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The world is filled with people who don’t know, or don’t care, that images posted online are not free for the taking. As professional photographers who earn our incomes by licensing images, this kind of copyright infringement is not only a nuisance, it’s bad for business. We asked freelance assignment photographer and copyright expert Todd Bigelow for advice on fighting infringement. Bigelow teaches workshops that delve deeply into business and copyright issues for photographers and he has a lot of great advice and information about this topic. In this PRO-files, we explore how to protect your images from theft. In the next PRO-files, we’ll address how to fight infringement once it occurs and how you can recover lost licensing fees.
Whether you shoot portraits or landscapes, for fine art or commercial assignments, the images you create are your intellectual property and, until you sign away those rights, you get to decide how and when and at what price those images may be reproduced. Here are the best practices to help prevent against the unwanted and unapproved reproduction of your images, without completely abandoning the idea that making your online brand look its best does involve some risk of infringement; aesthetics do matter.
“I think that there are different steps that need to be employed by photographers to protect their copyright,” Bigelow says. “One is protect against infringement, and the other is to combat infringement. Because they’re really not the same. The first is protecting against it, and the second is, if it’s occurred, how do you remedy the situation? I talk about this in great detail in my workshop; we protect against it first. What methods do you employ to try to keep potential infringers from using your work? It’s similar to if you have a bricks and mortar store. Are you putting up a security system, do you pull the bars across your storefront, or do you just go off and leave? People have different perspectives on what is needed and what isn’t. Nothing is 100%. We know that. Still, you have to do something.”
“Just remember,” Bigelow says, “there’s no 100% cure to infringement. It’s trying to find a balance between showing work in the best light and putting protections in place to limit and protect against unauthorized use.”
When you see an image online that you would like to save to your computer, it’s easily accomplished by right-clicking on the visible image and choosing “Save As” from the dropdown menu that appears. It’s a tool that practically everyone knows and it’s the likely origin of many infringements. To protect from the easy duplication of image files in this manner, you can change the coding on your blog and web pages to disable the “right-click-save-as” capability.
Most, if not all, of the major web page template providers offer settings, plug-ins or code that can be used to turn off the ability to right-click and save images. If your website or blog is hosted on Wordpress, you can use the plugin called “No Right Click Images” to disable the function. Photoshelter users, by default, are provided with Image Theft Guard which, while not truly disabling right-clicking to save an image, overlays a transparent GIF over the image so it looks correct to viewers but those who try right-clicking will end up saving a blank image file.
These tools are readily available, putting them to use is a matter of due diligence. “I’ve often found some of my most respected and loved friends and colleagues,” Bigelow says, “I’ll look at their blogs, maybe not their main websites, but their blogs where they’re writing about their work and I’ll click on a photo and boom it opens up separately, large, in a new tab. I right-click and sure enough it’s on my desktop. Sometimes I’ll email them to say I really love this photo and I attach it as a joke to show that they need to employ methods to keep this from happening—just simple things like keeping right-click to download from being enabled on all your sites.”
Speaking of photos enlarging to very big sizes, that may not always be the best idea. Sure, a big, beautiful image on your portfolio site is one thing; after all, that’s where the majority of your clients are coming to see your work in its best light. But too many photographers upload very large image files even when they don’t intend to display them very big, and they let their images enlarge in new windows when clicked. This practice is a good way to let a high-resolution image file out into the wild.
“When it comes to displaying images,” Bigelow says, “if you have a blog that allows for your image to open into a new window when clicked, make sure it’s a fairly small image.”
While disabling the page’s right-click to download capability is helpful, it can’t prevent someone from capturing a screenshot. Disaling right click to download as well as limiting the size of an enlarged image or preventing the enlargement altogether is a powerful combination. An image file of under 1,000 pixels on the long dimension has a somewhat limited capacity; it’s certainly not going to be printed large and it can’t be used online at full-screen sizes. Ultimately, when it comes to the question of what size is the right size, it’s a personal choice and you have to balance aesthetics with protection.
“Regardless of the size of the images I display on my website or blog,” Bigelow says, “a screenshot can only record at fairly low quality. It’s enough to post to websites and use digitally, certainly, but not much beyond that. It’s a risk I take so I can display my images with aesthetics in mind. Creative directors and editors come to my website and blog to view my work and, hopefully, to consider me for assignments, so I want my images to look great.”
This aesthetics versus protection question is ultimately about what is most important to you, the photographer: fighting infringement or displaying a big, beautiful image. Sometimes they are mutually exclusive.
A photographer once told us that he avoided including watermarks or copyright notices on images for years and only reconsidered after the theft of his images reached epidemic proportions. He added a watermark—just a small logotype in the corner—and instances of infringement lessened. Many people believe images are free to take if they don’t see a visible warning to the contrary and if that watermark is there, unauthorized image use drops significantly. It’s keeping the honest people honest.
