Photography, Copyright, and the Internet

(© Ian Plant) Every few weeks I get an email, Facebook note, or frenzied phone call informing me that some nefarious nogoodnik on the Internet has stolen one or more of my photographs. I’m sure many of you have also experienced Internet image theft at some point during the past few years. The questions that inevitably arise are: What can photographers do to protect their images from being stolen? Are there any effective legal remedies? Is it even worth the trouble? Being a professional photographer and a former attorney, I can answer a few of these questions with some authority. I’m not going to delve into all the boring legal nuts and bolts, but rather I will give you the highlights and a few things to think about. To spice things up, I’ve illustrated this post with some recent photos from Namibia, as a reminder to everyone why we are on the web in the first place: to share our passion for photography with others.

(c) Ian Plant

For photographers looking to promote themselves online, it might be worth taking a moment to reflect on intellectual property issues before diving into the deep end of the Internet pool. (Greater flamingo, Dorob National Park, Namibia.)

The World Wide Wild West

In more ways than one, the Internet is like an old frontier town from a Spaghetti Western film—a crazy, lawless, every-man-out-for-himself kind of place where bad things happen to good people and puppies, and justice is a dirty word. Let’s face it: all of our quaint and old-fashioned standards regarding privacy and intellectual property rights are being swept away by the massive flood that is the World Wide Web. With young Internet users in particular, anything found on the web is considered “free stuff,” to be shared, repurposed, and memed in ways you can’t even imagine. By posting your work online, you’ve let it loose like a paper boat in a fast moving river, and the current is going to take it wherever the current feels like going. Some of the biggest social sharing sites, such as Pinterest, Tumblr, and StumbleUpon, allow users to post a photo they’ve found on the web without giving any sort of attribution to the original photographer, and from these sites the images get shared and copied to infinity and beyond—completely orphaned from their creators. And, by the way, it is more likely than not that this trend will get worse as time goes on. Is there anything you can do to stem the tide?

Should the Internet make you as skittish as zebra at a waterhole? Nope—but be prepared to adjust your expectations regarding intellectual property rights. (Startled zebras, Etosha National Park, Namibia.)

The short arm of the law

I’m sure most of you have heard of a fanciful little thing known as copyright law. In the U.S., and in most other places which have similar laws, each and every photo you take, at the moment of creation, is automatically protected by copyright law (please note that I’ve dumbed things down a bit here to avoid getting into too much legalese). This essentially gives you the right to determine how and when your photos are reproduced, distributed, or displayed (if at all). You don’t need to put a copyright notice on your images in order to get protection; your copyright springs forth into existence the moment you press the shutter button. But here’s the catch: unless you officially register your copyright protected photographs, your legal remedies are limited (basically, you can only recover standard usage fees, which these days aren’t all that much). Registration is not too expensive, and you have the ability to batch register photos, at least to a certain extent. By registering your copyrights, you get extra legal protection in the case of infringement, and you can rev up your potential damages recovery. In some circumstances, we’re talking real money here—think Grover Cleveland and 149 of his friends (hint: Cleveland is on the $1000 bill). Yep, you heard me right, up to $150,000—that’s some serious scratch!

This all sounds well and good, but how much protection does any of this really offer when it comes to Internet theft? In most cases, probably squat, and here’s why. First, registration of hundreds (if not thousands) of photographs per year can be a burdensome process, and might get costly even with batch registration (which has its limitations)—so most photographers don’t even bother registering their copyrights, thus limiting their legal rights. Second, even if you do register your photos, a lot of the theft on the Internet is anonymous and/or untraceable—that is, very rarely is the true identity of the infringer known to you. With some tech savvy, a few subpoenas, a friendly judge, and some free time (or some money to hire professionals with the necessary expertise), you might be able to track down an infringer, but it seems to me that hiding your digital fingerprints is not a hard thing for most computer hacker miscreants to accomplish. Third, a lot of infringement occurs overseas—complicating, if not rendering completely impossible, any efforts to address the issue through legal process. Fourth, most infringers probably don’t have deep pockets, making them unattractive litigation targets. In a nutshell, good luck getting $150,000—let alone any money—out of HappyGuy64 from Kazakhstan when he steals your photos and uses them to help sell Roolex watches on Ebay.

