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Notes on Copyright
25 September 2014
Copyright infringement is a topic that just won't go away. But in the last month, the dust has been kicked up more than once. So this may be a good time to review the issue and what you can (and should) do about it.
NATIONAL GEOGRAPHIC
This morning, for example, we read What happens when National Geographic steals your art?.
Barrett Lyon answers his own question. "They throw lawyers on you and threaten you to take almost nothing in return," he writes, "because as a starving artist, you'll be unable to pursue them legally and the maximum damages are so low that it's not worth pursuing."
National Geographic used his image "without my permission" in 100 Scientific Discoveries that Changed the World and in the book The Big Idea. The company subsequently acknowledged Lyon's claim, "agreeing that they had infringed on my work (several times in the magazine)."
Lyon wasn't happy with the company's attempt to resolve the issue, let's just say. It's worth reading the piece (and the comments) to see who you side with.
BUGGED
Frequent contributor Aaron pointed us to Alex Wild's story on Ars Technica detailing his frustrating experience dealing with infringers. In Bugging out: How rampant online piracy squashed one insect photographer, he notes:
The U.S. copyright office estimates the median cost of litigating an infringement to a conclusion is $350,000. Since the typical infringement only costs me a few hundred to a few thousand dollars of lost revenue, why would I risk bankruptcy on the hopes of a distant payout? The math doesn't add up.
Fortunately there are things you can do short of a lawsuit, as we explain below.
HUFFINGTON POST
And then there was that item in Around The Horn earlier this month in which EyeEm teamed up with the Huffington Post, which is happy to publish your images without compensation. EyeEm theorized, "Your photos will always have attribution along with a link, so the exposure that you'll be getting is immense."
Whenever we see the word "exposure," we read "exploitation." If the Huffington Post wants to publish your image, why shouldn't they compensate you?
As for the benefits of exposure, well, write down the name of one new photographer whose work you discovered from something they did just for the exposure.
But even if you can name someone, note the fine print in the Huffington Post deal: "You will remain the copyright owner of your image and where possible will be credited when your content is used by HuffPost."
Where possible? Where isn't it possible to include a photo credit?
ONE APPROACH
So what can you do, apart from watching what you're stepping in? There are a few things that should be routine if you publish on the Web.
It's essential to include copyright information in the Exif header of all your images.
It's essential to include copyright information in the Exif header of all your images. We provide a little utility that does just that (see the Resources section below for more information) but most ingest software does it, too. And make sure those copyright tags stay with the image if you use software to optimize the image for the Web.
As photographer Jeff Schewe pointed out to us years ago, removal of that information would prove use wasn't an accident or mistake, as the National Geographic attorney has it.
So it's worth doing because it can be removed.
Software that optimizes images for the Web can preserve copyright information. So a company that claims its optimization software routinely strips headers isn't making a valid defense. It's the policy of also stripping copyright information that's damning. They have a choice.
When you use the Exif header's copyright tags, Photoshop displays a copyright warning on images. Anyone opening the image to alter it knows right away that they are working on a copyrighted image.
SOCIAL MEDIA
Aaron pointed out that some social media sites like Facebook strip copyright information from anything you publish on their site. A recent survey tested social media sites "to find out if embedded metadata is stripped-off while an image goes through a Social Media system" and published the results.
Why would a social media site strip copyright information? Argus Labs suggests, "The more content that can be shared, the better. To get as much content (and thus traffic>page views>ad views>profit) as possible, they've decided to just forget about such a ridiculous thing as 'copyright'."
Facebook's terms, for example, say:
For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
In the name of sharing, that policy encourages copyright infringement. So Facebook (and probably other social media sites that encourage the sharing of images) clearly isn't a good home for copyrighted images.
INFRINGEMENT
So what should you do if you discover an image was used without permission on the Web?
The first thing you should do is report it to the site publishing it. Our review images occasionally have ended up on craigslist in a For Sale ad. They're immediately taken down when we protest to craigslist.
The infringer is almost always insulted, as if we broke down their door and handcuffed them. We're the one with the broken door, though, so we don't sympathize. Ignorance of the law never was an excuse.
But for big boys like National Geographic and the Huffington Post who know better, a more profitable approach than suing them or engaging their legal staff might just be to bill them for use of the image. If they don't pay, you can always let a collection agency touch up their credit rating.
RESOURCES
The more you know, of course, the better. Here are a couple of stories we've published here:
- Matinee: 'The Copyright Zone Guys: 2014 Update'. This B&H video (and it's companion, a link to which is in the story) are heartening. These guys tell war stories but also offer some sound advice.
- Subscriber Benefit: Copyrighter provides a tool for getting copyright information into your images painlessly. Most ingest software offers something similar.
And below we've reprised a story we wrote in 2003 on the subject. But just like then, we doubt this will be the last word on the subject.
Copyrighting Your Images
Putting a copyright notice on your images doesn't actually mean you have to layer type over the image. In fact, you can make it part of your regular image editing process. And it will carry some weight, if you do. The Exif header of your JPEG image that contains exposure information also has a tag called Copyright Holder for asserting copyright.
The Copyright field, according to the specification:
Copyright information. In this standard the tag is used to indicate both the photographer and editor copyrights. It is the copyright notice of the person or organization claiming rights to the image. The Interoperability copyright statement including date and rights should be written in this field; e.g., 'Copyright, John Smith, 19xx. All rights reserved.' In this standard the field records both the photographer and editor copyrights, with each recorded in a separate part of the statement. When there is a clear distinction between the photographer and editor copyrights, these are to be written in the order of photographer followed by editor copyright, separated by NULL [in this case, since the statement also ends with a NULL, there are two NULL codes] (see example 1). When only the photographer copyright is given, it is terminated by one NULL code (see example 2). When only the editor copyright is given, the photographer copyright part consists of one space followed by a terminating NULL code, then the editor copyright is given (see example 3). When the field is left blank, it is treated as unknown.
Image editors and catalog programs often allow you to edit the Exif header. And if the software can be automated, you can fill in the field with a click of your mouse.
We'll quibble a bit about the format of the statement. Date usually precedes owner. We prefer "Copyright 2003 by Mike Pasini. All rights reserved." The copyright symbol is an acceptable replacement for the word. Our preferred format makes clear the year of publication (copyright isn't eternal) and the owner.
If you are scripting this in Photoshop, for example, you can create an action to pull up the File Info dialog box and, in the General section, flag the Copyright Status field as "Copyrighted Work." Then enter your copyright statement in the Copyright Notice field. Photoshop will then display a copyright symbol in its title bar for that image whenever it is opened.
Under the U.S. Copyright Act, your image is covered whether or not a copyright notice is attached. But attaching the notice -- as well as registering your images -- has some powerful advantages.
Once your copyright statement is embedded in your image's header, it travels with the image. If you see your image used illegally, check the metadata, where your copyright statement should be. Stripping the metadata from the image data is fairly persuasive evidence that infringement was committed willfully. If the court agrees, it may increase the award of statutory damages up to $150,000. Even if the infringer wasn't aware they were infringing your copyright, the court can award $200. And, at the court's discretion, you can recover court costs and attorney's fees.
In cases where proving actual damages is difficult (it requires proof of the infringer's gross revenue), the statutory damages provision gives some teeth to the law. And metadata flosses them.
Next time you're waiting for the phone to ring, record a copyright action. It may, since it strongly encourages settlement, save some legal action down the road.