People occasionally ask why I don’t assign my photos a Creative Commons license. Dan Heller explains. And adds a horror story here.
The short of it is, while Creative Commons was established with the best of intentions it is easily abused in the photographic setting. Users unknowingly open themselves up to large legal risks, and I find photo licensing by traditional means to be both more secure and more professional.
Last week I performed my semi-annual copyright registration ritual, and in the middle of the paperwork it occurred to me that this might make an absolutely scintillating blog post. So, here’s why copyright registration is important, and here’s how to do it.
U.S. law is generous towards photographers. Photographs are automatically copyrighted as soon as they are taken. It doesn’t matter if you’re taking happy snaps of your pet cat or professionally shooting a Hollywood premiere- you have the copyright.
What does having a copyright do for you? Not very much, it turns out. If you’d like that copyright to carry legal weight then it needs to have the extra step taken of registering it with the government. I’ve never taken anyone to court over copyright infringement (and I blanche at the thought, to be honest), but I have had several instances where being able to show the reg number to unscrupulous photo “borrowers” helped bring about speedy resolution and fair payment. I routinely register my copyright, and it’s surprisingly easy. One form and one fee can cover thousands of photographs.
Here are the ingredients:
I keep a folder on my computer labelled “copyright”. Whenever I process a new batch of photographs I save small, 600 pixel-width jpgs of each image to the copyright folder. I use 600 pixel-width because I’ve already made them up for www.myrmecos.net, but the exact size isn’t too important. They just have to be large enough to be recognizable and small enough so that many can fit onto a CD. If you’ve got lots of images to process, photoshop can automate them in batches.
Once I accumulate enough photos to make the $45 reg fee worthwhile (usually around 500-1000 images suits me) I burn the copyright folder to two identical CD-Rs, fill out a Short Form VA per directions, write out a check, and send everything to:
Library of Congress
Copyright Office
101 Independence Avenue SE
Washington DC 20559-6000
It takes less time than it took me to write this post. A few months later the bureaucratic cogs turn over and I get my form back with the all-important registration number. Now I can sue the pants off infringers sleep soundly.
For all the gritty details, see The Photo Attorney.
This morning I had to deny a scientist permission to use my photos of her ants in a paper headed for PLoS Biology. I hate doing that. Especially when I took those photos in part to help her to promote her research.
The problem is that PLoS content is managed under a Creative Commons (=CC) licensing scheme. I don’t do CC. Overall it’s not a bad licensing scheme, but for one sticking point: CC allows users to re-distribute an image to external parties.
In an ideal world, non-profit users would faithfully tack on the CC license and the attribution to the photographer, as required by the CC license, and then the downstream users of those projects would faithfully continue to do the same.
But this is the real world. Somewhere along the line, some weak link drops the required attribution. Yet the photos keep going, spreading out into the public domain. There they may get picked up by for-profit entities that start to make money off the work. Once that happens, the copyright is infringed. Both the unwitting company and the original user may be liable for damages. Not good. That’s why reputable companies still conduct business the old-fashioned way, with legal contracts that spell out what sort of image uses are and are not allowed. And that’s why few professional photographers distribute their images using CC. CC does not offer sufficient security for either the photographer or for the client. It’s not all that professional.
I know how frequently infringement happens. I often find my images plastered across the home pages of pest control companies that just went ahead and lifted photos off my web page, or off someone else’s web page. I even get a few particularly brazen companies that ask for free use of images because they will be “educating” people about the services that their company provides (yes, and I also enjoy those nice educational segments about car insurance and light beer I see on the television). That mindset applied to the vagueness about educational use in a CC license is a recipe for trouble.
Most of the good things about Creative Commons- the open distribution of content among students and researchers- simply aren’t necessary. That’s because the “fair use” provisions of existing copyright laws already protect non-profit educational use without the need for permission. Creative Commons does not, for example, help you to show a figure from a scientific paper in your classroom. You are already allowed to do that anyway.
What particularly bugs me about this is how licensing policy distorts my symbiotic relationships with scientists. Scientists let me in on their cutting-edge research, I get nice shots of marketable bugs, and they are able to use the images in their talks, on their web pages, and hopefully in their technical papers. I can only help with the papers, though, when the publisher approaches images with a professional mindset. PLoS doesn’t have it. (Neither, in my experience, does PNAS, but for precisely the opposite reason.) And the shame of it is, I’m more than happy to contribute images for free to these scientific endeavors. For free. I only ask that the user not redistribute the image to others without my say so. You’d think that would be reasonable.
