I’m Sorry Doesn’t Make It Right (How can they stop people from posting other people’s photos? A lawsuit!)

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.

 

 

So I know you (the reader) may still be saying “but how can @airbnb control what photo a person uses for a profile?” Easy… if the lawsuit is big enough to make them scream they’ll find away very quickly. We live in a world where companies like Twitter and Instagram can grant people verified accounts, so I know there is a way it can be done. With the coming of AI (artificial intelligence) I’m sure it will be very easy to verify people’s online identity with the greatest of ease.

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.

Are You Registering Your Images? ( I find this to be a topic that creates more questions than it does answers…)

1/400 sec at f/2.8 ISO 50 200mm

1/400 sec at f/2.8 ISO 50 200mm

Are you registering your images with the Us Copyright Office? I do. As a matter of fact I am uploading a few thousand images as I’m writing this post. I find this to be a topic that creates more questions than it does answers for the average photographer and sadly enough most photographers do not register their images. I have found that many photographers have very little knowledge about copyright. Most think it is some BIG process and they’re afraid of it. Copyright is as unknown to many photographers as is death. Are you afraid to die? For many the answer is “yes” because we really do not know what happens after we die. So like anything in this world that is “unknown” we as humans tend to shy away from it and pretend we didn’t hear anyone say a thing. Do you remember learning to ride a bicycle? And what happened after you learned? So easy that even if you haven’t ridden a bike in 10 years it only takes two minutes and you right back at it. Again the fear of the unknown… I could do a month of blog posts on the “fear of the unknown” in just the fears I have had and have overcome in my life.

So why do I need to register my images? Well, the truth is no one has to register their images at all. Last I checked in my state of New Jersey USA there is no law saying images have to be registered. The key to the mystery is in the word “copyright.” It is your right to register your images to protect them and have control as to how the images are used or not used. Also you  as a photographer want to dispel all the myths about copyright and copyright vs registering. Simply put “you own the image as soon as you click the shutter.” You own the images the same as you own your car, but you have to register your car in order to drive your car. Same goes for images/photos, sure you know you own it, but you must prove you own it. Because you did not buy your photos you do not have a receipt and you created them yourself, so you need to tell the government that you created these said images and this is done by registering them at the copyright office. Now at this point I will give my little disclaimer that most of the information I am about to speak of can be found in a book called the “Copyright Zone” written by Ed Greenberg & Jack Reznicki. Ed is an intellectual properties attorney based in New York City. Jack is a professional photographer of many years. The book is the “real deal” when it comes to all the things a photographer needs to know about copyright. I am not paid in any way to promote this book, however I can say it really is a must have for anyone who is serious about their photography and wants to protect their images. I found Ed & Jack a few years back when I joined up with Scott Kelby’s infamous Kelby Training for photographers which by the way is now called “Kelbyone.” Ed & Jack had a few courses that explained copyright and really shed some light on the subject for me. Actually it explained everything I needed to know to start registering my images. Then the book came along in a revised edition and it goes deeper than the classes did.

Strangely enough I was one of those photographers that was very receptive to copyright and wanting to learn all about it as I was learning how to use a camera back in the day. But I could never really find a one stop place that explained it and most of all “how to” actually go through the process. I was receptive to copyright because for many years I have written songs and some poetry and I learned a long time ago to copyright my work. So when I started off into photography right away I knew at some point I had to learn how to register the images. Back in my songwriting days there was no internet and it was all done on paper and through the US Mail system. Now it is all done online and it really is so easy a child can do it. But with that said; I have found that in order to keep the process as simple as possible I had to incorporate copyright into my workflow. It really is not hard at all if you use Adobe Lightroom and Photoshop will work too. However I have found Lightroom to be much more streamlined because my whole workflow process centers on Lightroom. I will write a post in a few days explaining my copyright workflow.

There really is only one reason that you register and that is to protect your property. For some odd reason that I cannot seem to figure out, some people do not want to protect their images. They’ll come up with all kind of excuses or they believe in some urban legend they heard or read. As for reading the Copyright Zone and given the fact that Ed Greenberg has made a very successful career as an intellectual properties attorney, one of the best at what he does, so when Ed speaks I will listen. If Joe McNally walked into a room full of photographers and started talking and giving advice I would certainly take that over something I read on the internet or heard from somebody in the local photography club. Really just a little common sense coming from the correct source will take you a long way in life.

