Creative Works Infringement and Settlement
Read the true story and find out how to fight for your rights!
As a photographer you shoot a ton of photos and often you don’t keep track of them. Then one day, you are confronted with the fact, that you see your work being used without permission for commercial purposes.
What are you going to do now? How does it make you feel, when someone used your work commercially without authorization and compensation? With other words – your work is infringed.
As Gary Cole once said: “If the infringement isn’t too egregious, you can always take it as a compliment and use it as a promotion piece… as long as you’ve been given appropriate credit.” Well, that wasn’t the case with Shuttereyeimages Photography’s work.
How did we found out that we were infringed and what was to do next?
We discovered, by using the image track software Plaghunter, that the images were used elsewhere and were modified by full removal of watermarks and URL. The Plaghunter software sent out a warning message, that registered photos showed up as duplicates on the web. Time for action! Documenting the online evidence of the infringement was done quickly. In a dash, an IP lawyer was contacted to advise us regarding what to do next in this situation.
“If the infringement isn’t too egregious, you can always take it as a compliment and use it as a promotion piece – as long as you’ve been given appropriate credit.”Gary Cole
How to deal with a non-responsive infringer and what the IP Lawyer can do for you as a photographer
To pursue this case the IP lawyer contacted the infringer (whose name remains disclosed) and asked what was the motivation to use to modify the images and use them without consulting the originator. If they had time to spend to alter the images but had no time simply to connect with the artist was this their common practice? Of course, the infringer was surprised by our capricious call, and the discovery by Shuttereyeimages Photography 🙂 After several letters from the IP lawyer to find a solution, nothing happened. The infringer took the time, hoping we would have given up on pursuing the case.
It took a long summer break and new legwork done by a new IP Lawyer, finally the infringer responded to the correspondence. By that time the infringer knew that the images were registered at the U.S. Copyright Office and that we were serious about the claim and legal process, which intended to pursue according US Code Title 17 Chapter 5 – § 504 – Remedies for infringement: Damages and profit. This made the infringer inclined to collaborate with us. It was a long journey to get a dialog with the infringer, but being persistent started paying off.
how to copyright infringement
In the dialog with the infringer, it became clear that the infringer thought, that they were entitled to use and modify photography works without financial compensation, because their contact (provider of the photo material) claimed to have all rights 🙂 The final result of the mediation talks was that the IP lawyer and infringer were able to settle out of the court the infringement case for Shuttereyeimages Photography.
These days copyright infringers can be all sorts of individuals working on their own or work for large companies. From news outlets, marketing companies, copy writers, radio stations, tech companies and even other photographers. What they have in common is, that they miss the creativity to come up with something new and unique. On the other hand, companies and artists need to update and educate themselves about the current copyright laws.
“If a creative person steals your idea, he’s killing his creative ability, if he steals your art, he’s killing his art, if he makes it available to the world, it won’t create the impact you could have created, because it wasn’t from the right source.”Michael Bassey Johnson
Lessons learned & how to protect your creative works
- First of all the photographer always has the owner rights of an image
- Work with a model release and have it signed by the parties involved (A model release will provide the model more rights than working without – See Nino Batista comments below)
- When giving out proofs, make sure that the client knows, that they are only for review and not for distribution
- Make use of services provided by image tracking software such as Plaghunter
- Protect your images with watermarks and do not upload high quality images (low res preferred) in the public domain
- Take action when your work is infringed, don’t be shy to go for it to protect your work – nobody else will do it for you
- Inform the infringer with a cease and desist letter
- Contact an IP layer to help you (this can be done on a contingent fee base – ask for the possibilities)
- Try to settle out of court to minimize the costs
- When no settlement out of court is possible, be prepared to pay for additional costs
- When settling out of court, often an NDA will be required by the infringer to make the deal complete 🙂
- Wait for the mail to receive your the settlement check
- Now you can continue to shoot amazing images!
I know it’s a long list, but you have to stand up for your rights as an artist, painter, writer, musician, fashion designer or photographer. Way to many companies and people think they are entitled to grab your work and think that you simply work for free – It’s time to change that!
Shuttereyeimages Photography Copyrights
What Nino Batista has to say about Copy Right Infringement
Houston, Texas, 3 May 2017
Models and photographers, I am going to address this as objectively as I can, and attempt to dispel the myths and convey the facts on the subject.
The copyright laws regarding visual art and/or photographs are in place to protect an artist’s right to make money from his or her work. Commercial use is how a some photographers (generally) make money on their photos, and copyright law (and all the painfully detailed aspects of it) exist to ensure an artist is appropriately credited for his or her work in the moneymaking sphere (business).
It can be obscenely complex, but the most salient points break down like this:
• Copyright law, by default, favors the artist who created the work in question. In other words, if there is no contract or release detailing what *you* can do with the photos, the photographer controls the rights to them and a court of law will favor the photographer if it comes down to a lawsuit regarding use of the photographs.
• Just because you are the subject of the photographs, it does not mean you have any legal, commercial rights over them unless specifically outlined in a contract or release. Said another way: Releases protect *models* more than they protect photographers. No paperwork? You control nothing as a model. You do *not* own the copyrights to photos just because you are in them, including and especially if the photos were created in the context of “photographer scheduling a model to create images”.
• 99.9% of commercial work that you are hired for and paid to do, as a model, affords models *no* rights or control of the images that are created from the job.
• Altering a photograph of *you* that was taken by a photographer is *not* illegal in and of itself, and therefore not subject to copyright laws and/or financial compensation/damages stemming from a lawsuit. However, using (posting) the altered photograph of you on your social media marketing *can* be considered “commercial use” and can be contested by the photographer in court. Again, no paperwork? You have no control over the commercial use of the photos.
