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Misappropriation of Photography Credit
Take a look at this picture:
I took that picture last October for Central Florida Lifestyle Magazine. The story, with a different picture, ran in an article a few months later:
click for larger image
A month or so ago, the editor contacted me and wanted additional photos from the shoot. I sent her the picture above (the first one). Well, on Tuesday I noticed the magazine’s Facebook profile picture was from one of their edition’s cover*:
Look familiar? It’s the same picture I took, only the subject has been cut out and placed on a different background. At first, I was excited to see one of my pictures on the cover. But my heart sank when I saw the photo credit was given to another photographer. I contacted the editor and the Facebook image was corrected immediately; but the printed issue went out with the other photographer’s name. Apparently the other photographer took the image of the background. The editor said she would print a correction in the next issue.
On the same day, she asked if I wanted to take on another assignment. Here’s where I need your opinion. My gut says “no”. I’m still a little hurt and peeved by the mistake. A tiny correction inside the magazine which most people won’t read or care about does not compare to the COVER of a magazine which another photographer got credit for. So, right now, I’m inclined to not take any more assignments from them. What do you think? Should I burn that bridge? Or am I overreacting? I understand it was an honest mistake (read below), but it deprived me of a lot of exposure.
I should note that I don’t get paid, per say, for the assignments. Each hour is worth a certain amount of ad space in the magazine.
I’d love to hear your thoughts….
*the magazine has several editions targeting different areas in Central Florida. Each edition is very similar but has a different cover image. So I understand how the mistake was made. They just replace the image and the accompanying headline, but leave everything else, including the photographer’s credit, the same.
Tips for Writing Licenses and Contracts for Photography
I’ve said it before and I’ll say it again: If you want to make money from photography, you need to have a contract and a license signed by you and the client. A contract is just an agreement between you and a client that specifies the scope and nature of your work. A license is the document that grants a client certain rights to use your image(s). I’ve seen some wedding contracts, for example, that include a model release and specifies what the bride and groom can and can’t do with the images. So in essence it’s a contract, model release and license all in one.
Now, I’m no lawyer. That means two things; I can’t give you legal advice. Second, it means writing and reading contracts and licenses give me a headache. I’m a college educated person, but sometimes I have to re-read a statement several times and sometimes I still don’t know what it says! If you think about it, writing “and” instead of “or” can have serious implications in a legal document.
So my first solution was to buy “Business and Legal Forms for Photographers” by Tad Crawford. The book comes with boiler-plate templates on a CD-ROM in various formats that you can use. The book walks you through what each line means and covers everything from model releases to wedding contracts and more.
Then I read something on the American Society of Media Photographers (ASMP) blog, “Strictly Business“. In it, Judy Hermann writes,
”Licenses don’t have to be complicated. They don’t need to include a lot of wherefore’s, whereby’s or other legalese. What they need to do is to outline – clearly, simply and in plain English – what the client can and can’t do with your images.”
She goes on to say that licenses can be written in list form. That got me thinking. I’m now in the process of writing up a contract in plain english. It’s not that easy though. I’m referring to the legalese in the book as well as the ASMP web site and translating it into plain english. In the end, I think this helps both parties. Would you want to give a bride a 2-to-3 page legal paper to sign? Seems a little intimidating, I think.
So my advice is to talk to your client and find out what their needs are. Then incorporate that into the contract. The contract I’m writing now, for example, really only has three core principles. First, granting limited use to the client. Second, protecting my copyright and by extension; Third, not allowing them to give my images to anyone else.
If you’re serious about making money from photography you’ve got to learn about releases, contracts and licenses. Fortunately, the ASMP site is full of free information. On the homepage click on “Business Resources” then “Tutorials and Forms“. There you’ll find info on copyright, releases, an example of a bad contract and a terms and conditions example that you can include in your contracts.
Three Ways Photographers Can See Who’s Using Their Images
If you publish images on the Web then you might wonder if someone is using them without your permission and violating your copyright. There are three services that will search the World Wide Web and let you know where it finds your images.
The first is TinEye. It’s a reverse image search engine that uses “image identification technology rather than keywords [or] metadata” to find your image. It’s free to use for non-commercial uses. It’s pretty easy to use; just upload an image or enter an image URL and hit search. I entered a URL of one of my images on Flickr. The site came back with a few of my Flickr images and had me select the correct one. It then searched 1.6 billion images looking for a match. It didn’t find one and the site says it may be because it hasn’t crawled the site where it appears yet.
