Are your images being used without permission? Here’s some advice. - Aaron Roberts Photographer

We throw around the “copyright” term all the time in photography. It’s why photographers put watermarks on their image, notices on their websites and for the most part, it seems to provide our images with some kind of protection.

But photo manipulation software like Photoshop is getting VERY good at removing “unwanted objects”…. such as our watermarks, or simply cropping the image to hide the logo, is enough to hide the source of the image, or to even try and have someone else pass it off as their own.

So this begs the question, what can we actually do, when our images are being used without our permission?

Well firstly, it’s important to know, that this also applies to any to anything that “you physically create”. Whether it be artwork, photography or something similar, you are automatically the owner of that piece of work.

When we apply this to photography, any of the images you take is yours. This even applies to images where there may be other people present, regardless of whether they’ve signed a model release or not. Getting the model to sign a release is a polite way to outline the rights of use, however, this is not required under law.

What is “Misuse of an image?”

In a nutshell, image misuse is when someone or a company / organisation uses a image that you’ve created, in any way that you have not permitted. So whether it’s a print, website or another form of publication, if you did not give permission, it’s considered misuse.

It’s important to not confuse this with fair use.

Fair use of an image is often invoked by people, who believe they understand copyright law, however, no company could ever claim that fair use of an image was made, when the company is using your image for commercial purposes.

Well, what is considered commercial purposes?

Put it this way, it could even be a website which has paid advertisements present on the website, because each time a visitor hits the page which has your photo, they are likely generating an income, directly from the visitors viewing of the adverts on that page.

What if my image can be interpreted as obscene or defamatory?

Now, that’s something a little different. This technically doesn’t come under copyright law, and in fact, it’s very hard to define “obscene or defamatory” as the interpretation can vary widely throughout culture.

So you can see already, how this is beginning to get cloudy and messy…. which is why so many don’t know where they stand with regards to copyright law.

How can you find out if an image is used without permission?

Well, how can you find a needle in a haystack? Search, search, search and search. Naturally, there’s not too many people out there which would be able to devote their time to trying to find any photograph they have ever posted online, to see whether it’s being used elsewhere.

Some of us are just lucky, or should I say, unlucky, to find that our photo has been used in a publication without permission. But if you’re smart about this, you can harness the power of the internet to take back what is yours!

How? Well, here’s a few tips:

#Hashtags and Check-ins

If you’ve been attending an event and posting images, it’s possible that someone has taken the opportunity to share the photo on your behalf, under their name, and without your permission… why..? Likes, likes and more likes… what gets likes? Exposure… So check hashtags which are linked with the event, and if the event has a venue or “location”, check for images posted there.

Reverse Image Search

I used to use this to see if my personal photo has been used on any other website, but then I started thinking , what if I used this to search my own photography? And heck, I actually managed to find a few of my photos.

To use this awesome feature, simply head to https://images.google.com/ and click the little camera icon in the search field. Then you’ll have the chance to either enter an image url or upload the photo directly. This works incredibly well, don’t under estimate it.

There’s also a dedicated “reverse image search” website called “Pixsy.” Although I haven’t used them, they seem to be a pretty solid way to protect and track your work. Check them out at https://www.pixsy.com/

Okay, so you know it’s being used, now what?

Well, this is where the “fun” part starts. You’re going to have to start making sure you cross all of your t’s and dot all of your i’s. Lets say that you are just browsing the web one day, and you suddenly see a photo that you know looks similar to yours. You can’t start firing off and start emailing the top lawyers and blowing up before you’ve done your research, so the first step is to:

Gather your Evidence

Make sure that you can be absolutely certain that the image being used is yours. Find your original, check and compare before doing anything. The easy way to do this, is either using one of the reverse image search tools, or simply overlay the photo in Photoshop with yours, and flick between layers or adjust opacity.
Take a screenshot, including the URL, from the website which is using your image and make sure that you don’t modify the file afterwards. You want to make sure that the screenshot “creation date” is the date that you discovered the image. You can also email yourself a copy of the image, as there’s no way to “backdate” an email.

So, evidence gathered, now you have to think about how the image was obtained by the offending 3rd party.

Here are some of the things you need to be thinking about:

Was this image provided to someone else by you, and then resold or transferred to another 3rd party, without your permission?
Did the image bear your watermark or logo, and was this removed or cropped out?
Was the work in question, performed under contract from a venue or on behalf of someone?
Do you have any clear “copyright” notice on your website or anywhere else the image was posted? Even if the answer to this is “no”, it doesn’t mean the 3rd party has the right to use your image, but it certainly helps strengthen your case if the answer is “yes”.

Gather all of this together, and start to think about your approach. Sure, you can go in with guns blazing, but honestly, is that what you want? Most photographers want exposure, some want payments and others want to keep everything to themselves. I’m not here to judge, but you should think about…

What do you want out of your claim to copyright?

Now, obviously, if you’re certain that the company is using your image to make money, then you’re probably going to be a little upset. In such cases, you may be entitled to “fair payment”. Fair payment is given in situations where it has been deemed certain that the individual or company has generated an income from the use of your image. The amount of money you can claim, actually needs to be demonstrated in terms of your “lost revenue”.

Heading into a financial claim against a 3rd party may seem like the most beneficial way to “exercise your rights”, but rarely is this an open and shut case, and you can bet that it’ll be met with some resistance from the other end. So an alternative option, is to seek attribution in return of use of the image.