I do not mean to sound overwhelmingly negative on CC. I think Creative Commons may be the ideal licensing scheme for some types of content, especially for content created with taxpayer support. The public funds research, and the public should be able to see and share the result. But my content isn’t funded externally. The taxpayers didn’t buy my camera and they don’t pay my web-hosting fees. I have to cover those costs myself, and in order to do that I need to maintain control over where my photos go. Otherwise, there’s no myrmecos.net.
A couple years back I posted a short bit on how to register photo copyright with the U.S. government. That turned out to be the last time I filled out a registration with pen and paper. For all subsequent submissions I’ve used the new ECO system at http://www.copyright.gov/eco.
Let me disabuse you of any preconception that the online method is easier. You’ll need to clear an hour or two out of your schedule to prepare a submission. The new process involves clicking though an interminable array of confusing steps, filling out an order of magnitude more information than was requested in the paper form, and jockeying awkwardly between upload and payment sites.
Fortunately, photo attorney Carolyn Wright has created a set of directions that are clearer than anything the copyright office provides. I won’t duplicate her efforts by explaining how it works, other than to offer the following pointer: compress your images into a series of .zip files before you begin. How many files you’ll need will depend on the speed of your internet connection, as ECO logs you out after an hour. As with the old system, you can register an unlimited number of images in a single batch and a single fee.
Despite the hassle, I find online registration worthwhile. For one, it’s ten bucks cheaper. And more importantly, the turnaround time is several months faster than paper submission. So if you need your reg numbers quickly, ECO is really your only option.
Anyway, this is been an absolutely thrilling post. So here’s an ant:
this photograph is registered copyright VAu 979-301
15 points to the first person who can identify it.
This past few weeks I’ve been performing the unpleasant annual ritual of combing the web looking for instances of unauthorized commercial use of my photographs. My rationale for controlling copyright infringement is two-fold. First, infringement deprives me of the revenue I need to host my websites, repair my equipment, and travel to insect-filled jungles. Second, infringement is unfair to my honest, paying clients. Why should they fork over cash for images when their competitors use the same ones for free?
The results of this year’s infringement hunt were disheartening. Much more egregious than previous years. I am watching volumes of my work slip away into the ether. I’ve seen my images branded with the logo of other companies, appended to coupons, banner ads, and pest ID charts.
A few of my images have been copied through enough intermediaries that they appear in multiple search results, stripped not only of attribution but often of even the correct species name. This image of Formica oreas, for example, is now a leading search result for “Argentine Ant“.
In the possibly futile interest of heading off future infringements, I’ve made the following watermarked compilation of my most frequently abused images. All of my photographs are legally protected, of course, but these are the ones that have most often worked their way off my galleries and proliferated across scores of third-party sites.
I do not mind certain non-profit uses of my images. Educators, researchers, students are more than welcome to employ them for school projects, classroom presentations, technical articles, and educational websites. I just ask that the images be attributed and that online use be accompanied by a link to the source website.
But if your use is commercial- and that includes the educational products industry, thank you for asking- then you need prior authorization. Most commercial use also entails the payment of licensing fees. I am not getting wealthy off photo licenses, but it keeps the lights on and the servers humming.
In the coming weeks I will continue to contact webmasters of sites I find with unauthorized copies of my photos. In most cases I am content to issue DMCA takedown notices or ask for the images to be removed. The more egregious cases (repeat offenders & images branded with logos or splayed on advertisements) will receive non-negotiable invoices followed by appropriate legal action.
The annoying bit is that I don’t really have the time to deal with all this. I have papers to write, I’m assembling a couple book projects, the house needs work, and the absolute very last way I’d like to spend my time is facing endless infringement cases. But I don’t really have a choice, not if I plan to maintain control over my photographs.
If the terms read anything like they do in the National Pest Managment Association’s new pest photo contest, avoid like the plague:
By entering this Contest and uploading your Submission, you irrevocably grant to Sponsor and its agents the unconditional and perpetual right to post, display, publish, use, adapt, edit and/or modify such Submission in any way, in any and all media, for any purpose, without limitation, and without consideration to you. Finalists agree to irrevocably assign and transfer to the Sponsor any and all rights, title and interest in Submission, including, without limitation, all copyrights and waive all moral rights in Submission. All Contest entrants further agree to release and indemnify and hold harmless the Sponsor and the Contest Parties from any and all claims that any commercial, advertising, presentation, web content or any other material subsequently produced, presented, and/or prepared by or on behalf of Sponsor infringes on the rights of Entrant’s work as contained in any Submission.
