters sound more than a little confused about the business model used by photographers, composers, designers, recording musicians, and writers. It’s similar to the confusion about “buying” Adobe’s Creative Suite or Microsoft’s Office. No one buys those programs from Adobe or Microsoft. Instead, we buy specific and limited licenses.
Thousands of working photographers sell their stuff on stock houses, which is where this $10 photo was found.
Licenses on those sites are usually limited to a website or single use, which fits here.
Trevor Stafford, You’re totally wrong on this one! Go back to your source and read it again. You will NEVER “own” an image you license from a stock service. For example, if you OWNED the image, you could contact the stock agency and demand that they delete it from their offerings and tell them not “sell” it to anyone else… ever again. But, since you ‘license’ an image, and not ‘buy’ it, that will never happen.
I don’t know what kind of work you do, but it’s quite apparent you’re a novice in this arena. If you’re NOT a novice, and you DO know the laws, then you just may be a IP PIRATE. (Another word for THIEF)
Why else would you so vehemently argue the legitimacy of stealing someone else’s efforts without proper payment.
I have been a full-time commercial photographer for over 30 years. I have seen single images licensed for a two year term for over $30,000 to $50,000, and not just once. Granted: Those prices are fewer and farther in between than in the past, and it does have a lot to, but I’m afraid you’re living in a fantasy world!
We can’t just make up the world the way we want it to be, and we can’t just steal someone’s work without payment… even if we want it really, really, really badly!
As for your statement that photography is no longer a fine art, you missed reality on that as well. In addition to my commercial work, I also collect photographs and I follow that market.
Here’s a small list of fine art photography prices realized from recent sales:
This is a list of the highest prices paid for photographs (in US dollars unless otherwise stated).
1. Andreas Gursky, 99 Cent II Diptychon (2001), $3,346,456, February 2007, Sotheby’s London auction.[1] A second print of 99 Cent II Diptychon sold for $2.48 million in November 2006 at a New York gallery, and a third print sold for $2.25 million at Sotheby’s in May 2006.
2. Edward Steichen, The Pond-Moonlight (1904), $2,928,000, February 2006, Sotheby’s New York auction.
3. Dmitry Medvedev, Kremlin of Tobolsk (2009), $1,750,000, January 2010, Christmas Yarmarka, Saint Petersburg.
4. Edward Weston, Nude (1925), $1,609,000, April 2008, Sotheby’s New York auction.
5. Alfred Stieglitz, Georgia O’Keeffe (Hands) (1919), $1,470,000, February 2006, Sotheby’s New York auction.
6. Alfred Stieglitz, Georgia O’Keeffe Nude (1919), $1,360,000, February 2006, Sotheby’s New York auction.
7. Richard Prince, Untitled (Cowboy) (1989)[6], $1,248,000, November 2005, Christie’s New York auction.
8. Richard Avedon, Dovima with elephants (1955), $1,151,976, November 2010, Christie’s Paris auction.
9. Edward Weston, Nautilus (1927), $1,082,500, April 2010, Sotheby’s New York auction.
10. Joseph-Philibert Girault de Prangey, 113.Athènes, T[emple] de J[upiter] olympien pris de l’est (1842) $922,488, 2003, auction.
11. Gustave Le Gray, The Great Wave, Sete (1857) $838,000, 1999.
12. Eugène Atget, Joueur d’Orgue, (1898-1899), $686,500, April 2010, Christie’s New York auction.
13. Robert Mapplethorpe, Andy Warhol (1987)
$643,200, 2006.
14. Ansel Adams, Moonrise, Hernandez, New Mexico (1948) $609,600, Sotheby’s New York auction, 2006.
•••••••••••••••••••
These are only the top 10 prices realized. There actually have been many more!
Finally, I’m extremely happy that webcopyplus posted this. My hat’s off to them for being so gorthright about their slip up.
They seem to have done it to alert others what can happen if you steal, even if it was inadvertently done. This should be so helpful for the folks that deal in this realm!
I’m more than a little shocked there’s so much argument (especially within a community of creatives) about why users should be allowed to steal!
WRONG…those pics can be used on as many websites as the legal owner wants. Get your facts straight.
Yeah, the key is maintaining the relationship with the client. How they came up with that kind of damage is ludicrous.
You source GettyImages in the article, which is ironic, as Getty is one of the more notorious providers, which actually has active crawlers which scour the internet for usage of their images, which kick starts a legal process the likes of the recording industry.
http://www.bradino.com/news/getty-images-suing-website-owners/
I appreciate the property rights here, but the damages are completely out of context. The humanity is completely lost in these cases which saddens me greatly.
The only safe place on a shoestring for me is Public Domain:
http://en.wikipedia.org/wiki/Wikipedia:Public_domain_image_resources
Hey happy yo use Pixmac link if that helps you guys, after the lesson learnt.
LJS
Wow, I guess I could have sued as well….
There were more then a few people out who took all of my website copy and used it as their own.
I just filed a DMCA complaint with their web host and moved on. Just kept on an eye on the offending websites to make sure that they took it down..
I have two copyrights….