If you are requesting attribution, you should always consider approaching this with a friendly tone. The last thing you want to do, is have the company or individual remove the image and pretend it never happened, because then your only other option is to take them to court. This is why it’s important to gather the evidence!

If the company agrees to attribute you, you’ll need to have something in writing with agreed terms. Some of those terms may include, how long the image can be used for, in what way you should be attributed (e.g. by name, link to website, social media etc.), what the “transfer rights” are with the image and so on…

Send them an email or write to them

Don’t just send an email to the first email address you find, or reply to a newsletter. Take the time to figure out who the right person is to contact, and send them an email that you would also be prepared to read, if you were sitting in their chair.

In most cases, you should also specify a time-frame in which they should respond, but take into consideration, that some media agencies received 1,000s of emails per week, and yours isn’t going to magically jump to the top.

What to include in your email:

An introduction:

Make sure that you introduce yourself and the reason that you are contacting them. It doesn’t need to be an essay, it just needs to state your full name and why you are contacting them. Something like;

Dear Publisher,
My name is Aaron Roberts, and I am the author of an image, which is currently being displayed on your website. Unfortunately, this image has been used without my consent, and I would like to request that you attribute me, in exchange of your continued use of the image.

A link to the published work

Make sure that you include a link to the published work. This is a great time to include that screenshot that you captured earlier. This also helps you in the event that the image is removed from the website.

A copy of your image or the original publication

Now, wait a minute? Surely this is counterproductive… you’re basically giving them a copy of the file, that you’re unhappy with them using. But actually, this is in your favour. Why? Because firstly, the attached image, will likely be the version of the image which was not modified by the publisher. If an image is cropped, you will have the uncropped areas, if the watermark was edited out, you’ll clearly see the original photo, before editing.

DO NOT SEND THE ORIGINAL RAW FILES OR FULL-RESOLUTION IMAGE.

If you send them the raw file of the image, or a full-resolution image, you will only make things harder for yourself. Sure, there’s a ton of data embedded in the metadata in the image which can work in your favour, but it’s better to just send a copy of the image in a lower resolution that the original, because this way, you can always backup your claim with the raw image or the full-resolution photograph. Something, that in theory, only those who have the rights to the image, should have.

Well, I’ve spent a fair amount of time, requesting my images to be removed, where the “unexpected author” has refused to credit me for the work. Guess what? They were removed in every single case. Don’t under estimate how seriously social media giants like Instagram and Facebook take violations or infringements of intellectual property.

Report it!

There’s also the DMCA website, “Digital Millennium Copyright Act” which has a whole host of tools, but this will only help in the removal of your content, not anything else. Visit https://www.dmca.com/ for more information.

I lost money, I want money, Give me MONEY!

Okay, so you’ve decided that money is the only way to make you feel better. That’s fine, just know that this will be a bit of an uphill battle, and you’re at the front line!

Don’t just throw out a figure, think about it carefully.

Now, you may be tempted, after seeing a few episodes of Judge Judy or heard of million-dollar settlements, but honestly, it rarely happens, and if it does, you’re one of the very, very lucky ones. So don’t think you’re going to be retiring on a beach on a remote island sometime soon, go figure out what you can realistically justify as a fair charge for your work.

The best way to do this, is to compare your image to other images, sold on websites which are selling photos. Stock image websites that reflect the level of quality which is being provided. That means, if you took a photo of the Queen with your mobile phone, you cannot jump onto Getty Images and start looking for the price of photos which also feature the Queen. You have to be realistic. If you’re not, you’ll have a very hard time justifying your claim, and you may end up just losing out and wasting time.

Try sending an invoice as a part of the copyright claim

If you simply send them an invoice for the image, you can pretty much put any fee you like. This is bound to be met with some resistance, so I wouldn’t recommend this approach, but you may find that the legal department just respond back to you with an offer, rather than deal with going to court. You should make sure that you have a deadline for payment, so that it doesn’t just go unpaid forever. If they refuse, or provide a counter-offer, then you’re basically at auction. Just make sure that the image use rights are specified somewhere!

Finally, take them to court if all else fails.

If you’ve exhausted all other options, and the 3rd party still isn’t budging, well now it’s time to exercise your legal rights.

Laws vary all over the world, so understanding the process of taking a company or individual to court needs to be discussed with a lawyer, ideally, one with experience handling copyright and intellectual property claims. Lawyers are paid for their time. So as long as you’ve done all the research you possibly can, have clear evidence of the misuse, this will help speed up the process.

You may even find that you can raise a claim at a small claims court and have them send the notice of intent, and this could be enough to wake them up! Most companies are going to prefer a settlement out of court, than spend time and money on legal proceedings.

In the United Kingdom, you can even request money via a claim directly online by visiting: https://www.moneyclaim.gov.uk/

Good Luck!

It’s not easy dealing with this sort of claim, is often time-consuming and sometimes quite stressful, especially if you’re dealing with an uncooperative 3rd party, but that’s not a reason to just “give up”. This was your work, taken with your camera, which you’ve likely spent a lot of money on, your time and your efforts that went into creating that work, which someone else liked so much, that they have used it somewhere.

You can use this opportunity to spark up a relationship with the individual or company, possibly paving the way for a collaboration in the future, or you simply exercise your rights to protect your work.

Think clearly, cross your t’s and dot your i’s, gather everything you need and most important, be professional.