A bunch of cheapskates representing a large and profitable industry don’t want to pay for images they can use in advertisements. So they host a contest, hoping to play people’s vanity into scoring some freebies.
I’m not intending to single out the National Pest Management Association. The scam contest is a common corporate strategy.
Reputable photo contests, in contrast, allow photographers to retain ownership of their own images. Always read the fine print.
Unfortunately, I contend with hundreds of copyright infringements every year. I have implemented the following policy in an attempt to maintain control over my work.
Unauthorized non-commercial uses of my copyrighted images and text online are subject to DMCA takedown requests without advance notice.
Unauthorized commercial infringements of my copyrighted images will be met with invoices covering my regular commercial-use fees (at a minimum of $95/image) plus a $50 infringement handling fee per image.
Infringement invoices are non-negotiable, and non-payment of infringement invoices will result in legal actions to recover statutory damage as outlined in Title 17, § 504, of the United States copyright laws.
All of my images are registered copyright with the U.S. copyright office.
The last post was rather blunt. This was intentional. I wrote it as a statement to link from my sidebar and my “Image Use” guidelines, rather than as a stand-alone post.
Clarifying my infringement enforcement policies is overdue. I’ve been dealing in recent years with a great many commercial entities using my photos, without my knowledge, to sell all manner of pest-control services and products. The problem is bad and getting worse. More surprisingly, I am now getting pushback from a few infringers irate at being questioned, something that has never happened previously.
Five years ago, on the rare occasion when I’d find a pest control company selling their service with illicit ant photos, the owner would be unfailingly courteous and apologetic, immediately removing the image and/or offering to pay for it. Most of my infringers remain polite and reasonable. But internet social norms are changing, especially in the era of social media and extreme SEO practices, and in the past few weeks I’ve had not one but several pest control operators claim that all internet images including mine are public domain, refuse to remove images, repost images after DMCA takedowns, question my ownership rights over my own photographs (even after I’d provided 100% crops, U.S. copyright registration certificates, and links to blog posts where I even explain how I took the photographs), and accuse me of being a predatory copyright troll out to hurt small businesses.
I needed a written policy to point to in my increasingly frequent conflicts with unrepentant infringers. I can’t pretend this will stop thieves from thieving, but having another tool in my corner can’t hurt.
I enjoy the dubious distinction of being the most infringed photographer I know. Every week I send at least a dozen takedown notices to commercial entities using my photographs without permission. I’ve sent one this morning already. My photos end up in youtube commercials, on coupons for pest services, in website banners, in company blog entries, on product labels. If every commercial infringer paid my usual commercial rates, I calculated once, I’d be making a comfortable 6-figure annual salary.
Of course, not every infringer has the budget for my standard rates, and that might explain why they take without paying.
The trouble is that the photography market isn’t a single market. It is several distinct markets- an art market, an editorial market, a microstock web market, and others- each with its own culture and pricing structure. I sell primarily to magazines & textbooks, I sell at market rates (typically $60-$400/image), and I have few if any infringement problems in that market.
My pest images could also be sold in the cheap and fast microstock market. This new arena includes the folks who create local exterminator websites and who are used to paying a few cents to a few dollars for an image. Web designers think $100 for an image is insane, even though publishers routinely pay more than that. I’m not going to price my regular photos down out of the market that sustains me just because web designers trained on microstock think I’m nuts. That’d be professional suicide.
I can, however, run an experiment. What if I take a pile of forgotten, unused photographs and offer web-resolution versions at microstock prices? After all, the images aren’t doing any good gathering dust on my hard drives.
The graphic at the top shows 21 of the most common pest ants in North America, covering the bulk of my infringement headaches at the species level. None of the images appear in my regular galleries. For a variety of reasons they did not make the cut for my high-res work, but as small 400-pixel pictures they’re great for display in a blog post. The whole pest ant composite can be downloaded as a royalty-free stock image for $34.95. This works out to under $2 per ant.
Will anyone license this graphic? Beats me. But it’ll provide insight as to whether infringers take my images because they can’t afford them, or because they’re just very, very bad people*.
Individual ants in the graphic appear at this resolution.
