Tips and tools for photographers to handle intellectual property and copyright infringements

June 1, 2017 -

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Protecting our intellectual property rights as photographers is a very passionate topic for us here at Project RAWcast. If you have been listening to our podcast for any period of time you would probably be well aware of this. Here is an episode where we discuss this in depth. We have actually discussed it many times throughout different podcast episodes.

 

Intellectual property violations and misuse of photographers images is causing a huge financial loss to the photography industry as a whole. Think of it this way – if today we walked into a business or home, took whatever we like, walked out the door and did whatever we liked with it that would be considered as theft, right?

 

Or today a car is parked out on the street in a public space and we decided to hot-wire it and take it for a drive without the owners permission, surely that would also be considered as theft? But it was in a public space though. Isn’t that justified if its out in the public somewhere? No it’s not. It is a crime. It is theft. Just as taking images that don’t belong to you and using them for commercial purposes, or any form of business marketing is against the law if you do not own or have the legal rights to use them.

 

So as photographers, what can you do if your intellectual property has been stolen? How can you act on it and ensure you receive fair payment and compensation for your time, effort and investment in equipment? What direct action can you take to ensure payment is sought from businesses / government entities who have used your intellectual property to market their business or commercial interests?

 

Let’s take an in depth look at this below. We truly hope that this information is valuable to you in acting on protecting your rights as the legal owners of your images.

 

Assess commercial element of violation

 

In Australia and many other countries, the misuse of photographers intellectual property by any business / government entity for the purpose of promoting their business interests / economic stimulation is against the law. There are very clear guidelines available on this from the Australian Copyright Council. Here are a couple of links to PDF documents. There are both basic guidelines to your rights and information for specific violations  –

 

Australian Copyright Council Fact Sheet – Photographers & Copyright (PDF Download)

Australian Copyright Council Fact Sheet – Infringement – Action & Remedies Fact Sheet (PDF Download)

 

Something to remember throughout this process is that for any real chance of a legal claim, or for payment to be sought there does need to be a true commercial element to the violation. Some random person taking an image from your Instagram account, posting on their own account and saying “Wow this is a beautiful place” (or similar) does not have the commercial element required. Any lawyer with your best interests at heart will tell you this. While this example is still a violation of intellectual property laws, the commercial damages do not exist to make it worth the expense, effort and stress to chase.

 

To assess the commercial aspect there needs to be some form of business element to the use of the images. This can be in the form of the usage itself – commercial advertising, sales calls to action, web traffic generation, usage in marketing materials. But it can also come in the form of the entity itself – the business is a registered legal entity (business name, ABN, ACN), has a place of business, has legally registered domain names, business contacts (email, phone, address), employees.

 

Sometimes the commercial aspect is not as obvious as others, such as tourism boards and other government entities. But with enough research you will generally find that most government entities are there for one purpose – economic stimulation and protecting the overall financial interests of the local, state and federal governments. Here is an example of a commercial business statement on my local state tourism board’s own website. It’s very hard to argue that anything they do cannot be considered as a commercial activity. This shows a very clear mission statement of economic stimulation as a “marketing agency”. You can find a direct link to this page to continue reading it yourself by clicking on the image itself –

 

It’s kind of hard to argue that tourism boards are not there primarily and wholly for the purpose of economic stimulation and commercial activity when their own corporate statements often say that is their role.

 

But other times the business and commercial element is extremely easy to identify. Here is a screenshot of the contact details page of a business I have personally had recent dealings with as a result of them misusing my image within an editorial article and their social media profiles. This business is owned by one of the world’s largest media companies. The contact page itself also clearly states within the footer that they collect your information to display commercial advertising to you. It’s very hard to argue the commercial element of any content within this website.

 

When a business clearly has a permanent office of business, business contact details phone number, email address and then on top of that also states that they are collecting information for "advertising" purposes it is very hard to deny they are operating as a business.

When a business clearly has a permanent office of business, business contact details phone number, email address and then on top of that also states that they are collecting information for “advertising” purposes it is very hard to deny they are operating as a business.

 

So that’s identifying the business links and commercial elements to the business itself. Sometimes its a little more difficult to assess who is responsible for the violations, particularly with examples like a recent dispute here in Tasmania at the Hobart airport. But proving the commercial aspect of the violations themselves is still relatively easy in many cases, although may take a bit of leg work to prove. In this case for the photographers involved, proving that the space and commercial ties were there was a little difficult on surface level, but ultimately with the corporate statements of the tourism board involved (as listed above), the commercial space involved (airport, could there be a more commercial space?) and also other evidence gathered (the below is not all of it – this is still ongoing so I cannot publish everything yet) there is not much that could be denied about the commercial / advertising usage in this case.