One for the ebook I sell – and for the web copy. I am glad that I spent the 33 dollars to get them both protected.
Sorry you had to learn such a hard lesson – but thanks for this post. I now know that if people mess with me – they could be out a few bucks if I was to get serious about pursuing legal action…..
Nah…probably won’t….
Robert C – The Wholesale Guy
I must applaud you for your rather frank admission that you had done something wrong, and taking the additional step of publishing this post to advise others as to why it is wrong.
I mean that most sincerely.
But…
Your comment starts to unravel at the point where you suggest a counter offer. You admit to using the image without rights, but then to presume that you should be the arbiter of its value.
If you had done some work for a client, and after submitting an invoice you received a counter offer based on their determination of what your time, effort, and experience were worth, you would most likely be justifiably outraged; and that would be with the benefit of having a pre-existing arrangement with your client. In this case you had no arrangement with the photographer, but still feel on some level that you have some position to determine what the work you appropriated is worth.
You have no way of knowing what other arrangements the copyright holder has made: perhaps he’s licensed that image to someone who paid extra for exclusivity, perhaps he markets it through a stock agency who has now found him in violation of their agreement. You simply are not a party that can determine its value on any level.
Very well said. There are so many unknowns and the idea that someone who stole the image can sit back and decide what it’s worth is ludicrous.
I disagree here.
While I totally agree that the lawyer and the copyright owner are in the right (see my other posts in this thread), and I totally agree with statutory damages for protected works, I see absolutely nothing wrong with someone making a counter offer to reach settlement.
Settling cases out of court is an American tradition and helps everyone, it’s a negotiation. Nothing wrong with that at all.
I agree the infringer doesn’t get to decide on his/her own what they’ll pay, of course, but they’re certainly invited to counter to reach settlement.
“it cost us almost $4,000. Consequently, we urge others to recognize and yield to a simple fact: If it’s on the Internet and others wrote or created it, do not use it without their permission.”
You got off lightly.
I’ve never seen such willful ignorance perpetuated by a company who provides a service online to others. The copyright holder went after your client because they are the infringer. Simple.
I shall circulate this article, and hope your clients realize that they can’t trust you with their precious online presence.
“And Copywryter, if I ran into you on the street I’d kick your butt”
I think you’d find it hard to fight through your martyr’s tears, though clearly your reality-distortion field would present some problems.
You sound so gracious, but why not say the truth directly: you were going to fight a legitimate claim. The person who was wronged (not you), had to prove ownership by producing a copyright registration number. Then you admitted what was clear from the start, because you had no choice. Stop acting so saintly. If the owner was like most of us and hadn’t registered the image, would you have been so gracious? It’s no wonder they decided to stick it to you, and you really should be grateful it wasn’t worse.
Wow, what a bunch of holy photographers! All this finger wagging, and one wonders if they have any tunes illegally placed on their ipods or movies on their computers. $4 grand for a basic photo is criminal.
As copywryter pointed out, with digital cameras floating around, photography is becoming a commodity. A 4 year old can do most shots. So settle down and get real.
Interesting too how photographers and lawyers are teaming up, making photos readily available, so they can go after the poor suckers using images without meaning harm. After all, what’s better – making 15% of a buck, or thousands of dollars for a crappy shot? Legal extortion is what it is. People should pay for misuse, but don’t demand such idiotic damages.
I take issue with what you said. As a photographer this is how I make my living. It’s not right that someone takes my image that I’ve spent money and time to produce and have someone else make money off of it.
That’s called stealing, your not supposed to take things that are not yours.
FYI, I do not download anything illegally because it’s not right and that’s stealing.
It’s perplexing the people coming out against photographers for standing up for their legal rights. WebCopyPlus did something illegal, they made it right (granted, only with legal coercion), but then they went the extra step to tell other people about their mistake, and attempt to educate them about the matter. But even with this effort by WebCopyPlus, some are still anxious to blame the victim, its just unfathomable.
Hypothetical situation: Company A sees a mediocre photo of a beach for sale, realizes it is exactly what they need, and pays a photographer $50,000 for exclusive rights to the photo. Now Company B (a direct competitor to Company A) has somebody’s nephew making up a website, a Google search pops up the image, and bingo website done.
Company A is going to be pretty pissed and go after the photographer. Company B isn’t part of the transaction and has no right to determine what value, actual or perceived, should be assigned to the photo, NONE.
4 grand for a photo is criminal? What if the photographer spent $6K on equipment to get that shot, and $2K on travel expenses to get to that tropical location? Does it seem so ridiculous then?
You cannot compare a work of professional photographer with a work of four-year-old. And obviously you cannot compare their cameras.
You will never let your four-year-old infant touch your expensive professional camera.
I think you have no idea what professional photography is. Do not make an argument if you don’t have the knowledge.
Thanks for posting this. It’s refreshing to see your reasonable tone. Another company would have written an angry post about unfair photographers. I appreciate that you’ve turned this unfortunate experience into a lesson.
