You are a photographer and one of your photos is stolen and used in public for monetary gain; so what do you do? What is the proper course of action? And really the bigger question here is; what is the proper course of action to keep it from a happening again?
Recently (September 21, 2018) I came across a post in my Instagram feed from a photographer whom I follow and he had posted about someone using his photo without permission. I might add that he is a very well-known headshot photographer in NYC. As in, maybe the “best” headshot photographer in NYC. I will not use his name, but he does a lot of work for the entertainment industry and for everyday people as well. He is the “go-to” guy for getting a headshot that will make you look the best you can look. He also shoots other styles of photography as well, but I think it’s fair to say he is most noted for his headshot business.
So here’s the scoop as I know it and in my opinion what he did wrong, very wrong.
(These are the facts as I know them from reading the photographers posts on his IG)
Someone used his photo as their profile photo on the website https://www.airbnb.com they used his photo but used a different name. Most likely not their real name, however that doesn’t really matter. It was brought to the photographer’s attention and he, like most people was very upset and contacted @airbnb to have the photo removed. On the first contact @airbnb would not remove the photo. He was told they really have no control over profile photos (not a quote, but that’s the gist of it). His second contact with @arbnb he was told the photo had been removed and that the first employee he spoke with did not know the company’s copyright policy. After @airbnb removed the photo the photographer was pleased and for the most part all is good. The photographer had said in his post that he liked @airbnb and had used their service in the past.
I had left a rather light hearted comment on his first post saying “you should sic Ed Greenberg on them” (infamous intellectual properties attorney). Although a light hearted comment I fully meant it.
I also left another comment on his second post about this situation and rather than quoting the comment that I posted I will give my more detailed opinion here (because it is my blog).
He was wrong! The photographer is wrong for accepting that @airbnb can do nothing about it and he is wrong for accepting their moronic statement that their employee did not know about @airbnb’s copyright policy.
As a headshot photographer this man (the photographer who had the image stolen) has spent years of his life honing his craft. He is as well known in NYC and around the world for what he does and how does it. He teaches the art of creating headshots… I have sat through his classes. I look up this this guy and I full believe without a doubt he is a master of his craft. The equipment he uses, the staff he employs in not cheap by any means and to have someone steal his image and use it as their own is absurd at best. But then to have a company who is benefiting from it and flip-idly claims an employee didn’t know the copyright policy is just as or even more absurd.
So I know at this point you are most likely thinking a few different things like; well, yeah how can @airbnb stop someone from posting a profile photo that is not theirs? And; well if @airbnb took the photo down all is good, so why complain?
Why complain; because they’ll let it happen again and again and again. And if not @airbnb other sites will do it and think it is ok.
Now first let’s understand there are many frivolous lawsuits filed every day. However the purpose of a lawsuit is not so much for the plaintiff to just get a windfall of money, but rather it is a means of correcting a wrong and making damn sure it does not happen again. The biggest way to correct a wrong and make sure the offender or future offenders do not do it again is a lawsuit. Simply put if you punch the bully hard enough to cause him pain he stops. The best way in the business world to cause pain is take a person’s or company’s money. Yeah they scream like a little baby that has had the nipple plucked from their mouth.
Any good intellectual properties attorney will have a good story or two… or ten to tell you about the cases they have won where the offender “didn’t really think it was a big deal to use a photo and there is no harm done because we removed the photo.” And then much to their surprise when the court delivers that devastating blow to their wallet they scream and scream they should.
Let me step back for those who may not know and refresh your memory about the fact that copyright is laid out in the body of the US constitution. Not an amendment… but a right given to us by our founding fathers and it can be found in section 8 “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
This is why copyright infringement is a serious offense.
Now for the scary part… This whole post has been about someone using another person’s photo “online.” What about when a photo is stolen and used in “printed material?” It happens all the time, companies making money from someone else’s hard work.
When a photographer is well known for his/her work it is not something that just happened one day. You just wake up and bam you can take a great photo and the world loves you and lavishes you with money. Sure it would be nice if it worked that way, but it doesn’t. All too often (and it happens more than you know) images are ripped off for monetary gain. In this case @airbnb is letting a customer use a photo of a very good looking man for a profile photo. I might add that the photographer was a model for many years before he became a photographer. “Good looking” sells… there is no other way to look at it. Good looks will take you a long way in this world. We never see every day looking people in advertisements and in my opinion if someone had a really great looking profile photo it would most likely stand out and get noticed more than others.
I urge all serious photographers to educate themselves about copyright and registering their images. It really is not all that hard of a process. I register my images four times a year. The biggest problem with copyright is there are so many myths out there. Again… there are so many myths and I think the biggest and most confusing myth that I hear all the times is “if I have the original RAW file I can prove it is mine” or “I have the copyright as soon as I snapped the shutter and created the photo.” While both of these statements are 100% true, you still need to register your images with the library of congress. Look at it this way… you bought a car from me and I gave you a recite for the purchase of the car. Now you own the car, but to make it complete you have to register the car with the state government so that it is documented that “you own the car.” Same thing applies to intellectual property. You created it, but you need to register it.
Take the time to read the Copyright Zone. The book is very easy to read and as I have said in previous posts “it will actually be the most important photography book you’ll own.” There is so much great and accurate information coming straight from the infamous intellectual properties attorney Ed Greenberg and commercial photographer Jack Reznicki.
Thanks for reading.