Infringement in the New Photography Era, Part I

Creative works in the United States are protected by the Copyright Act of 1976. In a nutshell, the Act says that when you create something, you own the rights to use it, and others cannot use it without your permission, (excepting certain Fair Uses). The Act provides remedies in the form of financial penalties when someone uses your work without permission, which is called copyright infringement. (Copyright Office, Photo Attorney, etc). In fact, it was Photo Attorneys guest post on A Photo Editor that dragged me back into copyright territory.

Today's environment has made infringement much more common.

  1. The internet and prevalent digitization of works have made it easy to share cool stuff widely.
  1. The continued lack of understanding about, sympathy for, or respect in intellectual property rights outside of professional circles, trivialize intellectual property theft.

These two factors mean that lots of people have the ability and the will to infringe on copyrights.

I've found my images in use on website. In each case, I contacted the site owner, and notified them that while I was flattered they'd used my image, and appreciated the photo credit, I make my living from my images. In the case of sites that are for profit, I proposed a reasonable license fee. For non-profit sites, I proposed a zero-fee license, to formalize things, so it doesn't look like I don't care about my copyright.

I don't know where I got the idea, but my brain says that if I don't vigorously pursue any infringement of my work, then any infringer that I end up taking to court could point to a series of uncontested infringements and reason that I was not interested in retaining the work.


I'm not sure how many pictures of an octopus in a jar exist, but of the ones I've seen, mine's the prettiest. This blogger used it to illustrate a fishing story about pulling up an octopus in a jar. Perfect. He runs Adwords on his site, but probably doesn't get much traffic. I proposed a small licensing fee for continued use. He refused, stating that he doesn't make much money, and replaced my image with a video of an octopus exiting a bottle.

This image is my most popular image on Flickr. And the most commonly infringed. Another blogger used it to illustrate her story on quotations, one of which had to do with breaking up. She doesn't run any ads on her site, so I proposed a zero fee license agreement, but she balked at the indemnification language in my standard agreement (she's a lawyer), and replaced my image with a similarly themed one. Her site has since disappeared.

These are really small-time infringements. Why should I even bother? It takes time to follow up on these things, and besides, what harm, after all? And isn't it free publicity? These people are probably never going to pay to use my images, so what good is it trying to negotiate with them?

I guess the short answer is: the way you do anything is the way you do everything. For the long answer, stay tuned for part II.