The second service is ImageRights. They’ll search 80 million web pages a month looking for your image even if (according to the site) it’s been cropped, altered or embedded in another image. Then, they’ll help you recover settlement fees. How much you get depends on a tiered system. You can sign up for a free account and get half of all fees recovered. For $295 a year you’ll get 60% of the fees; and for $595 a year, you’ll get 65%. When you consider that statutory damages can be 150-to-200 thousand dollars, plus actual damages and attorney fees, you could be looking at a nice chunk of change. They’ll even register your copyright for you. Personally, I say register yor images yourself. It’s $35 for as many as you can upload in an hour and it doesn’t take that long.
The third service is Digimarc. For $49 a year, Digimarc will add a digital watermark to your image. This “fingerprint” identifies your image and communicates the copyright info. The “Pro” version is $99 and includes twice as many (2000 vs. 1000) images.
Of course these are only helpful if you register your copyright to begin with. Yes, you own the copyright the moment you took the picture; and yes, you have recourses to make the infringer stop using your image. But if they don’t/won’t and you want to take legal action, your case will be much stronger with that certificate that comes from the Library of Congress.
This post was inspired by a fellow photographer whos work I admire and follow on Facebook. She posted that one of her images was being used without permission for the second time in a month. She did not register the copyright. Judging by the comments most people thought A.) that watermarking your image would be enough and B.) That registering your copyright was expensive. To learn why both those comments are false, read my past blogs on the topics:
Ironclad Protection For Your Images At Rock Bottom Prices!
Failure to Register Copyright Cost Photographer $201,550.
Best Use of Watermark in a Photograph
I’ve also heard that professional organizations like American Society of Media Photographers and Professional Photographers of America can help members if their copyright has been infringed.
Aside from testing TinEye, I have not used the services I mentioned here; so take it as a suggestion only. I’d love to know your experience with any of the services or if there are others you know of.
Best Use of Watermark in a Photograph
If you’ve read my blog in the past then you probably know how I feel about watermarks. If you haven’t this past blog post explains why a registered copyright is really the only protection you have against someone stealing your image. Scroll down for the part about watermarking.
Bottom line is that I think it’s distracting and detracts from the image. You don’t want the viewer’s eye wandering around your image. They should focus on the subject. Moreover, any 12 year old with decent Photoshop skills can remove your watermark. Finally, as stated earlier, your watermark doesn’t mean squat in a court of law. These sentiments were reinforced to me recently in an episode of D-Town TV with Scott Kelby and Matt Kloskowski. In the epsiode, they go over how to easily add a watermark in Adobe’s Lightroom 3.0. Fastforward to about 4:45 and Scott, with tounge in cheek, explains why he wants someone to steal his image.
Recently, however, I ran across one photographer who makes clever use of his watermarks. Zack Arias is an Atlanta based photographer. He is pretty well known across the country, not just for his work, but for his willingness to teach others.
Check out this post on his blog and see if you can spot the word “usedfilm” in the images. (While you’re there, get schooled on some lighting.)
Then check out this post. Again, look for the “usedfilm” watermark. Now look at the second to last picture; the one with the band standing in a field. See the bird in the sky? Watermark. You can see it again in the last image on the guitar case.
I think this is a very subtle and creative use of a watermark. Sometimes it’s obvious, sometimes it’s not. It’s not always in the same place and it blends in nicely…you have to look for it! If you saw only one of those images, you might think that the words were really on the guitar case or guitar strap. It’s also not placed somewhere where it can be cropped out without losing an important part of the image.
So as much as I don’t like watermarks, this takes the cake for the best use of one.
Failure to Register Copyright Cost Photographer $201,550.
Not to beat a dead horse but…my post on copyright didn’t get many reads. As I said, I know it’s not a sexy topic. But who couldn’t use an extra 2-hundred grand? And that’s just part of what one photographer could have won in his copyright lawsuit.
I’ll link to the article at the end; be warned, it’s got some legal speak. Here’s the breakdown: A painter works from photographs to make his paintings. Another artists allegedly takes one of those photographs without permission and makes a painting from it; in essence, a copy. That artist dies but his wife puts the painting for sale on a web site. The first artist (the one who took the picture) sues and wins $201,550 in “actual damages”. Because he did not register the copyright in a timely manner, he had to prove “actual damages” and was not eligible for “statutory damages” which could have been much more. In the end, a court found he had not proven “actual damages”, which is hard to prove, and threw out the award.
Here’s the article:
http://copyrightlitigation.blogspot.com/2010/03/4th-circuit-fine-art-paintings-from.html
Hi, I’m An Artist. Please Don’t Look At My Work.
My last blog post was about copyright. I was planning to next write about “creative commons” license and why sometimes you might actually want to have your picture “stolen”. I’m still planning on writing about that, but something happened yesterday that kind of goes along with that concept.
