Guest Blogger Justin Cook is a photographer whose work focuses on triumph over adversity through subjects such as marriage equality, inner city violence and veterans returning from war. His work has been honored by Pictures of the Year International, The Best of Photojournalism, The North Carolina Press Association, The Society of Professional Journalists and other organizations. Originally published at the Crusade for Art blog.
So you find out that someone has used your photography without your permission. What to do?
First step: Calm down. Take a breath. It’s easy to get furious, but it won’t help. A level-headed approach goes far.
A lot of this happens out of innocent ignorance—maybe an inexperienced intern at an organization pulls your image off of Google and uses it without your permission. This can make you feel like the bad guy when enforcing your copyright. But it’s important to take copyright seriously. If you charge hundreds or thousands of dollars for commissions, you have to justify those fees by defending your copyright when your work (that you would normally charge for) is used without your permission. Get into the habit of registering your work with the U.S. Copyright office. It’s easy to make it part of your workflow. I do this to all of my work—well most of it, as you’ll see.
Social media use of photography, like any web use, has a market value.
I deal with image misuse case by case. I have to decide if it is worth time, energy and possibly money tangling antlers with an infringer. In the past my images have been misused by photography fan sites, and I usually just email them and gently remind them that images aren’t for their use. But constant back and forth emails distract me from my work. It’s easier to find their internet service provider and send them a DCMA takedown notice and they remove the content. Other times it’s appropriate to send an invoice for payment.
DISCLAIMER: I AM NOT AN ATTORNEY. ALWAYS SEEK ADVICE FROM ONE.
What about when things get more complicated, say a major company or university uses your work without your permission? I didn’t register my images from one shoot I did with my wife last year, and of course Murphy’s Law dictates that one of those images would be used without my permission. Since I didn’t register the image in a timely manner, I was ineligible for statutory damages in a federal infringement lawsuit, and was only eligible for actual damages. I was actually ineligible to even file a federal lawsuit. Copyright lawsuits are expensive, exhausting and must be followed through to the very end. What I might recover in court could be pennies compared to what I would spend in legal fees. This is how current copyright laws hardly deter infringement. I use my experience to illustrate how frustrating copyright issues can be, how important it is to fight for your work and for better copyright laws.
Each year my wife and I have a college intern, typically from The University of North Carolina at Chapel Hill. It’s our way of giving back and mentoring a new generation of photographers. Our last intern was one of our favorites, and she was the first in her family to graduate college, so we photographed her graduation as a gift. I discovered that an image from this shoot was lifted by someone at The University of North Carolina at Chapel Hill, my alma matter, and used for over a month on their Department of Psychology Facebook page without my permission. Do not let anyone tell you differently: Companies, universities and nonprofits lean heavily on social media photography for advertising, recruitment and outreach. Thus, social media use of photography, like any web use, has a market value.
First I waited for a few days. I simmered down. I called some friends who had been in similar situations for some advice.
Then I sent this friendly email with this letter attached:
Then I waited some more. I got this response back almost a month later:
UNC’s 501c3 status is irrelevant. Like most major universities, UNC purchases photography all the time. I know because they’ve hired me a lot. They also have several university photographers and a pool of stock images for their departments to use. I did appreciate Dr. Lysle’s apology and that they took my image down, but using an image without payment is the same as stealing. I sent them this letter reminding them to remit payment, and offering my services or collaboration to license the image to them:
UNC’s attorney responded and indicated that UNC refused to pay. He also explained further that there was no notice of copyright with the image. He’s correct, but there also wasn’t a notice that the image was free for use or under creative commons license. His point is a red herring:
If you are not a lawyer then you should never respond directly to a lawyer. So this is when I enlisted the help of Mickey Osterreicher, a lawyer for the National Press Photographers Association. I’m an NPPA member, and he’s known for interceding on the behalf of photographers arrested while covering the crisis in Ferguson, among other exploits. He was frustrated by my experience and drafted this letter to UNC’s counsel:
We waited for his response. UNC’s counsel wouldn’t budge:
Mickey’s letter speaks for itself. I felt like their counsel’s comments were a backhanded way of saying to me: “you shouldn’t have put your work on the internet if you didn’t want it used.”
An analogous situation would be if I took some Twinkies from a 7-11 without paying for them, got caught walking out the door, returned them, but said to the manager “well you shouldn’t have put them on the shelf if you didn’t want me to take them without paying.” I would certainly have to pay or even face punishment.
What’s the take away from my experience? On the internet, you must assume that photographs, like Twinkies, are not just up for grabs. Registering your work can be expensive, but please do it. Build the cost into your fees if you have to. It’s also smart and professional to include a copyright notice on your website, and consider watermarking your images. Join ASMP or NPPA and advocate for your work and your rights as a creative. It’s our duty as photographers to work together to preserve our livelihood.
What to do if you are infringed? Start here at the U.S. Copyright website. Above all else register your work here. It can be daunting at first, but Photoshelter has an excellent copyright guide as does ASMP. For a price, Carolyn Wright, an experienced photographer and copyright attorney, can represent you if you need counsel or want to file a federal copyright infringement lawsuit. Also, Image Rights can help you negotiate payment. There are a ton of more resources at the end of this blog post, which is a good read about image misappropriation.
But the real burden must be on organizations like UNC to educate their employees about copyright law and image use.
UNC’s School of Journalism and Mass Communications taught me a strict sense of ethics that I carry with me in my photographic life. With it, I have gone on to represent the school well in my career. But as I reflect on this experience, I think of UNC’s University Charter. The act establishing the university reads:
“WHEREAS in all well-regulated governments it is the indispensable duty of every Legislature to consult the happiness of a rising generation, and endeavor to fit them for an honorable discharge of the social duties of life, by paying the strictest attention to their education: And whereas an university supported by permanent funds, and well endowed, would have the most direct tendency to answer the above purpose…”
I am still scratching my head, searching for the “honorable discharge” in UNC’s refusal to pay me after using my work. I wish we could have a real conversation and work something out. At the least I hope that my experience can be instructional and cautionary to others.
Images courtesy of Crusade for Art.