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Summary:

The popularity of image sites like Instagram and Pinterest means more photo sharing — but also more copyright infringement. If we’re to avoid the bitter experience of the music industry, image owners should look to Dreamstime’s example of turning infringers into customers.

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We’re in the age of the image. Popular websites like Facebook, Tumblr and Instagram let users enter delightful worlds of pictures and express themselves with images of their own.

Photos everywhere mean more places for creativity and beauty — but not everyone is happy. Professional photographers are furious when they see people help themselves to their work without payment or permission. Why should these people use someone else’s labor for free?

It’s a fair point. Unfortunately, though, the solution to unlicensed images has often proved worse than the problem itself. As photos spread across the internet, bands of lawyers are springing up who offer themselves as hired-gun enforcers to image owners. When they find a target, they squeeze them for thousands of dollars and take a cut of the loot.

This is not some rare example. Major image owners like Getty possess image recognition software that lets them quickly detect unauthorized use of their images. The legal settlements they collect have become a major source of revenue.

So what’s wrong with this approach? After all, image owners have the copryight and users should know better. The problem is that, in most cases, there’s little connection between the harm and the damages. When a blog or a small business or a Tumblr user posts a picture, they don’t deprive the owner of thousands of dollars but are simply using an image that could, in most cases, be replaced with many others.

The culprits in these cases are usually careless or ignorant yet they are treated as willful criminals. The approach of Getty and others reflects the mistakes of the music industry in response to MP3s — failing to distinguish between average fans and professional pirates, and embittering a whole generation of users.

That’s why the copyright perspective of micro-stock agency Dreamstime is so much more sensible. Unlike other image owners, Dreamstime does not sic lawyers on people who like its photos. Instead the company, which claims to have more than 5 million users, responds by sending them a notice to take the image down or else to buy a license at the going rate which can be as low as $8.

According to CEO Serban Enache, this approach actually leads to better business.

“We want to respond to copyrighted images but we want to do it in a different, non-heavy-handed way,” said Enache in a recent phone interview. “This is very successful way of turning unauthorized users into customers. Once they learn of the license, they often obtain larger licenses.”

Meanwhile a Getty spokesperson said the company is not considering such an approach: “The DMCA [copyright] takedown process is not an adequate remedy by itself because it does not ensure that our photographers receive compensation for use of their images.”

This perspective seems misguided. While professional pirates deprive creators of their due, the typical photo infringer is not taking money from photographers’ pockets — they would never have received that money in the first place (I suspect that most of the money Getty collects goes to the company and lawyers, not to the photographers).

Finally, the reality is that photos aren’t worth what they used to be. We’re no longer in the days of darkrooms but instead live in a world where everyone has a camera all the time. Photos are increasingly more commodity than art.

The point is that, in the age of Instagram, Getty and others should save their big guns for the real bad guys and start treating casual infringers as potential customers rather than hardened criminals.

(Image by PLRANG via Shutterstock)

  1. Unauthorized use of an image dilutes its value to a potential licensee. Unfettered use of an image and the resulting familiarity would diminish an image’s uniqueness and commercial appeal to potential licensees. A licensee certainly wants some guarantees about who also uses an image and how it is used (associations). The author is asserting that a blogger, pinner or poster derives no commercial gain from an image’s use and therefor should not be charged for the image without considering the economic impact that the free use has on commercial value of the image and the creator’s income.

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    1. This is exactly the right point. The author is suggesting that Getty undermine the business that’s making significant money by diluting the value of its library for its real customers.

      This article doesn’t represent the “middle ground” at all – it’s just another ideological essay representing the outdated free content philosophy. JJR avoids an important point – even though everyone has a digital camera, and a digital platform, they *choose* to use others’ photographic work. Clearly, there’s more value in images than PaidContent realizes.

      And, let’s be 100% clear – Dreamstime is not converting “pirates” on any kind of real scale. Their infringement demands may seem more palatable at $8 (or more) per, but there’s no way that any volume of hobby bloggers is going to start regularly licensing generic stock photos at that price point. It’s curious that nobody asked them what happens when a publisher refuses repeated takedown demands.

