Photographer Sid Hoeltzell was enjoying some time off in the Florida Keys when he saw a glaring theft happening right before his eyes. An image he had previously shot for Joe’s Stone Crab was being used by another restaurant, without his permission or his knowledge.
Ironically, it wasn’t the first time Hoeltzell had encountered this issue with the same image, which was protected by copyright registration. “I went to copyright federal court four years ago over that same image,” he said. “The infringer was arrogant about the fact that I had registered the image and had rights to it. You register your stuff so people don’t infringe, and if they do, they lose.”
In that instance, Hoeltzell had given a software developer permission to use some of his images for the company’s advertising campaign. Instead, Hoeltzell’s client additionally decided to embed his images into the software’s metadata, a discovery Hoeltzell made and ultimately sued over.
At some point in any visual artist’s career, they will undoubtedly consider how to protect their work from infringements. That’s especially true in our Internet-driven culture, where posting and re-posting content is so effortless that stealing someone’s work can occur with the click of a button.
By the same token, it’s almost impossible to be a working artist and not market yourself, and your work, on the web, especially through social media. Unfortunately, it’s a double-edged sword. While social media is an inexpensive and effective means of exposure, every upload increases the risk that someone will use your work without permission, which only gets worse as your popularity increases.
As author and photographer Chris Reed describes in his book, Copyright Workflow for Photographers:
“Among aspiring professional photographers, and even those who don’t intend to profit from their work, it has become a mantra that to be successful (however you might define that term), you have to “get your work out there . . . The necessary implication of “getting it out there” is making it available for others to infringe upon—whether intentionally or unintentionally. A recent post from a participant on a photography-related web forum summed it up nicely: “My quandary is between having Internet exposure to a broad audience and protecting my copyrights.”
Promoting your work on the internet is a necessary evil. We must ask ourselves, how can I share and sell my work, while at the same time limiting the risk of online piracy?
Admittedly, preventative measures are still lacking, with most online piracy efforts focusing on recovering losses after copyright infringement, but some new tools are making the process easier and more effective.
Before we dig into some of these tactics, let’s review some of the rights associated with your copyright and which ones you give up when posting your work on the internet. Then we’ll review tactics that can best protect your work online.
COPYRIGHT PROTECTION AND TERMS OF SERVICE AGREEMENTS
Copyright law grants authors and artists the exclusive right to 1) make and sell copies of their works, 2) create derivative works (works based upon their original work), and 3) display their works publicly. These rights are automatic. You get them as soon as you create your work, whether it is a painting that took months to create or a drawing on a napkin. You do not have to register your work with the U.S. Copyright Office to gain these rights and by international treaty, these rights extend to most countries around the world.
These rights are considered a property right (hence the term intellectual property), and just like your house, you can sell it or transfer part of it for a limited time, like renting it to someone. For example, when a fine artist shows his or her work in a gallery, the artist gives the gallery the right to copy the work for promotional materials that promote the show, to distribute those copies, and of course to display the work for a limited time. The gallery has the right to sell the physical work, but not the work itself. For example, the gallery cannot make a copy of it and sell it to Target to put on t-shirts. That right is retained by the artist, however, if the artist wanted, he or she could transfer that right to the gallery, as well. The details as to which rights are transferred are laid out in the contract between the artist and the gallery.
The same thing happens when you upload your work to social media. Every social media site has a Terms of Service (TOS) that every user agrees to when they join, and the TOS details what the site can do with the uploaded work.
The breadth of rights transferred when agreeing to the TOS can vary substantially in each online platform. For example, here is a section from Instagram’s TOS:
When you upload to Instagram, you are giving the service a license to use your work under certain circumstances. It is not a full transfer of every right available nor does it transfer the copyright itself (Although some services, like many Multiple Listing Services (MLS) in the real estate market, do transfer the full copyright ownership to the MLS, so watch out for this type of rights grab when uploading your work.)
The license is a non-exclusive right, meaning Instagram does not have full control of your work. It can’t dictate what you can do with your work. Secondly, the license is royalty-free so in whatever way Instagram chooses to use your work, you will not be paid. The license is also worldwide, so it applies to Instagram’s usage anywhere in the world.
Because the license is transferable, Instagram members can share your work on Instagram without your permission. That’s often beneficial, though. It’s one of the reasons users upload work to social media in the first place since it’s basically free advertising. However, users cannot upload your image to another service, or use it in any other way other than sharing it on Instagram. Also, Instagram cannot sell your work to third parties if it is not in relation to some marketing or advertising of Instagram. You still retain your copyright, and when you remove your images, Instagram cannot continue to use them.
The problem that results from all the sharing (no permission required) is two-fold. First, once you upload work, or allow a user to upload your work, it is out in the world and easy for people to misappropriate. More problematic, however, is public confusion.
If I can share work you uploaded to Instagram, then why can’t I take a picture of your work, or grab your work from some other site and post it to Instagram as well? Technically, that is an infringement, but as we’ll discuss later, it is beneficial for marketing so creators generally allow it. From an uploaders’ perspective, If he or she doesn’t get in trouble for their uploads, then using other images must be OK. So, why can’t I upload this image to my blog?
In most infringement cases, there is no malicious intent but rather “innocent infringers” who don’t understand the rules of copyright. Then they receive a cease and desist letter in the mail and a lawsuit over copyright infringement without any idea what they did wrong.
TACTICS FOR LIMITING ONLINE PIRACY
Use Watermarks and Low-Resolution Photos
Unfortunately, there are very few ways to prevent images from being stolen. Those who want them can usually get them. The only truly effective way to keep someone from stealing an image is to make it undesirable.
