How To Protect Your Photos and Can Texas Steal Them?

In Master Photography Roundtable by Jeff Harmon1 Comment

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In this episode we talk about copyright for photographers.  Right off the top we need to make the disclaimer that Brent and Jeff are not lawyers and even though Jim is educated as a lawyer he is not your lawyer.  All of you listening would be best served to find yourself a lawyer to help you work through specific situations and especially if you find yourself needing to work through copyright infringement.

How Do Hobbyists Photographers Protect Their Photos?

Before we dive into the story that has made a lot of news in the photography world recently, I want to lay a little groundwork here for our discussion.  We have done quite a few episodes on copyright, but I think we should ignore all of them in this episode and talk through it again. Refresh things.

Let’s start by talking about something I have seen a lot of questions on from listeners over the years.  Inevitably people who are just starting off on their photography journey learn a few things the hard way.  They learn that they have to get a handle on exposure. They learn about the benefits of shoot raw. They learn that photos use a lot of hard drive space and that backup is important.  Then after working their way through a lot of those things and they share an image that took so much for them to learn how to create, they learn photos get stolen.

Let’s talk for a few minutes here to those photographers who have arrived there.  Let’s assume the photographer isn’t a pro yet, not someone who is doing this full time and paying their bills with photography, but their skillset in creating images has become good enough their work is now a target.  Let me walk through what I am doing as a hobbyist to protect my photos.

In-Camera Copyright Settings

The first thing I am doing as a hobbyist to protect my photos is putting copyright information into my camera.  Cameras have had this feature for quite some time where you can put copyright information into the settings so that every time you press the shutter button that information is put into the digital file your camera produces.

I try to remind everyone at the top of every year that they may want to go into their camera settings and update the year information in that in-camera copyright.  Really simple thing to do, only takes a couple of minutes and then you forget about it for the rest of the year. If you don’t have it set in-camera, you can also do this very easily in Lightroom, even having a preset that will add the settings as you import.

Easy to do, and because it is so easy you may as well do it, but does it matter?  Yes and no. If a piece of your work truly has been orphaned, meaning someone comes across your photo online and really doesn’t know where it came from, if this data hasn’t been stripped out of your photo (many social media sites strip this out) then it might help a person who is looking to legally license your photo for use.

Really, then, the thing that is most important in this information is your contact information.  Having the correct year in there isn’t really something that matters much here in the United States.  Not a tremendous effect legally.

Watermarking

Lot’s of hobbyist photographers turn to watermarking after their first experience having a photo stolen.  I went through that phase where I didn’t share anything online that wasn’t watermarked because I found that people were stealing my images.  You can do this pretty easily in Lightroom to apply a watermark to your photos on export. It does a pretty I sort of watermark my photos.

Mostly I do this through the service that provides my photography website, Zenfolio.  Not that you have to use Zenfolio to get this capability, many photography website services will do this for you.  It allows me to provide a .png file to the website and then as I upload my photos I can choose to have Zenfolio apply the watermark to the images.  I upload my image a single time and then Zenfolio generates versions of the image with and without the watermark. The watermarked versions are used when a person is previewing the photo. If the person decides to buy it then Zenfolio allows them to download the image that I uploaded without the watermark.  All of that without my having to do anything. I love it.

I have gone back and forth on the other way I watermark photos, applying a watermark on export out of Lightroom for sharing on social media.  This is the more common way that photographers watermark their photos and because nearly always export my photos at least twice it is not extra work or steps in my workflow to apply the watermark.  One version of my export is the full resolution that goes into the exports folder on my hard drive so that it can be backed up and uploaded to my Zenfolio site. I also export a second time with the long edge at 2048 pixels for sharing on social media and this is where I have gone back and forth with applying a watermark or not.

There are two arguments for applying a watermark to your photo before you send it out for the world to see – especially on social media.  Frist, the watermark can tell a viewer of your photo where they can license it and advertise your brand. Second, when your image is stolen this is a clear indicator that the person who stole the image willfully violated your copyright in removing the watermark.  This second point is the main reason to consider applying a watermark as under section 1202 you are far more likely to recover up to $25,000 plus legal fees when it can be proven the watermark was removed.

