The $8,000 Mistake That All Bloggers Should Beware

Q: What’s lamer than a crappy photo of Nebraska? A: Having to pay $8,000 in copyright infringement penalties for it. This is a lesson we recently learned the hard way, and if you have (or contribute to) a blog you might want to read about our story so that you never, ever make the same mistake we did.

Long Story Short: Image Copyright Laws Can Screw You Over

We write thousands of blog posts every year for our clients and agency partners. Our editorial standards are obnoxiously high, and we do our best to write the best web content our clients (and their competitors) have ever seen. Although we try to catch everything, occasionally a mistake sneaks by us. Recently we made a very costly mistake, and I think it's one that every blogger and business owner should be aware of.

It all started when one of our writers published a blog post to a client’s site – it was about finding great deals in Omaha, Nebraska (complete with an altogether underwhelming photo of the city, which may or may not have been taken by a drunken college student with a camera phone in 2005). You wouldn't see this photo and immediately go book a vacation there, is what I'm saying.

I'm also saying that I have a hard time believing the photographer commands thousands of dollars per image – most of his work had nothing at all to do with photography, and he wasn't an artist with any kind of recognition or awards to his name. Anyway, the website was new and it wasn’t an especially popular post – we could prove via Google Analytics that fewer than 100 people read it. It wasn't our proudest moment, but we've learned a lot from the experience.

image copyright laws are horrible ^This image of Omaha is only slightly worse than the one we got sued for. Not that we're bitter or anything.^

The Problem: Copyright Infringement Penalties Are Ridiculous

More than three months after the post went live, the client got an email from an attorney. This particular lawyer deals with one thing and one thing only: image copyright infringement. For the sake of the story, let's say his name is Curtis M. Leech, Esq.

The long-forgotten blog post that was published months ago had come back to haunt us. Mr. Leech sent the client a formal complaint letter, saying that they were being sued for $8,000 for using his client's copyrighted photo on their website.

We were under the mistaken impression that before anyone could be sued, the offender had to ignore a request to take down the copyrighted image. Because the lawsuit came without any kind of warning and this was the first time we'd ever been accused of such a thing, we were hoping that replacing the image and sincerely apologizing to Mr. Leech and his client would remedy the situation. We were wrong. Welcome to the world of “Fair Use."

Current Fair Use image copyright laws say that you’re financially liable for posting copyrighted images, even if:

  • You did it by accident
  • You immediately take down the picture after receiving a DMCA takedown notice
  • The picture is resized
  • If the picture is licensed to your web developer (Getty Images requires that you get your own license, thankyouverymuch)
  • You link back to the photo source and cite the photographer’s name
  • Your site isn’t commercial and you make no money from your blog
  • You have a disclaimer on the site
  • The pic is embedded instead of saved on your server
  • You found it on the Internet (that’s not an excuse!)

If you use copyrighted images, you will get caught sooner or later. People who create copyrighted works hire companies that use computer programs to scour web pages for copies of those images. It takes time to find them, but the process is automated and runs 24 hours a day, 7 days a week. If you post something that's copyrighted on a blog page that has links pointing to it and the author wants to monitor that particular image, an unauthorized use of it WILL be found eventually. 

All of our clients sign contracts stating that they’re solely responsible for all of the content we produce, but we were ethically opposed to making somebody else pay for a mistake that happened on our watch. We called our lawyer, and the negotiations with Mr. Leech, Esq. began.

It’ll Be Okay…Eventually, After You Hire a Lawyer

Fortunately, we were able to hire a lawyer who was able to negotiate a settlement – we ended up paying $3,000 instead of the original $8,000 in copyright infringement penalties Mr. Leech was originally seeking. Leech drove a hard bargain, but he did offer a three-month installment plan if we needed the extra time (so know that could be an option, if you ever find yourself dealing with your own Leech). 

Somehow we resisted the urge to run through fields of clover, spontaneously jumping to click our heels with glee while celebrating our good fortune. $3,000 is a lot less than $8,000, but still far from appropriate restitution for our offence. And it was also the equivalent of several months' rent at the office, or holiday bonuses for our staff, or a variety of other ways we could've spent the money to grow our business or expand our payroll. This was our most costly mistake since starting the business, and in the end I was almost happy to pay Mr. Leech – just so I'd never have to think of him, or the money, or the things that I could've done with the money, ever again.  

I've since chalked it up as a lesson learned, albeit the hard way. Hopefully, after reading this post, you won't make the same mistake we did. 

The Fault: It’s Ours, For Not Fully Understanding Copyright Infringement Laws

Ultimately, as owners of The Content Factory the fault lies entirely with Joanie and me. Here’s where we went wrong:

  1. We weren’t familiar with copyright infringement laws. In the legal world, there’s no such thing as common sense – so ours did us no favors. The laws are set up to enrich lawyers, probably because they were written by lawyers. We knew the basics (don't use copyrighted images, don't find images via Google Image search, etc.), but we should have done more research about image copyright laws and copyright infringement penalties, and we should have made everyone on our team aware of the potential damage that can be done if we post the wrong image to a blog.
  2. We should’ve noticed that the photo wasn’t up to par. It just wasn’t a good shot, and there are many others that would’ve been better suited for the post. Our editors were too focused on the copy, and images were sort of secondary. This is no longer the case. 
  3. We missed seeing that it was a copyrighted image. All of our writers have budgets for paid photos.. This was posted by a newly hired writer, and the one time he used a copyrighted image he got caught. None of his other posts had this particular issue, and it was an editorial oversight on our part. 

Let me be clear: I believe that photographers should be paid for their work and I think that people who steal images deserve to pay some sort of restitution for any damages caused. In fact, we pay for images every single day and we should've paid for this one as well. I fully admit that we were in the wrong – but were we $8,000 worth of wrong? That works out to almost $100 per page view, and comes nowhere close to any actual damages we may have inflicted on the photographer with our use of the image. The photographer wasn't famous, the photo wasn't important (there was no grassy knoll or celebrity "gotcha" moment) and the photographer's other works sold for nowhere near that amount. That's not to say the image didn't (and doesn't still!) have value, but nobody in their right mind would put that value at $8,000.

Had we been a smaller company and didn't think to negotiate a settlement, we could’ve been put out of business. To be honest, had this happened within the first few months of starting the company, we would’ve probably closed up shop and run back to living one third of our lives in cubicles, where it's safe and there's always health insurance. It’s only because we hired a lawyer that we were able to get the copyright infringment penalties reduced via a settlement deal. Not everyone can afford that kind of expense, especially new businesses that may not be profitable yet. Make no mistake about it, this practice can be a business killer (which means it can also be a job killer). 

The Larger Problem: Copyright Infringement Laws Breed Predatory Legal Practices

Greedy Lawyer

^ Image copywrong: Kari DePhillips. Others are free to steal or "borrow" this graphic, not that anyone should want to. ^

In our opinion, image copyright laws have created and enabled an industry of predatory lawyers. These attorneys take advantage of photographers and artists who make their images available online, as well as the bloggers who don’t know any better and post the wrong content to their sites. The lawyers make money on a contingency basis, usually taking at least 40% of the copyright infringement penalties they “earn” by hunting down unsuspecting bloggers. This is akin to digital ambulance chasing, only with less work required and a slightly smaller stigma attached to it. Leechy lawyers are costing small businesses and bloggers a metric crapload of money every year. It's impossible to tell how much, because most disputes are settled out of court and aren't recorded in any sort of official document that's available. If this data exists, I couldn't find it.

The amount that these lawyers sue for seems to be completely arbitrary. In our case, $8,000 was not a reasonable amount to sue for given the nonexistent damages caused, especially given the lack of views the post received. To be able to negotiate down to $3,000 was absurd, assuming the value was ever really $8k. The value is whatever the lawyer determines it to be, and considering he gets 40% of the imaginary value that he makes up on a whim, that number is invariably going to be ridiculously large. In fact, Goodreads was just sued for $150,000 for a photo of an obscure boy band that a user uploaded to their site. $150k for one photo is unreasonable, unless it’s the first photo of a celebrity baby.

What’s to stop us from taking hundreds of photos of everyday things, uploading them to Google Images and optimizing them for favorable search phrases, and then waiting for bloggers to use them so we can sue for thousands – or hundreds of thousands – in copyright infringement penalties? The answer is absolutely nothing, and I’m willing to bet that a surprising number of people make their livings doing just that. The “attorney” and “artist” who sued us certainly do, as do countless other “copyright trolls."

Every single person who works for The Content Factory is a writer. We don’t want to infringe on anyone’s copyright any more than we want others to infringe on ours – and we’ve had to send DCMA takedown notices of our own before. By this logic, we’ve passed up countless opportunities to sue people. We’re okay with that.

We’re not okay with bloggers and business owners being sued into bankruptcy for making a mistake that really didn’t hurt anyone at all. Nobody’s stealing the Mona Lisa and trying to pass it off as their own creation, nor are we talking about celebrity paparazzi shots that could potentially sell for hundreds of thousands to tabloid magazines (in fact, Mavrix Photo, the celeb photog agency I used to blog for, has sued Guyism.com for $3.15 million for snaps of Katy Perry in a bikini). This is a slightly different situation, as Mavrix Photo probably lost a lot of money when those exclusive pictures were published on Guyism instead of the cover of a celebrity magazine. There was nothing special about the photo of Omaha that we got sued for, and it wasn’t even a recent picture.

If the photographer who took the photo of Omaha was negatively impacted when we posted the image to a client’s site, it couldn’t have been to the tune of more than $150. Round up for legal fees, and maybe $500 would’ve been reasonable. It would’ve been enough to teach us a lesson, as well as enough to compensate the photographer for an image that nobody in their right mind would purposefully pay money for.

It Can Happen to You, Too

I’d like to say that we’re just the unlucky victims of an isolated incident, but then I’d be lying. It can happen to you, too – and if you’re not careful with your blog images on a consistent basis, it probably will happen to you. From what we can tell, more and more bloggers are experiencing the same nightmare that we’ve been dealing with. Roni Loren at BlogHer recently wrote about her experience dancing with the devil predatory lawyers, and Web Copy Plus spent $4,000 to settle a similar suit.

While discussing the situation with some of our agency clients, I learned that each and every one of them has been sued before – most of them were able to settle for less than half of the original amount demanded by the plaintiff’s lawyer. This problem isn’t going away, so the only thing you can do as a blog content producer is protect yourself.

You might not find a lot of stories about these ridiculous copyright infringement penalties online, because few people are willing to publicly admit that they “stole” a photo – by accident or otherwise.  Few agencies are willing to go on record and say that they made a mistake while working on a client’s account, and few bloggers want to risk their reputations by publicizing such a rookie error.

In this instance, the photographer was the victim, and we more than paid for any damages we caused. But there's more than one victim in this story. We want to help spread the word about copyright infringement laws and their negative impact on small businesses and bloggers, because we want the fewest number of people to be victimized by these predatory legal practices. Until we can change the laws, or the way the laws are applied, we all have to be in Cover Your Ass mode.

How to Keep From Getting a Copyright Infringement Lawsuit of Your Own

I could spend 3,000 more words trying to reinvent the wheel by describing how to avoid infringing on copyrights, but I’m not a lawyer I’m in no position to be giving out legal advice (lest we get sued for that, too). I will say that if you take a look around our website, you may notice that it has an old-school Rosie the Riveter theme. That’s no coincidence – photos taken prior to a certain date are copyright-free.

Roni Loren did a great job explaining how to avoid the trap that she fell in, and WikiHow’s page on avoiding copyright infringement is also a good page that will help bring you up to speed on image copyright laws.

PLEASE share this post with the bloggers you know – the more money we can keep in small businesses and out of the hands of greedy lawyers, the better. 

Do you have a story about getting sued for copyright infringment? What were your copyright infringement penalties? Were you able to negotiate a settlement for less money? Share your story in the comments section. It'll be therapeutic to commiserate with others :)

By: Kari DePhillips 

202 Comments

  • Doesn’t the copyright owner of the photo have to prove the loss of $8,000, or even the $3,000 you ended up paying? Could you have taken him/her to trial and maybe ended up paying just the $100?

    Let me know if you get the chance and THANK YOU very much for your post!!
    Nick Burns

    • Hi Nick,

      Glad you found the post helpful! To the best of my knowledge (again, I’m no lawyer), the copyright owner does not have to prove actual damages in the amount being sued for. Our attorney counseled us to settle, so we did. 

      I’d love for an actual internet lawyer to chime in on this. Even if we didn’t make the best decision by settling, it could be good information for others in a similar situation.