But my two cents to add is this: $4000 is a lot of money, and it’s certainly far more than the value of properly licensing and using the photo, and the lawyer’s fees, etc. But the reason it needs to be so high is that, if the photographer had settled for an amount closer to what you would have paid anyway, the lesson learned is “I can infringe on copyright, and if I get caught I just have to pay what I would have paid anyway, so I might as well chance it.” That’s how a lot of people treat the issue. The penalty has to be high enough to deter that kind of thinking.
The fact of the matter is plain and simple. You broke the law and got caught. And all of those who are whining about how stiff the penalty is; should think about what they’re doing. If the penalty wasn’t stiff, then people would continue to flout the law and get away with it. In my opinion, your having to pay 4,000 was a sneeze in comparison.
1. You made $ off the back of someone else’s work in terms of profit that should have rightfully gone in royalties for the use of the photograph to the photographer.
2. Your whine about how stiff the penalty is, is crocodile tears. You are just sorry that you got caught. If you hadn’t you wouldn’t be rethinking your whole idea of stealing images off the internet, would you?
I can’t let this misstatement go unchallenged any longer. So many people have said “You make a practice of taking photos off the Web” when the author explicitly said that they have a policy of using stock photos… and one time, one of their people messed up. While that was obviously wrong, demonizing them as habitual violators is also wrong.
Also, there is a thread of accusations that violators think they should only have to pay the original fee if they get caught. This is a straw man. I doubt anyone disputes that the consequences of getting caught for even inadvertent misuse should be significantly greater than the cost of initial compliance; the question is whether it should be “significant” or “astronomical”. A $400 penalty for a $10 photo would have warned and deterred any reasonable firm just as much as a $4000 penalty, though they probably wouldn’t have felt the need to write about it. One person takes a huge hit so others don’t do the same thing.
I’m amazed that anyone can be in the business of content creation and not have even a rudimentary grasp of copyright law.
Kudos to you for coming out and letting other marketers know that this behavior can really cost you a lot. Too many bloggers, marketers and publishers thing they can just get away with this forever. Perhaps if enough people tell this tale, everyone will learn.
Professional Photographers just want to be paid for there work just like everyone else. Stealing it is wrong. Many employees and volunteers who run websites don’t realize this and they need to be educated. Complain about it if you want, but the law exists for a reason.
Yes the business models of photography are changing, and believe me, it is not what it used to be, but you can’t use a photo without permission on one hand, and then try to claim that it is worthless on the other. If it was worthless, you wouldn’t have taken it. It may not be “anything spectacular,” but it has value–after all, you charged someone a lot of money to use it in their promotional product.
You were right to settle and you show good character by admitting your mistake so others can learn.
I would add, that it is important to know the source of the images. If someone else had stolen it and passed it off as their own and given you permission (there are infringing sites all over), you would still be liable. That’s basically what happened to your client, but it could just as easily happen to you if you don’t use a trustworthy source for your images. (read up on AFP v. Morel)
I am a bit perplexed. You use an image or images without permission and/or compensation to the photographer and your shocked they are upset and want compensation? May I use some of your work you’ve spent time and energy on for nothing? Ah come on…please?
Are photographers not expected to make a living? Please don’t say you didn’t realize because that’s not believable.
In this economy it’s hard enough to pay the bills as a photographer, without others devaluing or worse yet stealing our work.
As far as the compensation.. the photographer had to retain a lawyer, so sticking up for oneself costs time and money. They deserve to be made whole.
Don’t steal people’s work and you won’t have these things happen to you…..there’s an easy solution!
You guys really think you just pick the value of your photos? $4000 is reasonable? How? Appreciating legal fees play a factor, the market determines the value of a photo. I can’t pick up a camera, click the shutter, and say, that ones worth $500!
The market determines the value. And how many photographers are able to charge thousands for a photo. Most sell them on stock sites for a dollar or two — that’s ALL they can get from the market. And then the photographer gets 25 cents or so. So insisting photographers can choose any value out of the air is ridiculous. Exclusive rights scenarios, sure. But generally speaking, it’s a nonsensical stretch. I love photography, and appreciate the craft, but come on.
You can click the shutter and say it is worth 100,000,000,000,000$us if you want to, it’s YOURS, that’s your right!
Customers don’t get to decide how much they want to pay for gasoline, or how much they want to pay for a car, or a house, just because it’s there and they want it. IF that was possible I’d get a 1$us Ferrari. Just because photography and other intellectual property is EASY TO STEAL doesn’t make it any less of a crime.
Wow.. I’m horrified at the ignorance you seem to indicate is prevalent in your industry, but very well done for coming clean, openly writing about it and learning from your experience. It’s great to see someone step up and admit wrongdoing and to past disregard for the law and creative rights.
Oh, and as an experienced photographer, I think US$4k is pretty much on the money for a settlement; I totally disagree with the photographers you spoke to who thought it is excessive.
@DHill There are many factors that go into the licensing cost of an image. Without you’re knowing what what into creating an image etc, it is not practical to say that an image is only worth a couple of dollars. Photography is only a craft? Imagine a world without images. Photography is a cost-intensive profession and art for those who invest of themselves to create images.
I find this article interesting cause even though you paid up, you comment that the offer was rejected by the lawyer, yet it would have been rejected because his client told him to!
