Finding out your image or artwork has been used without your knowledge or say-so can be a punch in the gut. In this tutorial, we’ll look at positive action you can take to seek a fair outcome.
I recently discovered that one of my pictures had been used by a large newspaper chain, without my permission. After careful consideration and patience, I reached a successful resolution with the company. This, unfortunately, doesn’t always happen and so I wanted to share some advice and steps to take to ensure that if this happens to you, you get the best possible result.
I’m based in England, so my experience and knowledge are
based on English copyright laws and are meant to be taken as advice only. Copyright laws are similar in Canada, Australia, and other Commonwealth countries, and the same in principle many other countries, too. In any case, check the laws carefully where you are before you proceed. For example, copyright laws in Quebec, a Canadian province, are different from the rest of the country. Do your research!
Misuse of an Image and How to Understand Copyright
Quite simply, misuse of an image is when somoeone uses a picture you've made in any way other than what you have given permission for. That could be in the form of prints or digital publication, for example. This doesn’t necessarily require a contract, either. In English Copyright Law,
‘Intellectual property is something unique that you physically create.’
In terms of photography, any image your take is yours, even if there are other people in the image. It’s often thought that you require a model release for images containing people and while that may be polite and save you a headache in the long run, it’s not actually obligatory.
There are two exceptions to this rule. The first is if you’ve taken a photograph as an employee of the company the photos are for; and the second is if you give copyright to someone else. This would usually come in the form of a contract or release and must be in writing and signed by the photographer.
There is also fair use of an image but no company could
claim fair use of an image when used for commercial purposes. You can learn
more about copyright
and licensing in one of my earlier articles. Recognition of fair use varies widely. Guidelines and precedent are well established in the United States, for example, but not in Australia.
Images that could be read as defamatory or obscene require special delicacy. While this isn't, strictly speaking, part of copyright law, for better or worse the nature or what's in the image might impact how people respond when you assert your rights. What people think is defamatory or obscene also varies extremely widely.
How Will I Know if My Picture Has Been Misused?
In short, you may not. It’s a big ol’ world and the chances of us stumbling upon our images by chance, are small. However, certain images are more likely to get used in a particular way, so if you do want to check, you can go about it more methodically.
If you’re a landscape photographer, your image might appear for sale on stock sites or image printing websites. If you take a lot of photographs in the area you live then your local publishing outlets (such as newspapers, Council booklets etc) would be wise to check.
Image Search Websites
There are several sites and software packages now that help you protect your images. This might be through uploading an image and having it search for the same one elsewhere online or even keeping track of your posted images on third party sites, social media and your own website. Here are a few we recommend:
- Lenstag: Helps you recover stolen kit as well as track stolen images. Harry Guinness tells us how to use Lenstag effectively here.
- ImageRights: Simplifies the copyright process and helps you discover infringements. Andrew Childress explains how to install and use ImageRights here.
- ImageRaider: A reverse search engine for images where you upload your photographs and are presented with a list of websites using them.
- Pixsy: Another reverse search engine but with the added extra of allowing you to put in URLs of websites you regularly use for constant monitoring. Pixsy is currently invitation only but you’ll likely get one as soon as you register your interest.
Check and Double Check!
My image was spotted on Twitter by my partner, so it was completely by chance that I found it at all. Once I had, I did some research to make sure I could back up my claim.
Step One: Evidence Gathering
Before you fire off an irate email, take a deep breath. Then collect all the information you can:
- Screengrab the image on the website or page where you’ve spotted it and note the date. You don’t want to contact the company only for them to panic and delete all evidence it was ever used.
- Now you know that image has been used, put your original into a reverse search engine and see if it’s been used more than once. My photograph came up several times in different articles, used by the same company. Screen-grab anything you find and save the URLs.
- Check the websites for any more of your images that may have been used.
Step Two: Get Your Facts Straight
Now that you know your image has been used, what are the circumstances under which the image was taken? It could be an image from years ago so be sure you can remember all the details surrounding it.
Questions You Should be Asking Yourself
- Did I take this for a third party and could they have passed it on? Even if the answer to this is yes, that doesn’t mean the image was properly used; we’ll come back to this later.
- Was there a contract in place and what were its terms?
- Did I waive copyright or give additional permissions in writing at any point?
- Do I still have any email conversations that took place surrounding this image?
I suggest putting everything related to the case into a folder. Familiarise yourself with the main points, such as when the image was taken, who it was taken for and when and how it’s been used inappropriately.
