As a photographer, protecting yourself against image theft is critical because there are a number of factors working against your earning capacity. These include:
Many buyers (and consumers) do not understand how intellectual copyright works and often think nothing of grabbing an image from a photographers portfolio and using it in their campaigns.
But how do you know if someone is using your images illegally?
You can either go to Google and do a one-by-one reverse image search for each of your photographs or you can upload your content to ImageBrief as an Explorer Plus or Premium Member, have your images for sale as well as theft monitoring for up to 50,000 images.
Image theft monitoring is a core benefit of the ImageBrief platform and our partner, ImageRights talked to Sydney based professional photographer, Sheila Smart to find out about her career, infringement to the point of irony, and how she chooses to combat the thieves.
Could you give us an idea of your career history?
In the seventies, I worked in a law firm in Toronto, Canada specializing in intellectual property and trade mark law. After working many years with a large law firm in Sydney, Australia as a personal assistant to a senior corporate partner, I decided to become a professional photographer in 2006.
The legal background has certainly come in handy when couching letters to infringers and particularly dealing with the infringer’s attorneys. Throwing in a couple of “without prejudices” and “due diligences” has worked wonders and they realise that I know what I am talking about!
What lead you to photography and the type of work that you do?
My interest in photography began with my late father. He was in the Royal Navy and had the opportunity to visit exotic places that I could only dream of when I was a child. I have many of his black and white prints of African tribes which he developed on board ship. I used to develop my own when I lived in Canada but the closest I get to chemicals these days is in the 220 preservatives in a glass of Aussie chardonnay sitting on my computer desk while I process my images through Adobe Creative RAW.
The advent of digital cameras sparked an interest again in 2000 and I sold all of my old gear and bought a little Canon Ixus, followed quickly by a Canon G2. I then paid an enormous amount in those days for a Canon D60 which was 6 megapixels with terrible ISO! I now have a Canon 5DIII plus enough L lenses to keep me going for a long time.
Much of my early work was capturing candid shots of people in the city of Sydney. One particular image of private schoolgirls in their hats won me the US based Black and White Spider Awards Photographer of the Year in 2005, and People category.
What are some of your past experiences with infringers?
There have been several ironic infringements over the years. One stands out immediately. I found one of my images of a sulphur crested cockatoo in flight on the banner of the Facebook page of a self-professed witch, psychic and mystic in Canada. I first left a polite message asking her to please remove the image as it was copyrighted and she had not asked for permission to use the image. In her reply she argued that she could publish whatever image she liked on her Facebook page and I could go jump … or words to that effect! I sent her a link to Carolyn Wright of PhotoAttorney’s page on copyright infringement pointing out that she was indeed infringing my work. Her response was somewhat hysterical and further amplified by her relatives and Facebook friends equally frothing at the mouth. Owing to the fact she refused point blank to remove the image, I sent Facebook a DMCA takedown notice which was promptly enforced, only to be followed by more abuse from the infringer.
I suggested to the psychic that she was the author of her own misfortune and if she had responded to my first request with an apology and a request to license the image, I would not have had to resort to sending Facebook a DMCA. I also put forward for her consideration that as a psychic, she should have seen this coming!
She decided to consult a Facebook Help Page to ask the advice from fellow Facebook folk and again published the image. I sent on final DMCA notice to Facebook. Some people just do not learn!
On another case, a few years back, I found via Google Image Search, that my image of a bicycle silhouetted in shadow was being used by a UK police department brochure advising the public on how to prevent bicycle theft. When I contacted them, they were most indignant and insisted that they would never infringe copyright .They first suggested that the image must have been licensed to them by one of my agencies. I had previously checked my sales records before contacting them and confirmed that no such license was issued.
They continued to be adamant in their claim that the photograph was legitimately obtained. The graphic artist responsible for creating the PDF brochure was no longer working for the police department (isn’t that always the case?!) and as they could not find any documentation, surmised it must have been a “cash sale”. Yeah right. In the back of a pub on a Saturday night “wanna buy an image of a bike going cheap!”
As I was getting nowhere, I then asserted that I would take this case to a higher authority if no resolution could be found. While I never mentioned the media (I am sure the Murdoch press would have had a field day with “police nick photo”), I am sure that it was in the back of their minds as shortly after, I was contacted by a separate individual from whom I had been dealing with on the force. They asked how much I would like to be compensated for and finally paid about ten times more than had they licensed the image legitimately in the first place.
