FAQ: So Your Company Has Been Found Using Alex’s Photographs Without Permission. What Next?

In August I hired ImageRights International, a reputable copyright enforcement agency, to assume the routine handling of commercial infringements of my professional work. There are a lot. Starting in September 2014, companies began receiving letters from ImageRights’ partner law firms seeking to resolve these infringements on my behalf.

Q. Why are you doing this to me?

Don’t take it personally. I stopped being angry about most of these cases a long time ago. The reality is that handling copyright infringements like yours with simple cease & desist letters was costing me thousands of dollars and hundreds of hours per year. The more time I spend on infringements, the fewer new images I add to my portfolio, and the more I have to charge my regular clients to compensate.

I handled these cases myself for over ten years, usually demanding nothing but image removal, and I am tired of it. The problem is growing worse each year, and I no longer have the time to bear the costs of your infringements.

ImageRights’ system is efficient. Submitting infringements to them takes much less of my time than researching and sending a DMCA takedown notice. ImageRights offered me a way to get a significant part of my life back, and I took it. The hitch is, the legal teams cost money. Although I am also paying them a service fee, my payments aren’t enough.

Q. Are you bluffing? Will I be sued if I ignore the letters ?

I am serious. You may wish to consult with an attorney to evaluate your situation.

Q. You are wrong, I did license that image, and I resent being accused of something I did not do.

Goodness! My heartfelt apologies for my mistake. If you forward the license agreement or receipt to my lawyers, we will drop the case and I will fully refund your original license payment, while you may continue to use the image(s). I have made an erroneous accusation before, and I felt terrible about it.

Q. Why are your lawyers asking so much? Images on your site license for only $100-$400.

Paying my fee alone still leaves me on the hook for legal costs incurred by your company’s actions. Lawyers cost more per hour than I do. Our government’s copyright enforcement framework treats infringements as civil matters that generally require legal counsel. It is not a good system. Fortunately, there are proposals in the works to replace it with something less expensive, but until meaningful reform happens, it is what we have. I don’t like it either. Write your congressional representative.

Also, infringements have to cost more than regular license fees. Otherwise there would be no deterrent, and no point to copyright. Imagine if the penalty for stealing groceries was just that you’d have to pay for them when caught. If you aren’t caught every time, you’re better off just stealing by default.

I am not getting rich doing this, and I would have preferred it if your company hadn’t used my photography in the first place.

Q. It’s just a photo! Surely a photo can’t be worth that much.

It is not “just a photo.” Photography is how I supported my family for years, and photographs incur significant time, travel, equipment, and research costs. I did not travel to rural Argentina, spend weeks processing images and identifying the animals, and purchase $10k worth of camera gear to give your company free marketing materials.

Q. But I have found a lot of other companies using the image, too! You can’t single me out.

Many companies license my work to display on their websites without a distracting copyright mark. You may have seen the images on one of my client’s sites.

Also, copyright enforcement is nonexistent in many developing countries. I have no way of dealing with infringements on the part of Vietnamese companies, for example, but they are still visible via Google.

Q. Why aren’t you answering my messages?

I am contractually obliged not to speak with you. Once you have settled the issue with the lawyers, then we can talk. Again, it’s not personal.

Q. People receiving Getty’s notorious demand letters just ignored them, and most of them were fine.

I am not Getty and my lawyers are not Getty’s lawyers. Considerably more effort and attention went into researching and vetting your case than went into Getty’s ham-handed, largely automated process.

Q. Why didn’t you just contact me directly? I would have removed the image.

There are dozens of you every month. I don’t have that kind of time.

Q. What if I just remove the image?

Since you already used the image, you owe license fees. Plus, I’ve already incurred legal costs and I would like those back.

I probably shouldn’t tell you this, since it is legal-ish advice and I’m not a lawyer, and since it is against my financial interests to tell you, but if you plan to deal with the letter by ignoring it, you may be best off not removing the image at all. If you remove it after receiving notice, then the legal team knows you’ve read the notice and have knowingly chosen to duck the fees. Should we end up in court, a willful infringement may put you on the hook for substantially more damages than you would face from a blissfully ignorant infringement.

Q. How do you decide to enforce a case?

If the infringement appears on a personal blog, forum, or web page, I usually ignore it. If I have time, which I generally don’t, I may issue a takedown notice to remove infringing copies from personal sites most likely to feed downstream infringements. If the infringement occurs on a corporate or organizational webpage, product, broadcast, or similar, even if it is just a small internal image, I generally submit it to ImageRights.

Q. I am hiring my own lawyer, so there.

All the better. Lawyers are trained to deal with these situations. You and I are not. Things will go more smoothly with lawyers.

Q. You are a horrible person, and I will tell everyone how horrible you are for this.

Please do. A reputation for aggression may deter future infringements, and that will save all of us a great deal of trouble going forward.

A few links:

– U. S. Copyright Law

– Bugging out: How rampant online piracy squashed one insect photographer At Ars Technica, an article I wrote addressing my perpetual copyright problems.

– Before I started this process, I posted this notice on Google+ as a last ditch attempt to avoid the lawyers.