The Baldwin Park Arts Festival took place Saturday, March 13. As a photographer for Baldwin Park Living Magazine, I have an understanding with the editor to document as many events as I can for the publication and the community Web site photo gallery.
The Arts Fest features local artists selling their work on an entire block in the heart of Baldwin Park. So I get there and I’m just not feeling it. I walked up the length of one side of the street and started down the other without having taken a single picture. Maybe these arts and crafts shows just aren’t my thing. Then I get to a lady painting and I think “great, an action shot”. A shot of someone doing something. So I take a picture. I walk a little farther and there’s another artist painting. I snap another picture…
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He turns around and says, “Thanks for the exposure.” I take a second to figure out if he’s making a photography pun. I decide he’s not and tell him I’m with Baldwin Park Magazine. He says thanks again.
Ok, so now I’m warming up. I’ve taken a few pictures at this point when I see a girl with some money in her hand. This would be a great opportunity to get a shot of a sale. I spent almost a decade in broadcast news and I know that photojournalism is about telling a story; and isn’t the whole idea of this thing for artists to sell their work? I mean, it’s not a gallery exhibition. Let’s face it, if no one buys anything today, the event is a failure. This is literally “the money shot”.
So I take a picture…
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I realize I didn’t compose properly; cutting off the girl’s head and getting an arm in the shot. So I recompose and I’m waiting for the right moment when the lady whose arm is in the shot turns around and says “no pictures please”. I tell her I’m with Baldwin Park Magazine and she says the artists don’t want pictures taken. I explain to her that this is a public area and that I have the right to take pictures. We go back and forth for a few minutes and I walk away.
First of all, I wasn’t taking pictures of the art work; some kind of jewelry I suppose. I was taking a picture of the transaction. Secondly, the picture is for editorial, not commercial use. Third, as a former journalist I know all about expectation of privacy and fair use. Lastly, if you don’t want your work seen, then stay home, don’t display your work in public or on the web and pray to god that someone finds your art. Is the fear that I’m going to go home, study the picture and copy the creation?
Hey, I get it. I’m a photographer. Everytime I post a picture online, be it my web site, Flickr or Facebook, there’s a chance someone will “steal” it. But there’s also a chance that someone who’s never heard of me will see my work. To protect myself, I take steps to guard my copyright. But I don’t take pictures so I can stuff them in a lock box. Isn’t that the proverbial ostrich with its head in the ground?
So I walk around a bit more and take another picture…
click for large image
Again, the artist comes up to me and says “no pictures”. I tell him who I am and he says it’s ok. I asked him why I wouldn’t be allowed and he says, “with a camera like that, people can make good copies”. Ok, so I guess the thinking is that I’m going to sell a picture of his work? And would it be ok if I took a picture with, say, an 8 megapixel point-and-shoot? Couldn’t I make a good copy with that? What if I wanted to take a picture of someone with the art in the background? Would that be offensive?
This reminded me of a similar event I attended last year. A photographer had a booth set up and his pictures featured black and white images of statues. I thought, wow, that’s interesting. He didn’t sculpt the statue, he just took a picture of it and is selling it.
That issue is actually at the center of a lawsuit. You can read more about it at the Photo Attorney Blog. That case is a little different because I am there strictly for editorial reasons. Taking a picture of your art does not violate your copyright. What I do with that picture may or may not.
Bottom line: That first guy got it. He thanked me for the exposure. He took a look at my DSLR and assumed I was with some media organization before I even told him who I was. The pictures I take will be featured on a magazine spread that goes out to tens of thousands of Baldwin Park residents. What’s that you say? You don’t want free advertisement?
So now I want to hear from you. What do you think?
Ironclad Protection For Your Images At Rock Bottom Prices!
The Copyright
The moment you take a picture, it’s yours. You created it. You own the copyright. Copyright means just that: you have the right to copy it. So how do you protect your rights?
You can watermark your images (more on that later). You can post a disclaimer on your Facebook page. You can have a verbal agreement (this is about as good as a nod and a wink). But if someone really wants to use a picture you took, in a manner or for a purpose that you did not consent to, there’s not much stopping them.
The only way to protect your images in a court of law is to register the copyright.
Hey wait, come back! Yeah, I know; it’s not sexy. It’s not even fun. I mean I get it. As photographers we want to spend our time…uh…taking pictures! Who wants to edit? Learn about taxes and limited liability corporations? Booooring.
What’s really at stake here is money. You took the picture. If someone wants to use it for advertising or promotion, they should pay you for it. This is called “licensing” (more on that later too).
To quote the American Society of Media Photographers (ASMP): “You do not have to register your work with the Copyright Office to acquire your copyright. However, the legal protections available to you are limited if the photographs are not registered. Those limitations can translate into lost income.”