 

See the advertising and marketing material below as well as an attached price chart. These are the types of things that will directly assist in any commercial dispute. Each case will have it’s own specifics, but this is the type of information that will assist you in proving commercial / advertising usage for your images if they are being misused. Scroll through the images below to see examples of this.

 

 

Here are a few online tools you can use to research details of any business entity to ensure there is a commercial aspect to their operation.

 

WHOIS Search – Search for the underlying business details of any  domain name. In Australia any domain name that ends in “.com.au” needs to have an Australian Business Number tied to the registration details.

 

ABN / ACN Search – Search for the details of the business registration.

 

ASIC Search – Find out more in depth details of any business entity in Australia.

 

Identify Infringing content (capture evidence)

 

It can be very upsetting as a photographer to find that your images have been misused by anybody, but when it comes to seeing them being used for commercial purposes it is time to take a deep breath, collect your thoughts, and start to gather the evidence required to ensure you can prove they have been misused.

 

If you are able to identify images that have been stolen from you and used for any form of editorial article, social media post with a call to action or commercial website link contained within the caption, online ad or direct promotion of a business product or service, or any other misuse of your image with a very clear commercial application to it there are ways to track, investigate, capture evidence and ensure you are documenting this correctly.

 

Identifying Content

 

Other than the obvious of seeing your images with your own eyes, there are some online tools that will be invaluable in protecting and discovering violations of your intellectual property. There are ways of searching for your images online and locating any website that is indexable (able to be seen by Google and other web crawlers). You can also sign up to services that will actively track and search for your images. Many of these will also have legal teams that will then proactively assist with further legal action in the case of copyright violation. Lets take a look at some of these –

 

Google Reverse Image Search –  Google knows everything. Not only does Google index an astonishing amount of text based content and make it searchable, but it also now has some very powerful image recognition technology that will help you to identify websites that are using your images with or without your permission. You can search for matches via an image URL or directly upload your images and allow Google to search for them. This is an invaluable tool in identifying websites that are violating your intellectual property rights. There is a plugin for most desktop web browsers for this service.

 

Google knows everything. If it is online, good chances are there is a way to identify infringing content.

Google knows everything. If it is online, good chances are there is a way to identify infringing content.

 

Pixsy.com – PIXSY is an online software platform that identifies unlicensed image use on the Internet. They work on behalf of photographers and independent creatives to resolve cases of unauthorised image use. Through their own proprietary search algorithms they are able to identify online image matches but will also assist in the legal claims of any offline unauthorised content usage. Through a network of intellectual property law firms throughout the world they are able to assist in the legal process of any claim you may have. You can connect your Instagram accounts, Facebook pages, website and also manually upload images and receive reports if any of your images are found anywhere else online.  There are other services like this online. This is the one I personally use and recommend.

 

Tineye.com – Tineye is very similar to Pixsy.com in that it searches for matches of an image based on a number of algorithmic variables contained within the image itself. This is via image matching and metadata. Give it a go. You will be surprised how many instances of your images you will find online.

 

Advanced Google Search Operators – Most people know how to do a Google search. But did you know that there are a whole heap of advanced variables you can use when using Google to refine and identify content on a more accurate level? An example of this is this – “tassiegrammer site:gobehindthescenery.com.au”. Basically what that will do is identify any reference to the word “tassiegrammer” within the said website. Now this is a very useful tool in identifying any further examples of references within a given website if you have already identified the website is using your content without your permission. This is going to be very useful in building a bigger case and really digging deeply into the content of a specific website.

 

Capture Evidence

If your images are being used online without your permission, taking screenshots is a good starting point. I would do this both on a desktop device and a mobile device. This gives you evidence that the images are available to be viewed across varying devices, screen sizes, browsers, operating systems etc. It is a good idea if possible to somehow record the date and time it is captured within the image itself. The EXIF data of the images captured will generally be good enough but to ensure you are capturing all of the information required it is a good idea to have the timestamp visible within the image. Ensure you are capturing the entire frame of a website showing logos, URL and when possible the entire page. There are plugins available for most desktop web browsers which allow you to capture a screenshot of the entire web page as one image. Here are just few recent examples of my own. Scroll through them to take a look.

 

If the images are being used offline, you will need to photograph, collect examples of the print material and ensure you are doing everything you can to document the original source of the content. Again, if you are photographing the content, ensure you are doing so in a way that records the date and time of the photos you are creating as evidence. This is a legal requirement in most major jurisdictions for evidence that could be used in any legal or civil claims.

 

Continue to track instances of copyright violation

 

So you have identified that your images are being used? You have started to identify all instances, collected evidence, screenshots, performed advanced searches of offending websites and overall just collected as much information as you can. So let’s start putting into place ways of tracking the offending content and ensuring you know if it stays online, how long it has been there for and just basically attempt to judge if any action you begin to take is acted upon by those stealing your images or not.

