This is the second of a two-part series on protecting your copyright. As we mentioned in Part I, there’s no perfect solution to prevent copyright infringement. Here, in Part II we’re looking at what to do when you discover unauthorized use of your photographs. We asked freelance assignment photographer and copyright expert Todd Bigelow how he handles the problem, because not only does he teach workshops that deal with fighting infringement, he regularly puts the process into practice for himself. Some photographers ignore infringement; others immediately call their lawyers. Bigelow goes another way.
“Policing my work is important to me,” he says, “for a couple of reasons. One, the type of work I do tends to be very social issue oriented, so I have very strong feelings about my work and I want to control to every degree possible where that work is placed, where it’s published.”
“I try to do a quarterly review,” Bigelow adds, “so about every three months I set aside some time and begin the various ways we try to find our images online. Like many photographers, I have certain images that I know people have stolen in the past so I’m going to begin with those and see if any additional infringements have occurred and then I’ll begin the process.”
Research Before Reaching Out
Bigelow’s process starts with research. The first step is determining how an image got to where he’s found it. Bigelow tries to find out all he can about a website’s ownership and related entities so that he can be sure it’s not a case of an existing client providing the image to a subsidiary.
“The first thing I do if I do find an infringement is I research,” he explains. “I screenshot every use that I find on that website, I click on the image to see if it opens up in a new web tab. I’ll screenshot that and I right-click on the image and pull down to highlight ‘inspect’ and that will open up a box that will show what the name of the image is and often the month and year of an upload. That will give you an indication of when that image was uploaded. I screenshot that kind of information, too. That’s obviously very pertinent information when you begin any sort of discussion about recovering fees.’
If and when Bigelow can’t find any information that convinces him the use is in fact authorized, he composes a letter. That letter—technically it’s an email—is the linchpin in his entire process. “Once I’ve done my research and taken screenshots and saved everything,” Bigelow continues, “then I look for who to contact. If there’s clearly a publisher or an editorial director, anyone of that nature who I can address my concern to—again, it’s a concern, it’s not a threat, it’s not any sort of confirmation that they’re an infringing party—I send an email. And it’s a very nice email that asks, in a nutshell, for proof of a license. I indicate clearly that I do not show that a license was written, I have no record that any of my agents acting legally on my behalf show any license, so please forward where you sourced the image and/or a copy of the license or licensing number or who you dealt with and at what particular archive.”
The Letter or Don’t Get Mad, Start A Dialog
“Oftentimes the knee-jerk reaction from photographers,” Bigelow says, “myself included—especially early on when I realized how much my work was being infringed—is to get angry. It’s upsetting! Somebody’s stealing something from you, and it’s something that’s meaningful to you. What you can’t do is fire off an email that immediately turns into a confrontational relationship with somebody that might actually have a license. Plus, people are always going to become defensive immediately when you’re accusing them of things. Understand that the person you’re sending that email to might have no idea anyway, so if they get an email that is essentially a demand letter—a demand for information with accusatory tones and ‘we’re going to bill you for this’—it’s either going to get deleted or it’s immediately going to be forwarded to an attorney. So instead of making a demand, I prefer to ask a question, especially because I don’t want to engage in any sort of legal proceedings only to ultimately find out they had a license. The first thing I want to ascertain, clearly, is did they get this from someplace legitimate. Now, I’ve been doing this for several years and I’ve yet to have anybody say, ‘yes, we do have a license,’ or, ‘yes, we did legally license this,’ so it’s pretty well understood that they have not acquired a license because I license most of my work directly. But I still want to start by asking.”
Bigelow’s entire goal at this stage is to be able to open a dialogue with the infringer in order to resolve the matter directly and avoid involving lawyers unless absolutely necessary.
“Have any of my cases had to go to litigation?” Bigelow says, “No. Mostly because I have very strong cases and the defendant would prefer to avoid those costs and settle.” It’s in this way that the photographer has leverage with any entity that understands it has infringed on the photographer’s rights and it’s in these situations that an agreement is most likely in the offing.
“Good communication skills can result in you being able to recover some lost licensing fees without having to go into a legal type of situation,” Bigelow explains. “Earlier this year I recovered over $11,000 directly. No lawyers involved, just reaching out and speaking with the publisher of a website that was using my work. Through nice, non-confrontational but very determined and professional communication, I recovered retroactive licensing fees.”
The Response To The Response
Having sent his letter, Bigelow waits. The type of response he gets dictates his next steps. “Once I receive a response,” he says, “two things typically occur. One, they immediately acknowledge the fact that they don’t have a license. I’ve seen every excuse that everybody’s written about before: ‘I sourced it off of Google, I got it from my secretary, the webmaster did it, we’re not sure,’ and it’s almost always, ‘We’ve removed it.’ And then they hope you disappear.”