Worth More Than A Thousand Words
Let me cut to the chase and then I’ll circle around again. It costs $35.
Hey wait, come back!
I know, I know. We’re saving every penny for that fast super-zoom lens! But first, you should know it’s not $35 per image. It’s $35 for a batch. As many as you can register during a one-hour session. Now think about it; how many pieces of photographic gear do you own that costs less than $35? I can think of two and one does nothing but blow air.
Now those 35-dollars can mean hundreds, thousands, maybe hundreds of thousands of dollars for you if someone infringes on your copyright. And it’s good for 70 years after you die!
So let’s say you copyright an image today. You die at age 100. Sixty-nine years later your great-great-great grandson discovers a picture you took being used in a Nike ad. Because you left your estate to your heirs…CHA CHING! Your great-great-great-great grandson can now go to college!
This scenario may seemed a little far-fetched. But only a little….
I first opened my eyes to the process of copyrighting through kelbytraining.com. I highly recommend the subscription, but you can watch the first three lessons of each course for free. Over there, Jack Reznicki and Ed Greenberg have a course on the topic and they walk you through the process of registering your work online. They tell the story of the late Stuart Gross who, in 1987, took a routine picture of 6-year old Lisa Steinberg . The little girl died 9 days later at the hands of her mother’s boyfriend. The story made national headlines. The picture became evidence in court and was licensed to specific media outlets under specific conditions.
Greenberg says 22 years later the picture is still being infringed and he’s brought more than a dozen claims against some of the top media outlets in the country, including CBS News.
The photographer is dead. The picture lives on. And so does his copyright.
Go watch the course (at least the first 3 lessons) HERE.
THE eCO SYSTEM
No, not the eco-system. The eCO system. That’s the electronic copyright office. I’m going to cop-out here because I really cannot walk you through the process better than Carolyn Wright over at the Photo Attorney blog.
The entire article with step-by-step instructions is here:
http://www.naturescapes.net/docs/index.php/articles/341
If you prefer the video tutorial see the kelbytraining.com link above.
OTHER STEPS
Chances are if someone is using your image, it isn’t malicious. They probably didn’t “steal” it. They’re probably just a little ignorant. If you find someone who infringed your copyright, don’t go calling the attorney just yet. In fact, a lawsuit is probably the last step. There are ways to deal with it. But try walking into an attorney’s office with your story and the first thing he or she will ask you is “Did you copyright it?”. If you didn’t, they probably won’t even take your case.
The first thing you should do is have a contract. Always. If you put someone in front of your lens, hand them a contract before you press the shutter. Shooting your best friend’s wedding? Shooting your neighbors newborn baby? Get a contract! What if that picture ended up in a bridal magazine ad or the cutest baby in the world billboard with NO compensation or credit to you? Get a contract and specify the use and terms. When Stuart Gross took that picture of the little girl, he never imagined it would become such a huge story, or that the image would be used 22 years later, even after his death.
Next, add your contact and copyright info to your metadata. If it’s in the metadata, someone can’t later say that they had no way of contacting you.
Disable “right-click” on your website so no one can right-click and “save” the image.
None of these options is fail-safe. Like I said if someone really wants your image, they’re gonna get it. But a combination of these methods will help protect you.
LICENSING
Let’s clear something up here. When someone pays you for a picture you are not selling the picture. You are not selling your copyright. You are selling a license for that person to use your picture in a specific way. Unless, it’s specified in a contract, or you are a work-for-hire photographer (that’s another blog for another day), you retain the copyright. Now a photographer can sell their copyright; but that will net him much more money than a license.
WATERMARKING
I use watermarks sparingly. I think they distract from the image. But something David Hobby wrote in 2007 has always stuck with me:
“The first thing I would do would be to lose the arty signatures embedded within the photos. Very “Buck’s County Arts and Crafts Show,” IMO. You want to be aiming higher than that. If you feel you must stick your name into the image area, make it very small, in a bottom corner, with a “©” symbol (created with an option “g”).”
Actually, the copyright symbol doesn’t even have to appear on your image to be protected. (source: ASMP Copyright Primer; link below)
‘Nuff said.
I know this has been a long blog post. But it’s important. I’m not an attorney, so take this advice as a starting point only. And please check out the helpful links below. Those links have links within them that you should follow.
Look, you spent thousands of dollars on gear and all your free time taking and editing pictures. Why not protect them?
HELPFUL STUFF
LINKS
BLOGS
The Copyright Zone (Reznicki and Greenberg)
Photo Attorney (Carolyn Wright)
ARTICLES
The Blue in the Face List Pt.1
The Blue in the Face List Pt.2
BOOKS