Watch out for competition entries. Many companies here in the UK state in their terms and conditions that if you enter a competition or share an image on their social media then they can then use the image how they wish. Although it's a decidedly underhanded way to do business, there’s very little you can do in that case as long as they’ve been seen to be transparent, so make sure you don’t fall into that category before you interact with anyone.
Step Three: What Do You Want?
Before you make contact with anyone it’s important that you know what you want from them. Are you looking for fair payment? Are you prepared to take them to court over it? Would you accept an apology and a credit?
Knowing your ideal outcome can make this whole process a lot easier than if you go into it unsure, so be realistic – you’re not going to be able to retire to the Bahamas on this but nor should you settle for a plead of ignorance if you’ve potentially lost revenue. Think carefully about the perfect outcome, what you’d settle for and what is unacceptable and then you can work towards your main goal, knowing there’s room for negotiation if need be.
Find the Right Person
Once you’ve collected all the evidence, you need to find the appropriate person to contact. Use the internet to search for the person in the most senior position you can. Websites such as CEO email can help you find the right person. In my case, the company was a local outlet of a large national newspaper publisher and so it didn’t make sense to go right to the top as this was a more local issue. Instead, I found the head of the group responsible for my area, and contacted that person. They may well pass this on elsewhere but the person who it ultimately ends up with will be less likely to brush you off if they know their boss is aware of the situation too.
Be Clear, But Not Accusatory
Chances are at this point you are feeling annoyed, and rightly so, but you don’t want this to cloud your judgement or come across. Take some time to cool down and compose yourself.
When you do email, simply state the facts, don’t make accusations. Explain that you’ve discovered your image being used and provide a link or screenshot if that feels appropriate. Ask if they could give you details on where the image came from and any information surrounding its use.
If you’re absolutely positive they’re in the wrong then you can begin by politely informing them that they’ve used your image and that you’ve attached an invoice for their attention. An outstanding bill (whether justified or not at this stage) is something that will require attention, so they can’t just ignore you.
Excuses and Time Wasting
Be prepared for excuses and know how to combat them. Part of the conversation in my particular case was that the publisher had received the image from my original client. They argued that this gave them the right to use it as they wished as they assumed the person who passed it on had the copyright. In actuality, my client had passed on the image along with a press release, an absolutely appropriate use of the image. The problem came when the newspaper saved the image to their database and rolled it out for other, non-related articles.
Ignorance is often the first port of call for companies: they hope that you’ll write this off as a genuine mistake and be on your way. In the UK, no matter where a publisher sources an image, the duty is with them and them alone to make sure they have the right to use it. If someone told them a rumour about a celebrity and they printed it without verifying it, the celebrity would be within their rights to sue, because the duty is with the publisher to ascertain that the facts are correct. It’s the same with images, so don’t be put off by excuses like this. If you were to copy and paste news articles to your commercial website and make money off it, would they let you claim ignorance?
A simple way to knock this on the head is to ask for a copy of paperwork where you released copyright on the image, which they obviously will not have.
In my particular case, the publisher even went so far as to get my original client to email me and explain why they’d given the publisher the image, something I already knew. Don’t be bullied or intimidated if you’re contacted by your client. Although this can be embarrassing, simply inform them that their use of the image was absolutely appropriate and the issue lies solely with the publisher.
Show Me the Money
Once excuses are done with, you’ll likely be offered something to go away.
What to Charge
You can’t pluck a figure out of the air. If it comes to
court then a judge will have to see that you’ve been reasonable and if you
can’t justify your figure then you’ll blow your case out of the water. If you haven't already established rates for your work, look at rate calculators and image licensing websites for a similar image of the same size and work out what it would cost
to use and equivalent image.
The first offer made to me was a credit on the photograph. I don’t know about you but credits don’t pay my bills. Unfortunately this is a demonstration of how digital work is so often dismissed. You’ve already taken the picture, it cost you nothing for them to use it, so what’s the problem?
I responded to the offer of a credit with a polite decline and an invoice for use of the image, detailing where and when it was used and a deadline for payment. The second offer came from the legal department a week later and was less than a quarter of my invoice. At this point they really would rather pay you something than have the hassle of going through court.
What you have to decide is how much you’re willing to accept
or if you want to take it all the way to court, which of course would have a
cost attached to it. Hopefully you’ll have already decided on a figure that
you’d settle for, but don’t come in at that or you’ll never get it.
Be realistic about the other party, the nature of the misuse, and what you can expect. Rates for editorial photography are significantly lower than commercial photography, so don't expect to get commercial-rate compensation for an editorial misuse. Conversely, if your image has been used for a commercial purpose you're probably in the right to expect something in line with a commercial rate.
