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Intellectual Property Rights Infringement

Hi FashionPhotograhyBlog.com readers, 

Today, we have a special guest at FPBlog, Berlin-based fashion photographer, Per Zennstrom. Per has previously shot for known brands such as Absolut Vodka, Bentley, Bon Magazine, Dior, Elle, Guy Laroche, H&M, Marie Claire, Porsche, Rolling Stone, Schwarzkopf and Toni & Guy.  He shares an experience that happened to him involving copyright infringement and demonstrates how to deal with intellectual property (IP) infringement in a real world scenario.   

Intellectual Property Rights Infringement – As an image maker it is very common that I find my images used on the web without authorization, or payment; in most cases the culprits are teenage bloggers who have grown up thinking that using other peoples images and other intellectual property is somehow OK. Unfortunately this is the mindset today but there is also something else at play, it’s just so easy to copy|paste, that embarking on the rather tedious process of securing the rights to publish is not even on the map. Everyone has this type of problem; writers, musicians, photographers, filmmaker.  It’s just so easy to do!

To me this is not really a ”digital” problem.  I can tell you stories of how I have come across images on sides of buses and in foreign newspapers well before digital was the main stream workflow.  Of course, it goes without saying that the digitalization of images and other media, and the completely ubiquitous digital ecosystem has made it a lot easier (on the order of magnitude) for images to spread and some might argue that this actually make it a “new” problem. Today the duplication, publication and consumption of media is completely seamless and the cost is virtually zero – and that is new. But sometimes images are used by much bigger and “older” organisations, by Old Media, that should know better and I recently became aware of that a major, world-renowned institution had been using one image of mine on one of their blogs and this article is a short recap on how I went about dealing with this situation.

I don’t remember exactly how I came across my image on that blog post, maybe I had done an image search or followed some links, but there it was, one of my very old images taken way, way before anything digital was even a remote possibility. This image was taken even before I had started calling myself “photographer” I had to look both one, two and three times before it really sank in that that was my image being used by this absolute world renowned, authority organisation. In this case I decided to take action and I wrote both a formal letter and an email, do the proper research to make sure that you speak to the right person – if not it’s just a waste of time.

I will leave out the names of the people and the name of this organisation. Below follows the actual negotiations. In this case, there was a happy end and I got my much coveted back-link (which in my opinion will be worth much, much more from an SEO perspective than a few hundred dollars) and everyone is happy. I’d like to point out that the people on “the other side” were extremely polite and professional and I really got the feeling that they were working hard to resolve this in a way that would make everyone happy. This is probably not a typical case sadly.

My Initial Letter:

“I recently noticed that you are showing an image of mine on: _____  located at the url: _____  without my knowledge or permission.  I’m flattered that  _____ like my work enough to use it on your site but I’d like to remind you of the basic things about IP rights and etiquette. By publishing my work without my permission, knowledge or payment you are infringing on my intellectual property rights!  Before publishing anything – any publisher MUST make sure they have secured the right to publish this material. Period.

I’m very well aware of the fact that digital images get copied and sent around and spread on the web (I frequently find my images used on-line without permission or payment) and I also see the advantages of this situation. The upside is of course that I get my name out there and that people have the chance to follow a link back to my website.  In your case I’m unfortunately in a lose-lose situation… My image is used without permission – or payment – and I don’t get the credit and recognition for my 22 years of hard work as a photographer – or the time and effort that goes into producing the work that you found good enough to publish on your site.

I’m sure You can see my point here…

However, I’m not a whiner,  this is the reality of digital media today and as a photographer I have to accept certain things. I’m willing to accept some of this but I also have to ask publisher like You to respect and work with a minimum of etiquette and fairness

Looking forward to Your feedback on how we can resolve this situation”

Publishers Response 1:

I received your letter regarding the unauthorized use of one of your photographs on _____. The images we use in these blog posts are provided by the authors, and gaining image clearance is the author’s responsibility. I very much regret that the author of the post failed to do so in this instance, and I’m happy to redress the error.  Before we proceed, I just need to determine which image, specifically, is yours. The author used two images without attribution, one color, one black and white. Which of these is the image in question? Pending your response, the image will be removed immediately.

Thank you for your time, and my apologies for any inconvenience we have caused.
Sincerely,

My Answer 1

Dear _____,

Thank You for Your response.

I contacted _____ via regular mail – Your response  … but also via email – where _____ – responded to me and we started a email discussion over this matter.  I have cc’d _____ in this mail.

Maybe you both would like to take a moment and coordinate and then get back to me so we don’t have 2 separate discussions.  Looking forward hearing back from any of you two so this can be resolved.