The argument against applying a watermark is how it distracts from your image.  We work so hard to create a compelling image and then we ruin part of the appeal by putting a branded watermark on it.  For those that aren’t going to steal your photo their viewing experience has been disrupted. For those that steal your photo it is a pretty small hurdle to overcome to remove it.

If you can stand having your work of art carry a watermark, you should.

Licensing Terms On Your Website

There is a shopping cart feature that is part of my Zenfolio website and as people look through my images there is an obvious “Buy” button that should make it pretty obvious I expect people to do that if they want to use the image.  Is there something more than a shopping cart that you need to do with licensing terms to make it clear?

That is the key thing here.  Making it clear what the expectations are.  Things go to court when two parties do not agree on the terms of an action.  When both sides believe that they are in the right and it is not the same then you go to a court to have a third party say which party is right.  The key to this then is communication. You should do anything and everything you can to make it clear to clients and visitors of your website what the licensing terms are for your photos and services.

Creating some large and wordy contract is not the way to accomplish this.  If it is long and complicated nobody is going to read that. Be clear in what can and cannot be done with the image as someone is buying it.    A few bullet points of what they can and cannot do. Most website shopping cart features allow you to provide a description of the product being sold, just put these few bullet points in there.

Looking For Infringement

As a hobbyist, I have so little time to spend on my photography compared with what I would like to do, so I haven’t done much searching to find uses of my images that infringe on my copyright.  It takes time and usually is not something I am willing to invest my valuable time into doing.

There is a free way to do this.  You can go to google.com in your browser and then drag an image from Finder on Mac or File Explorer on Windows to the search box and google will show you places on the Internet where that exact photo is being used.  It is really fast and it is worth checking out just to see what the results are for your best images. It is manual, I don’t know of any way to automate this with Google for free.

The second way you can do this is to pay for any of a number of services that will do this search for you.  The service I have personal experience with is pixsy.com.  I signed up for Pixsy years ago, I think it was when they launched the service it made photography news and since they had a free tier I decided to give it a try.  That free tier remains today and for free Pixsy will watch the Internet for uses of up to 500 of your photos and let you know when it finds any. The free tier means the searches of the Internet for your 500 photos will be done as a low priority.  If you pay a monthly fee you can have more images monitored and have the priority of searching increased.

Another service that Jim has had experience with is imagerights.com.  It does pretty well the same thing.

I have had Pixsy send me emails when they discover instances of possible infringement.  There have been plenty of false-positives where the image they found was actually close to mine but not the image I created.  In the years I have used the service I think I have had only a single instance where finding my image being used without licensing resulted in a licensing of the photo.  This is why I have chosen not to spend much time on this, so many other ways I would rather spend my time with photography.

Jim sees his images used pretty frequently as a blogger uses his image or other more “minor” types of uses of his photos that infringe on his copyrights.  While it is true that it is technically illegal, it isn’t very likely that the blogger is going to license the image and he has decided it just isn’t worth it to him.

Brent has had images used in a magazine without licensing.  He just happened to see that in the magazine on the shelf and when he confronted the magazine they were embarrassed and apologized profusely.  They also fired the person who was responsible.

None of use really do this, so is it bad to not be spending some portion of our time defending our copyright? Yes, it could be.  There is a concept called abandoning your copyright that if proven would mean you won’t win a copyright court case. However, in a practical standpoint, every really good photo on the Internet has been taken and the burden of trying to find every infringement is not a practical expectation.

Register Copyright

We have gone through the things that I am doing as a hobbyist photographer to protect my images.  The thing I am not doing is the thing that is THE MOST IMPORTANT thing that photographers should be doing.  Far more important than anything else, registering your copyright with the Copyright office is critical to making your case in court.  You can hear a little more about this in this podcast episode where we talked about a multi-year effort for a $60,000 settlement.  You can also go to thecopyrightzone.com for easy to understand information on copyright for photographers.

The problem here is the process is cumbersome and unwieldy.  The system is pretty much crazy. If you really wanted to follow the letter of the law and have your photos protected the best they can be you can’t put them out on social media or your website until you have registered them with the Copyright office.  That just won’t be very practical for most photographers, hobbyist or professional.