However, nothing was more ironic than when I found one of my images on the front cover of a Romanian book entitled “Plagiarism” … but in Romanian of course. The publisher was most apologetic and paid what I asked (1,100 euros) without any equivocation.
Generally, I have found the responses from infringers fall into three categories.
- The first is the positive one where you get an apology and a request for a retroactive license;
- The second you get absolutely no response;
- Third you get “but I found it on Google so it must be free” and/or “but there was no watermark so it must be free”. The latter is the most difficult as they just do not understand that images are copyrighted, that watermarks are not a legal requirement, and unless it is clearly marked in the public domain, then one can assume that you have to pay a photographer for the work. In the case of the last two examples, I typically refer them to my attorney if I deem it worthwhile.
What were your initial reactions when you first found your work infringed and what were your initial steps to deal with the problem?
That was such a long time ago and long before the advent of ImageRights. Early on I did get some assistance from a retired IP partner of the law firm I worked for in Sydney and he was most helpful pointing out my rights under Australian copyright law. Unfortunately under Australian Commonwealth law, there is no deterrent as one can only receive what one would have initially invoiced had they correctly licensed the image in the first place. You can claim damages, however, if you can prove the act was willful in that they removed the watermark or knew that the work was copyrighted.
Through my Sydney attorney, Peter Knight of Banki Haddock and Fiora, I pursued an Australia based travel company who published my work without the benefit of a license on three of their websites with my copyright notice clearly watermarked on the image.
Before I passed it over to Peter, I asked them why they thought it appropriate to publish an image along with the watermark. They explained that they had left my watermark there deliberately “to give you exposure”. I reassured them that I had 13 million hits on my website and I did not need that kind of exposure. They settled the matter three days before it was to be heard in the Federal Court.
The Australian Broadcasting Corporation mentioned this case and interviewed me in a segment on copyright infringement on the ABC News https://www.youtube.com/watch?v=KInIU6y_fFY.
Because of my legal background and the past and continuing experience in dealing with infringements of my work, I only refer matters to my legal advisors as a last resort. I am fairly successful in pursuing them myself and am not intimidated by infringers’ attorneys or insurers. I am sure that photographers do not realise that these days, many companies are covered by public liability insurance and so I always suggest to the infringer that if they have public liability insurance, then to pass the correspondence on to their insurers.
They have much deeper pockets than the infringer! I do recommend Leslie Burns of Burns the Attorney who is based in San Diego. She has been an enormous help to me over the years.
What tools do you most like about the ImageRights service?
ImageRights saves me a lot of time by doing the searches for me and in particular, the excellent case management system. Before ImageRights, I just gave up on images found on European websites as they were just out of reach. My one regret is that I was not aware of ImageRights when I tried to pursue a company in the United Kingdom which used seven of my images on fridge magnets and other commercial products and there was nothing I could do about it. UK law firms are just so expensive and generally will not take on cases unless the claim was over 10,000 pounds. Before ImageRights, I never found any UK attorneys who would work on a contingency basis. I did check out the UK small claims court but living in Australia some 12,000 miles away, it was just all too hard!
In less than a year I have seen the results of ImageRights. I joined in April 2016 and they have already settled four cases which were won and paid, have settled two more cases with outstanding payments and 24 active cases. While I had registered a dozen or so images in the past with the US Copyright Office, the Integrated USCO Registration Filing System of Imagerights is brilliant and super fast. I received the certificates from IR in less than two weeks whereas it took about six months previously. So I do highly recommend ImageRights as it does allow photographers to get on and do what they do…take photographs and allow ImageRights to do what they do best – pursue infringements.
Sheila Smart Photography, Sydney, Australia
21 December 2016
Sydney professional photographer, Sheila Smart has been published worldwide and has exhibited her work in London, New York, and Sydney. Sheila won the Societies of Photographers – Traditional Portraiture International Society Photographer of the Year 2008 for her portrait of an Australian aboriginal street performer.
Her current projects include converting her photographs to digital impressionist paintings, using Adobe Photoshop special filters, which she sells as framed and canvas prints on Pixels.com. She is using innovative techniques to transfer her work to items such as bespoke duvet covers along with matching cushions. Sheila Smart licenses her work through her e-commerce site http://sheilasmart.photodeck.com/ and can be contact via her ImageBrief Personal Marketplace.
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