 

Wayback Machine / Archive.org – Just as Google references and makes web pages and images searchable, the Wayback machine / Archive.org has been saving snapshots of websites for many years and allowing us to view these over time. So here is what you do – copy the URL of the direct web page that is hosting your stolen images into archive.org and get an idea of how long it has been there for. This will help you build a bigger case with information of how long the violation has occurred for, and assist you in judging the licensing timeframe you should apply to the financial claim.

 

Google Cache – Unfortunately Google Cache only stores the information on a webpage based on the changes that have occurred between its two most recent web crawls, but it can still be a valuable tool in building a bigger picture of any violations and ensuring you cover your bases. You are able to view the cached version of a web page during any google search by clicking the little green down arrow that appears next to a page, or by using the “cache:” advanced search operator as listed in the link previously mentioned above.

 

Pingdom.com – So you have identified web pages that contain your intellectual property? Set up a pingdom.com request on that page to track if it gets taken down or removed in future. Basically pingdom.com is a web based interface to send “ping” requests to any online media. Now here is the part I personally really like – you are able to directly ping the image URL’s themselves. When an image is hosted within a website it will have it’s own URL that you more than likely can type into a web browser to view it directly. That URL is completely trackable via ping requests. Even if an article is deleted or unpublished the image itself is quite often left on the web host. If the offending content has been removed (or the URL has been changed) you will get a notification to say so. You can locate and extract the direct URL of the image by browsing the source code of the element within any web page. Here are a  few screenshots showing you what I mean. Scroll through them to take a look

 

 

Send Invoice / Letter of demand

So you have all the evidence you need to prove your intellectual property rights as a photographer have been violated. You have set up tracking, gone as far as you can to collect historical information, collected all of the screenshots and business details you need to progress with making a financial demand for your work. Awesome. The next step is to assess the market value of your images (purely as an estimate). Lets take a look at the tools to do this.

 

Get an estimated value of your images

 

Getty Image Calculator – Getty Image calculator is a very widely used tool to get an estimated value of your images based on the particular usage type. This should be used as a guide only. Something to remember is that you as the owner of your intellectual property have every right to set whatever price you like on your work. Use this calculator purely as a guide.

 

AOP usage calculator for photographers – A lesser known but still just as valid image calculator is the Association of Photographers calculator. Using both of these calculators combined will give you a good understanding of the estimated value of your images. Again remember though, you ultimately decide how much your images are worth.

 

Time to prepare an invoice

Ok you have a some idea of the estimate value of your images. Time to decide how much you think your images are truly worth. Using the information collected above of the business details and the estimated value, prepare an invoice and get ready to send it. I would recommend adding any local areas taxes, make allowances for the time you have put into this process and any extra expenses you may have occurred up to this point. And then double it. Or maybe even triple or quadruple it. It’s your time. It’s your intellectual property. It’s your right to decide how much it is worth.

 

Letter / Email of Demand

It is very important to prepare a letter of demand and ensure it is delivered electronically and / or via traditional post. You are able to set up tracking reports on emails in most major email clients. The letter of demand should include the invoice, all screenshots and any further evidence you have gathered via the methods listed above. Here is an example letter of demand for you to use. Ensure you are modifying it to suit your particular needs.

 

Example letter of demand for photographers to use

 

Legal action

 

If there is any hesitation, negative negotiations or part of the final payment process that is being stalled by the business / institution / organisation that is infringing on your copyright then legal action may be required. There are a number of legal institutions here in Australia that are able to assist. There are also some very good, highly experienced and successful lawyers that specialise in intellectual property violations. They may be expensive, so you need to weigh this factor up. But if there is a good case, ultimately the costs of your legal team will most likely be covered in any ruling given out by a court in a civil / legal claim. Here are a few resources I recommend –

 

Simpsons.com.au – If advice and action on intellectual property violations is what you need, then the Simpsons law firm is the place to go. This team of lawyers has handled some of the biggest intellectual property cases in Australian history and is highly regarded throughout the industry. They specialise in intellectual property law and advise some of the largest photography organisations in Australia. From personal experience these guys truly know their stuff.

 

Australian Copyright Council – The Australian Copyright Council is an independent, non-profit organisation. Founded in 1968, they represent the peak bodies for professional artists and content creators working in Australia’s creative industries and Australia’s major copyright collecting societies. They are advocates for the contribution of creators to Australia’s culture and economy; the importance of copyright for the common good. They work to promote understanding of copyright law and its application, lobby for appropriate law reform and foster collaboration between content creators and consumers.

 

Arts Law – Arts Law is Australia’s independent national community legal centre for the arts, a not-for-profit company limited by guarantee. They provide free or low cost specialised legal advice, education and resources to Australian artists and arts organisations across all art forms, on a wide range of arts related legal and business matters.

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