Many of the images we create have some level of time sensitivity.  The image has the most impact if it can be shared or delivered quickly.  The longer we wait to do that, the less people or our clients will care about getting the image.  You can make this come together a little better by making sure you have at least submitted your images for copyright prior to sharing them and not waiting for that process to complete, but even that is time consuming.  Still, if this is important to you it is a step that protects your images more than anything else that we have talked about.

We aren’t saying you shouldn’t register the copyright of your images, you absolutely should if you want to protect your images.  It is the very best way to defend your copyright and is really the only way you have a chance to recover damages that are actually representative of your loss should a massive infringement take place.

How Do Professional Photographers Protect Their Photos?

What about those who are professionals?  The wedding photographer or portrait photographer who is doing this full time?  Does anything change for them as far as what they should do to protect their photos?

We have talked about the fact that we aren’t doing some of the harder things that take time to protect our photos because of the time commitment.  Please don’t mistake our talking about it for us personally and how we have decided to handle copyright as our saying nobody should be doing it. There are some photography businesses where this not only makes total sense, the business may not survive without making sure they do everything they can to defend the copyright of their photos.

The news story we talk about here in this article is a prime example.  This is a situation where the photographer made some pretty extreme efforts to create some incredible and very unique images and that made it not only worth the effort to do everything we have talked about it is pretty clear anything less would have meant real harm to his business.

Professional photographers who make their living from their photography really should invest the time and effort to protect their images and should retain the services of a lawyer to the extent it makes sense.

Can Government Use Our Photos Without Licensing?

Now let’s get to the reason we are having this discussion yet again on the podcast.  A story got carried by pretty much all of the mainstream photography media this week about a ruling from an appeals court in Texas that seems to agree the state government has permission to infringe on copyright.  Rather than link to any of the stories that came out of the photography media, here is the link to the court document:

Background On The Court Case

Let’s start with the background to set the stage for the ruling, this is straight out of the document linked to above that explains what happened:

Jim Olive Photography d/b/a Photolive, Inc.(Olive) sued the University of Houston System, alleging an unlawful taking and seeking just compensation under Article I, Section 17 of the Texas Constitution and under the Fifth Amendment of the United States Constitution.  Olive, a professional photographer, alleges that he took a series of aerial photographs of the City of Houston at dusk in 2005. To take these photographs, Olive rented a helicopter, hired a pilot, and, utilizing special photography equipment, suspended himself from the helicopter with a harness. While suspended in the harness,Olive took photograph SKDT1082—”TheCityscape”— the subject of this litigation.  Olive registered The Cityscape with the UnitedStates Copyright Office on November 18, 2005 and displayed it for purchase on his website. Olive owned all rights associated with The Cityscape, and his website had numerous references to licensing the website’s photographs, including an entire page labeled “Copyrights and Usage,” which described the applicable copyright protections held in the photographs and explicitly stated that “[t]he unauthorized use of these images is strictly prohibited.”

Olive alleges that sometime around June of 2012, the University of Houston downloaded The Cityscape from Olive’s website, removed all identifying copyright and attribution material, and displayed it on several web pages to promote the University’s C.T. Bauer College of Business. The University never contacted Olive about using his photograph and never compensated him for its use.

Over three years later, Olive discovered that his photograph was being displayed on the University’s Bauer College of Business web pages. Olive informed the University of its unauthorized use of the photograph and demanded that it cease and desist this use. The University immediately removed the photograph from the College’s website. Olive further alleges that the University’s display of the photograph without attribution allowed private actors such as Forbes Magazine to republish and display The Cityscape without Olive’s permission and without compensation. Upon being sued by Olive, the University filed a plea to the jurisdiction, asserting, among other things, that because Olive failed to plead a viable takings claim, the University retains governmental immunity and the trial court lacks subject-matter  jurisdiction.

The trial court denied the plea, and this interlocutory appeal followed. The University argues in four issues that the trial court erred in denying its plea. The University first argues that a copyright is not property under the federal or state takings clauses. The University then argues that, if a copyright is property under the federal or state takings clauses, its copyright infringement of Olive’s photograph is not a taking, that it lacked capacity to take Olive’s copyright property, and that Olive did not sufficiently plead an intentional taking.