      Kari

      • As an actual internet lawyer, let me try to explain a bit more. First, it's waaay too complex to explain all of copyright law here. There are nuances and exceptions and twists to nearly every case. So, don't consider this as firm legal advice in any particularly situation. It's just a discussion.

        Second, so far as damages: the Copyright Act provides for different types of damages, depending on the circumstances. A person can claim any amount they want in damages–that doesn't mean they'll get it.

        Third, the basic damages that are allowed are either (1) actual damages and profits of the infringer; or (2) stautory damages.

        In most cases of inadvertant copyright infringement on the internet, damages under Option 1 are non-existent. So most opt for statutory damages. Statutory damages provides for damages of $750 to $30,000, in the amount that the court considers "just".

        If the court finds that you committed the infringement willfully, it can boost those damages upwards, but not more than $150,000 per infringement.

        However, if the court finds that the infringer didn't know that what he did was copyright infringement, the court can lower the damages to not less than $200.

        So, that's an enormous scale of potential liability. And there are twists and turns in trying to figure out what any particular case is worth. And "fair use" does not really enter into the description described above.

        If you ever have a problem like this, you should really contact your lawyer. Don't wing it. You'll probably end up paying more than if you get your lawyer involved at the beginning. This is really an area where someone who works in creative media should have a lawyer on call.

        • Thank you for your post. What reach do such laws have. For instance if the copyright holder is in the US can they sue someone in Australia?

        • Mr. Attorney is quite right that settlement fast is the best approach based on my opinion from personal experience. But from my businesspersons perspective, this solution is only availabe to medium sized or large companies who have been around long enough and developed sufficient cash flow to handle a ridiculous claim. As a new small business owner, this solution entails going out of business.

          If I am in the wrong, I am willing to pay a fair price for use or cease and desist, but not both. And while I cannot advise anyone to follow in my footsteps, I have found a solution that works well for me, which takes a page from the Soveriegn Citizens movement of getting absure without getting crazy about insisting on it working according to your personal interpretation of law.

          Soveriegn Citizens will generally burden down their adversary with requests for proof of claim, followed by affidavits making any kind and every kind of absurd claim (Such as I'm the copyright holder of the photo) (Please provide proof of claim that you are not the same guy who stood next to me taking photos when I took this one.) They do this under the concept that affidivits not properly answered become fact in a court of law.

          Right or wrong, you can bog down them into a situation they give up fast. If not, Soveriegn Citizens are famous for Filing UCC-1 Commercial Liens agianst the photographer, his attorney, and any judge that disagrees. It's no wonder they've become known as paper terrorists — and cops as well as judges are petrified over the thought they might come across one. Attorneys tend not to be so smart. (No offense, attorneys, but this is war and negotiation, and attorneys are terrible negotiators).

          The trick is to only take things so far, and not try to become a Soveriegn Citizen or even think of yourself as one. Their methods have worked well for me 100% of the time I've used them.

          You must be willing to take the time to respond, knowing it may take 4 to 6 months or longer to settle the problem. But I have settled major problems on the first notice sent as well. It does work, if you've a mind for it.

      • My ex business partner breached our Collaborators Agreement voiding our contract.  However, she continued to marketing my copyrighted intellectual properties (plays) for her profit on the company website ong after I dissociated.   I insisted the website be removed by the host, Go Daddy, which it was.  This infuriated her and she is now threatening me with a law suit. In essence, she is inverting and perverting the situation. Regardless,  her perpetual theft caused me financial damage.  I am now forced to get a cease and desist for any consumer who purchased my properties from her website at my expense. My ex partner needs to be sued for tens of thousands of dollars in damages and that is exactly what I am pursuing.   Sometimes the copyright infringmenet laws are justifiable, especially when someone else steals your property and attempts to resell it for their financial gain. 

        • What on earth does she think she's suing you for? If they haven't made that clear  you're lawyer should be telling you what laws apply. I assume of course that you pay a lawyer for advice, not ask a friend who's as lawyer. Is she claiming that she has NOT voided the contract? You've shown that she has, not just claiming she has right?

      • Hi I was just going to ask about this because t people who have a orporation etc, want my pictures to embed with their website pictures and publicity for this picture I'm going to design. But then I thought (2/against one) and these are my paintings and I should set up one of my own, a small company. They have several large ideas copyrighted about the world,his books and other products that I am not mentioned on. And they have said they woud screw me in a blink of the eye. The man tonight called me names and his daughter, really has an open animosity towards me.

        So I thought the Golden Egg Diner or Gallery with this picture could be a start for me. 

        Any advice on how to go about this? This is rather the other side of the coin but I hope you don't mind a few brief words or an arrow.

        Thanks

        barb Mann

    • Bravo to you for admitting your mistake and moving on.  As a photographer, I'm going through this right now with some cheeky idiot who thinks I'm kidding.

      And all I want is for him to take the image down.  That's all I'm asking.  But PLEASE don't expect me to educate you on copyright laws.

      I admire you for learning (albeit the hard way).  Please know that many of us would have just e mailed you and said "Hey…you can't actually use that".  

      I'm not looking to make money from people, unless they simply refuse, but I'm always going to give the benefit of the doubt first.

      • Joseph, you sound like our kind of photographer! I think if you send a takedown notice and the person either ignores it or expects you to educate them on copyright law, it’s time to call in an attorney.

        It’s reasonable to ask for somebody to remove your copyrighted work from a website. It’s unreasonable for a person who stole your work – even if accidentally – to ignore the issue.

        • I am an attorney — so know nothing I am about to say is legal advice — but I thought I would chime in on maybe a fair solution to the problem.  I recently saw a solution that I thought was pretty fair.  The owner sent the infringer a bill for the price of the image (what he normally charges or there about) and his time for sending the take down notice.  Total cost was $150.  I like the adage: you use it, you bought it.  

      • Thanks very much for sharing your story. And yes a hard lesson learnt, but l agree with Joseph's statement! Not all photographers are money grabbers and want to make a quick buck by catching companies, people etc out. But photographers have their interests to look after too. And as Joseph quite rightly points out. We ask you to remove our image you have no right too, then please remove it. Dont assume or underestimate that an individual photographer has no rights to take a business to court, we do and we will.

        As a photographer and a photography Student your article has helped me greatly too.

         

  • Do these photos have any type of copyright marking so that you or me or anyone else would know that it is copyrighted? We develop websites and use IStock or Getty. I was not aware that Getty made this requirement. Also i am going to “borrow” your image to repost this and help spread the word. This is awful and scares me when i add an image to a post.

    Thank you for sharing!

    • I’m not 100% sure, you’d have to check with a lawyer on that one. I don’t think the images need to have some sort of watermark or copyright, though – so we operate under the assumption that just because something doesn’t have a clear copyright, doesn’t mean we can use it in a blog. It’s much better to be safe than sorry, because the copyright infringement penalties are extremely severe.

      We buy or create ALL of our own graphics, although sometimes the good photos cost more than the standard stock options (which can be super cheesy). 

      Feel free to use the images in this post however you see fit – we’re glad this is raising awareness of image copyright laws!

    • Photos don't need any time of 'copyright marking'. Copyright belongs to the creator of a work from the moment it's created. If you didn't create a work then you need permission of the creator (or the person they've assigned copyright to) to use it.

      • Thanks for this very informative post. This has become a very hot topic in the blogging circles I'm involved with at this time, mainly due to a recent article posted on BlogHer. Thank you for allowing us to use your creative graphic, Kari. I appreciate you giving permission to spread the word.

        Beth

        • I was reading a blog and they posted a copy of a book that they were talking about.  They bought the book and took a picture of it.  And then I see a person post that they designed the cover of the book and this was copyright infringement…Surely that can't be true?  Does anyone know?

           

           

           

    • All images have copyright protection the moment they are created. In the past a copyright notice was required to be on the image for copyright protection but that is no longer the case. If there is a copyright notice on the image then an infringement would be considered wilful and and the maximum statutory award goes to $150,000 instead of $30,000.

      Assume everything is protected and do not use any images without explicit permission. If it is not yours then it is not yours. It is as simple as that.

  • As a food blogger, this is an issue near and dear to my heart. The countless hours that I spend taking and editing photos, only to have them scraped from my site and posted onto a Google Adword infested site is appalling.

    I realize that you’re not an attorney, but your post was directly primarily to small business owners and bloggers. I’m just curious as to if this applies to the every day Joe or Jane, who takes a photo and recipe in its entirety and shares it to their Facebook wall so that all of their friends and family don’t have to click through a link to go to the actual blog post to retrieve the recipe.

    I know that there are plenty of people who do this harmlessly and with no knowledge that it’s copyright infringement, but what about those who’ve had improper use explained to them countless times, but who stand by the adage “if it’s on the Internet, it’s fair game” *insert nails scratching on a chalkboard here*

    • Thanks for commenting! I can see why it’d be frustrating to have people scrape your images for gross adwords campaigns – I wouldn’t like that at all if it happened to me (although I’m no graphics whiz, so I don’t imagine anyone would want to steal my images in the first place). 

      Your FB question is an interesting one, and to be honest I’m not sure what the answer is. I know that if the average Joe or Jane posted the images to their blog, they could face copyright infringement penalties. Sharing via social media without a link may be a different story.

      If the person’s FB profile was set to private and they limited their viewing settings for posts, it probably wouldn’t be an issue.

      • I certianly have no legal expertise, but to speculate, we all know social media can have a very monetary effect on businesses with bringing in new clients and also assisting with SEO which I can only image the stautory value of SEO. So if you are sueing for damages  it would certianly seem that you could make the case that the infringer was able to profit in some ways.

        Then they could also make the arguement that you were diluding thier social media value and decreasing thier profits from socail media.

        So all though it certianly sounds harmless to simpley use somebodys image on your social media, it may not be seen that way legally. But like I said I'm not an expert in any way so if anybody has a greater understanding of how CC are effected on Social media it would be good to know. Thanks

  • Sorry to hear of your costly mistake. As a fine art photographer, selling my images on an online venue, I have seen plenty of copyright infringement. Whether I have a watermark or not it does not matter. My images are copyrighted to me the instant I click the shutter of my camera.

    Where the difference in penalty comes in is whether the creator registers their images through the government run copyright office. That changes the penalty from hundreds of dollars for each image infringement to thousands of dollars!

    Truthfully, whether you think the image is worth it or not really has nothing to do with it. If it has been registered with the copyright office, the creator is entitled to Statutory Damages.

    I usually send a DCMA letter first to the offender, and if the image is not taken down, then I will contact the website hosting company and then if it is still not taken down, then it is to the lawyers office.

    I know it sucks but this law helps those of us who create images be able to make a living without fear that if I upload my images onto the internet that everyone thinks that it is a free for all.

    As in many industries, there are always going to be those that take advantage of others. I am sorry that the lawyer and his client didn’t work with you with the penalty before they filed a law suit.

    Your experience will help others to realize that just because they find an image through Google images or anywhere else on the internet doesn’t mean that it is theirs to do with what they want. There are many tools out there to find the original owner of an image and it take minutes to do it.

    Thank you for your article!

    • Thank you Gidget for taking the time to comment. As a blogger, I am really concerned about this issue. I am wondering if you can give me more information on the "many tools out there to find the original owner of an image." 

      When I find an awesome image on Google Images, I need to know how to use it. I don't want to hurt any artists, and I don't want to be hurt myself.

      Thanks

      • If you’re going to go that route, make sure to do a reverse Google Image search and that should help you track down who it belongs to. Here’s how to use it: http://www.google.com/insidesearch/features/images/searchbyimage.html

    • What the internet has done, though, is connect us so widely that we now know more than we ever did about other's work as well as inform us of the similarity of photographs.  I live in an area that has great photographic appeal.  The end result is that there are many, many photographers taking photos that often are hard to distinguish from one owner to another.  I went after someone who I thought was using one of our photos — nope it wasn't. They convinced us.  I have had folks coming after us with similar complaints but nope, the pics are our original work.  What IS the same is the visual in front of the camera.   At this point, we put copyright notice on all of our photos and embed it within the meta, but even then, you still have the "earth problem"..and tons of folks taking pics of the same durn thing!

  • Copyright law is actually quite simple — If you didn’t create it, don’t use it, unless of course you have permission. There are other “rights” involved in images too, e.g. right of personality/publicity when using an image of a person – even if you created the photo, without permission/license you can not publish the image, with limited exceptions.