I discounted my original invoice by 25% and sent it again. Each communication took roughly a week; you need to be patient with this process so that again, you’re seen to be reasonable if it comes to court action.
Their next offer was less than half of my invoice and so I declined and stated my intention to move this to small claims court. Finally, they offered half of my invoice, which is the figure I’d been aiming for and was happy to settle at.
If you can’t come to an agreement (which is usually the third offer made and somewhere in the middle of what they start out at and your original invoice) then you might need to think about moving this to court.
Small Claims Court in the UK
The UK government make it fairly easy to raise a claim through Money Claim Online. If you’re claiming for a specific amount under £100,000 then you can fill in an online form, pay £25 and the process will begin. Chances are, the company will make you an offer to settle out of court—it often costs a lot more to be represented by a solicitor than for them to pay you to go away.
If by chance it does get to court, make sure you have all your evidence of use, a record of all conversations regarding the issue and a clear justification of the amount you’re seeking. As long as all your facts are correct and you’ve been reasonable throughout the process, there’s every reason you should get the amount you’re asking.
When Misuse Causes Harm
So far, the kinds of misuse we've been talking about are fairly benign. There are, however, situations where misuse of your image is far more serious.
What if an image you'd taken was used in a way that could be considered racist, homophobic or sexist? This is something that could affect both your business and the reputation of the models used and you'd both likely be entitled to compensation as a result. Likewise, someone could claim the image is theirs—something you need to be able to rebuff in court, and prove ownership of the image yourself.
If the misuse of your image has caused damage to you, your reputation, or people depicted in your images, it is best to get help from a solicitor. Depending on the situation your clients or models used may need a solicitor as well. Do your research and find one who specialises in this kind of issue. If you're up against a team of lawyers working for a large company, then you'll need someone who knows their stuff.
Solicitors usually offer a free consultation, which essentially means you can meet with them, tell them your issue and they can advise you how to proceed, without charge. They may suggest initial steps, like sending letters, before filing for court. Most often, the place they'll start is a 'cease and desist' letter, to stop the image from having any further use and to be removed from the places it's already been used.
From there, costs can quickly mount up. Solicitors want payment on account (in advance) so you need to decide whether this is something you'll be able to afford. Before you go ahead, you can ask your prospective solicitor to outline the approach they would take.
Ownership and copyright over digital products such as filming and photography can, unfortunately, be easily skirted. Some companies see your product as ‘a quick snap’ or a ‘bit of stock footage’ with very little outlay. What they fail to consider is the cost of your equipment, the insurances you’ve likely had to purchase, the cost of your education if you gained a qualification, your reputation, the creative thought that went into the work, and so on. Filming and photography are have just as much a basis in the real world as anything else. To paraphrase an old anti-piracy video, you wouldn’t steal a car and plead ignorance so why is it okay to steal a digital image?
Many newspaper groups in particular work on the premise that it’s easier to ask for forgiveness than permission. They take the image and just pay off the photographer if and when they’re caught. If you think about the frequency that this must happen, they spend a lot less that way than licensing the image legitimacy.
If you find that your image has been used without permission, or you want to try and prevent that from happening, here are the main points of the article recapped for you:
- Know your copyright status. Never sign it over without fully understanding what this means.
- Use reverse search engines and check appropriate sites like local newspapers to see if your image has been used and where.
- Gather proof and screengrab any websites where your photograph appears.
- Decide what exactly you want before you start to pursue a claim.
- Find the right person to contact and be polite, not accusatory.
- Be prepared for time wasting and excuses and try and keep the conversation on topic; on your terms.
- Base your invoice amount on something realistic; be prepared to justify this if it goes to court.
- Don’t feel like you have to accept the first, or indeed any, offer made to you.
- If the company refuse to pay you or don’t offer you an amount you feel you can accept, then it may be time to take them to small claims court.
Such a simple thing as using an image can quickly become a very stressful and time-wasting event. Remember, you aren’t in the wrong: it’s up to them to prove they were right to use your image. Something else that’s important to bear in mind is this is potentially a bridge-burning exercise. It’s unlikely that the company you challenge will want to work with you in the future. Chances are, though, if they’re nicking your image then they’re not a client anyway! In my situation, they also dragged a former client of mine into the discussion, which is grossly unprofessional, but it does happen so it’s something to consider.
The subject of image misuse is so often not spoken about
because we can doubt ourselves or wonder if we’re making a fuss over nothing.
Remember, if a company wants to use your image then you deserve that to be on
your terms, whether that’s a credit or a payment; never feel bad about that.