No Win, Just A Copyright Resolution

Not sure I’d call it a win. Maybe resolution is more like it.

Almost two years ago I photographed an assignment for a client. Those images were then published with a feature story by the client.

Well, the subject of that feature story in turn took those images and used them on their blog. 

I had no idea.

Monthly, I do a search for my images online to find unauthorized uses. Generally, I don’t have issues, but most folks don’t realize that the copyright information is embedded into the actual images which make it easier to find when people use our work online. 

Seventeen months after the photo assignment I was doing my monthly search and found a blog post with my images on this company’s website. Seems that the basic info had been stripped away from the images making them a bit harder to find in a basic search. 

So, here I find two of my images on the site in a blog post as well as one of those images being used as the featured post photo. The site also included the reporters feature story without permission. Once I realized it was unauthorized I made a frame grab. Why? To make note of the date and to show my work on their website. That’s potential evidence. For down the road…if necessary in a copyright infringement lawsuit.

From wikipedia, the definition of copyright infringement is “the use of works protected by copyright law without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works.”

That is exactly what happened in this case. Company B took my images from Company B, who paid me to make pictures at Company A and placed those images on Company A’s website. It’s a clearcut violation and easy to prove. Remember, I have evidence in the frame grabs.

If the copyright is registered with the US Copyright office before the infringement or within three months of first publication, the owner of the copyright may be eligible for up to $150,000 per image in statutory damages and attorney’s fees from the copyright infringer. Remember that! $150,000. Per. Image.

So, I reach out to these folks via email. In the email I explain that my work is on their website and if they have purchased a license to use the images on the site to please provide that proof. I already know that they did not purchase a license since it would have to go through me. So, I hit send. Email sent.

No response.

A week later I try again via email.


No response.

I then found the Facebook page for these folks. Reach out then by Facebook message.

Finally a response.

They did apologize for the unauthorized use and ask that I send them an invoice. I do send them an invoice. Although since the work had been online for over a year and a half the price for the unauthorized usage was substantially more then it would have been normally. After sending the invoice, I wait. And wait. And wait.

One month goes by, then another. All the while, I’m emailing these folks and getting blown off. Sending invoice reminders. Nothing. This goes on about 6 weeks. I then email them and let them know I’d like to resolve this without taking them to court. Again…nothing.

About three weeks later, I start preparing myself for the court battle. Gather all of my evidence, which had been frame grabbed as soon as I first saw the images on the site without permission. My plan at this point is to reach out to the NPPA legal team and see where they can help with this issue. They would usually be able to recommend a copyright attorney in my area.

That didn’t happen. It wasn’t necessary.

In a last ditch effort, I had emailed the contact person at the company that had used the images without permission. It said, “Are we going to resolve this, or will I have to take legal action?”

In a matter of minutes, I received a response that claimed the email had gone to spam. They’d like to take care of this as soon as possible. Can they send a check?

I sent an address with instructions on who to make the check payable to to make sure they had the information needed. Three days later, I have a check in hand for the amount that I had been requesting for 3 months. Now, if they were having trouble receiving my email, they sure hadn’t had an issue receiving the invoices. The amount was correct. Leading me to believe that what happened in the past three months is that they must gave spoken to their attorney and found that since my images were registered with the copyright office I could seek up to $150,000 in damages for each infringement. Now that is something I was trying top avoid. Sure, $150,000 per image sounds great, but my goal was to be fair.  They, as well as myself, are small businesses. I didn’t want to hurt a small business. The other thing is it very well could have been a long drawn out court battle, which no one wants. Especially me. I want to make pictures not battle for the rights to images.

The good news is that I was paid. The bad news is that it keeps happening. Most people don’t or can’t understand that they can not just take someone’s work and post it on their website without permission. 

We need to educate folks about copyright law.

This has happened to me before, and is one of the reasons that I do look online once a month to protect my rights. I don’t like doing it, but it has to be done. I love making pictures, but do not want to be giving the work away for free when my daily cost of doing and staying in business is as great as ever.

Most times I walk around with $5,000 worth of gear just to make a single picture. That doesn’t even begin to address other costs of doing business. There’s health insurance, liability insurance, vehicles, insurance, computers, software, etc… The list is almost endless.

Granted the company finally paid for the unauthorized use, but I had to invest so much time and effort into protecting my rights I don’t really feel like a winner.

I just want to make pictures and not have to worry about protecting my copyright. Problem is that in this day it is almost impossible.

They key here for photographers is to make sure you register your copyright. It gives you a lot more ammunition if an infringement ever happens to you.

Know your rights. Protect your copyrights.

So, instead of a win I’ll just call it a resolution, until next time.

US Copyright Office

NPPA Article by Attorneys Alicia Calzada and Mickey Osterreicher
Suing for Copyright Infringement? 10 Things to Consider

PPA Copyright Resources

Know Your Rights As A Photojournalist/Artist

Wow. Flabbergasted is what I am at this moment.