    A work need not be registered to enforce rights or receive damages. Any eligible original work is protected under copyright as soon as it is produced in a tangible form. Registering your work allows you to collect certain legal expenses should you prevail in your claims, and offers a rebuttable presumption that it is in fact your creative work product.

    Using any image you find or come across anywhere can be an expensive mistake.

    • That's completely wrong (except for the last line). Copyright law has an entire doctrine of fair use that permits people to use creative works they did not create.

      A work does not need to be registered to enforce rights. But those rights may be completely valueless to try to enforce without registration. Without registration, an author is not entitled to statutory damages; an author must prove his actual damages or profit to the infringer–which may be nil.

    • I recently ran across 8 of my copyrighted images on another site, with authorship attributed to the person who pilfered them. She claims that they were "Fair Game" because she found them on the internet. 

      Ignorance of the law is no excuse, especially with the proliferation of "If you don't own it, don't use it" articles on the internet.

      Theft is theft, IMHO.

    • Then the is the murky issue of "derivitive work."  I had a designer tell me that if a photo is re-shopped enough so that it is only vaguely recognizable as the original, then that is a derivitive work and no longer subject to the original copyright protection.  For example he showed me an image of a domed building with gondolas and hitching posts in the foreground.  He needed an image to go with publicity for an italian opera. First he mirrored the image so everything was reversed, then he added clouds to the sky, changed coloring of the dome and used the paint funciton in Photoshop to make brush strokes so the final product looked like an oild painting of a building on the water in possibly Venice.  Was he correct?  Does doing stuff like which renders the original photo changed so dramatically that it would legally fall under the derivitive work definition?

      And related, I see copyright notices and the circled C on many sites.  Is it smart to do this on one's site; does it afford any more protection other than the fact that once a site is published, de facto the contents is copyrighted.  As mentioned, a work need not be registered with the copyright office to be protected.  But if it's not registered, can you…should you still place the copyright notice on your website?

      Thanks. 

       

  • You are actually quite lucky it cost you so little. Read the law and understand it. You are liable for up to $150,000 for the copyright infringement if the image is registered with the copyright office.

    I am a commercial photographer and I’ve had many images taken that were in Flash or on a web site with the right-click disabled. The easiest way to see if an image is copyrighted (In the USA every image is copyrighted at its inception) is to open the file in Photoshop and go to EDIT > File Info. You will find the metadata and if it is shot by a professional, most likely there contact information along with a caption.

    An image does not need to be marked with a copyright symbol to be protected.

    • The EXIF information (The "File Info") can get lost pretty easily as images get shared around the internet. Facebook notoriously strips this information from every image posted, if I take your image, post it to FB, and someone else grabs it from FB, there's no embedded copyright data.

      Stock photography is available at extremely affordable prices for every subject.  My adivce to business owners is this: Just pay a few bucks up front, instead of living your life worrying about lawsuits.  Think of the stock agency as lawsuit insurance.

       

  • Kari,

    This post which has been picked up by Ragan (http://www.prdaily.com/Main/Articles/14912.aspx) reads more as sour grapes than informative. Perhaps you will reconsider the wounded tone. Your agency did something wrong, you were fined, you learned a lesson. It is about your behavior and the law, not the photographer or his lawyer.

    To begin: If your agency is as concerned with quality as you say, then why would you use an image that you say is “an altogether underwhelming photo of the city, which may or may not have been taken by a drunken college student with a camera phone in 2005. You wouldn’t see this photo and immediately go book a vacation there, is what I’m saying.”?

    Wouldn’t you want a better image?

    Also, why resort to name-calling for the photographer (a drunken college student with a camera phone) who had no idea you had stolen his photo, or the lawyer (Curtis M. Leech, Esq.), who appears to have actually provided a quality service to his client in the case.

    Just Saying

    • I completely agree that we were in the wrong here – and I had (and have) no problem paying restitution for the damages incurred to the photographer. My issue here is with the amount, which was in no way proportional to the quality of the image, the value of the image or the real damages caused by the misuse of the image. I had two goals with this blog: first, to educate bloggers and small business owners about how costly copyright infringement penalties could be, so that they’d be more careful to not misuse copyrighted photos on their own websites. This blog will probably result in at least one blogger not infringing on the copyright of somebody else, which I consider a win. The second goal was to address the fact that in many cases, the punishment doesn’t fit the crime. 

      This event occurred quite a while ago, and we’ve since updated our editorial policy to require photos to be extremely high-quality, PAID FOR (we even keep the receipts!) and relevant to the blog’s content. We take a lot of pride in the content we write for our clients, but at the time we had less stringent standards for the images that went along with them. We absolutely do want better images, and were disappointed by our writer’s choice.

      The lawyer did a great job for his client – his goal was obviously to get as much money as possible from us, and he did. It was in the lawyer’s best interest to do so, since he almost certainly took at least one-third of the settlement as a fee for his services. That may or may not make him leechy, depending on your perspective. 

       

      • Almost ALL photographers are small business owners.  Please don't pretend to be doing anyone a favor by educating them from  your experience.  You did wrong, and should have known it, and got smacked for it.  Take your medicine and shut up.  If the roles were reversed, and someone used YOUR copyrighted material without permission, you would be screaming like a little child.  Great job with making one of the most slanted blog posts in history.

        • Wow, you are so biased it's not even funny!

          They admitted wrong and said they deserved to pay restitution.  They ARE doing a great job educating people.  I'm very thankful for this article.  I have used images in making a website without really checking if it was copywrited.  This has opened up my eyes a lot.

          The roles WERE reversed and they told people nicely at first to take the images down and passed up the chance to sue.

          The article is not slanted…. your perception IS slanted.  I wonder if you even know how bad you are off on this.  Sad…

          Proof?  How about this quote you missed…  Wow, they passed up the opportunity to sue people!  Wow!   How kind!  Bet YOU would snap judge and sue everyone possible based on the attitude and slant you show in your response.  Sad… that people like you exist…

           

          "Every single person who works for The Content Factory is a writer. We don’t want to infringe on anyone’s copyright any more than we want others to infringe on ours – and we’ve had to send DCMA takedown notices of our own before. By this logic, we’ve passed up countless opportunities to sue people. We’re okay with that."

           

          • Sorry I made you so sad David.  I'll make sure I put a "happy face" at the end of this just for you. The fact that you have used images yourself without permission for a wedsite shows the real problem…..people going into business and not doing their homework like they should.  But the fact that they sent out DCMA takedown notices shows they knew about using materials without permission, but did it anyway.  Trying to play down the issue by belittling the photographer (who did absolutely nothing wrong) by saying the work was bad, " an altogether underwhelming photo of the city, which may or may not have been taken by a drunken college student with a camera phone" was in very poor taste.  If the image was so bad, why did you choose it?  Lets also not forget they used the image on a blog they did for a client, which means they were paid for it.  That means they profited from the use of the image.  This is what is at the core of copyright infringement…..profiting from someone elses work without compensating them for it.  Had proper channels been used, the fee for using the image would have been far less.  Not the photographers problem, its the responcibility of the end user to know this.  This is the real world David, and if others like you want to play in it you need to act like an adult, do your homework, and play by the rules.  Not do something wrong, get caught, and deflect by making a blog post ranting about how much it costs to get caught doing something wrong.  You have to pay to play.  I hope you are not as sad now, but I'm sure you are.  :)

      • If you steal $100 worth of goods from your local store, is your penalty on being caught going to be restricted to the value of what you stole? I don't think so.

        • Hey Skippy, there is an implied "copyright" on everything.  If you wrote down directions to a local store and someone (for whatever reason) posted that discarded scrap of paper with your handwritten instructions without your permission, should they owe you thousands or even hundreds of dollars?  lol 

          A more likely scenario is someone snapping a humorous picture with their iPhone and uploading it online, where it spreads like wildfire.  Should everyone who forwarded that photo be sued for thousands of dollars? 

          One word….LOW LIFES!  Let's stop conflating worthless amateur copyrighted works with professional work.  By the way, this very post of mine has an "implied copyright"…so don't quote it in your reply otherwise i'll hire a shister attorney and SUE YOU for thousands of dollars.

          • Don’t try and be clever, you just come across as a twit. Copyright requires that there be some kind of significant skill or original creative endeavour in order for copyright to apply, thus it applies to things such as paintings or photos, of course the definition of skill and creativity may be somewhat subjective but seriously it’s not hard to use your common sense. It clearly doesn’t apply to writing down instructions on a scrap of paper on how to get to the local store since this requires no real effort or creativity, if you wanted to create an elaborate and artistic map of the local area and then sell copies it would be different. Personally I get sick and tired of people pleading ignorance to this kind of thing as if it requires 3 years at design school to learn the difference. It’s quite simple, you see a photo or painting and you don’t get permission from the owner to use it, but you use it in a commercial capacity that benefits you, the owner has the right to be compensated. Don’t start whining and making up excuses like a bratty teenager (when you get caught) in a sleazy attempt to worm your way out of having to compensate someone for their work. Lose the over inflated sense of entitlement. Furthermore if a work genuinely is amateurish then it really can’t be that difficult to get off your lazy backside and produce something comparable of your own, that way you own the copyright and there won’t be a problem. So all in all there's no real excuse.

          • Hi Bob,

            Thanks for your comment – all of it has been addressed in previous comments, with the exception of the “why don’t you produce your own images?” portion. To that, I say: didn’t you see the two images associated with this post? I made those myself, and to be honest I’m sort of disappointed you didn’t notice.

            Kari

        • The two aren't comparable. Theft from a store removes something from another's possession. Use of copyrighted material does not. Also, it's general knowledge that theft from a store is a crime. Not so with use of copyrighted images.

          Copyright infringement law was intended to deter pirates from copying and then reselling CDs, DVDs and videotapes. Putting a photo on a blog is hardly the same thing.

          • David you are the closest thing to an ASS that I have read in a long time. Copyright law was around long before CD's… etc.

            It was… oh hell look it up.

            This whole page is one of the most narrowminded bolgs I have ever read!

            Sincerely, 

          • Hi John,

            Sorry you didn’t see value in the post – but I’m sure you’ll agree that there are a wide variety of opinions and thoughts on the matter in the comments section. 

            Thanks for reading!

            Kari

  • So not using an image that doesn’t belong to you isn’t common sense? So let’s use an image that isn’t paid for, put it online, then piss and moan we we get caught. Oh, and call the photographer ugly names and make fun of their work.

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  • Theft is theft. If you had gone the legal route and asked before stealing the picture I bet the price would have been much lower, maybe even free. Sure $8000 may be a little steep for an image, but you put yourself in a bad position when you wait until after you have been caught perpetraiting a criminal act to negotiate the price. Consider yourself lucky to have negotiated it down to $3000.

  • This is an interesting article. As a photographer and blogger, I realize it is frustrating for you to have to pay $8000 (or $3000) for what you perceive as a simple innocent mistake. But you must also put yourself in my shoes and realize how frustrating it is for me to spend my time and effort that could be put into MY business tracking down photos that were used (often times for-profit) without my permission. Maybe you don’t think the photographer’s photo was “worth” $3000, but what about the extra time spent (and therefore income lost) working out the settlement and the extra money spent hiring a lawyer? I recently spent over a week of my time, gas money on travel back and forth, a general bunch of stress tracking down a company who found one of my photos online and decided to sell it framed in a gift shop. Total amount in penalties I received in the end: $0. Talk about frustrating! How is that fair to me? Even in the cases where a simple takedown notice gets the stolen photo removed, it still takes up my time that I could be using to earn income. Maybe not that much for one case, but for the many cases I’ve had to deal with? It adds up quickly. You seem to understand the implications a $3000 fine has on your business, but you are failing to consider the business impact your actions and those of others has on a photography business.

    I’m not saying I think the photographer in your situation handled everything perfectly. I probably would have handled things differently myself. I just wanted you to consider that the amount you are paying isn’t just for whatever perceived value you have for the photograph.

    I’m happy to hear that your standard practice is to pay photographers for the right to use their images! You would be shocked to know how many people and businesses (even big name world-famous ones!) do not. Instead of casting blame on anyone, I think what we really need is more education for the general public on copyright laws. The internet has really changed media over the last 20 years. Copyright law is not an easy thing to understand for most people and I believe most of them misuse photography out of ignorance rather than malice. More education would save companies like yours from having to pay large penalties as well as saving photographers like myself a whole host of problems and lost income.

    • You make a good point there about lost time and income tracking all this down.  I think the purpose here was definitely to "educate" us on copyright law, so I am willing to give the writer the benefit of the doubt that she tried to do the right thing as a business owner and learned one heck of a lesson here about surpervising her employees and contractors.