Just so I’m 100% clear to you about my intentions…  Like a wrote in my letter and in my emails – my preferred solution would be a back link to my website from the _____blog post.  This really should not be much of a problem since the _____ is indeed linking out to numerous external websites in practically every post.

Below some examples from the front page of the types of websites that _____have linked back to:
http://www.rogerebert.com/reviews/excalibur-1981 – movie-review site
https://readymag.com/shuffle/dieter-rams/ – online magazine/blog
http://www.bang-olufsen.com/en – audio equipment

Thank You very much.

Publishers Response 2:

Hi Per,  _____ and I spoke this morning, and we’ll resolve this straight away. Our apologies that the author of the post – who is not longer at _____ – did not seek the proper clearance with you before using the images. As I mentioned, we don’t have any budget for blog image rights, and as a rule don’t link back to artist’s personal websites (rather than the institutional links you list above), so we will immediately remove the image from the site. Thanks for your understanding.

All the best.

My Answer 2

Hi _____ !

OK – In this case I will have to invoice you for the usage of the image. I have attached my invoice to this mail. Not my preferred solution but since you have this rule of not linking to other artists websites – this is the way I have to go…  This is not something personal but since I started this discussion with you as a representative of ____ I need to tell you this.

I find my images used on the web without authorization constantly – in most cases there are teenage bloggers who have grown up thinking that using other peoples images and intellectual property is somehow OK. In these cases I usually just ask for a link back and most of the time people are happy to do that.  In this case however – you – _____ – the worlds most prestigious _____ – have used one of my images without checking and are now trying to shrug of your responsibilities by saying that you don’t have a budget. Saying that is completely irrelevant – since you have infringed already.

Just take a moment to reflect on this – that is a total lose-lose situation for me… My images are used and I don’t get anything for it – not even a link!  My invoice is for _____ which is absolutely reasonable considering the reach and nature of the infringement.

Thank you.

Publishers Response 3

Dear Mr. Zennström,

As I’m sure you can imagine, the rights of _____ are of paramount concern to _____, and once again I apologize for this situation. I’m sure you can also appreciate that, as a nonprofit, we do not have the budget to purchase image rights, which is precisely why it is our policy never to use images without proper attribution and clearance. This oversight is as distressing for us as it is for you. As I said, we cannot pay you for the use of the image, but we would be more than happy to put it back up with proper attribution in the image caption and a link to http://perzennstrom.com.

Here is the proposed caption:

Photo by Per Zennström. Courtesy of Per Zennström, http://perzennstrom.com

Also, if there is a different size or crop of the image that you would prefer to use (within reason, of course), feel free to send along a jpg. Otherwise we will replace the copy that originally appeared in the post. I hope you find this solution satisfactory. Once again, please accept my apologies for any inconvenience.

My Answer 3

Dear _____

What You propose is the perfect solution!  I have linked to 5 images of _____ in a bigger format (1000px wide) – please feel free to publish any number of them on this blog post with the caption You proposed.  Please download the images via this link.

I’m 100% happy with your proposal but in the case you can see yourself using a slightly different worded caption – that would be even better for me…  Photo by Per Zennstrom. Courtesy of photographer Per Zennstrom… where You use the anchor text “photographer Per Zennstrom” as the link.

I’m very happy we were able to come to an agreement on this.

Thank you very much for your time and effort.

Some advice on how to deal with publishers:

My #1 rule of thumb is that a back-link from a reasonably biggish blog or site is worth a lot more than a few hundred dollars. I’m not saying that you should let people publish Your images and just paying with a back-link. I’m saying that if  you have discovered unauthorized usage the most cost effective approach could be to ask for a back-link. Of course, if the image has been used in another context than editorial, for example advertising, that is a completely different matter. Stay professional and polite, don’t become overly emotional. Most publishers are actually eager to resolve this type of problems.

– Propose a solution that is is mutually beneficial and face saving.

– Accept the fact that going after these instances of IP rights infringement will take a lot of time and energy; choose your battles well.

– Send both an email and a formal letter (via snail mail); an old fashioned letter carries more weight.

– If you don’t get a response you need to do ask yourself a few hard questions. Will the eventual benefits of going after a reluctant, non-responsive publisher (jerks) outweigh the time, money and effort (not to mention the emotional drain) that you have to invest? If the answer is no, suck it up and move on. Hard, yes but your time and energy is better spent making great images than fighting wind mills.

– Mean what you say; if you threaten legal action you have to walk the walk and be ready to take action.

– There are a number of great places to read up more on this, I highly recommend Photo Attorney (especially for US photographers).

Do you have any experiences of copyright infringement of your photographic work before? Do you have you own suggestions that you would like to add to Per’s tips for dealing with IP rights infringement? Feel free to add your suggestions and comments in the comment section below.

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