If you really want to protect your photos from theft on the web, be prepared to fight! (Dueling red hartebeest, Etosha National Park, Namibia.)

Water down theft with watermarks

Many photographers “watermark” their images, embedding a discreet (or not so discreet) copyright notice in their photos when they post online. Here’s the rub with watermarks: in order to be effective, they have to be prominent to give them a fighting chance against Photoshop’s many tools designed to remove stuff from images. If they are prominent, however, then the watermark interferes with the display of the image. So, most photographers who use watermarks opt for something discreet—but discreet watermarks are really easy to remove. Watermarks, of course, don’t offer any real legal protection, but they do serve to put people on notice that you’re vigilant when it comes to protecting your intellectual property rights. Of course, most wicked Internet photo thieves won’t be impressed. The watermark is probably most useful for the routine and “innocent” types of theft which happen all the time on the Internet, such as people reposting your photo on their favorite social media sites without proper attribution. In these cases, the watermark can serve to let everyone know that you took the photo, so at least you get some free advertising.

A watermark can put people on notice that you are serious about copyright infringement, but too much watermarking will just cover up your image—leaving viewers to see all mud and no elephant. (Elephant at a water hole, Etosha National Park, Namibia.)

Stop in the name of legal process

Okay, so you find out someone is using your photo without permission, what then? Well, rather than unleashing the incredible expensive and (as discussed above) likely ineffectual litigious hounds of war, you might want to send a simple, polite request asking the infringer to stop using your image (assuming their contact information is public). If you are nice about it, and the infringing use is innocent (some people just like sharing pretty pictures online and don’t have a clue about all this copyright nonsense), more likely than not the infringer will comply with your request. Chances are, they’re even a big fan of your work, and will feel absolutely horrible about the whole affair. Then again, many infringers are not innocent, and they will likely simply ignore you. If that is the case, you might still have a remedy, especially if the infringing use is on a social media or photo sharing site: often, you can complain to the relevant authorities and they will take the image down (for example, Facebook has a mechanism in place for reporting copyright infringement). Furthermore, under U.S. copyright law you can actually get Internet service providers to take down infringing material, but it involves sending them a legal demand letter.

Complaining about image theft can be useful, but only if someone cares to listen. (Cape fur seals, Cape Cross Seal Colony, Namibia.)

Google walking the beat

All of this legal protection is entirely theoretical if you don’t know when and where your images are stolen. The Internet is really really big, so big that you probably won’t even notice that your images have been stolen unless you look very hard. Sure, every now and then you (or one of your online buddies) will stumble upon an infringing use, but you’re probably only seeing the tip of the iceberg. Luckily, technology can come to the rescue. There are a number of ways to search the web for your own photos, one of the best and easiest to use being Google Images. Just click on the “Search by Image” camera icon, upload your image, and hit the search button. Not only will Google find your image on the web, it will also show you similar images (I guess this is Google’s way of letting you know—whether you want to know of not—just how truly unoriginal your work really is). I doubt that Google finds each and every time your image has appeared on the web, but I suspect if ferrets out most of the significant stuff.

For example, a Google image search of my photo Dreamscape reveals that it has been posted to a lot of websites around the world—sometimes by me, but most of the time without my permission or knowledge. Luckily, most of those who have “borrowed” the image have given me proper attribution, but some have not.

Often, the only way to prevent Internet photo theft is to constantly be on the lookout—but who has the time? (Male lion, Etosha National Park, Namibia.)

Don’t be mad—be Mad Men instead

There is an entirely different way to look at this whole issue of image theft, and to turn a negative into a positive—and that’s thinking about it as free advertising. That’s why we post photos on the Internet, right? We’re all trying to share and promote our work, and when we post to the Internet we are deciding to let others view our work for free. If you adopt this attitude, whenever an image is copied and shared by others on the Internet, that just increases your free promotional reach. Of course, this doesn’t hold up when those doing the sharing don’t give you attribution, or if they are stealing your images for their own commercial purposes, but most “infringing” use is helping to spread the word about you and your photography. Think of Internet infringement as your own personal Don Draper.

