Business: How I Protect My Images & Ensure My Clients Exclusivity
I have not received any compensation for writing this post. I have no material connection to the brands, products, or services that I have mentioned.
This review is based on my opinion. I do not accept responsibility for any of the advice listed below. Always consult a lawyer on matters surrounding copyright.
All Image rights reserved.
Protecting one's photographs is a vital part of a professional photographers job in today's 'digital age'. The more we promote our work, the greater the chances are that someone will use our images without permission.
Until now there has only been a handful of options to help photographers find these violations. The most common being "Image Search" by Google. This method works by dragging images into one's browser and letting Google find a close match.While this can be an effective way to find offenders, dealing with them directly can prove problematic. More often than not, these offenders are hesitant to remove the image in question and reluctant to offer any form of compensation.
For my business, this isn't good enough!
Like many photographers, I have hundreds of images on my website and umpteen more shared over various social networks. It is therefore not practical to police each one by individually uploading them to Google Image Search.
When I licence (or sell) an image to a client, they can trust that not only will I honour our agreement, but I will also look out for their best interests post shoot/ sale.
That is why I am an ImageRights Pro subscriber.
ImageRights is a Boston-based company that specialise in the registration, discovery and recovery of copyright for artists. With an account, I can upload my work, register it with the United States Copyright Office (USCO) and let the brilliant ImageRights website search for matching the content indefinitely. Alternatively, I can submit an infringing URL at any time, immediately lodging a claim.
My ImageRights account automatically sorts through any offences and categorises them based on where the images have been found; websites, blogs, forums, photo sharing sites, social media platforms, etc. These offences are then ranked according to the feasibility of a claim, resulting in a quick and painless way to authorise, file or submit claims.
When an offence is submitted, ImageRights have a global network of lawyers and copyright attorneys who will contact the offenders on my behalf, at no additional cost to my client or me!
Above is an example where the ImageRights site has found one of my photographs
despite it being manipulated with both colour and text.
Sound too good to be true? There are some caveats.
Firstly, the Cost. "Service plans" range from $0 to $1,295 per annum.
Before pursuing a claim, it is advised that you register your photographs with the USCO. Each USCO registration can be done through ImageRights, at the cost of $69-89. Depending on your subscription, you may be eligible for some free registrations. I must mention that the registration process through ImageRights, although more expensive that doing it through the USCO website, is a MUCH quicker and simpler process. Particularly for those that aren't familiar with the technicalities of registering a copyright or interpreting its jargon. Once your application is complete, ImageRights will then send you the original USCO registration documents, as well as put PDF copies on your ImageRights Profile.
Submissions are broken up as follows:
$69 - Single Photograph, published or unpublished.
$89 - Published Photographs. Up to 750 photographs per submission, all of which must have been initially published within the same calendar year.
$89 - Unpublished Photographs. An unlimited number of photographs can be submitted at once.
Secondly, the net recovery amount for a claim varies from 50% to 60% depending on your service plan. This means that ImageRights retains 40% - 50% of the net proceeds (i.e. gross settlement amount less attorney fees and legal expenses, if applicable), of any successful claim. Why? Well, they manage the application and front all legal expenses on your behalf. And if for some reason they aren't able to successfully recover for you, ImageRights will eat the legal costs, not you.
Lastly, to ascertain whether a claim is worth pursuing or not requires a basic understanding of how Copyright works. If you're unsure, I'd strongly recommend familiarising yourself with the basics of Copyright Law. There's plenty of great information provided by reputable sites such as the Americal Society of Media Photographers (ASMP). Otherwise, the team at ImageRights and their partner copyright attorneys have been more than happy to assist in answering any questions that I have had on the matter.
Closing Points / Q&A's:
Why Register with the United States Copyright Office (USCO)?
The United States Copyright Office is unique in offering the ability to pursue statutory damages and attorneys fees, assuming that your images are "registered timely" (registering within three months of first publication of an image or prior to the start date of a given infringing use). These damages can be up to $150,000 if the offence is found to be willful and up to $30,000 if it is deemed not willful. It is, however, worth noting that these damages can only be pursued when the infringer is based in the United States. Assessing claims in other countries vary but on the whole, one is tied into pursuing the value of the infringement (i.e. what amount one would have licenced/sold the images for that use).
Should I still register images that I Published long ago?
There are three significant reasons why it is still worth registering your images with the USCO even if they were originally published long ago.
1. The USCO Certificate of Registration serves as prima facie evidence of copyright ownership in the photo. So even if a case is not going to court, this often satisfies the infringing party when they ask for proof of ownership upon being served notice of copyright infringement and makes for a smoother, quicker settlement negotiation.
2. If your infringed photo isn't registered timely, you still have the option to pursue actual damages and disgorgement of profits attributed to the infringing use. But in order to file a complaint in US federal court, the image must first be registered with the US Copyright Office.
3. You might also be able to pursue a Section 1202 "Copyright Management Information" claim. This is completely separate and independent of the copyright infringement claim and does not require that the photo be registered with the USCO. A CMI claim focuses on what actions the infringer has done with the image. An example would be removing any copyright information, like a watermark or the meta data containing the copyright ownership information, and thereby misrepresenting who owns the copyright to the photo. The copyright owner can pursue statutory damages of up to $25,000 for each instance and attorney's fees. But, while a 1202 claim doesn't require the photo to be registered in order to make this claim, the photo does need to be registered for you to actually file the complaint in US federal court.
Are ImageRights partners global?
There are some countries where ImageRights does not yet have any legal partners, although ImageRights are growing. There are also countries that ImageRights have deemed claims not feasible to pursue. In both these cases, you will still be able to find these infringements using ImageRights image recognition system, but they will be filed in the "Outside Recovery Area" section of your profile. It will be up to you to issue takedown notices / seek legal advice on these claims.
Should I Watermark my images?
Despite being ugly, I am in support of watermarking ones images for web use. Watermarks alone aren't cut and dry, but they provide a visual indication of a copyright notice, making it easier to pursue a case. Should an image be watermarked, any manipulation to that image or its watermark could form the basis of a Section 1202 claim.
What is "Fair Use"?
Fair Use can be subjective in its interpretation. Put simply; fair use applies when an image, or part thereof, is used verbatim (in context), within the public or educational realm. An image stops being classified as Fair use when it is used commercially or is exploitative or damaging.
Below is an excellent example of Fair Use Vs a Copyright infringement.
My photograph to the left was shared on a blog about Wild Cats. The image, in this instance, is relevant to the blog and isn't being associated with any person, company or belief. Nor has the user made a claim to it being their own.
However, the same photograph seen on the right was found by ImageRights on a European company's homepage. This company's logo also happens to be a lion, so the use of the lion image directly correlates with their brand. The fact that the photograph is used at the forefront of their business' website makes its usage commercial and with no prior approval; this would be classified as a copyright infringement.
Alternatively, here is an excellent interview with Joe Naylor and the guys at RGG EDU.