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      1. You raise some good points, Jeremy. An $8 option probably doesn’t carry the dissuasive power to stop infringement or to encourage widespread licensing. Rights holders probably need a bigger stick than that.

        But I still find Getty’s model unpalatable. While people should obey the law (in this case copyright), if you enforce it too drastically you undermine it’s legitimacy.

        I’m not calling for some sort of mushy middle ground just because it sounds nice. I really think there must be an option between the legal shakedown and permitting infringement. Some sort of escalating penalties for repeat infringers may be the answer.

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  2. I got a letter from Getty Images demanding $900 for an image I had on my website. The image was from a so-called “royalty free” site. There is some room for negotiation with Getty, but not much. They went to $600, but I got it down to $200 with the help of a lawyer that specializes in defending against these “Getty Extortion Letters.” The lawyer said Getty sends out thousands of these letters. It’s become a great new revenue stream for Getty… and defense lawyers.

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    1. “Royalty free” does not mean free. It means that the usage license is a flat fee, not based upon the number of users or viewers.

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  3. A very interesting read, my business is built around the use of images, I accept people take them and share them so I use that to my advantage.

    May I add it does not matter what you do, if people want the picture they will take it. If Facebook for example had token system where by I could upload images and user could pay a few pennies to take a picture I would be a millionaire :) Paul – http://www.hu17.net

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  4. I like Dreamstime approach and if it works for them that’s great. But this idea that everything on the internet should be free and small businesses shouldn’t have to pay for copyrighted materials really bothers me. It’s usually in reference to skills of an artist whether they be a photographer, writer or painter, etc. It just shows the value our society puts on art. If indeed think photos are not worth what they used to be, that somehow the absense of the darkroom means anyone can do it–and that everyone has a camera–it’s somehow okay to steal–that is so sad. I suppose books are not really worth anything as well…after all, we don’t really need printers anymore and anyone can buy a pen or computer and start writing. Do you really think there is no talent behind the pen, camera or brush. If that is the case then take your camera and take your own photos to use in your blogs and on your pins. Get out your pens and write your own content instead of taking it from someone else. Please don’t use the ignorance is bliss defense.

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    1. Thanks for the comment, expochat. To be clear, I agree with you that the internet shouldn’t be treated as a giant free store. I’m a writer and it bugs me a lot when people take my work without permission. I just think we need some sort of middle ground between a free-for-all and draconian penalties (perhaps some sort of three strike system for repeat infringers)

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  5. Our software is nearly bullet-proof for music and image security because of the way or technology works. The image or music will disappear when the media checks to see if the user has permission to either store it on their computer or upload to a network. No one can stop screen grabs or analog dubbing from the source to a recording setup but those culprits would be the casual user more often than not. Stopping multiple unlicensed digital downloads and distributors from reselling music and images is what our software addresses.

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  6. Forgot to say that Dreamstime is a very good and affordable image solution and everyone should have an account there like I do.

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  7. Interesting post and a topic I, as a 20 + years veteran of the photo licensing world, have written a lot about on my blog. I also recently organized a panel around this theme during a trade organisation conference in Chicago.
    Companies like Google or Flickr ( with Google Images) have given the false impression that image are free to use. Social Media ( Facebook, Instagram, Twitter, Pinterest) has exacerbated this impression. However, they are not the issue. As you wrote, the real issue here is that the photo industry has done a very poor job in adapting to it’s new environment. It is desperately trying to enforce an obsolete and in adapted business model . This creates incredible friction to the point of complete rupture. People do not pay for images not because they do not want to but because it is incredibly difficult and time consuming.
    Companies like Stipple ( www. stipple.com) or Getty’s Post Usage Billing (www.picscout.com) offer new models. Stipple, for example, allows user to post images for free while creators get paid third parties interested in the traffic it generates. Getty Post Usage Billing offers social media site an frictionless approach to legally license images posted by their users. Chasing illegitimate users and offering them an option to pay is certainly a step i n the right direction ( albeit terribly time consuming) . Offering them the tools to easily, quickly legally use an image is much better.