If this was the other way round, and another web design firm was copying your layouts and using them, you would be only to happy to engage a lawyer and try and get a nice tidy sum out of the other party.
I am not a lawyer, I am a photographer, and I am quite pleased with the outcome here.
Seriously dude? For all you ‘yeah, good they paid, stick it to em’ photographers, these guys stuck their necks out to admit a fault and help generate a better understanding of copyright issues.
It seems they volunteered to get the word out. The amount was steep, but thats not the essential thing we should focus on (mind you, THEY should because they has to pay it!). Its getting the word out. If more companies had the balls to admit these sorts of errors, this wouldn’t be such a problem, don’t you think? I admire their willingness to step up to the plate for the benefit of others.
Notwithstanding the complaints you raised about the valuation the photographer’s attorney demanded as settlemnt, it was a very good “coming out” article, with you realizing the fact that pirating doesn’t pay. Those that quibble with the $4000 figure are immature in the ways of business. Webcopyplus got caught redhanded and they are lucky it only cost them 4000 and not more. They were put in between a rock (their client, the end user) and a hard place (the photographer). He had registered his image(s) and thus was entitled to statutory damages and attorney fees in district court. Hence the ability to ask for and get 4000, the cost of which is cheap if if kept the client from leaving.
Kudos for coming clean and I hope you all have learned from your mistake. It was a costly one but you are better guys for it. Thanks for sharing your honest feelings.
Thanks for writing such an honest post. I hope that your story helps others in the creative industry avoid this situation in the future.
“Designers, writers, developers, marketers, business owners, and ironically even photographers, use photos from the Web without permission. Sites like Google make it so convenient.”
Exactly! And, unfortunately, many of these people don’t know they are doing something wrong until they get contacted by a lawyer.
You should check out ImageExchange. It is a free app that sits on your browser, instantly identifying licensable images and providing direct access to the licensor for purchase.
You did the wrong thing and got caught. End of story. I’m a photographer in Australia, under our laws, the minute you press the shutter your image is copyright. No (C) on photo is necessary (although I often do put it) and we are protected.
There is far too much free and easy downloading of images from the web. Google searhces generally take you to the original site of the photo, so there is no excuse for not asking if it may be used and offering a fair usage fee.
I’m glad to read this story. I’m a photographer and writer, and over the past two years I’ve lost over $1,000,000 due to the illegal downloading of one of my ebooks. You can read the whole story at http://www.thecreativescorner.com/2010/03/23/your-copyright-is-useless/
Maybe stories like this will finally get businesses and people to respect copyright laws.
Have Fun,
Jeff
Jeff: Your notes about your copyright being infringed, but being useless belie the basic understanding of registration. Nowhere on your blog, not even in response to the two comments, do you indicate that your registered your eBooks. A search of the US Copyright Office records indicate no works registered under either your name, the titles of the books or creativecorners. Although copyrights vests at the moment of creation you need to register your works to obtain the legal benefits given to you by statute, that of attorney fees and statutory damages. Webcopyplus’s confession is great in that it demonstrates the effectiveness of a registered work. registration is cheap $40, compared to the labor you have expended in creating your works. Register!
Some readers seem to be missing the point. The copy writing company made an honest error, paid their dues, and went public to create awareness. I’m a photographer and I’m grateful they’re sharing their experience so others can understand copyright issues. Yes, it’s frustrating to have your work used without permission and pay (no stranger to that), but let’s keep things in perspective. There was no deliberate act to harm, it was a single incident, they paid up, and stuck their necks out to help others. And I was impressed to read on the SF Chronicle they recognize their error on multiple levels:
“As copywriters we work with and rely on a range of creative types and specialists, including photographers. We didn’t mean any disregard for this profession and now have a greater awareness and appreciation for the fact that freely using photos from the Web diminishes a photographer’s income and livelihood. We apologize for and regret our action, and we’ve created internal policies to ensure it won’t happen again.”
Instead of taking shots, please share this story and others like it to educate those who aren’t familiar with copyright, and put fear into those who are familiar with copyright, but choose to ignore it.
Finally, thanks for bringing the story to the surface.
Thanks, R Miller! I agree!
I find the story interesting from a number of points and the first one is about getting images from Google… it quite clearly states (on the right of the screen) under the image that it may be subject to copyright – obviously the member of staff failed to read or take note of this.
As a Professional Photographer, I find some of the comments claiming that ‘anyone’ can take a picture and that $4K is too high offensive, clearly show their ignorance of the true costs of a Professional/Commercial Photographer and it is those people shooting for free and giving away their images that have caused the value of images and photography to hit rock bottom.
$4K was a ‘let off’ and it does not even cover the cost of one of my Camera Bodies!
“it is those people shooting for free and giving away their images that have caused the value of images and photography to hit rock bottom”
that sounds like a mediaeval joiner’s guild complaining about common people using hammers! If your photos were good enough, all the free photographs in the world wouldn’t undermine their value. But like most professional photographers, you probably lack the talent necessary to differentiate your product. Hard cheese old boy!
Thank you! Well said.