A good image will be shared on the Internet over and over. If at least a few of those shares give you proper attribution, you’re getting a lot of free advertising. (Flamingos, Dorob National Park, Namibia.)

What do the pros do?

All right, all of this sounds wonderful, but what do working professionals actually do? I can’t answer that question for most of my colleagues, but I can tell you what I do—or, more to the point, what I don’t do. I don’t bother registering my copyrights, because I think opportunities for successfully suing someone over online theft are few and far between, and getting real money is extremely unlikely, so even limited time and money spent on registration fails my cost-benefit analysis. I don’t spend any time doing Google Image searches to see who is stealing my work. And I don’t watermark my images, as discreet watermarks are incredibly easy to remove, although when posting to social media sites I usually include a border around the image with the image title and my name, but that is mostly because I think it looks good. I actually think watermarking is a good idea, if for no other reason than to make sure that when your photo gets shared by others, people will know if belongs to you (I’m thinking of starting to watermark for this very reason). Overall, I tend to take the “free advertising” approach to most Internet infringement, and consider worrying about the rest as a waste of time.

Here’s a real world example which helps explain my attitude. One of my colleagues called me several years ago to let me know that an electronics store in Portugal had stolen a few of our images and was using them to sell computer monitors online (basically, they had superimposed our nature images on the photos of the monitor screens). His initial requests to the company had gone unanswered, so he spent several days organizing his Facebook followers to bombard the company with nasty messages until they stopped using his photos. He suggested I do the same. I asked him only two questions: How much time did you spend doing this? And did you make any money? The answer to the first question was “too much,” and the answer to the second was “nothing at all.” I decided to simply not bother. Instead of wasting time for nothing more than a moral victory, I instead spent my time productively building my business. Even if I had all the appropriate legal protections in place, the time and money invested in suing someone in another country, and the subsequent distraction and disruption this would have caused to my business, would probably have not been worth the eventual payoff. In short—to me at least—the juice is simply not worth the squeeze.

Pardon me if all of this copyright talk makes me yawn, but I’d rather spend my time productively building my business than engaging in the fruitless pursuit of online copyright infringers. (Jackal waking from a nap, Etosha National Park, Namibia.)

Does that mean it’s open season?

Well, in many ways, yes, it is open season when you post your images on the web. But that’s not necessarily a bad thing. And maybe not all hope is lost. I’ve now employed the services of an Internet Photo Theft Prevention Specialist, a ferocious mongoose named Rikki (featured below). He may not look like much, but he cut his teeth (so to speak) for years doing top secret anti-cobra black ops before moving into the private sector, and basically if you can kill a cobra you can pretty much take on anything. So Internet pirates, be on notice—Rikki is defending my intellectual property perimeter, and you really won’t like him when he’s angry.

Eternal vigilance is the price you must pay in order to protect your precious copyrights from online predators. Or, you could just not worry about it—eternal vigilance can make one eternally grumpy, which gets in the way of enjoying life. (Slender mongoose, Etosha National Park, Namibia.)

Of course, this is just my opinion. I’m curious to hear about experiences others have had with image theft on the Internet, how you handled the problem, and what was the outcome. Please keep the discussion general: this isn’t the place to be airing grievances or making specific accusations against those who have done you wrong. With that caveat in mind, I’d love to hear your stories!

But wait, there’s more to the story . . .

One of the commenters on the version of this post which appeared on my Dreamscapes Blog brought up a company called Image Rights, which handles copyright registration, policing, and recovery for client photographers (for a fee and a percentage of recovered proceeds, of course). I don’t have any direct experience with this company, but I felt compelled to add this after-the-fact note. Having a third party take care of the administration of your copyrights and all of the infringer “wet work” certainly changes the whole cost-benefit equation. This is a really interesting option, one worth checking in to. If anyone else has direct experience with Image Rights or a similar company, please chime in. Who knows, it might even be better than having a copyright mongoose on patrol!

P.S. I originally posted this article on my Dreamscapes Blog, and there has already been quite an interesting discussion in the comment thread, with some great stories from people who have had experience policing their copyrights online. Check it out!