The challenge, of course, is to determine the right balance between ideal aesthetics and image security. After all, the best way to ensure your images won’t be taken is not to upload them in the first place. For a photo business, though, that’s pretty much a non-starter. Instead think about a watermark and be smart about the type of watermark you use, and how and when you use it.
“I don’t watermark images on my site or my blog,” Bigelow says, “because it ruins the aesthetic value. But you cannot download from either site, so all you can do is screenshot them. I don’t use social media in the same manner I use my website and blog, so I watermark the work there. In other words, social media isn’t where I ‘display’ my work for creative people to view and consider for assignments, so I don’t care about the aesthetic value as much there. Hence, I watermark those images. In addition, the sheer manner in which social media operates—with the idea of being able to share images as much as possible—calls for watermarking.”
“As an analogy with political references,” he adds, “I don’t want to ‘build a wall’ and act like a protectionist with fear of infringement governing my photographic existence. Infringement happens. Watermarks can help, but they can also be removed, so even that doesn’t 100% solve the problem by any means. It’s a search for balance.”
One benefit of watermarking occurs in the event that you end up in court seeking recompense for an infringement. If the watermark is obvious, it can help demonstrate willful infringement, which can garner significantly higher awards than unintentional infringement. Likewise, demonstrating that an image has been cropped to remove a watermark is also helpful. As an infringer, it’s hard to argue that you didn’t see a watermark that’s plain as day; harder still to plead ignorance if you’ve obviously and deliberately cropped the watermark out of an image.
Include a visible copyright on, or adjacent to online images. It’s the copyright symbol—alt-G produces it—followed by the year of publication and your name. For example: © 2017 Todd Bigelow. Bear in mind, however, that this doesn’t provide any official additional legal protection. When an image is created it’s automatically copyrighted, whether you’ve registered it or not. But given all of the naiveté and misinformation out there, there’s a very practical reason to display a copyright notice with your photographs: it can scare off thieves. Many people believe an image is not copyrighted, or not protected by copyright law, if that copyright statement is not displayed. They’re wrong, but so what. Displaying a visible copyright mark may simply help convince them not to take your images.
Like a watermark, the visible copyright notice will also come in handy should you eventually try to collect from an infringer or take them to court. If you’re going to display a copyright notice and you’re planning to use a watermark, consider combining the two for best effect.
Register your copyright and do it promptly. It may be the most important part of the whole image protection process. Ideally, you’ll make it part of your processing workflow and when an image is finished but before it’s been published, you register it with the copyright office. That’s how Bigelow does it.
“I always advocate for registering your copyright with the U.S. Copyright Office,” he says, “Do it online and make it part of your workflow. So whatever shoot I do, whether I’m doing it for a client or I’m out there shooting on my own, I immediately go back in after exporting from Lightroom and create a copyright folder and go through the process of uploading that to the Copyright Office. I pay them $55 and before those images go anywhere—whether that’s up on my website, to the client, or to my agency—they’re already copyrighted.”
“The first thing that’s going to happen in any court proceeding,” Bigelow says, “is they’re going to see if your registration is actually valid. You have to determine if an image is published or unpublished, and the courts will not determine that for you. So I know without a doubt, if the images have gone from the camera directly to the computer, they are unpublished. At that point, my copyright cannot be invalidated if it’s challenged in court as to whether or not they’re published.”
To be clear, Bigelow isn’t looking to pick a legal fight with anyone. He’d prefer the infringements didn’t happen in the first place. He doesn’t want to have to take infringers to court. “But I will,” he says. “I will if I have to and that’s why it’s important to have your ducks in a row. Because if it does come to that and they want to challenge you and go to court, when you speak to a lawyer that lawyer is going to ask you: Is it registered? Was the infringement after the registration or did it commence within the first 90 days of first publication? Those kinds of things make a strong enough case for a lawyer to really grab ahold of. I employ a workflow that makes me confident that if I do have to go to court, I’ll prevail.”
“Let me just put it this way,” Bigelow adds. “I have no aspirations for engaging in unnecessary lawsuits for unauthorized use of my work. What I do have aspirations for is guarding my work against use by those that I would never want to use it. And if I find out that they did use it, I want to recover the fees so that at least they feel a little bit of monetary pressure from having stolen my work.”
Learn more about how Bigelow pursues copyright infringers in Part II when we delve deeper into how to recover licensing fees when you do find copyright infringements.
About the author:
William Sawalich made his first darkroom print at age ten. He earned a Master's Degree from The Brooks Institute of Photography in Santa Barbara, California. Along with portraiture, still life and assignment photography, Sawalich is an avid writer. He has written hundreds of equipment reviews, how-to articles and profiles of world-class photographers. He heads up the photo department at Barlow Productions in St. Louis.