      Back to that lost time and income.  An artist friend of mine who is especially good at tourist-market pictures of New York City told me about 20 years ago that he found his image on a t-shirt by someone walking by.  He was, of course, furious, so he investigated by tracking back to where this originated.  Then he went into the t-shirt store and, without identifying himself as the artist, asked them what kind of deal they would cut him for all their stock of t-shirts with that image on them.  They were glad to make the deal, and he got the t-shirts at a deep discount — a price much less, he told me, than a t-shirt production company would have charged him, all while avoiding legal fees.  He told me this as we sat in front of a gallery on Bleecker Street selling these thingies for $20 a pop. . . . It's just too bad that Internet use doesn't lend itself to this kind of reciprocal rip-off.

      I thank Kari for her article, which I kind of stumbled on.  I am actually using two images that I don't have a right to, thinking that (1) in the case of the image I used on flyers in New York the original user in Tennessee wouldn't notice (probably right) and (2) in the case of the image I used on a Web site, I'd just have the option to remove it if the photographer objected (wrong).  I'm going to clean up my act, right quick!

      So I think Kari did the photographer/graphic artist community a great service here, give or take a few insulting remarks.

  • I use Wylio.com to find legal pictures for me. :) Made it way easier on me and I didn’t have to stress so much over it.

    Sucks you had to go through that!

  • Someone mentioned Wylio, which searches for Creative Commons images.  

    One problem with a Creative Commons license is, what if the image owner changes his or her mind later?  How will you know?  And will you have any documentation that it was a Creative Commons license to begin with?  Most people don't save that kind of information. How are you going to prove it?

    It's one thing if you use one image, but what if you use hundreds of images over a period of years?  You probably won't be able to defend yourself.

    The best thing is to use only images that you've bought, or taken yourself, or are in the public domain (such as some U.S. government images or certain Wikipedia images), or that companies put out specifically for media usage.  Creative Commons licenses leave you too exposed.

     

    • Anoterh concer with using creative commons is that most people that post images as creative common on youtube, vimeo or any where else may not actual have the rights ot hat image them self and have not idea what creative commons i but thinks it sounds like good license to select for some random thing that they found and wnat to share. And guess whos liable, you guessed it not the kid who posted incorrectly but you gor your use of it. So creative coomons gets pretty sticky. bu tonce you post it as Creative commons you are never able to chnage that licnnse

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  • The legal profession can easily cease being useful to its clients whenever it no longer tempers guidance on the law with reality, particularly business reality, as well as the human desires of clients. Lawyers frequently see themselves as people paid to win cases and that simply is not always true. Sometimes you serve clients by knowing when the fight is not worth it.

  • “Our editorial standards are obnoxiously high, and we do our best to write the best web content our clients (and their competitors) have ever seen.”

    Photographs are also content. Some writers and editors treat photographs as decorations to break up their copy. Shouldn’t your standards for photography also be “obnoxiously high?”

    If you are trying to engage your clients’ customers, use good photographs.

    • We totally agree, Tom! This is now we use the same editiorial process for images as we do for content. Regularly using high quality, relevant images is an imortant aspect of any blogging strategy – and we’re happy to pay for them.

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  • So, unfortunately I found this blog following a nice letter from a company telling me I owe them $1260 in damages, how would you like to pay? 

    I’m a new small business owner who started a blog with the intent to educate people (followers) about financial issues and information to include retirement, investments, financial news, and quick facts.  I was a teacher and police officer (side comments to yourselves ;-) ) so educating is a passion of mine. 

    I admittedly knew too little about the blogging world, and my flawed understanding of copyright laws turned out to be a downfall of mine.  I originally attempted to find the original source of said picture but never located it.  I then assumed that it was "Public Domain" and was only going to use it for "Educational" purposes.  Boy was I wrong. 

    I too want to argue that I only received 20 views of said blog (some from myself), wasn’t looking to make any monetary gain from the picture or blog, wasn't intentionally stealing it, tried to locate the owner of the picture and couldn't <- can prove that the picture is buried under multiple other sites in a search engine, none of which were the original owner, as well as assumed it was under the fair use act.

    This is not something to mess around with, the laws are in favor of the author/artist.  Which I agree that they need protection, but there also has to be an easy way to identify copyright, and this information needs to be publicly known.  This is not common sense and is a truly unfortunate situation for unsuspecting people like us.

    I have sent a request to my local newspaper to do a story to educate their followers about copyright laws.  I encourage everyone to do the same.

    —-Side note— the government is shut down so i couldn’t contact the CopyRight government agency for help nor could I view the website.  L…O…L

  • I'm all for tackling online thieves but to sue someone who stole your image before even trying to amicably settle it off court it's ridiculous. Also, demanding an $8,000 settlement fee for an image is extortionate. Did your laywer care to find out why Mr Leech was requesting such a high settlemtn amount?

    • As we understand it, we weren’t being sued for “actual damages” so it didn’t really matter how much the photo was really worth and that’s why the original amount was so high. 

  • Kari,

    It is nice to see a post warning people about copyright infringement. It is unfortunate, however,  that you chose to sling mud at the photograph and the photographer. Your bitterness got in the way of a great informative post.

    It is clear you don't understand how photographers make a living. I kno wthat you can't know everything about another persons livelihood but you still need to respect a persons intillectual property – whether you like the content or not.

    I will give you an example. I have many images infringed. At any time I can shoe you literally thousands of infringing uses of my images on the internet. I can't possibiliy stop all of them. In one case an image was used by a company on Facebook. That image was 'Liked' just under a million times. There were over 6,000 comments on the image and it was 'Shared' over 65,000 times.

    As a photographer I license the use of my images. Licensing them exclusively or as a first time use brings in the most money for an image. An image that has been copied off Facebook over 65,000 times can not be licensed as exclusive or first time use. Those options were taken away from me. My ability to make money from that image was taken away from me because someone decided to post it to their Facebook page.

    It is very clear on my website that my images are protected by copyright. Once a person illegally takes an image from my site and posts it on thier own site or Facebook the copyright notice on my page does not go with and the notification that was intended is now gone.

    In the case of the image you used all it takes is one person to take it and use it in a way that it is copied tens of thousands of times. The fact is that you do not know what effect your use of the image has and you have no right to assume that nothing happened.

    It is difficult or impossible to quantify the damage that has been done by an illegal use of another persons intillectual property. Statutory damages are available to overcome the difficulty in showing dollar damages. Statutory damages are also meant to be a way to deter people from infringing other peoples works.

    On another note – I have absolutley no tolerance for a site that uses one of my images without my permission and post it on their site where they have a copyright notice posted. If you are going to use a copyright notice to protect your own content then you have no right saying you didn't understand the rules of copyright.

    • Copyright governs quite a few sections of law, not just "this is mine" law.

      Using the word "copyright" on a website is telling people that the domain name is copyrighted. Still, someone sourcing 'yourwebsite.com' does not mean they stole your work. It's simply sharing, which is what people like you have no concept of.

      Google indexing your website is the distribution of your copyrighted work, are you going to sue Google, Yahoo, Bing etc for sharing your copyrighted work with those who may stumble upon it through search engines? Or did you forget that Google and sites alike are also websites, just like any other site who is willing to give photographers a good reputation.

      To make a dollar you need someone to give you a dollar, it will not just appear out of thin air, and for someone to give you a dollar you need a way to grab their attention.

      Google alone will not share the artwork of someone, but people who are willing to share that work for you will help out a LOT.

      You may sell your photography under a license, but did you ever consider that someone may have stumbled upon your site by first stumbling upon someone elses?

      Let's imagine that you're making absolutely nothing and no one wants to use your crappy images… then one day, I come along and feature one or two of your images on my website, with credit while I include some educational information to back up the photograph, so that i'm not just talking about your crummy picture.

      Someone who likes crap art sees the image and visits the link that I sourced to you and they ultimately decide to purchase one of your images or a license = I gave you profit and then you turn around and sue me for $8,000 = ridiculous.

      Photography is a joke by the way.

      • wow that is the most ignorant post I've ever seen, and to top it off, you insult a profession. Why is photography a joke exactly? Art is subjective, maybe to you it looks like crap but in someone else's eye it's amazing. I personally think picasso's work does not suit my taste, but that doesn't mean it's "crap". It's obviously good to many people as quite a few are willing to pay millions of dollars for an authentic piece. Just because I don't enjoy his work, doesn't mean I can go around saying "painting is a joke". You my friend are a tool.

        • I’m not sure where you saw that we called photography a joke – in fact, we value it as a service and regularly pay for images for blogs. With that said, the image of Omaha that we got sued for was no Picasso painting (so I’m not sure that’s a fair comparison).

    • Scott — You bring up an interesting topic re the re-use of photographs and more — cartoons, witty sayings within images, graphics, illustrations — on Facebook and other social media.  It gave me pause, wondering why everyone on Facebook has not sued as the violation of copyright just on that social media site is overwhelming.  And, of course, there is Pinterest and Twitter.  I have not Googled/searched on this but you cause me to wonder if perhaps there will be a legal explosion in the not too distant future that forbids the sharing that occurs on these sites, particularly given your words on distribution.  I would think that yes, what occurs on these social media sites is a violation everytime a person shares anything that is not created by them.  I did not include "paid by them" as we all know that payment carries with it terms that define usage.   

      Any attorneys here?  Would love to hear your thoughts..

       

       

       

  • Thanks for the informative article.

    A question: If the original image is old enough to have gone out of copyright, but it has been re-photographed by someone more recently, does this second person own the copyright?

     

    • If the copyright has expired on the original image, then a subsequent person that photographs that image owns only the copyright to the photo that he/she took, but if another photographer took a photo of the same expired copyright image, they then would own the copyright to that particular photograph.

      For example, someone's photograph of a particular house is copyrighted as to that image, but I can go out and take my own photograph of that image and own the copyright to that photograph.

      • The second person would own a copyright on that photograph if and only if the second person has exhibited creativity in their photograph and not just reproduced an exact copy of the original. However, the bar for courts of how much creativity needs to be shown is quite low.

        For example, a book that reprints essays or poems that are in the public domain does not own a copyright on the individual essay or poem, but rather on the arrangement of the essays or poems within the book, as long as it was deemed to be a "creative" arrangement.

        In Feist v. Rural, duplicating listings found in a phonebook and arranging listings in an alphabetical manner did not exhibit a modicum of creativity. Since facts are not copyrightable, there was no valid copyright in the original phonebook.

  • Hey, my fiance recently had a lot of negative feedback from crummy photographers who didn't want her using their images on her educational site. Some kindly asked for them to be removed while others threatened to sue etc etc (who held no copyright, just wanted to make pointless threats) so we came about reading into the concept of fair use.

    Don't want to be confirmation biased though so I found a few articles such as this one.

    It just doesn't make sense to me though, there seems to be a lot of people who have been sued by copyright holders because of this, even when the article was informational and in relation to the image being used.

    My question is, is it just a dumb judge who is making the bad decision or is there some loop hole around the law?

    I was reading on copyright.gov, here, and it seems that fair use protects the use of content as long as it is educational.

    Did you argue the point in court at all or was it quickly resolved?

    We've removed all images that have been put on the site without permission, just in case, but it just seems so ridiculous to me. Bad judge or other reason to people actually being sued?

    • Matthew – The "fair use" provision requires consideration of all four factors, not just "is the use of the copyrighted work for educational purposes?" 

      Let's say I went to your fiance's site and copied the entire text of an article, then published on my website without her permission, illustrating it with my photographs.  It would still be "educational", right?  Would that be OK? If she asked me not to do that, would that make her a "crummy writer?"

      gcw

  • Kari,

    While some on here felt your tone was overboard, I think you showed a great deal of restraint. The core issue here is the penalty not fitting the crime. An image that would not have made the photographer any money ends up netting the photographer $3,000 (minus the attorney's fees). To the commenter above stating you can't quantify the loss caused by the illegal use of an image, I say in this case, yes you can. Please. It was a crap photo of a city. Let's not glorify its potential to generate money. Other than through this sham of a legal process concerning copyrighted images, that is.

     The legal system is supposed to be about justice. Really? Does anyone with a modicum of common sense not believe the now-$3k-richer photographer and the opportunist attorney are not laughing all the way to the bank, having fatly profited off of the "injustice" they were victims of? 