So my post is not a tutorial about how to register your images, if you want to learn I would suggest picking up a copy of the Copyright Zone, not only is it a good read, but very informative and worth every cent you paid for it. So in closing I will say this; yes it will cost you money to register your images. It is $55 to register a collection and a collection can include a lot of images, thousands. I don’t know the current maximum amount aloud, but I can tell you I just uploaded around 4500 images and I have another several hundred to add. All for the same $55 dollars… And please know I am not a wealthy man, I am not poor and I could easily find something else to do with that $55. But I put a value on my work and what I do. Yes I will do “Time for Print” with a model or up an-an-coming entertainer when there are no paid jobs, however I conduct that shoot as if it were a paid job, I may have to invest in any number of things to make the shoot happen. I may have money laid out in travel, location fee or permit, lunch for whoever (boy am I nice guy or what) or maybe even wardrobe or a makeup fee. Why do I invest? Because I want good images and then after I get as good of images as I can afford and I can achieve with my skills and gear… I register them to protect them.

Thanks so much for reading.

 

Watermark Your Photos (“copyright” is the only “right” mentioned in the US Constitution)

 

 

As come the daffodils to remind us winter is going away.

As come the daffodils to remind us winter is going away.

Is a watermark worth it? Should I really or do I really need to put a watermark in my photos?

The answer is yes… and no. Ok that was confusing. Seriously there are times when it is prudent to put the mark in and there are times to leave it out. And recently while seeing an interview with Ed Greenberg famed intellectual property attorney and co-author of the book “The Copyright Zone,” Ed cites a recent case to come through the courts that upped the ante for the removal of a watermark to between $30K to $150K and that is some serious cha-ching for taking someone’s photo and say “cropping out their watermark.

The average person should be concerned about images being clipped off of social media sites like Facebook, Flickr and Twitter and so on. But do you really have to watermark everything? I say “no” of course not. But let’s take a closer look. So if you take a photo of your dinner and post it, then I say no. Or you take a photo of the new shoes you’d like to buy and you want to show someone on Facebook, again this is a no. But let’s say you have a beautiful shot of your granddaughter blowing out the candles on a birthday cake then this is a big yes. Oh and how about that beautiful shot of the girls, even though you shot it with your phone it was awesome and again we have a big yes. Placing a watermark is not going to keep somebody from stealing your photo, but it sure helps a lot. It is kind of like putting a lock on your bicycle. If the thief really wants it he will find a way to steal it, but it keeps 95% of the bad guys away. Also remember once you post to Facebook you don’t own the photo anymore, Mark Zuckerberg owns your photo and he isn’t going to do a thing to keep somebody from stealing it. But by putting a watermark in is a big deterrent.

Go a step further and put the © symbol in. It means very little and it hasn’t been required since Jimmy Carter was president, but by putting the © in it does give your attorney even more leverage if you were in court. You don’t have to be a famous photographer creating fine art prints to have your photo stolen. I always remember the case many years back about the girl who had her teen photo stolen and it found its way to being on printed abortion literature and was being used four states away at various medical facilities. It had been used for over five years and lo and behold a college friend seen it and notified her. So not all cases could be that extreme, but why take the chance. One thing you must know is; if you created it then it is yours and you have the right to decide who can use it and where it will be used. Yes you have that right and the US Constitution says so. As Ed Greenberg & Jack Resnicki point out “copyright” (exclusive Right ) is the only “right” mentioned in the Constitution, Article 1, Section 8 states “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;.” All other “rights” or freedoms are part of the “Bill of Rights,” so I guess our fore fathers were really up on people protecting intellectual property. With that said remember you give up sole ownership when posting to social media. It is in the fine print when you agree to the terms of use. So while you do not own the photo, by putting a watermark in you do show that it was once yours.

Here is another example of when to watermark. Let’s say you have a business website and you have photos posted to the pages as almost all websites do. If you are using photos that you created then you should watermark them. Let’s just say Jack is a nice guy and has a landscaping business and part of what he does is building beautiful stone walls. Jack is very proud of what he does and wants to use photos of past work to get future work and he is so proud of his stone walls that he wants the photos to look the best they can. He hires a local photographer to take some images, edit them and Jack sends them over to the webmaster for his site. Now the photos are up and they look great, everybody can see examples of Jack’s work. But… ole slippery Sam is in the same business and lives 500 miles from Jack. Sam builds his own website and he has photos that he shot with his iPhone, but well… they don’t look as nice a Jack’s photos. So ole slippery Sam does the copy & paste and steals Jack’s photos… you know? The ones with no watermarks. Like I said Jack’s a nice guy, so nice he paid the photographer to take the photos and now he just gave them away for free to Sam. This scenario plays out every day all day long. Would Jack give his truck and tools away for free so another guy to go make money? Most likely not. In this example those photos are like “tools” and they are used to make money.