I posted the above image on a facebook group this morning and while most people (over 300) liked the image, a few small minded people had a problem with the image. They didn’t have a problem with the composition, color or anything but the fact that the subjects might be Mennonite and accusing me of violating the subjects rights when I photographed them on a public beach in plain view. The complaints did not come from the subjects of the image, but some small minded people who did not like the subject matter. They tried to tell me the image should be removed because Mennonites do not like to be photographed. As someone who has photographed Mennonite and Amish folks for that matter, I’ve never come across a problem with making pictures of younger folks. The older folks sometimes do take issue with being photographed, but these people certainly didn’t have a problem. They were on a public beach in plain view for all to see.

I made the image because it showed a group of friends enjoying the day and each others company a well as the beautiful Cape May beach. The colors popped in conjunction with the sky and the fact that they are small in the frame shows designed to imply the larger, and hopefully great things to come, in these individuals lives. It’s a pretty picture on a gorgeous day with nice color that merely documents the moment. 

To anyone who has a problem with this image, sorry you feel that way. As a photojournalist and artist, it is my right to make an image of anything I choose as long as it is in public view (which these people are). No laws are broken. No one’s rights have been violated (especially since the subjects are not identifiable). Well, maybe mine with the rude statements of some small minded individuals. The image is not being used commercially, but I do have every right in the world to use it editorially. And let me be clear, even if the subjects of this image had objected, I am well within my rights to make that picture and use it editorially. That said, if the subjects did object, I might not use the image. Did you read that? “MIGHT not.” Why? Because I am well within my rights whether those folks like it or not. 

You have no right to violate my rights as an artist because you don’t like the subject of an image I made that breaks no laws.

If you have a problem with it, that is YOUR problem, NOT MINE. 

Hey! That’s my photo!!

A few months ago I was made aware of a school that had pulled one of my images from a clients website and then used it on their website with a press release. I won’t mention names, but let’s say it was a school that could afford to have purchased a usage license.

When I saw the unauthorized use, I wasn’t surprised that it had happened. In my experience, people tend to think if something was published online, it is in the public domain. Not true. The author owns the copyright. This means that if someone, even the subject of the photograph, wants to use the image in any other way they must receive permission from the original author of
the photograph. Plain and simple.

In this case, the image was registered with the US Copyright office. All I really wanted was for the school to admit they had done something wrong and apologize. And that is what I expected when I emailed the communications department. The email that I sent basically asked how they had received the image as well as permission to use the image. If they didn’t have permission or a license for the use I’d be happy to sell them a license to use the image on their site.

I assumed they’d get back to me, play dumb, apologize and remove the image. So, I wait. And wait. And wait.

Two days later I see that my image has been removed from their site, but no response from their communications director. So, I then sent another email which thanked them for removing the image, and also asking where I should send the invoice for the “unauthorized” 9 months of use on their site. Yes. It was on their site for 9 months before it was brought to my attention.

Again. I wait. No response. Four days later I email the communications director saying I would appreciate a response.

Wait another three days. Finally, the communications director gets back to me. Tells me where to send the invoice, but no apology. No excuses. Nothing.

So, I invoiced them $100 for 9 months of use on their website and added another $50 for unauthorized use.
Could I have pursued more? Probably. Would it have been worth it? Probably not.
Fact is that the image really doesn’t have much value other then to the people that pilfered it for reuse. It’s an image that was published with a story on one of the school’s athletic teams. The reality is that the players in the image won’t be moving on to a big college, so the value of the imagery as far as reuse is somewhat limited. The reasoning behind charging the rate that I did was to make a point that people can not pilfer a copyrighted work without paying for it.

Funny thing is that if the school had just asked if they could use it, I probably would have said yes and gave it to them as a non-profit contribution.

I am still waiting for the apology.

Watermarking Images


Watermarks. I’m not a fan and really don’t like using them. But, when it comes to protecting our copyrights, incidents of late have made me rethink our whole policy.

While I can appreciate the fact that someone likes and wants to share an image, I can not allow theft of our images. There are sharing icons under an image for just that reason. If a person shares our images via one of those links, they and I can be assured that whomever sees the image will be viewing it as intended and that our copyrights are protected. One of the features of our host for galleries is those images can not be downloaded. In the past that was enough of a deterrent.

Recently, someone that we photographed made a frame grab of an image on one of our galleries and uploaded it to Facebook. They didn’t attribute the image, just posted it. Aside from the fact that the person did not have permission, one of the problems I have is the fact that the frame grab is not a finished product and totally misrepresents our work. The image file size is at least 3,800 pixels wide when I upload to my site. Most times when viewing on my site the image will display at at least 900 pixels wide. Those images are optimized for viewing on the site at that size. Then someone views the image on their iPhone and makes a frame capture of that picture. That image size is roughly 400 pixels wide. When posting the image on Facebook it looks nothing like we originally intend or want.

When we do find that someone has posted one of our images on Facebook without permission, we immediately report it and have it removed from Facebook.

There is a huge expense in producing high resolution images. Each camera costs at least $3,000 and then you factor in travel time, fuel, tolls, insurance, car insurance, etc., it adds up quickly. We can’t allow people to STEAL images from our site and post them somewhere without our permission.