    Finally, I would argue that the issue of "stealing" photographs is not necessarily common sense anymore. In the age of Instagram and Pinterest (and well before), people routinely grab ("steal" if you will) pictures from wherever they see them on the web and repost, share, make into memes, organize into categories,etc.; it's an extremely common practice. Perhaps some of you think people should be aware of the finer points of copyright law as it pertains to images. The reality is, many, if not the majority, aren't aware of the laws. Don't believe me? Perform a search of the issue and These laws are the digital version of a speed trap on the highway. 

    Should there be laws in place to protect photographers? Absolutely, in cases where there is a legitimate loss of income or potential income involved. But a photographer / attorney tag team scoring $3k (a legal value considering the initial $8k demand) for a cruddy photo of Omaha, Nebraska? Who is the real victim here?

     

    • So who is to say what "cruddy" is? Take your own photos and it won't be an issue, or at least try to contact the photographer, especially if said image is being used for marketing purposes (which includes blogs).

      I would have zero problem suing someone who used my material for promotional purposes and then had the audacity to say that they didn't think it was a big deal because they felt the image itself was sub-par (which also says something about the level of quality they are providing to their clients).

      Some random mom using it for her personal blog? Not a huge deal. But a marketing firm/agency is a different story, seriously.

      • Pantone — Why would you not object to the "random mom" using it on a personal blog?  The reason that copyright of illustrations, photos and copy is not understood is because of such exceptions. That mom is committing a crime.  If that "mom" has her hands slightly slapped, she would serve as excellent word-of-mouth and before you know it we might have a world that understands copyright.  As she is not profiting commercially, I could agree that she should not be penalized for thousands of dollars as there is no gain but nevertheless, she has violated the law. 

         

    • It wasn't "crummy" enough for the website not to use it.

      And yes, art is subjective, that is why there are statutory damages. Someone else may have taken an incredible, awe-inspiring photograph of an angel coming down from heaven or an actual UFO that clearly would have far greater commercial value than the statutory limit.

      Finally, they had an option not to settle, to take it before a judge and/or jury, and to argue for lesser damages owed and they chose not to. (Wisely, since it undoubtedly would have cost much more than $3,000 in fees and time to litigate, but nevertheless, that was an option.)

  • Forgive what may sound like irritation with this subject but, as the principle is stated, "ignorance of the law excuses no one." 

    The bottom line is this, if you want to make a living doing creative work–design, copywriting, photograpy, illustration, advertising, and so on–the minimum requirement is that you learn and understand the laws by which your field is governed.  

    When, for example, a client pays a designer to research its business and develop an identity program, it stands to reason that the law protects that clients investment by restricting others form using the same solution under their own name.

    It's the same with a photograph–though they often appear deceptively simple, we need to understand the context of the cost: 

    How much, for example, did it cost to reach the location?
    How many people were on the crew?
    What type of special lighting was involved?
    How much did the camera cost?
    How much did it cost to rent the props?
    Were releases secured for the models and the property?
    Was a stylist involved? And so on.

    But let's say the photograph was taken with a camera phone, and captured an extraordinary image that stops viewers in their tracks. There is value in that too. And that's what's wonderful and exciting about a creative career. If you can bring a point of view to the work that people value, you can command whatever others are willing to pay.

    But pure frustration kicks in when, in 2013, people intentionally usurp the work of creatives who have committed themselves to do the hard work it takes to build an audience. And then feign ignorance of principles so widely publicized and understood–it's the ultimate insult.

    The surefire way to avoid copyright infringement? Be original. 

     

  • I would never hire a "PR firm" that has such a whiny, snarky, unprofessional article on their own site. Furthermore, you emphasize that you not only stole someone else's work but used it on a client's page despite it looking as if it was taken by "drunken college student with a camera phone." Is this the quality your clients can expect? And if you weren't aware the main rule in content creation (that the content must actually be created) how could one possibly expect you to be knowledgeable about more obscure rules and laws. Plus, you imply that you only care about 'ridiculous' copyright laws because you were sued, thus denoting a lack of ethics on your part. To top it all off, you try to rationalize your use of copyrighted material by claiming that the photographer was too small and crappy to be important and that your client's website that you put it on was barely had enough traffic to care about. (Isn't creating traffic what you're supposed to be doing?)

     

    But the worst flaw is: if a supposed PR firm doesn't know better than to refrain from venting on their own site, they have no grasp of the field of public relations. (What you did here is the exact thing a major PR firm would keeping its clients from doing.) You got sued, cry to your mom, cry to your friends, but don't do it on the Internet. 

     

    As a Communication student, I'll be printing out this article to give to the PR teacher in my department. I'm sure she'll find it amusing as it breaks about every PR rule in existence. She might even use it in a lecture on how not to write a profession article / why people shouldn't vent on the Internet. Of course, I'm sure you don't mind if we use you work without your consent. I mean, you’re so little and crappy.

     

    P.S. I only wrote this so you’d rethink this post since you seem nice in the ‘about’ section. I took the time to give you a lot of information; digest it and use it. And delete or rewrite this post.

    • Hi Jeremiah,

      I hope you’ll find that we DID take responsibility for the image, and explained how the whole thing happened. The purpose of this post wasn’t just to bitch about what happened (although I found it quite cathartic to do so), it’s also to educate people about how a simple copyright infringement mistake can end up costing them thousands of dollars, regardless of how much the image might actually be worth. We work with dozens of other agencies, and the vast majority have been sued for the same thing and kept their mouths shut about it for the reason you just described. This doesnt help anyone. I agree that I could’ve been more apologetic about the whole situation in this post, but I thought the fat check I wrote the photographer’s attorney was apology enough and now I’m done apologizing.

      Unexpectedly, this post has even brought in some business to us – I’ve received significantly more “thank you” emails than comments like yours. In fact, most of the pushback we’ve recieved has been from other PR people and photographers, neither of which are our target market. So I won’t be deleting the post and I’ll continue to approve negative comments on the blog – if for no other reason than the SEO value of all the user-generated content, which will continue to bring potential clients through our door.

      Thanks for the feedback, and have fun in class!

      • "I agree that I could've been more apologetic about the whole situation in this post, but I thought the fat check I wrote the photographer's attorney was apology enough and now I'm done apologizing."

        Ha!…I f* king LOVE you Kari! Both your writing and tone are sheer perfection, especially in light of the despicable, low life, immoral parasites that preyed on you.You actually made a boring subject pretty entertaining too.

        And FYI, unlike some of these drama queens on here, I would totally hire a PR company like yours if/when I could afford it. For one thing you have a cool personality that comes across in your writing, so I'd expect you'd have a correspondingly cool take on whatever you'd be doing for me. Secondly, it was VERY generous of you to  write this post to help others (definitely helped me) and your cut-through-the-crap rendition of events was just the incredibly awesome icing on the cake.

        Best wishes for continued success – You deserve it!!!

         

         

      • I was with you until you said that your check was payment enough for belittling another human being publicly by demeaning his or her photograph. I can imagine some in Picasso's day finding his work "crap" as well ("That does not look anything like me – what a crappy painter this guy is – but I think I'll try to profit off his work anyway")

        You decided to pay to settle something that you knew was wrong. You admit it, and you want others to learn from it. But yes, casting the attorney and his client in the manner chosen comes off as petty, which I forgave until you tried to justify it as being part of what you "bought" with the settlement. Please. That's like celebrity child abusers who pay off accusers in settlements rather than go to trial then demeaning and further damaging the child with malicious statements publicly and saying "well, I paid a lot of money to settle so my continued verbal abuse is justified.

    • Absolutely the best comment here – it's like this firm and GoldieBlox studied the absolute lowest common denominator of morals / ethics / principles, and retreat to "Oh poor little me!" when called on drastically bad behavior. It's absolutely stunning the cognative dissonance that must be going on for somebody to HIRE A PR FIRM THAT DIDN'T UNDERSTAND COPYRIGHT AND THROWS A TANTRUM WHEN FORCED TO LEARN ABOUT IT THE HARD WAY. If you think that $8,000 was expensive, these words and this example is going to result in publicity that you really don't want. When the tsunami of the internet hate machine finally rolls in (because it's inevitable, I've watched these things many times from the sidelines, as I will here), your next letter will be a lot different in tone I think. Good luck!

      • Hi Vernon,

        I’m 100% okay with the tone of this post, which was published last year. Feel free to keep watching from the sidelines and waiting for fireworks, but I think it’s going to be a boring show :)

  • Thanks for the info! It really gave me something to think about & I didn't realize that google images can get you in trouble. I will surely do the research now & not use images that I can't find the author for.

  • As a writer and photographer I have spent hundreds of hours working on an article and tens of hours building an image… and then to my dismay to find some 'expletive deleted' person has ripped off my content to build a blog… Sometimes the article or image may have taken years of research and preparation. Later this year i intend to hire a lawyer and start a new project called aptly, "Search and Destroy".

  • What an interesting read, thank you.

    I am an amateur photographer who enjoys short oval motor sport here in the UK. I have friends who have "hard" photo archives dating back to the 70's & beyond who have kindly loaned me the images to be scanned to digital so a new audience can enjoy them. Now here's my problem: I am now aware that some of these images were taken by professionals who have requested they be removed from my Facebook page, something I have absolutely no problem with, however, none of the "hard" pics are marked in any way so how am I supposed to know what is copyright & what is not? It's ok saying only use your own images but I wasn't taking pics in the 70's, ignorance is no answer I'm aware, so do I now close down a page I have worked a year on due to 1 person asking for his images to be removed (without him giving me a list of his work or proof that the image really is his)? How do I know if this is simply some kind of "sour grapes" or a genuine request?

    Minefield is the word that springs to mind, now I am stuck between a rock & hard place, thoughts welcome!

  • I loved up to you’ll obtain carried out right here. The sketch is tasteful, your authored material stylish. nonetheless, you command get bought an edginess over that you want be handing over the following. sick indisputably come further previously again as precisely the same nearly a lot frequently inside case you protect this increase.

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  • If you didn't steal photos then you wouldn't have to worry about predatory lawyers. Hire a photographer or purchase stock photography like any other professional agency/marketer. Laziness is expensive.

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  • For statutory damages, the photography had to be registered with the US copyright office.

    Was this the case???

    Most photographers haven’t registered their photos, so they must prove “actual damages” from the infringement.

     

    It sounds like you got scewed. I cant imagine a judge awaring very much at all for a shitty photo no one cares about for non-malicious usage.   Sounds like your attorney sucked.

    You got copyright trolled, period.  

     

    I'm a photographer and at best I would expect maybe $50 for someone to use a non-special, nearly worthless photo of mine on a blog that got 100 views.  

     

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  • Regarding theft is theft, that would imply bloggers intentionally steal images, which isn't the case. Most bloggers use an image to report news or such.

    100 views pays most bloggers literally nothing. 50 bucks is steep. 

  • What amazes more than individuals seeking out justice for copyright infringement is the digital desigers today. A great majority of them use illegally obtained, stolen, patched, or cracked software such as Adobe Photoshop and Adobe Acrobat to create graphics and PDF files for the sole purpose of selling it.

    I am all for individuals selling digital content and protecting it, as long as they actually owned the software they used to create the product.

    Personally I think the big companies should go after the idividuals creating any type of content for the purpose of making a profit who have not legally bought such said product. These individuals think so little of the big Companies but in reality these type of thefts may not put the ding in the big CO but it does trickle down to their employees trying to do an honest days work.

    Adobe has, or had, in place a system in which if an individual created anything using their products which were not actually purchased. The individual would be fined a minimum of $10,000 plus another fine for every digital copy of the item they sold. In the long run it's just cheaper, and more appropriate to shell out the money to legally own the product. Plus these individuals might feel better about themselves.

    In the Crafting genre of digital items, regardless of craft, have gone so far as to issue death threats to individuals who have shared an item they purchased. Yes, death threats. There is something fundamentally wrong with individuals who go to the extreme to give such threats, especially when they theselves, often own software, of any time, that they never purchased.

    Big companies need to listen up and go after those that create but do so illegally.

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  • I find Kari's post informative. However, she is a professional content creator for the web. She is paid to write materials for other's websites.  If her content was just duplicated by other's would she sue? Would she consider the attorney representing her a "Leech"? Not a very professional approach.  Most middle schoolers know that you can't just copy other peoples work from the internet. We call it stealing.

    If you're a kid, infringing a copyright, that's one level of penalty, but I don't think that a business owner, whose primary business is content creation get's to whine about the penalty, when they fail to supervise an employee on a job for which they were compensated financially.

     

     

  • You had the right idea with this artcle but then went and wrote it like a petulant child that will probably make potential future clients think twice about hiring you.

    Name calling, re-victimizing the photographer YOU STOLE FROM … what are you? 10?

