While photographers will find unauthorized uses of their photographs in both print publications and on the Internet, Photo Repo focuses on Internet-based infringements because these are much easier to find thanks to the technology of reverse image search. With print, unless the publication reaches a national market, the photographer will most likely never know about it. Topics in this chapter include:
- Manually Searching for Your Photographs
- Using Copyright Enforcement Services to Search for Your Photographs
CHAPTER EXCERPT | ON REVERSE IMAGE SEARCH TECHNOLOGY…
Reverse image search technology was developed into a marketable product by the Canadian company Idée and launched in 2008 on the website TinEye. Its intended customers were copyright and trademark owners who wanted to track where their works were being displayed. Google introduced its own version of reverse image search in 2011, and the technology is now available on a number of service provider websites and search engine platforms such as Bing and Yandex.
The idea of reverse image search is to use an actual image file, not text, to instigate an Internet search designed to identify the contents of the image. For example, if you find a photograph of a beautiful location you might like to visit, but the location is not identified, a reverse image search might be able to identify it. Likewise, if you have a photo of a bird but do not know what type it is, reverse image search technology might be able to identify the species. Not only is the subject matter identified, but search results also list websites with information about the subject matter, and even websites where the photo is displayed. At some point an enterprising photographer realized that if he searches for his own photos, he can find websites where they are currently being displayed. If a website owner did not properly license the photo, he has nabbed a copyright infringer.
CHAPTER EXCERPT | ON MANUAL SEARCH FREQUENCY…
How often you decide to do a manual search for your photographs depends on the amount of time you can spend on the project. It takes me about two weeks to search for my 13,000 photographs and prepare and send my demand letters (typically 40 to 50 letters). Responding to phone calls and emails from infringers and preparing tax documents and invoices in order to get paid takes another couple of weeks. I do my searches every six months, so in all, I spend around two months a year on copyright enforcement, work that yields between $20,000 and $30,000 per year.
I’ll never know how many of my photos are uploaded and taken down by infringers in between searches, and I’m sure it happens. However, I find so many articles that are years old, and even event postings that are still up months, if not years, beyond the event date, that I feel confident in saying that much of what is posted on the Internet stays on the Internet permanently. In fact, a common marketing strategy for businesses is to constantly post new content, for the more pages indexed by a search engine, the greater the chance of someone finding the website, even if it is via a year-old event posting. With 13,000 photos, I’ll stick to searching every six months, but if you have only a few hundred, you might want to check every month.
CHAPTER EXCERPT | ON COPYRIGHT ENFORCEMENT SERVICES…
Copyright Enforcement Services (CESs) are one-stop copyright infringement shops. They will search for your photos, send out demand letters upon finding matches, broker settlement agreements with infringers, and turn over uncollectable cases to attorney partners. Most even have collectors and attorneys in select foreign countries. Some charge an upfront fee per month for monitoring your photos, but you have the option to pursue the infringements on your own. Others monitor all of your photographs for free, but insist on doing the collecting themselves since that is the only way they make money on the deal.
The first thing to understand is that, just like you, most CES employees are not attorneys. Their work involves analyzing whether an infringement is worth pursuing, determining a settlement fee, preparing and sending a demand letter, and then assuming the role of bill collector (in fact, many are former bill collectors). After reading Photo Repo, you will know as much about copyright enforcement as they do, and you can do this work on your own without having to split the settlement fee (the typical split is 50-50, but fees vary per CES).
If a CES cannot collect, it turns the case over to a partner attorney, and in most cases the split becomes even less favorable. The attorney usually gets 40% while the remaining 60% is subject to the original agreed-upon split between you and the CES. If a lawsuit is filed, the CES fronts the expenses, all of which come out of your share of the split should the case be settled. If the case is unsuccessful, you do not have to repay the expenses. (This handling of expenses is the same agreement you will have with your own attorney, provided he works on contingency.)
To demonstrate how much you stand to loose by going through a CES’s attorney, let’s consider a $5,000 settlement that incurs $500 in expenses. With your own attorney, the typical split is 60-40, with you getting the 60%. Thus, the attorney gets $2,000, leaving $3,000 for you minus the $500 in expenses, a net of $2,500. With a CES, the attorney gets $2,000, leaving $3,000 for you and the CES. If the split is 50-50, the CES gets $1,500 and you get $1,500 minus the $500 in expenses for a total of $1,000. That’s $1,500 less than you stand to make with your own attorney.