• Using a photograph of *you* that a photographer gave you that *you* modified for commercial (selling) use *is* illegal. Even if the photographer doesn’t have an official, government issued copyright for the image(s) in question, copyright law favors them by default. You can be sued, and the photographer can make a decent case against you despite no paperwork being in place. You’re making money off their work without permission, and the fact that the photos are of *you* is not relevant in copyright law. (did I mention contracts / releases protect models?)
• Photographers use social media for marketing. They often go out of their way to trade shoot with a model who has a large social media following in hopes of getting their work in front of a larger audience, trying to expand their reach and get more jobs from working with you. When you modify their photos and post them, you are “ruining” that photographers artistic style, vision and undoing the work they put into it. When your social media following sees your modified photo, they are *not* seeing the photographer’s work – it is being misrepresented but they are still being credited. A potential new client for them could see it, decide they don’t like it, and move on – all because you modified it. Thus, the photographer loses a potential lead. *THIS* is the main problem photographers have with Instagram filters on their work, but also any modifications a model makes arbitrarily because “it looks cool” to them. It doesn’t look cool to the photographer, it freaks them out because it is misrepresentation.
• If you modify and use a photographer’s image that *is* officially copyrighted for commercial (for sale) use, you are in direct violation of the law and can be sued.
• You do *not* have a legal right to demand the unedited versions of photos that a photographer takes of you unless explicitly expressed in….yep…a contract or release.
• Heck, as a model, you do not have *any* rights over the photos at all unless explicitly expressed in a contract or release. (there are exceptions to this, sort of, that have more to do with ‘malicious intent’ and / or misleading manipulation of a model in terms of sexually explicit photographs that were taken without knowledge or consent of the subject in the photos – and then some – but that is another topic for another time – copyright law is somewhat flexible and open to interpretation, and things like “decency”, “exploitation” and “intent” can override everything in certain egregious situations.)
ALL THAT SAID…
• Almost no photographer will ever full-tilt sue you for posting their image, even if you’ve altered it, because it is not worth the time and money to bring the matter to court. It is, however, *VERY* bad form and considered an insult to modify a photographer’s image without their permission / consent. The photographer will likely never work with you again, and since the industry is a chatty bunch, word will get around that you disrespected a photographer’s work by modifying it and posting without permission, thus making other photographers not want to work with you. (NOTE: asking permission to modify a photographer’s image is still very likely going to lead to a simple “No.”)
• Modifying and selling a commercial photo that *is* copyrighted, even if you were paid to be *in* the photo (as the model), is blatantly illegal and a lawsuit or DMCA takedown notice will show up in your inbox pretty quickly after.
ALL *THAT* SAID…
• Photographers can be overly whiny about their images being modified, and an inordinate amount of photographers don’t even understand copyright law themselves. The bottom line is, photographers are *insulted* when you change their work without getting their permission. They aren’t going to sue you, almost certainly. And yes, some lose their cool and freak out and throw tantrums and empty threats at you, the model, in some ridiculous tirade conniption fit – and yes that’s annoying. The vast majority of these meltdowns stem from a photographer feeling powerless and wanting to convey the idea that you ruined the work they spent time creating.
• Some photographer’s photos of you, you’re not gonna like. Hell, they could be simply terrible, and you regret ever shooting with them. Or you simply had a bad day on set and don’t like the shots. This is normal and expected in the industry – it happens. Modifying a photographer’s shots because “they are really bad and I don’t like how I look in them” is still bad form, and potentially illegal (depending on the context, as outlined in all the points above.) Take those bad shoots on the chin, and move on to the next one. (NOTE: professional commercial models almost never see the shots in question until they are published and finalized; it’s the norm if you wanna be a paid, pro model). This doesn’t totally excuse really crappy photos, but it happens to all models at some point. Roll with it, and move on, or you’ll end up picking a fight with someone about something you cannot legally win anyway, and causing a scene unnecessarily. Often, these particularly “bad” photos are created by brand new amateurs, and these well-meaning newbies also tend to have little knowledge of how photography copyright works, and they tend to lose their cool and post angry diatribes on Facebook about how some “rude” model changed their “artwork”, thus causing a s***storm of comments, shares and otherwise unnecessary nonsense that could have and should have been avoided. Your best work is ahead of you; move on.
• Asking a photographer to take down an image of you (from their social media or website) because you do not like it, do not prefer it over others, or regret having shot it is *not* your legal right, unless you have explicit expressed right to do so in – guess what – a contract or release. Most photographers will cooperate with your request to take down photos you don’t want online, but if they do not, you have no legal recourse against them (unless – do I have to say it again? – you have a contract or release declaring you can). Do not shoot any content / genre you are not comfortable shooting and “owning” for the long term. Further, if you have been paid to do it and there is a release in place declaring such, you can do literally nothing to have the photos removed (technically).
I do recommend, however, that photographers do their best to adhere to your requests and remove these “offending” photos if they were created as personal projects / TF as industry chatter is, as I said, quite rampant, and models will all know very quickly that you refused such a request. (all problems can be avoided by making better decisions and having better communication *up front* before shooting.)
Most of the endless stream of screenshots that people post regarding the modification and/or “illegal” use of a photograph by a model are wrought with misinformation, half truths, and a boatload of “freak out”.
Photographers, chill out. You have rights, yes you do. Exercise those rights, but calm the hell down when communicating your reasoning to a model. You get more with sugar than with salt.
Models, know what you’re getting into in this industry. You have basic human rights like anyone, but once your image is captured in a photo, what control you have over it varies wildly depending on – one more time – contracts or releases in place.
Time to adult. Let’s make our industry a cooperative one!