    I especially love your insults of the photo you stole. So things are only protected by copyright if YOU think it has value? Well, if you STOLE IT decided to use it for the article it must have had SOME value.

    Does this mean that if I think one of your articles is garbage I can use it on my blog? Didn't think so.

    You claim it was an hoest mistake but everyone who is caught stealing claims the same thing or a varation of it.

    – My web designer did it.
    – A new staff member did it.
    – I found it on Google.
    – I didn't do it my account was hacked (rolls eyes).
    – I didn't read the agreement from the stock company.

    Go to http://stopstealingphotos.tumblr.com/ and see some doozies.

    It's ALWAYS a mistake. If you can prove it's a mistake then head to court and the judge will decide. Well, guess what, it;s not the photographer's job to prove your innocense … the facts are the image was used without permission … end of story … now it;s your problem to prove that it was a mistake or that the use was permissable.

    I strongly suggest you retract this post and re-write it in a less childish tone.

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  • The lawyer is a leech, the photographer is a drunken college student with a camera phone, copyright laws are Draconian and the picture you used was crappy. You were only too happy to steal it – because that's exactly what taking something that does not belong to you without permission or compensation boils down to – and you have the audacity to write a woest me piece? Give me a break! In spite of your claims, you have learned nothing from this experience. I'm glad you got caught. You did the wrong thing. I hope more slime bucket infringers are caught and sued. Take your own crappy pictures for your damned blogs, websites and social media and stop stealing other people's work.

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  • As a professional photographer who happens to live and create images of Omaha (hopefully better than the one that was stolen) and who has had some images of said city stolen, I feel I should perhaps weigh in a bit here.  First, though I should mention, I am NOT the individual that sued.

    Photography is what I do, it is my job.  I wake up every day, grab the camera and take photographs.  I then go through the painstaking process of processing them, marketing them, selling them, etc.  Like any other job, it’s a ton of work and frankly doesn’t pay very well.  Most photographers do it for the love of the art rather than fame or fortune.  

    Last year I was sitting at a restaurant and I grabbed a book that showcased Omaha.  To my dismay this particular book had my image of Omaha on the cover (this book had a run of thousands).  I took a copy of this book and proceeded to contact the publisher.  The individual I talked with happened to be a lawyer and he was stunned that this had occurred.  We discussed different methods of reimbursement, but ultimately I invoiced him what I would have normally charged someone looking for that particular use.  He gladly paid it and thanked me for not suing and assured me that it would not happen again.  In this case, I had no lawyer and we parted on friendly terms.  To me, reputation is worth more than getting an extra $1k or 2 out of the company.  I even sent him a holiday gift of my yearly calendar.

    When my image was stolen I went through a range of classically designated “negative” emotions, disgust, violation, anger, etc.  Something that I had worked so hard to create, was ultimately stolen.  In the end, though both the publisher and I exited the situation in a positive light.  

    It is too bad that the photographer in question took to suing immediately and left you with a bitter taste.  I hope that you have found that not all photographers are like this.  Many of us work hard and although you felt the image was sub-par to that photographer he might have felt like it was his baby that you wrenched from him.

    I am glad you wrote this article to warn others of this potentially folly.  The Internet makes things so easy sometimes we forget that what we grab could be days, weeks, months, or years worth of work and inspiration.  Your experience is a good reminder to all to keep all of that in mind.

    Derrald Farnsworth-Livingston

    • What is too bad is that you didn't take your copyright more seriously. You were entitled to more compensation than you settled for and the so-called "stunned lawyer" played you. This is exactly why photographers get trampled and certain people don't treat our work – and our rights – with respect. The photographer that sued and left the infringer that wrote this blog with a "bitter taste" did the smart thing and it is that photographer – not the blogger – who should be credited with what prompted the writer to "warn others of this potential folly." Had the blogger not been caught and sued, we wouldn't be reading this, right?

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  • We got gigged by Getty images – got 11 page document/invoice from Getty. Apparently were imporperly using a picture of a parakeet photoshopped (poorly) onto the perch of a specialy bird scale. 

     

    We had gotten the image from the manufacturers website which one would think would make you Golden. I called Getty to try to cop a plea with my argument being that all birds of a particular species are identical. How could they possibly know this "thier" picture? The response was what I expected "we examine all of the images out of the pixel level in can identify every individual image we have"

    I forwarded the "invoice" to the manufacture, who thankfully paid promptly as it looked as it looked as though we shook them up. 

    Moral of the story? Vet EVERY image

     

     

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    • That’s a great question! Technically, yes some one could be sued for using others’ images on social media sites and using them as their own. This PBS article does a great job of breaking it down. To be safe, use images that you create or purchase and always attribute when sharing photos from other sites and “tag” when appropriate. You should also make sure that the photos that you’re sharing on social media sites (especially on Pinterest) belong to the folks that are initially sharing them so you can attribute them appropriately. 

  • Hi Kari

    I'm on the other side of the fence right now. A news article recently 'copy pasted' one of my viral articles and published it on their site. Of course, it was 100% written by me, and the photos were all taken by me as well. No permission was ever asked for or given.

    I've issued a DMCA request to Google, althought this seems like it will only remove the article from Google and not take down the article from their actual site. I've tried a whois domain search, but couldn't find out who the host is.

    Have contacted the site owner through various mediums – no reply.

    You can see the infringing work here: http://www.allsingaporestuff.com/article/singapore-airport-disneyland-backpackers

    And the original on my site here: http://www.brenontheroad.com/singapore-airport-a-disneyland-for-backpackers/

    Have you been in this situation before? What are my options here?

    Would love your take on all of this. Thanks so much!

     

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  • So is their no way of suit an image, even if u credit it and provide a link to the original. Seems like so many interior design blogs do this – how r they all able to get away with it? 

    • The best thing to do is purchase images on sites like Big Stock and Dreamstime to make sure you have your bases covered and proof that you have the right to use the photos. If you’re looking for free photos check out sites like Morgue File and Wikimedia Commons, but check to see on each one that it’s ok to use them for what you’d like to use them for. 

  • Here is an additional aspect to consider:

    We hired a designer to do some work.  Like some of the earlier commenters have mentioned, we were assured that the images were properly licensed.  But they were apparently licensed to the designer, not directly to us.

    We are sensitive to licensing, and have purchased plenty of licensed images from iStock, Getty, and so on.  In this case we were pushing for a deadline, and it just seemed quicker and easier to have the designer just bundle it with her other charges, never anticipating that some technicality could make it a problem.

    We were then shocked to receive a letter from our own Leach.  And of course, the designer is gone and nowhere to be found.  Emails to Leach attempting to show our diligence fall on deaf ears.

    So fine, shame on us, we thought we were covered, and learned to license the images directly.  

    But here is the point I find frustrating.  The licensing website might offer the image at $50, or $350, or whatever.  But if you have inadvertently and accidentally violated, and are willing to make good, it is deplorable that Leach is going to try to extract anywhere from 3X to 10X the "normal and reasonable" amount out of people who are otherwise honest citizens.

    I anticipate the argument "If we were to charge the normal amount to violators, then why would anyone pay upfront?  That would lead to a strategy in which people would just use images and wait to see if you are caught."  There is certainly some validity to that argument, but it quickly moves into Leach territory when it fails to pass the reasonableness test… and asking for thousands of dollars in punitive damages seems absurd, especially with people who are not habitual violators, are willing to admit an honest mistake, and want to make reasonable amends.

    That seems to be the crux of the Kari's article, and I wholeheartedly agree with her.

    • That is a lot like saying, "I stole this car, but now want to pay for it.  I should be allowed to just pay the price of the car and the fact I committed a theft to begin with should be forgotten."

      There is a penalty for committing a crime.  Quit kidding yourself that you didn't commit one.

      • I think we have all said there should be some penality.  I even anticipated your argument, and said a REASONABLE penalty is appropriate.

        However, "off with their heads" appears to be the preferred remedy for some.

    • Regardless of whether you agree or not, stealing copyrighted images, willfully or not, will subject you to penalties and punitive damages that would not apply had the right thing been done from the start. It's not the lawyer inflating charges or the photographer being greedy, it is what the law spells out as a remedy to the infringed party.

  • Another thought for those being hit with unreasonable claims:  ability to collect is a factor.

    Ever had a client stiff you for a bill?  They issue the PO.  You do the work.  They approve everyone.  You invoice them.  They don't pay. 

    Ever looked into what it costs to try to get a judgement?  There is not dispute about the debt, and you win.  You have a court judgment against the debtor.

    Now try to collect.  It is not as simple as many seem to think.

    This is really no different.  Honest people, like Kari (or me), will admit their mistake and be willing to pay a reasonable fee.  It is a hassle-free and collectible payment.

    Lawyers that get greedy might find they push too far in their extortion attempt.  They might even win judgments that people cannot — or will not — pay.

    Winning a judgment is only the first — and perhaps easiest — step.  They still need to collect the judgement.

    Victims of leeches are not defenseless.

    As long as both sides are reasonable, these mistakes can be resolved.

  • First, I'd like to thank you for posting this blog and sharing your story. It helps me a great deal. You see, I'm a professional photographer and I'm forever finding my images stolen and re-used in an unauthorized fashion. An infringer's first mistake is to think that just because an image (or anything else for that matter) shows up on their monitor, it's theirs for the taking. It is not. Images online are likely as protected as any print image in, say, the New York Times PRINT EDITION. Infringers have the attitude of "oops, my mistake, I'll take it down." Once the image is up, it's up and the damage has been done. Infringers beg for leniency and forgiveness (rather than ask permission prior to the act). If I gave permission after the fact, that's like saying that everyone can steal from me at least once. No, they cannot, and the DMCA protects me from that. You are wise to encourage people to review and become very familiar with the DMCA. As far as the $8,000 sum goes…well, among other things, the DMCA provides for statutory (that's the key word here) penalties for infringment including, but not lmited to, usage of an image with a registered copyright and removal of copyright management information. So it is unlikely that the atty just pulled $8,000 out of the air. He probably came to that number by assessing the violations and applying the statutory penalties for each. As far as what the picture was really worth, once you steal it, it doens't matter. If people were permitted to steal things and then just pay fair market value if caught, nobody would pay for anything..they'd just take stuff and wait to see if anyone noticed. The idea behind DMCA and all other laws of this nature is to apply a punitive factor to stealing, get it? So the DMCA is not a vehicle created to make lawyers rich, it is there to protect all people who make a living in the creative arts and in the creation of IP. But thank you again for posting this. I hope others heed your advice.

  • I took a map from this website – http://russiamap.org/map.php?map=city-spb-tour and used it for my clients website on a page about the history of Russia, purely for educational purposes.

    It says clearly on this website (actually since 2007) that the image is in the public domain. I also did a search all around the Internet and this image is being used freely and there is not even one mention of copyright. So there is no way I could have possibly known about a copyright on this image.

    So now my client is being sued for using this map as it was apparently under copyright. There was no way we could have found out it had a copyright and we took it from a site that says it was in the public domain.

    If my client loses this court case it means I can post images on the Internet, let people freely use them, change them, and even mention for years that they are in the public domain. Then I can go back and start suing people for large monetary settlements?? How can this possibly be a fair and correct application of copyright law? There was no intent on my part to infringe on copyright. 

    Can someone please advise??

     

    • Someone can't claim something is public domain and then rescind that right to make it convenient to sue. Suing is not all that convenient nor as easy as everyone seems to think. Works pass into the public domain after the creator's lifetime plus seventy years. Do you have a screengrab of where it stated on the site that the map was in the public domain? That might help prove your assumption. If you don't, good luck!

    • >Then I can go back and start suing people for large monetary settlements?? 

      Not if they can prove that *you* (the owner) said they were public domain.  Best bet is to get someone else to claim they were public domain (who can't be proved that you were in collusion with) and then do that.

      But otherwise, the way the law is set up – yes

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    • We actually had a couple during this time period. By the time this lawsuit hit, we were already only source using paid-for photos, not from Getty images and those that are in the public domain. 

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  • Posting inline HTML links to images has been ruled by the United States Court of Appeals for the Ninth Circuit to not constitute copyright infringement. In Perfect 10, Inc. v. Amazon,com, Inc, the Court ruled that inline (HTML) linking does not violate U.S. copyright law:

     

    "Instead of communicating a copy of the image, Google provides HTML instructions that direct a user's browser to a website the publisher's computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy. First, the HTML instructions are lines of text, not a photographic image. Second, HTML instructions do not themselves cause infringing images to appear on the user’s computer screen. The HTML merely gives the address of the image to the user’s browser. The browser then interacts with the computer that stores the infringing image. It is this interaction that causes an infringing image to appear on the user’s computer screen. Google may facilitate the user’s access to infringing images. However, such assistance raised only contributory liability issues and does not constitute direct infringement of the copyright owner’s display rights."