Also, someone steals one photo from you and you want a whole new camera? Why are photographers the most stuck-up and self-important people there are? (I AM a photographer so it makes my skin crawl to listen to all of them whining here) “It’s an art form, it’s a craft, it’s such high art and so expensive to do, its the n00bs fault for the decreasing prices!…” technology has made it cheap, accessible to the common man which means that its exclusivity is almost gone. Welcome to the free market. Welcome to competition and survival of the fittest. And I’m sorry to say it doesn’t take that much anymore to become the fittest. Eat a slice of humble pie and realize you aren’t that special. =S
very related:
http://messerveyphoto.wordpress.com/2010/07/22/me-vs-corporate-america/
While I think you declaration of guilt and subsequent payment does ( At least in my mind) demonstrate some level of genuine remorse. I get the overwhelming sense that you think its all “the lawyers fault” or the photographers…. You know as well as everyone else reading this that if someone stole your work you would get a lawyer pretty quick. Its what you have to do. negotiating direct just means you’ll either be ignored or get sold short. So lessons learned .. you won’t do it again, honest mister…. Lets all get on with our lives and stop bitching.
Thanks again for the sharing your views and thoughts.
As previously mentioned, we opted to share our blunder to help raise awareness about copyright issues. And, again, I apologized for the screw-up, and we’ve taken steps to ensure this mistake never occurs again. We didn’t mean any disregard for this profession and through this experience have gained a greater appreciation for the fact that using a photo from the Web diminishes a photographer’s livelihood.
I hope sharing the story will inform and educate those who have illegally used a photo from the Web, knowingly or unknowingly. Some organizations have reached out to us with questions, from as far away as England, who weren’t aware they’re in the wrong. Now they know. So it seems we’ve made some impact, even if it’s on a small scale.
What I do not quite understand is the fact that your copywriters were not aware of the illegality of “grabbing” images from the Net in the first place. Through TinEye I have found many of my images filched from the internet and most eventually pay up on demand. Placing copyright watermarks on one’s work also does not deter folk as through TinEye I found a Romanian publisher had removed the watermark, cropped the image and placed it on the front cover of one of their titles. Like you, they were most apologetic (“busy graphics department etc etc”) and they eventually settled for 1,100 euros which is about five times the amount they would have paid if they had contacted me in the first place. They learned their lesson and so have you! BTW, between five and seven times the amount is generally the norm as far as punitive damages is concerned.
Assuming the photographer’s lawyer charges a typical IP lawyer fee of $300 an hour, and that the exchange of letters and etc. took about 10 hours, and that there were the usual photocopy fees, fax fees, and telephone charges, I see the photographer getting a whopping $500 out of all of this. I have no idea if he has to pay income tax and state tax on that amount, but it wouldn’t surprize me. That means that what he’s left with barely pays for all the aspirin and Pepcid he’s eaten since finding his image stolen.
Please stop making the photographer the bad guy…he didn’t steal anything. He didn’t accuse anyone of lying (which the copyrighting firm did by insisting on the copyright #). He just wanted the thieves to pay for illegal use of his image. He’s the *good* guy here, the productive businesses person who looks out for his business and fights those who want to break the law and use his property illegally.
In Google image search advanced options, you can choose to filter for Labeled for Commercial Reuse in Usage Rights. I wonder how accurate these restrictions are – has anyone been using this option?
Since Google is a commercial enterprise and is finding and displaying all the images it can find why aren’t they required to pay for them too?
Alternatively maybe they should be required to collect the usage fee and forward it to the owner like a radio station that plays songs has to pay the royalties. If Google gets away with it because what they offer is “free” I don’t think that’s fair because the music I hear over the airways is “free” too and yet the radio stations must pay royalties musn’t they?
Why aren’t the aggressive lawyers going after Google with a class action suit on behalf of all the professional photographers?
There are things need to get prepared properly before a photographer shoot an object. The lighting, where it came from, where it hit the object, how strong it needed. The color combination of the object, the background. The lenses and filter effects, etc. Everything has to be perfect to make a perfect result.
Do you think you can make a perfect result with your cheap camera and your lack-of-knowledge of photography. Even if you shoot an outdoor object with no preparation, you need a professional camera, a sense of art and a skill of photography to make sure the result is good enough.
Just because you know how to draw a picture, does not mean you are on the same level as Picasso.
Please forgive my poor English.
Not sure that this is really useful information for anyone, but I thought I would share my outrageous experience with Getty on the phone this afternoon, 11/22/2011 at about 12:41 PM.
I’m a web developer and was recently sent one of these infamous Getty demand letters, actually 3 of them all for the same image that was used on 3 different websites my company had built. As with many other companies, we immediately replaced the image with a copyrighted image in all cases and called Getty expressing our apology and agreed that we definitely owed someone some money, but wanted to talk about the amount.
They were completely unwilling to discuss anything to that regard. The three demand letters were all for the same image, but for 3 different dollar amounts ($825 to $995)! I asked them to please explain how they came to those numbers and why it was different on all 3 claims and that we would be happy to pay whatever was reasonable following that breakdown. The woman on the other end of the phone flat refused to provide those details and said that by law they didn’t have to provide me with that information until the claim went to litigation.
