Close inand w


Don’t just get mad about infringement, get even and get paid, says photographer Mick Sinclair


W


hat do a chimney sweep, a fire brigade and several firms of barristers all have in common? Answer: they’ve all stolen my photos, in the sense of using


them without my permission. Over the past few years so have schools, universities, police forces, councils, residents’ associations, property developers, estate agents, authors and politicians. Such abuse of copyright is increasingly


prevalent with the growth of the internet and the rise of social media coupled with the ease of lifting properly licensed images from the websites of newspapers and magazines. Just as the NUJ’s #useitpayforit campaign highlights the value implicit in all images and encourages amateur snappers not to let their work be used for free, it is equally the case that publishers, from bloggers to large corporations, cannot expect free use of an image just because it is easy to lift off the internet. The copyright holder is entitled to compensation (for almost exceptions are very few) any unauthorised use of their work. Unless otherwise assigned in writing, every


creator of a photo owns the copyright in that photo by dint of having created it. It matters not, despite what some infringers will say, that there is no copyright notice, watermark, credit (and even if these things exist, infringers may not be deterred) or anything that says the image cannot be used for free. The government’s Intellectual Property Office publishes a useful guide: Copyright Notice: Digital Images, Photographs and the Internet (https://tinyurl.com/ybxwk76n). Any photo is a potential target for an infringer. Alongside high-profile cases such as the misuse of Daniel Morel’s photos of the 2010 Haiti earthquake – ending after a four-year struggle with the award of $1.2 million in Morel’s favour –


14 | theJournalist


are the much more common abuses of photos of much more frequent subjects. I have had images of fence spikes, street name signs and missing dog posters all appear without my consent on third-party websites, commercial and otherwise, though none as ironic as the neighbourhood watch sign pic purloined by a locksmith for use on his website to encourage would-be customers to protect their property from theft. However, what might seem a clear copyright


infringement may not be. Original images posted on social media, for example, are subject to the social media company’s terms, most of which give wide-ranging freedom for users to freely share such images. Somewhat less straightforward is the 2014


Court of Justice of the European Union ruling on Svensson and Others v Retriever Sverige AB. It found that where original works are made freely available by the owner to the public, hyperlinking from a third party website to the original work would not be an infringement as doing so would not give access to anybody who would not have already been able to view the work. In other words, no new audience (what the court termed a ‘new public’) had been created. However, if there is no hyperlink from the image to the original use or one that links to private or protected original content, then a copyright infringement is likely to have occurred and can be pursued. The BestWater International case (also 2014) reached a similar conclusion regarding video and framing. As soon as an infringement has been discovered,


take a dated screenshot of the usage. An early difficulty may be convincing an unfriendly infringer that it actually is your photo that is being misused. Evidence in a photographer’s favour includes: the image being displayed on the photographer’s own website; the image being shown on a photo agency web page with proper credit; a screenshot of a high-resolution version of the image, or an unmistakable part of it, with metadata shown. Registering (for a fee and some tedious bureaucracy) images with the United States Copyright Office (will result in a clickable link to a certificate further indicating ownership of a particular image). Infringers who begin by ignoring your say but who slowly yield will often claim they thought


they were a victim of a scam, not explaining how a scammer would know an image is being used without permission. Other excuses to have come my way include: ‘my wife had just given birth’; ‘the image is not worth paying for’(despite the fact they had been using it to promote their business for two years); and ‘we are giving the photo free publicity’. As an author hoping to avoid being charged explained, ‘making a living as a creative is difficult’. Yes, quite, that’s why I am charging you. Pointing out hypocrisy can work. A university


lecturer in law(!) claimed a right to free use of my work as it was for ‘educational purposes’. When I enquired as to whether she lectured for free or received payment, she duly coughed up. Despite campaigning for the London living wage, a member of the London Assembly still needed reminding that it was not appropriate to help himself for free to a photographer’s work for use on his blog. He too paid up. Remember that, however angry you feel about the theft of your work, the goal is to be paid and that is most likely achieved by you being polite and appearing reasonable. Leave sarcasm and insults to the other side so it will be they, not you, who squirm when their remarks are presented to a judge.


As for the chimney sweep who helped himself


to my work, I can only assume he was in the dark about copyright.


Finding infringements and assessing a fee The online search tool that makes photo theft far too easy, Google Images, also makes finding an online thief easy. An alternative is TinEye (www. tineye.com), which throws up fewer false positives while, it claims, assessing 26 billion images in 5.7 seconds. Such lightning-fast algorithms are your friends but not your servants and searching can still be a grind. I once spent three long weeks checking 7,000 of my images for misuse. Some infringements may not be worth pursuing


– anything in Africa, Asia and most of Eastern Europe, news aggregating websites and obviously clickbait web pages – but virtually all others are. Once found, an infringer should be charged


what you would have charged had they sought permission to use your photo. Be honest in assessing this, as you may have to provide proof,


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28