     

    http://cdn.ca9.uscourts.gov/datastore/opinions/2007/12/03/0655405.pdf

     

    The above should be obvious to anyone who has ever searched for images on Google. Images are displayed in the user's browser via HTML inline link redirects. None of the displayed copyrighted content in a Google Images search constitutes copyright infringement, and the court explained very clearly why that is.

     

    More on this:

     

    "…a recent case from the Ninth Circuit Court of Appeals concluded that inline linking does not directly infringe copyright because no copy is made on the site providing the link; the link is just HTML code pointing to the image or other material. See Perfect 10, Inc. v. Google, Inc., 508 F.3d 1146 (2007). Other courts may or may not follow this reasoning. However, the Ninth Circuit's decision is consistent with the majority of copyright linking cases which have found that linking, whether simple, deep, or inline, does not give rise to liability for copyright infringement."

     

    http://www.dmlp.org/legal-guide/linking-copyrighted-materials

     

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  • What a brilliant article! Loving both the style and the content, the nature of the comments both for and against is a testament to how good this is. I find that good writing tends to stimulate a range of quality responses and I have gained as much from reading the comments as I have from the article itself.

    As an Instructional Designer responsible for designing eLearning programs for a major non-profit ensuring compliance with copyright is one of my essential duties. We never use any images, videos, content, soundtracks for which I cannot provide source details and permissions. If nothing else it is the ethical thing to do. Believe it or not there are those of us who genuinely want to do the right thing and have no intention of stealing anything from anyone.

    However, were I to make an honest mistake, or fail to catch another's error, I would hope that any required restitution would be fair. After all the expectation of ethical behaviour should surely be equally applied to the offended just as much as it is to the offender. If anyone critical of your article found them in a similar position to yours I am confident that they would be expecting fair treatment.

    Of course, it begs the question "What is fair?" Personally, I find your argument to be well founded; $8,000 is far from reasonable. Though I wonder if this was what seems to be a rather typical strategy of lawyers, to ask for an outrageous sum knowing that the most likely result will be getting the amount they really had in mind all along. I would add that even if someone has intentionally stolen an image surely that does not entitle the owner to make extortionate demands.

    Copyright law is ridiculously complicated and we need all the help we can get. Intellectual property should always be respected and in this article it seems to me that you are trying to help us ensure we are doing the right thing. We also need to be made aware that there are a small percentage of people who do seek to take advantage of those of us who make an honest mistake. I for one had no idea that there are actually those who are actively searching for opportunities to exploit such errors for financial gain.

    Thank you for your well written, useful, and thought provoking article.

    SK

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  • You should work this into a fun presentation for middle school students.  Work in some Instagram stories, and audience would be rapt.  People need to get educated on actual copyright law at a younger age so that when they have blogs and jobs that deal with text and images online, they are ready. 

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  • So everyone thinks that the amount is to much.

    Let me respond in this manner, the courts are required to have as a part of their considerations the deterrance to interested third parties in their rulings.  In the original post an attorney looked at the circumstances, the useage, the value, the rulings that have been coming down in courts and suggested that the infringing party settle.  Now I am willing to bet that the number requested by the photographers attorney was in excess of the agreed upon settlement.

    Everyone needs to understand that if you did not take the image you do not own it, and just because you do not believe that an image is worth X$, the court does believe it has value.  Not all of those dollars are meant as compensation, some of that compensation is menat as a penalty.  On top of that, a negotiation will take as much or more than a year, lets face it no one wants to pay.  So you have all that time that the infringed upon party is going without compensation, how many of you would like to go without getting paid for your hard work for over a year?

    No two parties will agree upon "what is reasonable", usually someone looks at just the photograph, they do not look at the costs to travel to the location to record that image, the cost of insurance, the cost of the website to maintain the image, the cost of health insurance and the list goes on, as a professional photographer I can tell you I have all the same costs as any other business plus.

    The last part is always, "well if I knew that it would/could cost that much I would have used a different image", hindsight is always 20/20.

     

    • "Mr. Leech sent the client a formal complaint letter, saying that they were being sued for $8,000 for using his client's copyrighted photo on their website." 

      I don't think a formal complaint letter means any suit was actually filed.

      The other thing someone pointed out very early in this discussion that I think is spot on is,
      "Copyright law has an entire doctrine of fair use that permits people to use creative works they did not create.

      A work does not need to be registered to enforce rights. But those rights may be completely valueless to try to enforce without registration. Without registration, an author is not entitled to statutory damages; an author must prove his actual damages or profit to the infringer–which may be nil."

      • The majority of our micrographs are stolen by persons or companies within the USA.  If the image originates from another country, in our case Gt. Britain, it DOES NOT have to be registered in the USA to get statutory damages.

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  • I wish the writer of this text to find HIS work (even if he was a stoned, drunk scumm at the time) under someone elses domain.

    The stupidity of trying to degrade the photographer and the photo in the first paragraphs of this "text" is like saying "the car was not new, or well designed and hence I have knowledge of opening and starting locked cars (right clik – save image) i just took it…

    What a greedy owner that car has… he ask me money for this.

    No Mr. Thief. He make you face a penalty for your crime.

    • First, it’s Ms. Thief – not Mr.

      Second, I’m not sure about that analogy. We were willing to pay for the image, as I stated several times in the post, and we were penalized (and I’d even argue, rightfully so – the point in question here is the size of the financial penalty for copyright infringment in relation to the damage that was done when the image was “stolen”).

      I also take issue with the world “stolen” and “thief” in this context – at no point did the original artist not have access to the image. It’s not like I stole his pizza or car, and now he has nothing to eat or drive. Additionally, we took the image down (the digital equivalent of returning the merchandise?) within 10 minutes of the issue being brought to our attention. Again, we could prove that fewer than 100 people even saw the image in the first place.

      So again I ask, what damage was actually done? And was it worth $8k or even $3k? I’d argue none and no. 

      • Obviously there is a big gap in your moral world.

         

        “…which may or may not have been taken by a drunken college student with a camera phone in 2005). You wouldn't see this photo and immediately go book a vacation there, is what I'm saying. I'm also saying that I have a hard time believing the photographer commands thousands of dollars per image – most of his work had nothing at all to do with photography, and he wasn't an artist with any kind of recognition or awards to his name. Anyway, the website was new and it wasn’t an especially popular post – we could prove via Google Analytic that fewer than 100 people read it.“

         

        I do wonder if you base an argument on paying your employees like that. Because this echoes low life bitter. And low lives cannot participate in normal dialects.

         

        You did not steal a pizza, you did something way far worst. I cannot explain it to you. Judging from what you write is obvious all these I can say are beyond your circle of perception. If you were posting a text with the ideology of “I did something so wrong, I AM GLAD I PAID MY MISTAKE, and I still wonder what was so wrong with my and I thought it is OK”, then we could have a conversation.

         

        But no… you are still spiting poison to the “drunken college student” and his lawyer because they gave you a perfect chance to become better person.

         

        So I cannot and will not support how I see this case, I just will say 3000 was a small fraction of what you did. Humans have logic and ethos to act and think. Interacting under these guides produced the society we live in. but this society is constantly under pressure by “smart ones” like you. Other being need punishment and fear.

         

        It is good that you live in a society that offers both of them to social items functioning like you.

         

        What I CAN say as an epilog, is that normally, the “drunken college student” should see this post and sue you again for insulting her / him.

         

        • Hi there MY NAME SAYS ~ I hope you feel ashamed, sooner rather than later, your comment comes across as very spiteful and self-righteous. If you have nothing positive to offer, rather stay out of the conversation.

          PS: And why not give us your real name?  So we can Google you and check if you're as squeaky clean as you make out.

      • Kari –

        Let me try and explain to you why your attorney said settle and why the amount.

        You won't like it and you will still think that you have been wronged and for that I cannot help you.

        The reason for the size of the financial penalty is two fold, one – you probably took the image from somewhere where that photographer had their name attached to it, like a website, or another blog, or a news article, just guesses here.  There is a component within copyright law that was talked about earlier called DMCA, (Digital Media Copyright Act), when you posted the infringed image on your site you removed his/her copyright information, whether intentionally or not.  This has a mandatory penalty of, at the low end $2,500.00 and the high end of $25,00.00 per occurance and if your site was copyright protected like I believe it is then that adds a second violation of the DMCA so right off the bat you have a minimum of $5,000.00 to a maximum of $50,000.00 for the two DMCA violations.   Courts most frequently accaept what is asked for from the plantiff on the DMCA violations so the court records are all over the board here but lets say they were looking at $5,000.00 for DMCA, (this is considered a minimal amount).

        Secondly now comes the value of the license for the image if you had purchased it, lets say that the image has a value of $1,000.00 for a 1 year license for your use, (I get that and much more on many/most of my images), and you had it up for a year and a half, well that equals a $1,500.00 license, got me so far.  The courts as a matter of pratice usualy award treble the value of the license so a court would award $4,500.00 for usage. 

        So if we add the $4,500.00 for the image usage and $5,000.00 for the DMCA claim you are at $9,500.00, if your use was commercial in nature, (any advertising contained in the post or around the image the price goes up),

        Thirdly your attorney should have explained all this to you prior to accpeting the settlement and if he didn't shame on him.  You could have rejected the settlement offer and rolled the dice but from your story you would have lost, on top of that it would have cost you north of $20,000.00 to defend, and you would also be on the hook for the plantiffs legal fees as well.

        As to your assertiton that no damage was done, let me ask you this, do you know if any of the fewer than 100 people you had on the site liked the image and – right click took it from your site? (another infringer to chase).  If someone actually liked the image how were they to contact the photographer for a copy? (lost sales).  If the photographer sells that image your unlicensed use devalues the image, I know you don't understand but trust me it is so, (licensee x sees the image on your site and he bought an exclusive license to use the image therfore the photographer then has to either refund a portion of the license or lose a customer).

        A recent court judgement for the use of two images in the 2nd District of New York was for over $80,000.00.  These were the words used by the magistrate who orderded the Judgement – "The court has broad discretion to direct compensation without a precise showing of the injured party's losses or the wrongdoer's profits".  The court also stated – "Additional factors the court should take into account include the defendant's profits and expenses saved, the plantiff's losses, the value of the copyright, and the prospective deterrent effect of the statutory award".   "The need to deter the defendant and other potential infringers should also factor into the calculation of damages."   As you can see as I said before much goes into the deterrence of future infringement.

        I know that no one likes lessons like this, but it is what it is and the copyright courts are only going to get stronger and hand down larger awards with as much rampant theft, whether intentional or not, that goes on on the internet.

        I know you believe you "did not steal", what is your definiton of theft?  Did you have permission to use the image? (no by admission).  Did someone tell you it was okay to use the image? (inadvertent use, again, no by admission).  By your statement in your post above if you took my car without permission yet I still had access to it, it would be all right. 

        You took the image down at the time of notification so you returned the image but what about the lost revenue?

        I know you said you wanted to pay but it appears from your post you only wanted to pay what you thought the image was worth and in your words, (an) "underwhelming photo of the city, which may or may not have been taken by a drunken college student with a camera phone in 2005", so not very much.  As you can see by what I have provided the courts would disagree.

        I will only repeat what I said before, you were not obligated or required to settle you could have easily negotiated for a lower settlement or gone to court.  So in closing, it was worth what you paid for it.

        • Well said "A Photographer" Thank goodness someone at last has explained why the demand fee was $8,000.  In my estimation the infringer got off lightly.  We produce specialist micrographs from a scanning electron microscope.  Our overheads are enormous, our expertise is extensive, the time taken to produce a micrograph can be weeks or months, our profits are falling year on year and why?  Because our micrographs are good quality and they are sought after, trouble is some just don't want to pay, they prefer to take.  We are fed up to the back teeth with our micrographs being stolen.  No more Mr & Mrs. Nice Guy, we're suing!!  

  • As an artist who regularly finds her own work all too often posted without permission, i find most of the comments here interesting. Degrading the image by nasty comments doesn't make things right–and as writers, would it have been diffferent if someone had stolen your writing and used it without permission or attribution? In the "olden days" of blogging, it was an implied courtesy that if you used someone's images, you asked first and gave them a link back. I find it quite perturbing when i see "copyright notices" plastered all over a site and then see images (or text) that is taken from someone else and blithely posted without credit, or the big one: PERMISSION.

