First off, I am certainly not a lawyer and am not giving legal advice in this article, I’m simply telling my story and how I handle image theft. If you have questions about legal advice, please consult with an attorney.
Recently I received a phone call from a family member who believed a local news station was using one of my images as a green screen background. This was interesting considering I hadn’t had any conversations with any news stations recently about such a thing. I asked him to send me a photo of the segment and sure enough, it was mine.
I’ve dealt with my fair share of image theft over the last five years of being a professional photographer and I’ve certainly seen a lot more situations of other photographers getting their images stolen.
One thing that has never sat well with me is when I see some photographers attempt to completely destroy people for using their images without permission. Taking a situation like this to social media and damaging the reputation of the offender should be an absolute last resort, not a first knee-jerk reaction.
Quick Side Story
I had this same image stolen by a well known wedding photographer in the Dallas/Fort Worth area. I am friends with him on Facebook and was just scrolling through my feed when I saw this image being used as a photo booth background. I could not believe my eyes! What many photographers would have done is create a public post calling him out and saying what a despicable thing he had done. This would damage his local reputation and certainly go a long way toward making sure he never did it again.
Instead, I sent him an invoice for use of the image (it was in about 30 photo booth images in his wedding gallery), a cease and desist letter and a short email explaining why he was getting all this. Within 5 minutes he paid my invoice and sent very heartfelt apology letter and also thanked me for solving it privately instead of publicly. Turns out he hired someone to man the photo booth and told the person to only used free and clear images, but the person he hired was uneducated in finding the right images and found mine on Google and just assumed. Sure, he should have done a better job educating the hired help but it was a mistake. Not intentional.
Ok, Back on Topic – How I Handle Image Theft
Instead of calling the news station out publicly and demanding the image be taken down, I simply stepped back and analyzed the situation. I came to three conclusions…
- The image was indeed used without my permission.
- It had been shown on national television to hundreds of thousands (if not millions) of people.
- Whether they stopped using the image or not, I deserved compensation for the use that had already occurred.
Now it was time to make contact. I sent this short email…
My name is James Brandon and your news program used one of my copyrighted photographs without permission this evening (I’m attaching a photo in the email). Also attached is a Cease & Desist letter to stop further use. Since the image has already been used and run on air, I’ll be sending an invoice for the unauthorized use of the photo as well. Please let me know immediately how you plan to respond to this matter, so I can act accordingly.
I got an email back shortly that simply said, “James, I’m forwarding this to our corporate attorneys.”
I’m guessing the person writing the email didn’t think I had a case and figured his attorneys would confirm that. The next email I got from him was a lot more wordy and apologetic. It said…
Second reply from offending party
I’m so sorry about the use of your photo. It was an unintentional error.
The editor thought he had found something in the public domain. Obviously, he was mistaken. He would never have used it if he’d realized it was copyrighted material.
OF COURSE we will immediately stop using the image. I’ve already deleted it from our system so it doesn’t get used again. In light of the error, could you please consider waiving the fee you would normally charge for such use?
– Mitch (name changed for purpose of article)
This is where I had to make a decision. I didn’t send them an outrageously expensive invoice for thousands and thousands of dollars. Rather, I went to the Corbis website and used their pricing guide to figure out how much they would typically charge for similar use of a stock image. I then added a small percentage to that amount since it was unauthorized use. Should I just let them off the hook since he apologized? I think that I might have actually considered that option if that latest email had been the first thing he wrote me. I however got the impression that he was very unthreatened by my letter initially and only after talking to his corporate attorneys did he see the need to be nice to me and apologize. So I decided to (politely) press on.
I appreciate the apology. Since the image has already been used and run on air (and who knows how long), I really don’t see how it’s fair to ask me to waive the fee. I sent you a very reasonable invoice.
I will however agree that once the invoice is paid, I will send over a licensing agreement so that you can keep using the image in the future (provided that it is left in it’s original state and not Photoshopped like it was).
P.S. Do you know where the editor found the image? Was it on my website?
Assuming that it actually was a mistake, I was more than willing to let them keep using the image if they were willing to pay my invoice. Some would say that’s too nice of me, but that’s just the decision I made. He wrote back quickly…
Hello, again, James. (<—-That didn’t sound very nice. I think he’s getting tired of me)
The editor thought he was on a site for which we have rights and somehow managed to get onto another site.
As to the invoice, I understand your need to charge for use of the image, accidental or otherwise. The fee is quite high, however, considering that it was on the air for only a few seconds.
Could you cut the fee in half? I could submit that invoice TODAY and we wouldn’t need the license to keep using the image.
At this point I was getting frustrated. He spoke with his attorneys and they clearly told him that the news station was in the wrong. Now he’s trying to barter with me. I could have said screw it and gone to social media. I could have gone off on him and demanded my money and threatened a lawsuit. Instead I simply stood my ground and let him know my stance on the situation. I also let him know how I could have handled the situation…
When bartering, there has to be incentive on both sides to negotiate. If we were speaking before the image aired, there would be at least some incentive to get my image up on your news program. In this case, the image has already aired without my permission. I didn’t get a say in that.
This image has been stolen before, I guess there just aren’t that many photos of the Stockyards sign out there. The other people/companies that used the image paid my invoice without question (for the same price) and didn’t try to negotiate it. They understood they were in the wrong and didn’t want to risk having the matter becoming public. They were also nowhere near the size of your news program.
What most photographers do in a situation like this is immediately call out the business or person using their image on social media and their website. This gets the photographer’s followers up in arms and they will typically go bombard the Facebook page of the person or company in question. This looks very bad to the person/company’s followers and it usually gets the ball rolling pretty fast to get it resolved.
I’ve chosen to take a more peaceful approach, and attempt to settle this matter privately first. Please pay the invoice so we can put this matter behind us and move on.
That was the last contact I had with Mitch. After that email, I got an email from somebody higher up asking for a W-9 and new invoice sent directly to him. I ended up talking to that person on the phone and explained the situation. He apologized for Mitch’s behaviour and for the unauthorized use of my image and said that I had every right to be compensated for it. He also thanked me for handling it privately and not defaming them publicly. He then paid my invoice over the phone and the matter was settled.
There are many ways to handle image theft, but most situations can be handled professionally without the need for burning bridges or destroying reputations. It can also nearly always be resolved without the use of attorney or going to court.
If someone steals an image blatantly and then refuses to take it down or ignores all attempts at making contact, then by all means sound off on social media and send your army. That’s not what happened here. The entire process of finding out about my image being used and getting the issue resolved and the invoice paid took about 6 days. It took some patience but in the end it was resolved peacefully.
What are your thoughts? Was I too easy on them? Too hard? What would you have done differently? Let me know!
For more articles on some legal ins and outs of photography and copyright try these:
- Intellectual Copyright – What is considered ‘stealing’?
- Using Image Watermarks In Lightroom
- Working with a Second Photographer – Legal Ins and Outs