*Kidding! I’m just kidding! Many infringements stem from a widespread misperception that anything on Google is public domain.
Enforcing copyright is normally a great deal of unwanted drudgery and web forms, but now and again a feisty infringer breaks the tedium by responding to a standard notice with an enlightening salvo of insults. Meet Zornitza, who runs a website called Our Breathing Planet. I sent the above takedown notice to her host on discovering one of my field ant images, misidentified, in a blog post as an Argentine ant. It was the second time I’d found their organization using my work without permission or credit. Our correspondence is pasted below.
For reference, the photograph in question is this shot of Formica oreas:
These are either Belizean Infringement Ants picking a poor photographer to death, or Belizean Lawyer Ants dismantling a copyright infringer. Take your pick.
In August I hired ImageRights International, a reputable copyright enforcement agency, to assume the routine handling of commercial infringements of my professional work. There are a lot. Starting in September 2014, companies began receiving letters from ImageRights’ partner law firms seeking to resolve these infringements on my behalf.
Q. Why are you doing this to me?
Don’t take it personally. I stopped being angry about most of these cases a long time ago. The reality is that handling copyright infringements like yours with simple cease & desist letters was costing me thousands of dollars and hundreds of hours per year. The more time I spend on infringements, the fewer new images I add to my portfolio, and the more I have to charge my regular clients to compensate.
I handled these cases myself for over ten years, usually demanding nothing but image removal, and I am tired of it. The problem is growing worse each year, and I no longer have the time to bear the costs of your infringements.
ImageRights’ system is efficient. Submitting infringements to them takes much less of my time than researching and sending a DMCA takedown notice. ImageRights offered me a way to get a significant part of my life back, and I took it. The hitch is, the legal teams cost money. Although I am also paying them a service fee, my payments aren’t enough.
Q. Are you bluffing? Will I be sued if I ignore the letters ?
I am serious. You may wish to consult with an attorney to evaluate your situation.
Q. You are wrong, I did license that image, and I resent being accused of something I did not do.
Goodness! My heartfelt apologies for my mistake. If you forward the license agreement or receipt to my lawyers, we will drop the case and I will fully refund your original license payment, while you may continue to use the image(s). I have made an erroneous accusation before, and I felt terrible about it.
Q. Why are your lawyers asking so much? Images on your site license for only $100-$400.
Paying my fee alone still leaves me on the hook for legal costs incurred by your company’s actions. Lawyers cost more per hour than I do. Our government’s copyright enforcement framework treats infringements as civil matters that generally require legal counsel. It is not a good system. Fortunately, there are proposals in the works to replace it with something less expensive, but until meaningful reform happens, it is what we have. I don’t like it either. Write your congressional representative.
Also, infringements have to cost more than regular license fees. Otherwise there would be no deterrent, and no point to copyright. Imagine if the penalty for stealing groceries was just that you’d have to pay for them when caught. If you aren’t caught every time, you’re better off just stealing by default.
I am not getting rich doing this, and I would have preferred it if your company hadn’t used my photography in the first place.
Q. It’s just a photo! Surely a photo can’t be worth that much.
It is not “just a photo.” Photography is how I supported my family for years, and photographs incur significant time, travel, equipment, and research costs. I did not travel to rural Argentina, spend weeks processing images and identifying the animals, and purchase $10k worth of camera gear to give your company free marketing materials.
Q. But I have found a lot of other companies using the image, too! You can’t single me out.
Many companies license my work to display on their websites without a distracting copyright mark. You may have seen the images on one of my client’s sites.
Also, copyright enforcement is nonexistent in many developing countries. I have no way of dealing with infringements on the part of Vietnamese companies, for example, but they are still visible via Google.
Q. Why aren’t you answering my messages?
I am contractually obliged not to speak with you. Once you have settled the issue with the lawyers, then we can talk. Again, it’s not personal.
Q. People receiving Getty’s notorious demand letters just ignored them, and most of them were fine.
I am not Getty and my lawyers are not Getty’s lawyers. Considerably more effort and attention went into researching and vetting your case than went into Getty’s ham-handed, largely automated process.
Q. Why didn’t you just contact me directly? I would have removed the image.
There are dozens of you every month. I don’t have that kind of time.
Q. What if I just remove the image?
Since you already used the image, you owe license fees. Plus, I’ve already incurred legal costs and I would like those back.