“I don’t disappear,” Bigelow continues. “I create an opportunity for them to engage in a retroactive license which I make clear to them is a fee that is directly related to what they would have paid back when they first published it and come to me legally. It’s essentially the normal fee. I’m not imposing a three-times penalty, because my understanding is I don’t have the legal standing to impose a legally binding three-times damages. Sure, I can come up with any fee I want, but I don’t choose to go after them that way. If they choose to pay a retroactive licensing fee I will license the image essentially for the period of time that they requested it at a fee that I feel is completely justifiable for that image. And it’s going to depend on the image.”
Bigelow doesn’t simply offer a retroactive license, however. Instead he employs a bit of salesmanship in order to encourage the infringer to request a retroactive licensing fee.
“I don’t send them a demand for money,” he says, “I let them ask me for a license. Essentially, I say, ‘At times I will offer a retroactive license to cover the use on your website although that discretion is left up to me and decided on a case by case basis.’ Otherwise I will proceed with all options provided under U.S. copyright law. I don’t make a threat; I put things in vague enough terms so that they can interpret what they want from that. Often times I get, ‘What would the retroactive license be?’ and that’s a request from them to provide a license.”
This is an important point in the back and forth as Bigelow explains, “When I first began to pursue some of these infringements, I would receive emails back from lawyers that were saying I was demanding something. They were making threats and suggesting that I was trying to extort money from them, which I don’t feel is in any way true, but I decided to change things up at that point. I don’t send them a retroactive license unless they ask for one. I float it as an idea, as an option, and it’s up to them to ask, ‘What would the licensing fee be?”
The Other Way It Can Go
Bigelow says it’s paramount to keep all correspondence professional and non-confrontational. If an infringer offers lots of resistance to the idea of paying a licensing fee, or if they stop responding completely, at that point it’s up to the photographer to evaluate the scale of the problem and whether or not it’s worth pursuing. Bigelow may send out 30 or 40 letters in a given year, and he knows they won’t all be successful.
“Is this something an attorney would want to take on?” he asks himself when considering next steps. “Ultimately there aren’t enough attorneys in the world to handle all of the infringement cases that occur on the Internet. So sometimes you’re just going to have to put it aside just like you would if you were a store owner and somebody got out of the store with a pack of gum.”
“As a photographer and an educator,” Bigelow adds, “I have enough on my plate. I have no interest in going back and forth and creating a situation if it can be easily resolved. So if they’re looking to resolve it and I’d like to resolve it and I can get a licensing fee from them, then I will do that and I will recover those fees. And I’ve been pretty successful at it. It’s essentially writing emails.”
To be clear, Bigelow isn’t licensing these images to infringers going forward. In fact it’s almost always a fee for a past usage that ended at the point Bigelow reached out. He does this based on where he finds his work—most often in places he does not approve. “Those that infringe are not the type that I would normally like to show my work,” he explains, “so it’s almost always retroactive up until the point that they took it down.” Of the infringers who do respond to Bigelow’s inquiries, about half ask for a retroactive fee and a third of those end up paying.
“When you do all the math,” Bigelow says, “are you batting .500 on these? No. But I might end up recovering three or four out of every ten. And of the ones I don’t recover, if they’re big enough I’m going to send them off to a lawyer to consider other means of recovery.”
Don't Be Afraid Of A Little DIY
While some might scoff at the idea of a DIY approach to pursuing infringers, it’s actually a fairly low-risk proposition. Unless you’re counting on taking an infringer to court in hopes of six figures, there’s little to be lost by sending a letter.
“I evaluate everything on an individual basis,” Bigelow says. “If I feel like they want to negotiate a little bit lower fee, everything’s negotiable and if it’s within reason I’ll try to compromise. If it’s clearly not reasonable, I will resist their reply and in a very nice, authoritative and ‘let them interpret it’ way, I will say, ‘Thank you for your reply, unfortunately I can’t see discounting the fee given that you used it without authorization. I will proceed with all options provided under U.S. copyright law. If you have a change of heart, please let me know as I would be happy to open up discussions again.’ Something along those lines. Keep it very professional, very unemotional, almost detached. In some cases when I’ve done that, I think they’ve been surprised when they’re contacted by my attorney. And then, they’ve immediately gone straight to negotiating and almost always for more money than they would have sent me directly.”
“I don’t wake up thinking, ‘Who can I go out and sue,’” Bigelow says. “That’s not what it’s about. It’s about protecting my work. That’s one of the reasons why we work freelance; we have control over where our work can appear. If someone’s taken that from me, I have a right to at least recover the fees involved.”
Bigelow says it’s up to photographers to defend our copyrights individually for the benefit of photographers collectively and for copyright as a concept in general. “That’s how they try to devalue the work,” Bigelow says. “They try to claim this is so acceptable and ordinary that anyone who tries to fight against it is a troll. And that’s absolutely not something that the photography industry can allow to happen. You have to push back so that the copyright law isn’t weakened.” In a world where people believe any online image is free for the taking, that concept will gain acceptance if photographers cease to defend their rights.
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.