Needless to say, I became very firm, but remained calm, and said that it was unethical to send someone a bill for something without explaining to them how you got to that number, especially when their were 3 different dollar amounts for the same image. She then told me not to use that kind of language or she was going to hang up. I ask what she was talking about? “Unethical” is not a “bad word” that I’m aware of.
And I assure those of you reading this that I was not loud or aggressive with my tone. I’m a very calm person, I’m 40 years old and have never been in a fight in my life. And I guarantee you, anyone who knows me will say that they’ve never even heard me raise my voice before.
Anyway, back to the discussion.
I then told her I would like to talk to her supervisor. She then said she would be glad to take down my number and would have someone call me back when they had a moment.
I sat there in silence, stunned at how they had me backed into a corner with no options. I wasn’t asking to not pay I just wanted some details. As a matter of fact, I settled and paid an $11,000 claim filed by MasterFile over a year ago for $4,000 on an image that an ex-employee had posted on a customers website when they were building it. I didn’t have an argument because the employee was not available so I couldn’t argue where the image came from and I was also very unaware of how this all worked.
“Many of the targets of [undisclosed company] suits appear to be individuals and non-profit organizations who lack the economic resources to defend themselves against [undisclosed company’s] claims…. ”
The above quote, from the LA Times, is exactly how I feel about Getty’s approach. They know I can’t afford to take this to litigation and therefore will be forced to just pay whatever amount they tell me I have to pay.
Needless to say I’m very disappointed in the laws around this process and the power that has been given to the accuser to just pull a dollar figure out of a hat and slap it on a demand settlement letter. Knowing that the cost to take it to court and hire an attorney out weight the expense of just paying them to go away.
What is most disappointing is that I am finding myself afraid to buy any images online now, in fear that I might have the wrong license type or the image might not really be legal. So I’ve asked my staff to remove all images from our library of images that we thought we had the right to use and we have purchased a $1500 camera so we can shoot everything ourselves from this point forward.
So, in the end, the copyright owners/photographers that we were buying images from just lost a customer. And we’ve built over 3000 websites in the past 10 years. I’m pretty sure this wasn’t the end goal when they signed over the rights to their photos to Getty in the first place.
Additional, I’d love to talk to the photographer of the image that we are obviously going to suck it up and pay for, and find out how much of the $2700 they will actually receive from this claim.
I’m fairly confident this is not how George Washington intended the copyright laws to be enforced when he signed the first federal copyright act in 1790.
simple : dont steal music, photography or anything else you think is free
Everything and nothing is free, it’s impossible to tell.
“we have purchased a $1500 camera so we can shoot everything ourselves from this point forward.”
Well, if you think you can do a good enough job with the photography, then go for it. In fact, you should’ve been doing that all along. But I’m wondering what’s going to happen when you need an image of an obscure subject, model or location. Will you be hopping on a plane to Bali? Probably not. Do you have the lighting skills to match the stock you’ve been buying? If not, then will your client be happy with your images? Probably not.
I never use images from Commerical Stock Photography sites, because, in my experience, huge numbers of them are pirated images posted without permission. In some cases, and this is increasingly a problem, persons have registered an image with the copyright office, then placed that image on a stock photography site, and later tracked down the image on the web and send cease and desist letters, and sizable demands for money. It wouldn’t surprise me if this was just such a situation.
Copyright has got completely out of control.
Honestly, they made a mistake, acknowledged it, and did not mean no harm really. May have been a little stumped on the fees but it was paid. Let it go people and move on.
While I appreciate the story I can’t agree with your statement : “..The image: a colour 400 x 300 pixel beach shot with some greenery in the foreground. A nice shot, but nothing spectacular.””
It doesn’t need to be spectacular. Theft is theft.
It really would have been nice had you told us the site where you originally found the photo that got you in trouble. Even tho they were within their “legal” rights to demand $4,000, it’s a site I certainly want to try to avoid in the future. They’re just not the kind of folks I want to deal with.
Or did the “settlement” prohibit you from naming the site?
if you print a page of different things that are posted around the internet by others, could those be considered under parody or criticising?
I hope this is the correct place for such a question. If not I apologise.
Here is my problem.
I am an Independent Author. I have a self Published a travel book out, first in e-book form and now in paperback.
I asked my friends, in a rock group, if I could use a photograph I saw of them on facebook, for the cover.
They granted me permission. I asked if they had the rights to the photograph and they said they did.
Anyway, the book has been out for some time in e-book form.
A guy who was their driver, saw that the book is now in paperback, and contacted me, ranting and raving that I stole his picture, demanding money and the threat of lawyers etc. he knew of the e-book but said nothing.
I explained the situation to him, that I didn’t knowingly use his Picture without his permission.
He will not accept this, and wants money (he doesn’t even care about being credited)
I did this whole thing myself, and explained to him that it is a small venture that has just got underway, And that I have received no payment for the book from the publishers.
The group believe they had the rights to give me permission to use the photograph as the said person was employed as a driver by them.
I knew of no other person, that I should contact to ask for permission or about copyrights.
The gentleman in question is not a Professional photographer, and was asked to just take a snap on his phone.