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  8. Jeff –

    When you say “I’m a writer and it bugs me a lot when people take my work without permission,” the next question is… what is the dollar value of your pain?

    Your article implies that the dollar value is equal to the impressions you may have lost due to copyright infringement. So, if I re-post your article on my site, under my byline and it gets a thousand views, then I owe you something like $10.

    But that ignores the fact that I also stole your reputation as an expert on the subject and/or your unique voice in expressing a perspective. I have impacted your value as an author and your website’s value as a unique place to have access to you. Those values can and should be placed in the thousands. And if it takes a team of lawyers to protect you from thieves, that would be a good investment.

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    1. AlanZ, hmmm.. I’m not sure that a stock photo and a news article are exactly analogous (text takes more time and effort to create and consume) but I’ll go along with your argument.

      If a site begins reposting paidContent’s articles, it will diminish the value of the articles slightly but not much if it has 1000 readers. If the site also uses my name and implies I write for them, that will anger me but I suspect most people will recognize that the site is not on the up and up — so no great harm done. But it’s still not cool.

      But what we’re describing above is a true bad guy — someone who systematically hijacks the creative work of other people for their own gain. I don’t mind nailing these people to the wall. The problem is that I don’t want to do so through a legal system that doesn’t differentiate between a serial pirate and a careless or stupid infringer

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  9. does Fair Use extend to images?

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  10. “The problem is that, in most cases, there’s little connection between the harm and the damages. When a blog or a small business or a Tumblr user posts a picture, they don’t deprive the owner of thousands of dollars but are simply using an image that could, in most cases, be replaced with many others.”

    Sorry, that’s just such a false premise. I’ve invested in my equipment–cameras, lenses, computer hardware & software, accessories, etc–to the tune of tens of thousands of dollars. I create an image, not just pressing the shutter, but post-processing it, and registering it with the US copyright office. And you then tell me that someone ripping off my photo from my blog or website is not depriving me revenue? That’s a lot of crap!

    I’ve had one photo specifically that has been lifted from my site by two other commercial sites. One was in the US, who professed ignorance that it was not okay to use my photo without permission or compensation. But it’s okay for them to accept ads on their site to generate revenue. I threatened to sue if the photo was not removed and asked for compensation for the time it was used without permission, which I received. I discovered the same photo being used by a Brazilian travel agency and demanded the photo be taken down and compensated for the time it was used. So far, given the geographic issue, I haven’t been successful yet.

    I’m sure that if I plagarized your article, and used it as my own you’d be pissed and ask for compensation. So why shouldn’t photographers be given the same due as writers?

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    1. Rob, thanks for your comment. Yes, I am always pissed if someone plagiarizes my article and I don’t think photographers should feel any different. But what compensation should we receive? If the offending site is selling our article or photo, that’s one thing. But I question how much they’re making off the ads you described given that the banner ad business is a disaster right now.

      Again, if it’s a commercial site that steals photographs for profit, that’s another story. Likewise, for repeat infringers who have been warned — I’m ok tightening the screws on these people. Where I have a problem is the hired-gun copyright lawyers who don’t distinguish between real bad actors vs the stupid, lazy or careless.

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      1. Jeff, why should any professional photographer give someone a break because they’re ignorant of the law? I have no sympathy for someone who lifts one of my photos for their website or blog and has ads on their site. I don’t care how little they may make from those ads, the fact is they ripped me off. Ignorance is not a valid excuse.

        I’ve had people contact me after seeing a photo on my site or blog and ask to use it on their site for free with a link back to my site. If I think there’s not much commercial value in that image, I’ve done that. But I have no tolerance for people who just lift other people’s work without consent. Let the lawyers go after them. This is not like when Sony went after individuals a few years back downloading the songs they owned from Napster. Some of their tactics and the amounts they wanted were over the top. But most of us are individual artists and business people who deserve to be compensated. It’s not like many photographers are working on high margins. I say let the lawyers get what they can from these thieves–because that’s what they are.

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