We reserve the right to control how an image is reproduced because that is how we stay in business.

It seems that people generally do not understand that when we make a picture, we own the copyright of the image as well as the right to reproduce that image any way we see fit. We may chose to have an agreement, in writing that the client can reproduce the image, but that is at our discretion. And the client NEEDs to have permission via a written LICENSE to reprint pictures.

So, for those reasons, you may see some of our gallery images now feature a watermark like the one above. Proof CD’s will also now come with watermarked images.
Print orders will not be watermarked.

I do apologize for any inconvenience, but we need to protect our work and copyrights.
Please do not infringe upon our copyrighted work.

Lack of…..

Recently, I photographed model Sabrina West at a local park. She wanted to use some of the photographs to enter the a contest contest. I told her I don’t have a problem with her using the images for the contest, as long as my watermark remains intact. So, she uploaded the photos to the site. Problem is that when you upload the images, their system automatically crops the photo as tight as possible, removing any watermark on the edge of the frame. The site also lacks a backstop asking the model if she has a photo release from the copyright holder allowing her to use the images for the contest. In this case the model has permission, with conditions, and I would have provided a release if asked and my conditions were met.

A few weeks ago, I clicked on the link to the models profile on the site, expecting to see my watermarked images. What I saw was my super cropped images, sans watermark. Immediately, I emailed the model. She informed me she had done what I asked, but a marketing company cropped the photos.

OK, shouldn’t be a problem. In the past when this kind of thing happened with a marketing company, I’d emailed the company’s CEO and he has swapped out the unwatermarked images for the correct watermarked versions. So, I didn’t believe it would be a problem. Via email, I asked the CEO to have the images swapped out. He emailed back that it wouldn’t be a problem and said to coordinate with someone that works with him. Simple matter. You’d think.

(see below for the frame grabs)

I then sent the two images to the person I was told would handle it. Waited for acknowledgement that the images were received, but nothing. I emailed the contact a day or so later to follow up as to whether the pix had been received. At this point I’m starting to get a bit miffed. Still no response.

Since I had received no response or acknowledgement that the images were received, my next step was the beer company. I explained to them in an email message:

The marketing company and national beer company do not have a photo release from me to use these images on the site, thus infringing upon my rights. I have contacted a marketing company in order to resolve the issue. I notified them I would allow the use of the images if they post my watermarked un-cropped versions. After initially agreeing, they have not responded.

(this is what I had sent to replace the images)

Two days later I receive a terse phone message from the company’s CEO. In the voicemail he states that national beer company’s Corporate legal department contacted him about my images. His reaction is that while national beer company would like him to replace the images, like I have asked, he’s prefer to delete the model’s profile on the site all together. Oh, and he will also let her know that she’s being deleted because of me. Was that supposed to scare me? He also went on to say “I expect a return phone call today.”
One for promptness, I call him within 5 minutes.

He starts whining to me that he has all of these emails from corporate asking him to replace the images I have asked and that I’ve caused him allot of grief. He then asked if I contacted national beer company corporate legal department about them infringing upon my copyrighted work. Proudly, I say “Yes. I did!”

He goes on to tell me that hurts his business. Really? And my business isn’t hurt by people using my images without any kind of compensation? I explain I wouldn’t have had to do that if his people had just done what was asked or responded when I followed up. The person he put me in touch with never responded. He said, “That’s because she’s in Florida.” And…I’m supposed to know that how? From her non-response? I’m a photographer, not a mind reader. And quite frankly, that’s not my problem.
I told him I really don’t care if they delete the profile. But, all I asked is that they swap out the images for my watermarked version. He agrees to do that. Tells me to send him the images. I did, and that’s where we stand now. That was Friday. Again, I’ve emailed a follow up and no response.

This is a clear violation of copyright law.

I’m leaning towards going back through the corporate legal department again.

First of all, there are a few problems with their site and terms. They do not ask if the model had a signed photo release from the photographer, the copyright owner, or seek permission from the photographer to post his/her copyrighted work. The site automatically crops models images, thus removing watermarks from the imagery. Thus if you agree to let a model post the pix,a marketing company crops anyway they see fit.

What in the world are these people thinking? Am I supposed to think it’s cool that they have my imagery in their contest? Frankly, who gives a damn!? My work has appeared all over the world. Hell, I’ve even had a Newsweek cover. The beer company pays the marketing company, and they claim to make no money off the contest. Why are they in business?

What do the photographers, whose images are used without permission get? Absolutely nothing!! Not even attribution for their hard work making these models look good. And, let’s be honest here. I hate to say this, but some of the “models”ONLY look good because of the photographer’s team that makes them look good.
For each infringement I could seek up to $150,000 in copyright infringement damages against a marketing company and beer company. All I asked for was attribution.

The vibe I got was that this dude was trying to make me feel guilty for protecting my rights as an artist.
That doesn’t work on me.

I know my rights, and I’ll be damned if I let them use my imagery without attribution or compensation.

– BC

Updated:  The issue has been resolved. I had them remove the images because they couldn’t make it so my watermark was visible.  Wonder how many other photographers are getting screwed by these people.