Being an Independent artist, I would fully support the rights of a photographer and them having the rights to their work and believe that that person should get credited and indeed paid for their work.
In this case, it seems to be that he thinks I am a Stephan king level author, and smells money. I have sold a few copies and it has taken me an age to get the book out there and onto online stores whilst holding onto the rights to my work. I have received no payment as yet for any books that have been sold.
So my problem is this: I cannot afford to pay him any money. He has a copy of the picture he took on his camera, if I don’t pay him he wants the book removed. This will mean I would have to re-submit the whole thing after months of work, with a new cover and at great financial cost.
I am of course in favour of paying people for their work and crediting them. The band believe they acting in good faith, as do I. And if I had known about him before hand would have asked for his permission and credited him.
Now I am not sure what to do? If I pay him one sum of money will he come knocking for more. Does he in fact own the copyright? I don’t think he has copyrighted it and therefore who is to stop someone else doing the same thing in the future?
Any advice would be greatly appreciated.
Thank you for your time.
Yours
Nick Gerrard.
It’s a classic case of negotiating position.
Can I sell an image for €2500? Not under normal circumstances. Does the law allow me to apply the tariff for the Organisation of Photographers and Designers if a media publisher lifts an image and uses it to advertise a commercial venture in print (20,000 print run) and online? Absolutely.
Do I have any moral qualms about taking them on? Not after I asked them where they got the image (from my website with a copyright notice clearly displayed) and they replied “Well, the Internet…?!” as if it was the most normal thing in the world.
I don’t go trolling for stolen images, but I’ve stumbled over 2 by pure chance in the last few years and I’ve asked them if they’re happy to be be billed according the the applicable tariffs.
“Oh yes” they say cluelessly….
I just had a confrontation with a client who wanted us to
design engagement invitations for her. She explained and doodled the idea and I had our in house artist create the image. Next the client came in pand said the images were not quite what she wanted. She then pulled up a website to show us the idea she wanted! She actually wanted us to create the images exactly as shown on the other website. I would not agree to that and she was nasty about it! I explained that even having our artist copy by hand those images it would still be an infringement of copyright. In her comments she then said we shouldn’t be claiming to make custom invitations if we are not prepared to do exactly what she wanted! I’ve told her to come to the store and I will refund her the design fee and she agreed that she would do that because we were not fulfilling our undertaking!!! I feel good about the decision but regret that she is the type of person who will tell everyone that she was disappointed with our service!! I did actually suggest that she purchase the invites she saw online, but apparently edits to the design/layout will cost her a lot!!! I explained that it would probably be cheaper than me being sued!!
Actually.. not everything carries a copyright. And, some copyrights do expire.. and.. some things *cannot* be copyrighted.. even some pictures.
Having said all that, a cooboo I am working on will contain no pictures. Because I do not want to pay a cook to prepare hundreds of recipes, pay for the ingredients, and pay a professional photographer to capture it all. I could steal the pictures, but then I would possibly get sued, and the pictures wouldn’t be uniform.. and I wouldn’t be able to get every picture I needed anyway. So, the first edition will have no pictures.
Not all restaurante menus have pictures. People still manage to get it worked out, place their order.
A great endorsement for registering our photographs with the copyright office. I felt a little bit of compassion reading this and I commend the writer for his or her candor. But…
Don’t label the lawyer “aggressive” for tackling the issue of copyright infringement! He represented his client well. Photographers, myself included, are sick and tired of having our images STOLEN (watermarks and all) simply because they can be seen on our websites. More and more of us are fighting this issue and educating the public to respect copyrights.
Remember folks, if YOU didn’t press the shutter, the image is NOT YOURS. Ask for permission to use it and be prepared to pay for it.
Google “copyright trolling $4000” for a very interesting parallel “business model.” I believe Jesus himself says, “Kill the lawyers!” (Luke 11:46, translations vary)
Be that as it may, as a consumer of images I’m noticing the more generic the image (and therefore presumably less deserving of reward), the harder it can be to find the rights holder. An original Karsh portrait, $4000? OK! Some generic beach shot? No.
And somebody, anybody pls tell me who owns this image. I need it for my book:
https://www.google.ca/search?safe=off&q=fibonacci+sequence&tbm=isch&tbs=simg:CAQSVgl0iROW2dn43BpCCxCwjKcIGjAKLggBEgiWApMCngKcAhogtHwjVWZgdVeEefvGmtV-V8lKvOg0eNkM-vdnWcdbq3cMCxCOrv4IGgAMIRCXqGG5rW8Y&sa=X&ei=xkb8UeiuMMmpiALq94CgBg&ved=0CCUQwg4oAA&biw=939&bih=375
Thanks y’all
“What is most disappointing is that I am finding myself afraid to buy any images online now, in fear that I might have the wrong license type or the image might not really be legal.”
You shouldn’t license any images unless you (1) trust the source to be the copyright owner and/or (2) the source agrees to and has the financial means to indemnify you should you be hit with an infringement suit. As to the person writing this article. Gimme a break. You’re not my grandma. You want to be in business and deal with images then it behooves you to educate yourself about copyright laws.
