Infringement in the New Photography Era, Part II

Again with this image. This site used it (and many other Flickr images) to illustrate a story about break-ups. This site is heavy with advertising, and ballparking their listed advertising rates, could be clearing $21,000 a week.

This one was much more interesting than the others:

Dear XXX XXX,

I'm writing you because you're listed as the Admin contact on the whois record for XXX. I couldn't find any email addresses on the site itself, but I've submitted the following via the online contact form there. If you don't handle licensing arrangements, please, put me in touch with the person who handles them.

I found the "XXX" post, by XXX XXX, on your website during a routine search for my images on the web. My image, "New Valentines - 01" appears on the second page of the post.

I'm flattered that you are using one of my images to illustrate your the post, I think it works well to illustrate the concept, and I'm grateful for the link back. However, per the "Advertise" section of the site, you are generating substantial profit from the page, and therefore, to some degree, from the use of my image.

As you may already realize, I earn my living through my imagery, and unauthorized usage of my images interferes with that, and is also illegal per the 1976 Copyright Act (copyright.gov).

I will be happy to negotiate a reasonable fee, say $XXXX for three years online usage, for continued use of my image on your website. If we can't come to an agreement, you must remove my images from all of your pages.

Thank you for your attention to this matter,

Rob Prideaux

Hello Rob! Your image is removed now.

But you should understand that images don't make any profit at all there. You had there free advertising for your talent to make even more from your images. And it was for free ;)

Good luck with your great photos!

Sincerely, XXX

Hi XXX,

Thanks for your prompt action. I'm sorry we can't come to a mutually beneficial licensing arrangment, especially since at $2000 or $1500 per banner ad per week, XXX stands to be pretty profitable. If you should find another of my images that fits your needs, please don't hesitate to contact me regarding licensing.

All the best to you,

Rob

Good ;)

But there is price for your text links too - and you don't pay that. It's kind of good deal for you as photograph - free lifelong ad on site where it cost 2k per week - isn't it?

The is no problem for me to remove your image but for you it looks like a good deal.

Anyway you know better what is works better for your business.

I hope this model will give you more options to create even better pictures.

Btw, your inquiry was most professional - you really sounds much more better than your collegues - that's fact ;)

Have a nice day Rob!

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English is not her first language, but you get the gist. The things that jump out at me about this exchange are:

She states that "images don't make any profit" there, which I guess means that they don't purchase the images they use. I'll suggest that the images that they use there help them to make a profit, however, since they increase the appeal of the site, and therefore draw more users.

She points out that I had "free advertising". Never mind that my target market and her audience probably don't overlap at all, it's still a good angle for her to try.

And when I point out the revenue the site seems to be earning, she suggests that makes the free advertising even more valuable to me. Ha, nervy.

So, the question was - why bother? And the longer answer is- because it keeps me in shape. There is a comprehensive effect when I go through this process. I get practice at negotiation, at structuring licensing proposals, at pursuing my rights, at valuing my photographs.

And that last part is pretty key. Much like the proverbial broken window in the warehouse, maintaining my rights to one of my images helps maintain my rights to all my images.

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.

Lest You Think These Spring Fully Formed as Athena

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Monterey Bay Aquarium

Jackie and I took a trip to the Monterey Bay Aquarium some time ago. It's a pretty amazing place, comprehensive, informative, and entertaining. It's worthwhile whether you go with 987452903475 kids or not. It always seems to be fairly crowded, but the place is huge, and most visitors are good about viewing a tank for a moment, then moving on. There are gigantic tanks, tiny tanks, interactive exhibits, a fish petting zoo, and, since the building used to house a cannery, a cannery exhibit.

The jellyfish are particularly eerie and mesmerizing. Turns out they're poisonous! 

Of all the seahorses, these are the strangest and most beautiful. But the rest of the seahorses are nothing to sneeze at, either. 

The jellyfish do spend most of their time "upside-down". 

Other highlights:

Sea otters feeding time, is when they're most active, but also when the biggest crowd shows up. Check the feeding schedule, and find a spot about ten minutes before the feeding starts.

Be sure to make time for a visit, downstairs, to the Giant Octopus, another big favorite of mine. He lives pretty much in the dark, so photography's out.

Oh, and although the Aquarium is located in an area that is the bastard step-child of Pier 39 (rock candy, fridge magnets, etc), I did manage to spot this sweet ride there.

It's a hurried half day trip from SF, since it's about a two hour drive, going the fastest way. However, you should take the two-and-a-half hour drive along the coast. This scenic route features plenty of views, twisty roads, and historic WPA projects along the way.

Monterey Bay Aquarium, directions.

Shun Knives

I got ahold of these beautiful knives, and tried a few different approaches. I'm still mainlining sexy lighting on black, but I can quit anytime, really. Still wanting to move my focus to composition, so the easiest way for me to force that is to incorporate multiple elements. A really simple composition, but a composition nonetheless.

Of course, moving in a new direction usually results in some stumbling. I think this is really corny.

And this is probably overkill on the logo treatment. Especially for this brand, which is pretty staid. I can't even find a proper company website for them. Interestingly, while looking for one, I discovered that you can ship them the knives, and they will sharpen them, and mail them back to you, for free. Nice.

I like this one a lot. It may just be the Jolly Rancher red background though.

That's a japanese-style paper in the background. Another gigantic departure for Rob Prideaux.

These knives are incredibly sharp - my hands were covered with fine cuts by the time I'd finished, and using them is effortless, as if the weight of the blade is enough to push the knife through the food. And I think I've managed to show the sharpness, quality, and desirability of these knives.

Now I've got some chopping to do.