So how do I and where do I? Watermarking is very easy there are free apps you can download for Droids and iPhones that make simple text watermarks and some will also put in an image. If using an image you have the best results with a png file rather than a jpeg file. Png files are transparent and are perfect for watermarking. There are several ways to convert a jpeg image over to a png, but at the very basic you can open a photo in Microsoft Paint (every PC has it) and choose “save as” then choose png file under the box at the bottom where you type the file name, hit “save” and you’re done. I’ll post a tutorial later.

Now we have made our clever watermark so where do we place it? I know I’ll put it right in the center of the photo and this will certainly stop the photo thief. Yes it will and it will basically ruin the viewing pleasure of all who come to see your photo. I like to keep the watermark in the lower corners, although I have friends who like to put just simple text along the edge running top to bottom. Matter of fact I recently at the beginning of 2015 made my watermark a logo for my photography business. Prior I had used simple transparent text with a © and after a few years I was bored with that and made the logo I use today. It is not a matter of “will someone steal my photo” but rather “when will they steal my photo.” I have posted before about how I have had photos stolen and even had them re-edited and the bastard put his watermark in but credited me as the photographer. Did make sense, anyway I see his Instagram profile is gone now lol.

So you decide for yourself… Most people are lazy and will never do it.

Foot note: For an ultimate source of copyright info I recommend picking up a newly revised copy of The Copyright Zone by Ed Greenberg & Jack Reznicki or checkout their classes on www.kelbyone.com

If It Is Good, It Will Get Stolen (Instagram is like the wild, wild west)

Kendall Strampel at the gate to the medical ward at Eastern States Penitentiary

Kendall Strampel at the gate to the medical ward at Eastern States Penitentiary

Not sure why people do this? In all of my quest to become a great photo editor I have spent countless hours working in Adobe Photoshop. I have spent countless dollars taking classes, reading books and traveling to conventions and attending live seminars. I have studied under some of the best in the industry. One thing that is known by all is; if you post online you will have your images stolen. These are the most recent images that have been reported to me by Digimarc. Although I find it an honor that someone likes my image enough to steal it and repost it. Or in the case of what goes on at Instagram where people take the photo and re-edit it in some horrible manner that doesn’t lend any goodness or in anyway make the photo better than what it was to start with. Digimarc is a digital watermark that is embedded in the properties of the image kind of giving the image its own personal address. Wherever the photo goes, so does the watermark and can be traced. The watermark can be stripped out but it will greatly reduce the quality of the image.
I have never stolen an image and called it my own, nor have I taken someone’s image and re-edited it. I have however bought (as in paid $$$) stock photos from istock.com to use for editing purposes. My latest photo of The crazed Kendall at the gate to the medical ward at Eastern States Penitentiary was only online a few days before it started to travel around on its own. I knew this would happen because the photo was very popular as soon as it went up online at the various places I posted it. The biggest amazement or I should say “question” that everyone was asking me was “how did you get her on the other side of the gate to photograph her?” Because any photographer who has ever been to ESP knows that the gate is kept locked and it is a forbidden area to photograph. You can take photos of the gate, but you can not go on the otherside. So just how did I get Kendall in this spot? I think you know the answer to that.

As for Instagram; I have been getting all kinds of activity over there. I get the normal people who “like” my photos and follow me. Some ask questions or advice and this I find no problem or fault with. But I get DM’s (direct messages) all the time from girls who want to shoot with me. So called models. I say “so called” because they are for the most part just girls looking to get in front of a camera so they can say “yeah I did a photo shoot today.” So I tested the waters on this and had a 50% failure rate… or success rate depending on how you want to look at it. The first girl was amazing. An amature for sure but what a great person and she took direction well and we had a great shoot with awesome images created in the end. Second was a total dud… a miss-fire so to speak. I scheduled the shoot with hair and makeup artists on hand and the girl was a total no show. Ahhh… what do you want its Instagram, its like the wild, wild, west.

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