What is a “Taking”?

Normally copyright infringement is a federal case.  It isn’t handled by a state. By default, the government has immunity from lawsuits.  There are a million holes in that and the government is probably the single most sued entity, but by default they have immunity from lawsuits.  Most of the time the copyright holder sues the infringer for copyright infringement. In this case the photographer isn’t doing that. The photographer was probably given legal advice that suing the University of Houston, an entity that is owned by the state of Texas, wasn’t likely to end up in him recovering damages.

Instead, the photographer is arguing that the use of his photo by the University of Houston is a “taking”.  So what is a “taking”? In simple terms, a taking is when the government seizes private property or a substantial deprivation of the rights of free use and enjoyment.

A good example of a taking is a plot of land that is privately owned and the government is building a road that has to go through that land.  The government can take that land but they have to give the private owner fair compensation for the taking of that land. In the case of the land and the road the taking is pretty obvious.  It can also be much more opaque. Like a shopping mall that is privately owned but open to the public. Even though it is privately owned, the owner must allow the expression of free speech.

This case is to determine if a state stealing an image is a taking, something that has never been litigated.

Did Texas Get To Steal Our Images?

Sounds to me like the photographer did everything he could to protect his images.  He watermarked the image. He had very clear licensing terms on his website. He registered his image with the Copyright office.  Seems to me to be a clear-cut, by the book copyright case here yet he has lost the case with the court ruling that the University of Houston using his image was not a taking:

In this interlocutory appeal from the trial court’s denial of a plea to the jurisdiction, we must determine if a viable constitutional takings claim can be asserted when the State commits copyright infringement. We conclude that a governmental unit’s copyright infringement is not a taking and that the trial court therefore erred in denying the plea to the jurisdiction.

Does this mean that the University of Texas can use any of our images for anything they want?  No. This is where we have to be careful with the headlines and reporting that is being done on this story.  Often headlines and reporting are trying to do everything they can to draw attention and attract readers and the true impact of a court case like this is not fully understood or explained.

The ruling here is far more narrow than is being reported in most cases, at least the reports we have seen. This ruling does not mean states can steal our images and there isn’t anything we can do about it.  No doubt it is frustrating. Especially when you consider that there is some evidence the photographer had their “fair use and enjoyment” of the photo negatively impacted when the University of Houston shared the image with a magazine doing a story on the business school.  Should have been pretty easy to argue that the photographer lost a licensing opportunity there in addition to the University having the image on their website for four years. All of that is really frustrating.

The photographer did everything he could to protect his images and the court has ruled that he can’t recover damages on the grounds that this was a taking.  However, there are still legal methods that could be pursued. What he should have done is sued the individual who worked for the University of Houston who used the image.  They probably had a really good copyright case there and they probably thought of that but when they looked at the person they could see that they wouldn’t be able to recover meaningful damages because the person didn’t have the money.

He also could have sued for something called “injunctive relief” to stop the University of Houston from using the image.  It wouldn’t have included any damages but he had a very good chance of winning a court case where that was the premise. It sounds like this wasn’t acceptable to the photographer either because the University of Houston did take the image off of their website and offered to give him a tiny bit of compensation for the image and he declined.

Congress tried to fix this problem with something called the CRCA that said states are not immune to copyright lawsuits.  The problem is case law since then has really nullified the law by successfully winning cases using the 11th amendment to the Constitution.  

Yes, as things are right now, it is going to be pretty difficult to recover meaningful damages for copyright infringement done by a state but they cannot steal our images.  They won’t win cases where they are told to take down an image that was stolen.

Additional links

Doodads

Brent: Sky-Watcher Star Adventurer Pro Pack ($370) for astrophotography.  Allows you to take images of the stars with an exposure time in minutes instead of seconds by moving the camera with the stars.

Jim:Please invent a camera tripod that works like a hunting tripod.

Jeff: SatPaq ($250 + per message rate).  Allows you to send and receive messages from your phone even when you are out in a place where you have no coverage by your carrier.

Reminders:

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