The most obvious approach is to use a watermark emblazoned across the image. A watermark will not only be protected but can also provide information as to where to purchase the image or how to contact the creator or copyright holder. On the other hand, not only will people not steal them, watermarked images are unlikely to be shared on social media.
One market sector that the watermarking approach seems to work well in is for stock images. Stock image sites provide a small low-resolution or thumbnail image that is free from watermarks, and a higher resolution image that contains a watermark, which can be used for prototype purposes. If the image works well in the prototype, the user can pay the licensing fee and download the high-res image.
Unfortunately, very few sites outside of the stock image market provide this functionality, leaving creators with the choice between watermarking or using low-res images, but not both. Low-res images may be fine for mobile apps but once they’re on a large computer screen or an iPad Pro, they lose their luster, which reduces the probability of potential shares.
Practice Consistent Copyright Registration with the Copyright Office
As we discussed earlier, copyright registration is not required, however, registering your work with the U.S Copyright Office has several benefits. Unfortunately, these benefits won’t prevent theft but will help to ensure you are handsomely compensated by the person stealing your image.
Most infringements never go to court because the copyright is only entitled to lost sales and profits, which are most often too low to warrant paying an attorney to bring the case to court. The legal fees will cost more than what you can win.
However, if you register your work before an infringement occurs or within three months of publication (for more on publication see this Copyright FAQ ) then you can receive statutory damages from between $750 to $30,000 per infringement if you win the case. If willful intent can be proven, the award can go up to $150,000 per infringement.
More importantly, reasonable legal fees are almost always awarded in a statutory infringement case. This is a critical point because you no longer must worry that the damage award is smaller than the legal fees so you can bring a lawsuit that you couldn’t have without statutory damages. It also makes for a better negotiating position in a settlement offer.
For example, Hoeltzell, fortunately, had the foresight to register his work with the Copyright Office, a practice that many visual artists take for granted. Hoeltzell agrees that while the practice can seem time-consuming, it’s a non-negotiable task for the working artist. “Periodically, about once a year I bulk register,” Hoeltzell says. “It always pays off when you find yourself infringed, but you have to worry about scheduling time to register.”
Registering your work with the Office is the most assured way to guarantee you’ll receive statutory damages when your work is used without your permission. However, many artists often find themselves strapped for time, or unwilling to deal with the burden of registering your works to protect them from copyright infringement.
Likewise, doing so is relatively easy. Just head to U.S Copyright’s eCo System to register but beware, this system is a bit difficult to navigate.
Send an Infringer a Take-Down Notice
Sometimes it may not be worth a lawsuit, even with statutory damages, especially if the website is protected under the DMCA Safe Harbor provisions. Under Safe Harbor, any site that is merely the host of user-uploaded content, like YouTube, Instagram, or Orangenius, can’t be sued when hosting infringing content. However, the site must register for the Safe Harbor with the US Copyright Office and provides specified takedown procedures.
So, while you cannot sue, you can have your images removed quickly. Sites like YouTube and Orangenius make it easy with just the click of a button. In other sites, just follow the instructions, which are usually found in the TOS or via a link in the footer area. Alternatively, you can use an online for like the one found at DMCA.com.
Be aware though that sites may claim to be protected by the DMCA but in fact are not either because they are not merely passive hosting sites or because they never registered with the US. Copyright Office. Check the DMCA List of Registered Agents to verify their registration.
Use ImageRights to Spot Copyright Infringement
Even with the tactics discussed here, it’s not exactly easy to find out when someone is stealing your work. Your photograph could be on a t-shirt in an Etsy store, on a product from Amazon, a header on a corporate website or an image on a local blog. One solution is to use ImageRights’ monitoring and discovery system, which scours the internet for your images, alerting you to any potential infringements. It’s easy to use.
So how does ImageRights work? First, you upload images you want to track. An advanced mathematical algorithm will calculate a unique fingerprint for each of your images.
ImageRights then searches the internet and collects fingerprints for any image it sees online. It compares the fingerprints of your images with the fingerprints in its database. Each result is then added to your dashboard where they can be filtered, sorted and ranked for you to review.
You can organize them and decide which ones should be pursued as an infringement by clicking a button to submit the work for legal evaluation. If the infringement warrants legal action, ImageRights will sue on your behalf. You will not be required to pay any additional fees as ImageRights will bear the costs, receiving compensation by taking a percentage of the final award if you win. Otherwise, you pay nothing.
Additionally, you can also register your work through ImageRights. Earlier I mentioned the difficulties of navigating the registration system at the Copyright Office. Not only is eCo hard to use and archaic, but it is also a text-based system so while you will upload your work, it will not be attached to the copyright information about your work online. You must instead do this manually, such as printing out your work and clipping it to a printed copy of your copyright registration information.
ImageRights does all this for you electronically, making it easy to fill out the proper information, register the works, and maintain a proper visual record as well as monitor for infringements.
To find out more, just head over to imagerights.com and give it a try. It really will make protecting your work a lot easier.
It would be nice if there was a foolproof way to protect your work. However, a combination of these tactics can certainly help. Part of the problem is that copyright law is a bit out of date and has not kept up with the technological innovations. Until recently, there was little political will to update the statute. Thankfully, some relief may be on the horizon. The Copyright Office is moving ahead with the Copyrights Selection and Accountability Act (CODA), which would change the way the head of the U.S. Copyright Office — the Register of Copyrights — is selected.
As New York state Representative Chris Collins noted, CODA “signals the beginning, not the end, of the journey towards meaningful copyright reform,” and many stakeholders believe that the next step will be a more significant bill to restructure the Copyright Office. Until then, the tactics mentioned here should help you protect, or at least be compensated for, those who use your creative work without permission.
Do you have a copyright registration mechansim in place for protecting against online piracy? Let us know in the comments.
As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.