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Innocent Thieves - Rohn Engh on “accidentally” free images online

By Rohn Engh May 30, 2008

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Advance Notes:  In the “for every action there’s a reaction” department, the Internet is showing us how new technology can backfire. And in the department of  “It giveth and it taketh away,” unknowing copyright infringers are gobbling up “free” photos from the Internet for their personal and commercial use.

Photographers don’t need to fear that reputable editorial photobuyers, magazines and book publishers, will attempt to “pirate” their images and not pay properly for them.  The ethics of the editorial industry, and the pressures of maintaining reputation and, indeed, one’s job, help keep everyone honest. However, once an image has appeared in a publication, calendar, or other print media or web use, a different danger raises its head, and is becoming increasingly troublesome.
 

Let me make an analogy. Have you ever read the book, “Bartlett’s Familiar Quotations”? It’s a collection of  “quotes” by famous, and sometimes infamous, people. The collection was first compiled in 1855, is now in its 17th edition, and includes Shakespeare and even Jerry Seinfeld.  But are the quotes accurate? In many cases probably not. Scholars today, for one example, still argue over who really wrote sayings and phrases attributed to Shakespeare. And as for Seinfeld, he’ll be the first to say, “Did I say that.... . Really?” Stock photos are like “quotes.” Once they leave home, and travel the Internet, they are fair game. All bets are off. After awhile we’re not sure who the author –the photographer -  really is.
                              

FEATHERS IN THE WIND All information on the Internet is like feathers in the wind. And this includes stock photos.  In more and more cases, just where the information originally came from is anybody’s guess. Whom it can be attributed to is in danger of being lost the moment it hits the road.  Photographers currently are at the mercy of chance –they can only hope their credit line won’t be separated from the photo itself.  As stock photographers, we have all unknowingly been drawn into a new realm of “collected works”: The Internet. 

Today, it’s becoming increasingly difficult to trace the original “author” of creative works displayed on the Internet – just as difficult as tracing the real author of a quote in the next edition of “Bartlett’s Familiar Quotations.” Maybe there won’t be a next (18th) edition of Bartlett’s, because the Internet has made us all wary of its imprecision.  The same holds true for our stock photos. This points to the real problem for us. We tend to apply last century legal remedies to new millennium Internet problems.  A photographer can prove, yes, that he or she owns the copyright of a picture, but if the alleged infringer can prove the image is readily available on the Internet with no copyright notice attached, attempting to collect damages would prove costly (attorney and court fees) to the photographer. And more than likely wouldn’t be successful. The infringer would be designated as an “innocent infringer” by the court.  And to complicate matters, would a copyright attorney take on a case if it weren’t airtight?  Rarely. Sections 106A and 107 of the Copyright Law say that “fair use” of a copyrighted work is open to much interpretation – which means in most every case, the infringer is going to get off scot-free.
    

THE IMAGE  CONNECTION The Internet not only expands the possibility of someone “stealing” your image but also promulgates the danger exponentially. In a response to a news item in PhotoStockNOTES, my friend and longtime subscriber to PhotoDaily, Dwight Kuhn, puts the dilemma this way: 

A Personal Experience: “Someone in a government agency copied one of my images from its first publication in Smithsonian Magazine and used it on their government website.  Another division of the same organization copied a different photo (calendar photo with copyright notice) and also published it on their website.  Both images were placed in the public domain - free for anyone to use. * Sometime after that, they got placed on Wikipedia (also implying that they were in public domain), and from there, published in different websites around the world. Same thing happened with a weasel photo first published as a double page spread in National Wildlife. Someone copied it and it too was listed as in the public domain on Wikipedia.  So far I’ve gotten 75 groups to delete this image from their websites (some commercial uses).  There are dozens more places using this photo that I know about, and I cannot get any response to my requests for them to delete the photos. And who knows how many other places the image has been used? This whole issue is a big problem.  I cannot tell you how much work has been involved trying to get these images under control, all because of one person starting the whole problem.”
 
* Ed. Note:   Unless certain provisions are previously made, photos acquired by federal and state government organizations, such as a Bureau for Economic Development, or federal or state Tourism Department, fall into public domain. The images, in effect, become royalty-free. That’s why it’s not a good idea to lease your images to government agencies, unless unambiguous stipulations (favorable to you) can be made.

Does this mean we should cease licensing our images to editorial and commercial buyers? Should we cease placing our images on the Internet? The Internet is the only game in town. Photographers are creative people. I’ve heard of interesting schemes to confront this dilemma. One photographer teams together with an attorney and splits the difference when they get a court judgment from an infringer (with deep pockets) for misuse of a picture. Other photographers and stock agencies use commercial ‘seek and find, and sue” organizations such as PicScout, a visual content monitoring provider. Another photographer promises impecunious infringers such as non-profit agencies a “no-reprisal” if the infringer places the photographer’s name and website address in prominent view along with the image.

The reality is that this problem is not going to go away.  The ease now with which websites of every stripe can be uploaded to the Internet, the advances in image-scanning technology, the ever increasing numbers of Internet users unschooled in the essentials of copyright law, – all make stock photos vulnerable to being picked and used on one site, then another, then another, then mistakenly considered public domain when they appear so far down a chain of placements that they are hopelessly separated from any identification to the copyright holder.

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Rohn Engh, veteran stock photographer and best-selling author of “Sell & ReSell Your Photos” and “sellphotos.com,” has helped scores of photographers launch their careers. Web-site: PhotoSource.com

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