    The prevailing attitude that it's "fair game" *because* it's online is a specious and childish "i saw the ball, so it's mine" approach. Courtesy, common sense and ethics have fallen by the wayside it seems. Ignorance has never been a way to get around the law.

  • A ton of interesting conversation happening on this thread.

    Is there a way to make both parties happy/content? What about a system whereby content (images, text) only goes where the 'owner' wants it to go. It's impossible for content to be used (intentially or unintentionally) on a site where it should not be published.

    Would a Getty Images or Shutterfly pay to protect their content? This would remove, or at least lessen, the need for copyright infringement lawyers to troll the web looking for misused content?

     

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  • If you attend a play and they announce that camera's are welcomed but no Flashes.  I then post Pictures on FB for review for others to see with my (c) on them.  They get lots of attention and several individuals wanted to purchase some.  But the Scrip writer has a Copyright on the Play and announces to me I can give them away but can't sell any of them.  Is this correct when they open the play to cameras-Never mentioned that one can't sell them nor is it posted on the hand out of the play.

     

  • Kari,

    thanks for this post. Appreciated your openess. And think some of the comments towards the end got to be a tad too self-righteous. And am curious ~ how much did "Mr Leech" charge for his services, and how much of the $3,000 penalty did the original photographer get? Looks like a new breed of ambulance chasers. 

    Anyway, your article also opened up the opportunity for lots of comments from all sides, makes for very interesting reading. I'll certainly be forwarding a link to my clients and students – many of whom stubbornly hold to the idea that everything on the Web is "fair game" and *free*. 

    Best wishes from South Africa.

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  • Having read the original post and all the comments, I have to say, was most entertaining. Photography and writing are things, I do every day. DMCA Take Down notices are something, I've found necessary to use, as well. Too many people feel, everything on the internet is free. It's sad to hear, that a more reasonable settlement wasn't reached. But, that's what happens when attorneys get involved.

    The latest unauthorized use of one of my photos, had me researching, to do a blog post about the DMCA. I may write something about it and throw a link, to you, here. All sides of the issue, are covered fairly well.  It gave me an idea for the next Take Down Notice, I send out. On the bottom:

    PS  My Photo Fees Are More Economical Than Those Of An Attorney

    • I'm confused why so much of the anger is directed at the attorney and not the client the attorney is representing?

      Lawyers don't act on their own. They serve their clients who are the ones calling the shots, and lawyers are required by their professional oath to represent their clients zealously. They might personally disagree with the law and the client, but if the client wants to pursue a lawsuit, it's the lawyer's professional duty to do his best for the client.

      Don't get me wrong, there are unethical attorneys all over the country. But an attorney who is simply representing a client who has the law on his side is not one of them. I understand the frustration with the law, and you should direct that frustration at your elected representatives. I understand the frustratation with the claim against you, but the real culprit is the only person who is capable of bringing that claim- the plaintiff. 

  • Enjoy reading this article about copyright images on the internet. Also enjoy reading people metaphor and using stealing a car and then paying for it after getting caught. Thinking that's okay as long as you pay in the end. The problem is that laws different from different things and items. A use car has different laws over a new car. 

    But with that, just because a copyright owner says they lost $8k from copyright infringement does not mean they lost anything but the normal price they always charge. Example would be a phographer charge a blog fee of $100 then that's there lost. That's the only thing they can prove they lost from that photo because their copyright photo is freely post on other sites. Its impossible to know what they really lost.

    Now, the reason the photographer is asking for $8k for the photo because they know contentfac.com have money to pay a few thousand dollars to not deal with it. Photographer was looking for a quick payday. He could similarly ask to remove photo or pay the normal fee but they didn't which means they are looking to see if anyone is using there work to sue. I can pay a few 100$ for a lawyer to right up a letter to pay or get sue and hope to get a few thousand dollars out of it.

    One last thing, I work with someone who knows a famous architect who takes high end images. A saw a few of them and they were out of this world. The funny thing about this images is that you can find them on the internet. Its almost impossible to find them. I could only find one of his images and it was low quality. The reason why he didn't post it on his blog or website is that he will be making the photos into a book. He does not want anyone to use them so he does not post them on the internet. Once its on the internet then its there for any everyone to use. Its a really why paparazzi trys to sell images of celebrities to companies and not on there website.

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  • A nice freebie and then an explanation.

    FREEBIE: There are some excellent articles explaining copyright in plain language by Los Angeles attorney David Amkraut at: https://www.dropbox.com/sh/iny4w7onxijvppz/oA2SHB0IrE Had the author read even one of them, the author would have realized the severe penalties and also understood that her actions were infringement.

    EXPLANATION OF FEES: The severe penalties for piracy come into play when the rights-owner has TIMELY-registered the images with the copyright office. If he has not, then he must prove how the infringement harmed him or benefitted the infringer. Sometimes a tough task.

    EXPLANATION OF OTHER PENALTIES FOR INFRINGEMENT: The infringer may also face an injunction ordering her not to infringe photos in the future. Additionally, there is likely public humiliation and/or professional harm. Because news media review most court filings and a copyright suit can be big news in some professions and local media, especially in smaller towns.

    SUGGESTION: I urge anyone using photos to have a look at those articles and perhaps the less-readable stuff on the copyright office website. The guidelines are actually pretty simple and once you understand the facts you'll be unlikely to be foolish enough to simply swipe image off the web.

     

  • A number of people have commented on what they see as unfair penalties for the "minor" crime of stealing. Why the severe penalties? 

    * One reason is to deter piracy. Photo theft is easy and tempting.

    * Another reason is to encourage publication of creative work and to encourage formal registration with the copyright office: The strong statutory penalties come into play only when the photographer has "timely-registered" his copyright.

    * Speaking of severe penalties, few people realize that most of the infringement via the web can be prosecuted as a federal crime, with monetary penalties and imprisonment a possibility. Ever read the FBI warning when you rent a movie on disc?

    The author got off lucky. $3,000 is a cheap lesson in the context of what could have happened if the author decided to fight the case.

     

     

  • I was sent this post by my publisher, and I'm glad I read it!  I'm a little nervous, however.  I've made a few logos for my websites from clip art I purchased from sites like IStock and Dreamstime.   I paid for the royalty free–averaging probably $15-$25.00, not the big fee of like $150.00 because it's going on one website and it was supposedly "covered" up to 100,000 uses or something like that.  I manipulate the images and overlap them, but according to some of the comments here, that's not enough to cover your butt.  Hopefully I'm not committing copyright infringement?  What about the art used to make book covers?  Again, if you pull the images from Dreamstime and pay the price, are you covered?  My publisher does the Cover Art, so I've never had to encounter that, but I'd love to know if there is any risk here.  Great, informative article–thanks so much for the education!!!:)  P.S.:  It didn't sound like you were whining; I genuinely feel like you are trying to help those of us not savvy on copyright laws.

     

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  • We recently received lawsuit from Germany that one of image on our Facebook business page & asking for very huge amount in millions.

    Person who posted was not aware of any copyright. He immediately removed it & sent mail with apology. Do we still need to take this legal matter seriously? when our website doesnot belong to same country.

    If anyone can advice it will be big help.

     

     

  • We just received one of these letters/bills rom getty, demanding $775 for use of a picture they own or manage or whatever. My problem seems to be slightly different from everyone else's that I read?

    I have screenshots to prove each of the followng:

    We did a google search for FREE BUNNY PNG (Yes, I know because something pops up, doesnt mean it is free) Just explaining as we go

    We saw a picture we liked, clicked on it

    It brought us to a FREE clip art picture site : http://gallery.yopriceville.com/Free-Clipart-Pictures/Animals-PNG/Cute_Brown_Bunny_PNG_Picture#.U3tp7CimXN4 &nbsp; to be exact.

    No where does it mention a fee, a copyright etc? It allows a free download, and we did.

    We put it on a banner on our site 2-3 weeks before Easter and took it down a few days after Easter. Up for no longer than a month.

    Yesterday 5-19-14 we received the letter of copyright infringment from Getty.

    Yesterday I deleted the banner with said image from the backend of our site (But again, it had not been visable since a few days after Easter, as we took it down after Easter.

    We did not just grab an image willy nilly, we searched for a free image, and downloaded it off of a free clip art picture site. It has been deleted and removed off of our server. We understand that we cannot go around taking pictures off of random websites. But where does that leave us when we searched out a free picture, and downloaded it from a free picture site? Clearly there was no intent to steal an image. Does that help us at all, or am I still SOL?

    • IANAL, but hiring one would probably cost you more than $775.

      Unless the website who said it was free is indemnifying you for damages, I think you're SOL.  Onus of the law is on the end user, not the purveyor of stolen goods.

      I'd contact Getty and lay out what you have here – and ask them if you can pay less – and how you can find out if they own an image in the future.

      The other thing that might be of interest, is if Getty is running those websites, in order to lure in traffic… /cynicism

      From a 'changing the problem' standpoint, it'd be nice if some of these statutory damages went into providing a copyright search website – so that people who wish to be responsible could see if an image is registered by the copyright office (ie: big penalties).  And/or place a timely notice that they'd like to be using an image (thus photographers could dissuade them, upon checking) – not a 'get out of jail free' card for the biz owners/bloggers, but a way to show that they weren't trying to steal a car and hope not to get caught.

  • I'm still confused after reading this article.  I frequent many video game and book websites, featuring millions of pictures of the covers, screenshots from in the game, box art, etc. and there is no way they can possibly be obtaining permission for the immense volume of non-original images on the websites.  Am I to assume all images are available in press kits and thus free for public use, and if not then there is some possibility for liability?

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  • "We weren’t familiar with copyright infringement laws"

    Hi there, 

    Just to be clear and I am not a lawyer. Maybe your laws does not embrace the fact you were familiar with such concept but in other countries you can also defend your right and the natural fact of being uncousious from what your are being incrimniated for. However, you have to be aware of the law and if such law would not exist, it would just to easy to make a crime and pretend we did not know it was illegal. Please, try to leave your notes about lawyer out this artcile which is supposed to be informational and not political. 

     

    Thank you for your help anyway and I wish you all the best for your online activity :)!!

  • Thank you so much for the info!!! I thought citation would be adequate, but clearly not!!!

    Do you know whether this applies to reposting a copyright image in Facebook? I would guess so, but am unsure.

    Keep up the great work!!

  • Thank you so much for posting this!! You have probably saved me alot of hassle as I set up my blog!

    I am sorry you went through this but you turned it into such a positive by helping all of us who were unaware of the 'rules' 

    Keep up the great work!!

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  • Great blog. Can you address "fair use?" Is it true that teachers can use photos grabbed from the web for their classrooms and students' projects (containing copyrighted photos) can use used online?. There's a special provision for educators. Do you know of any educational institution that has been sued?

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  • No Sympathy.

    No the copyright laws are not in need of amendment. And the lawyer who refer to negatively through your giving him/her a derogatory moniker was doing exactly what he is paid to do.

    If you are in the business of producing published work then you need to make the effort to do it properly or pay a fine. A small subscription to a stock agency solves this problem.

    If the penalties get watered down then all that happens is that the big corporations will be the ones who beenefit to the detriment of the photographers.

    I acknowledging it you have wisely and correctly admitted your fault. All the other text in your piece is mere fluff.

    Suck it up, learn from the situation … and move on.

  • Any material submitted to you that you take laibility for should have a signed release authorizing it to be used by the party that has the copyright.

    Reject anything that does not have a signed release.

    For photos you create and post – visibly watermark them with Photoshop (Copyright 2014 Joe Smith), and also embed a digital watermark

    Simple copyight notification dicourages the vast majority of abusers.

    FYI – Google on Getty Images – they were trying to construct artiifical contracts with end users of web developers who were licensed to use the images. It got really nasty.

  • Hi does anyone know if there are any organisations out there where you can pay a small fee to have access to photos for your blog? I don't want to rick causing infringment. Again.

    Cheers

     

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  • When Elon Musk can make all his Patents open source, can the photographs not be kept open to public domain? RIP humanity, seriously. The photographer would not have lost anything, but you guys lost your hard earned buck.

     

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  • Copyright penalties are not "RIDICULOUS"….. you are stealing someone's intellectuall property, someones, time, effort, hard work, art, schooling….. you are not stealing a replacable item, like a TV. It's SERIOUS. I have had my images stolen several times, and it is a terrible VIOLATING feeling. It got to the point where I stopped having an online art presence for over six years. 

    If anything the penalties are TOO LAX. 

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