Two things:
1. Stealing a photograph like you did is the same as someone (who is NOT your client) stealing some of your copy work to use to sell their product/service. How would you feel about that?
2. I can’t believe you even posted this publicly. It shows how lazy and amateurish you are…not really the best kind of advertising for your services.
Hi, Vikt, thanks for stopping by and sharing your opinion. We have a copywriter who wasn’t clear on photo copyright laws, and we goofed. I really don’t think owning up to a mistake and helping bring awareness to others is lazy and amateurish.
I currently display my images on flickr and have clear copyright notice as All Rights Reserved. The images are protected (to some point) against right click downloading.
A hotel is now using my images worldwide in advertising on booking sites. I have a link on flickr to getty images where anyone can get a price for licensing my images. If they choose to do so then they pay the price shown for worldwide use currently £900 per year. It is their choice whether they wish to pay for this license or steal the image and use it anyway. They should not be surprised if I expect that they pay the fee indicated when they use it illegally.
The problem is that in using this image they have stripped the exif data (the digital stamp) and it is no longer right click protected. The photograph no longer has any notice that it is copyrighted and the next infringer can download it more easily. The hotel now is the arbiter on how many sites my image is displayed and where in the world to make this available. The image is much more likely to be stolen by illegal microstock sites and people who would sell my work as prints.
I have noticed some of my prints being sold online (not this particular one) in Russia and Romania with their own copyright notice imposed and stating that all images on their site are copyright to them.
The implications of copyright theft are not just confined to the initial theft but ripple outward and can have serious consequences on the photographers business, perceived quality (the prints being sold will be inferior quality) and integrity of my work. If I sell limited edition prints the last thing I need is crap copies turning up on the market.
Whether you rate my images or not, please let me sell at a price that I conceive to be a realistic compensation for the work I put in to it and don’t decide for me. But if you steal my work then don’t bleat about the price being unreasonable if you chose not to pay for it anyway.
My mother recieved a letter today in the mail from a company stating she has a photo on her website that was used without permission and they have threatened her with a big hefty fine and told her she has to remove her website. She did not design her website someone else did and the photo in question when I tracked it comes up on so many websites one is even a free photo site.. What should she do? should she remove her whole website and pay the fine? That seems a bit harsh for someone who had no knowledge that the photo may not have been paid for. Also with so many years that have past the actual designer of the site cannot find a receipt for the photo in question. Any advice for her would be greatly appreciated.
So I bet the photographer didn’t have all the proper and required licensing for approval on what was contained within the image. If you stole the work from his gallery, that’s one thing. If your sold something they don’t have the right to sell, you and the photographer are screwed. You guys got played. Just because photographers believe they have the rights to their images doesn’t mean they legally have the right for the images contained within.
I have a zooming vegetable photo file before the date of the photo audit copyright and the image is only 50% similar compare to the original photo and is only cut part of the original photo. They have bug me for the past 11 month regarding to this issue from Gallery Stock ask for $500. It is headache.
Thanks so much for sharing this story! There is a big takeaway for a person who is just starting out. I write for startups and found this lesson extremely helpful. Infact, I have quoted and linked your story in my latest blog post.
Thanks once again!
Regardless of your mistake, paying these trolls $4,000 is outrageously out of line with the offense. The law needs to be changed to require take-down notices in the event of these situations. If you ignore that, then I’m ok with people demanding money.
Some of these comments are interesting. The photo was stolen and the owner should expect to be compensated. I found one of my photos online on multiple websites and in google search. It’s being used without permission on blogs and to promote various events and services. It was even used on a news website attached to an article that is negative and not something I want to be associated with.
I’ve sent copyright notices to the users and to Google and Instagram. Instagram removed the post, after the user didn’t remove it at my request for several days.
Removal is not sufficient. I should be paid for the use of my photo….a photo that was never added to any gallery for sale. It was a private photo shared online briefly and deleted by me. Clearly someone saved it and used it and shared it. Now it’s on dozens of websites/blogs.
And what? Did you put any effort into making that photo? Why the hell you should be paid? I am sorry, look at Open Source software! Thousands of projects which are free to use edit etc. They have put effort, unlike you!
Thanks for the information. You can find articles and discussions online on how lawyers around the globe are capitalizing in technologies and laws to bring in piles of claims for copyright infringement damages.
I was all happy today about setting up my photo blog, until I started researching this and landed here! Not that I landed here, I mean the topic…I don’t know that I have ever met anyone excited about figuring this out.
Your website is a great resource, there are a few questions I have though, and I don’t even know where to start looking for answers…how does copyright law work between countries?
This is such a bs…
If you take shit photos, for whatever use, you an amateur. You are not professional to be paid!
Why the hell would you lose money if you are not making any in the first place?
Sure, a duck-face Instagram photo being copyrighted? An art? What a joke…
It’s pretty dumbfounding that ANYone in ANY web-related business (especially any creative business, such as copywriting) would not realize that it’s verboten to just steal a web image for their own use. I’m sure the people at Webcopyplus wouldn’t find it too amusing if someone lifted copy they had written and used it somewhere else. Respect other people’s work, folks.