I probably shouldn’t tell you this, since it is legal-ish advice and I’m not a lawyer, and since it is against my financial interests to tell you, but if you plan to deal with the letter by ignoring it, you may be best off not removing the image at all. If you remove it after receiving notice, then the legal team knows you’ve read the notice and have knowingly chosen to duck the fees. Should we end up in court, a willful infringement may put you on the hook for substantially more damages than you would face from a blissfully ignorant infringement.
Q. How do you decide to enforce a case?
If the infringement appears on a personal blog, forum, or web page, I usually ignore it. If I have time, which I generally don’t, I may issue a takedown notice to remove infringing copies from personal sites most likely to feed downstream infringements. If the infringement occurs on a corporate or organizational webpage, product, broadcast, or similar, even if it is just a small internal image, I generally submit it to ImageRights.
Q. I am hiring my own lawyer, so there.
All the better. Lawyers are trained to deal with these situations. You and I are not. Things will go more smoothly with lawyers.
Q. You are a horrible person, and I will tell everyone how horrible you are for this.
Please do. A reputation for aggression may deter future infringements, and that will save all of us a great deal of trouble going forward.
A few links:
– U. S. Copyright Law
- Bugging out: How rampant online piracy squashed one insect photographer At Ars Technica, an article I wrote addressing my perpetual copyright problems.
– Before I started this process, I posted this notice on Google+ as a last ditch attempt to avoid the lawyers.
It’s been a few months since I’ve posted a rollicking internet copyright yarn. Not that there haven’t been infringements. Those are constant. It’s just that most are overly pedestrian- a pest control coupon that’s removed on request, for example. Not worth blogging. This one, however, involves a barely literate YouTube host pretending to be a lawyer, and his messages are simply too bizarre to pass up sharing.
A screen capture of Mr. Dowlatsingh presenting my photographs.
I won’t bore you with the details of the infringement beyond the basics: 6 photographs of driver ants, most with my name cropped out, uploaded twice to a popular YouTube tabloid without being credited or licensed. The infringer responded to my formal copyright notice by committing perjury, claiming to Youtube that he had rights to my work and that my notice was mistaken.
Thinking the rights grab a bold move, I emailed him. Our correspondence follows:
This provoked two responses:
My reply:
And Mr. Dowlatsingh’s:
This line of argument was obviously not headed anywhere, so off to the lawyers it goes.
Update (8/25/2015): Mr. Dowlatsingh has sent a DMCA counter-notice to YouTube that implicates YouTube and Google as being knowing, approving parties in the infringement. Updated Strategy: have attorney pen letter to Google’s legal department requesting verification?
Last week I performed my semi-annual copyright registration ritual, and in the middle of the paperwork it occurred to me that this might make an absolutely scintillating blog post. So, here’s why copyright registration is important, and here’s how to do it.
U.S. law is generous towards photographers. Photographs are automatically copyrighted as soon as they are taken. It doesn’t matter if you’re taking happy snaps of your pet cat or professionally shooting a Hollywood premiere- you have the copyright.
What does having a copyright do for you? Not very much, it turns out. If you’d like that copyright to carry legal weight then it needs to have the extra step taken of registering it with the government. I’ve never taken anyone to court over copyright infringement (and I blanche at the thought, to be honest), but I have had several instances where being able to show the reg number to unscrupulous photo “borrowers” helped bring about speedy resolution and fair payment. I routinely register my copyright, and it’s surprisingly easy. One form and one fee can cover thousands of photographs.
Here are the ingredients:
I keep a folder on my computer labelled “copyright”. Whenever I process a new batch of photographs I save small, 600 pixel-width jpgs of each image to the copyright folder. I use 600 pixel-width because I’ve already made them up for www.myrmecos.net, but the exact size isn’t too important. They just have to be large enough to be recognizable and small enough so that many can fit onto a CD. If you’ve got lots of images to process, photoshop can automate them in batches.
Once I accumulate enough photos to make the $45 reg fee worthwhile (usually around 500-1000 images suits me) I burn the copyright folder to two identical CD-Rs, fill out a Short Form VA per directions, write out a check, and send everything to:
Library of Congress
Copyright Office
101 Independence Avenue SE
Washington DC 20559-6000
It takes less time than it took me to write this post. A few months later the bureaucratic cogs turn over and I get my form back with the all-important registration number. Now I can sue the pants off infringers sleep soundly.
For all the gritty details, see The Photo Attorney.
