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.

Incorporating Copyright in My Workflow (Protect our work, it is your right)

Don't Tell Mamm'a.

Don’t Tell Mamm’a.

In a recent post about registering images I mentioned that I would post how I incorporate registering images into my workflow. Let me start by saying some people are never going to register, some want to and others already do. If you want to and you have no idea how to register I would recommend picking up a copy of the “The Copyright Zone” by Jack Reznicki & Ed Greenberg, this book is a must have and a great read for all photographers. So if you are never going to want to protect your work you can stop reading and move on to another blog post.

I made it a priority to register my images, same as someone who makes it a priority to say… eat healthy or go to the gym and workout on a regular basis. However I can tell you that incorporating registering images into my workflow is a whole lot easier than going to the gym. Here is a breakdown of my workflow. I take backup files that are unedited, make them into small JPEGs with a Lightroom preset and upload them to the www.copyright.gov site.

  • From my memory card images are imported to Adobe Lightroom. While I’m importing I will simultaneously make a second copy to a second (separate) hard drive and this will be used as a backup. Also while importing I may setup a collection (available in Lightroom CC) to sync with Lightroom mobile if needed. (See Screenshot 1)

    Screenshot 1 Making a backup download.

    Screenshot 1 Making a backup download.

  • All photos are keyworded, nothing crazy here just simple keywords that are strictly relevant to the images. Model’s name/s, location, shoot theme or project names are all I do, just something so I can find the images a year later if I need to. Also I have my copyright info added using a preset metadata file.
  • I also have presets metadata profiles for each camera. Each profile has a different label color so I can denote which camera took what photos on the same day at the same shoot. Maybe I have the 5D MKIII and the 6D, plus a point & shoot all shooting the same day.
  • Then I move onto star rating and removing blurry or not useable photos.

My work flow continues on after this, but I think you see and get the feel that I have a plan of what & how I do. I will say that my workflow may not work for you at all and that is ok. Workflow is a personal preference such as shoes, clothes and food are to us of all. I put all photos in folders by the date they were shot, this works for me. Some photographers put files in folders by client name or project name because that works for them and I know you may have your personal preference as well.

But let’s go back and look at those backup files on the second hard drive. When you choose this option using Lightroom the one thing you have to keep in mind is the “backup” will lump all files downloaded together into one folder. I will explain; Example I shoot a band at a club and I start shooting at 9:00pm at night on Saturday May 24, 2014, but my last shot is at 1:00am in the morning and I am now into a second date or day of Sunday May 25, 2014. When I download using Lightroom my primary files will go into two separate folders because of the two separate dates. However the backup file will be labeled “Imported on Sunday, May 25, 2014” and it will contain photos from both days. I mention this because it is important to know when looking for your backup files and it can be very confusing if say; you were on a weeklong vacation and downloaded all your photos at one time.

Ok so let’s get to it. I use the backup files because they are untouched and unedited in anyway. Registered photos need not be edited; all edits of that image are derivatives and you can find out more about derivatives in Jack & Ed’s book. My primary download may have had editing presets added and therefore they are derivatives. So this is why I use the backup files.

You will need to set up a folder that will hold the files that are ready to go to www.copyright.gov, I call mine “Ready for Copyright 2015.”

Next, in Lightroom you will make an “Export Preset” here is a screenshot of mine named “Copyright.” (see screenshot 2) Files for upload do not need to be full size; they are for reference and just to prove that it is the photo you say it is. My preset is as follows; 700 pixels on the long side, 72 ppi and I limit the file size to 500k with output as a JPEG. I may also ask Lightroom to rename the file, but I will always retain the original file number on the end. Example; original file is “_MG_1060” I will rename it to Kendall_Daffodil_1060. Always keep the original file number in the extension. Now with your preset made you can select the photos and send them to the “Ready for Copyright” folder you created. If uploading more than one set of photos I would recommend using subfolders inside of your “ready for Copyright” folder to keep track of what you have uploaded. I also make a folder called “Upload Complete” and after each set is uploaded I will move the folder to “Upload Complete” and at this point I know those files are finished. It may look like a lot when it is written out, but using a preset is very time saving. Please remember to treat this process with importance, always double check what you are doing. Even though it is a preset I still make sure all settings and file extensions are correct before uploading to the copyright office. Once you hit the “upload” button on the website that’s it and you cannot retrieve the files.

Note the info in the green fields.

Note the info in the green fields.

Now don’t take my workflow as the Holy Grail, you may find something easier and that is great. But if you are going to register images you really do need to give it thought and come up with a plan. I set aside $55 in my budget to register every 3-4 months. If it is a paid job such as a wedding or a project shoot I work the price into the cost of the job and I may register those images all by themselves. Also know that I may not run my “Copyright” preset right away. Because I may be under time constraints to edit and get working on my files I will go back at a later when I have free time and run my preset. Because I am working off of unedited files everything is always there just waiting to open and run the preset.  Protect your work it is your right.

Thanks 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

Boy Did I Learn A Lot Today (but more like you fell in a pit with a couple of badgers.)

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Boy did I learn a lot in short period of time today. I was watching and interacting   with the photography show “The Grid” produced by Scott Kelby of (www.kelbytv.com) . Today’s guests were Ed Greenberg & Jack Reznicki of the website www.thecopyrightzone.com. Jack is a photographer and teacher and Ed a loveable New York attorney. I know “loveable” and “attorney” don’t seem to fit into the same sentence. But Ed is like the loveable guard dog that plays with you and has fun because he’s “your” guard dog. However that burglar that comes in, in the middle of the night is gonna find a whole different side of the dog you know as loveable. That is the best way I know to describe Ed Greenberg. I have taken a few of his classes and read his blog; I also can’t wait for his latest book to arrive. But Ed is the good guy, that is of course if he is working for you. With that said both Ed & Jack are the “real deal” as far as I’m concerned. Jack being an accomplished renowned photographer and Ed has story upon story of cases he has personally worked in the courts, where he has fought for the well-known photographers as well as the everyday shutter bug. When you hear Ed talk about intellectual property & copyrights you instantly realize this guy is going to rip you apart if you are on the wrong side of him. It’s not going to be like a pit-bull ripping you, but more like you fell in a pit with a couple of badgers.

But seriously Mr. Greenberg talks the talk because he can walk the walk; I could listen to his stories all night long, truly fascinating.

So today I presented a question to Ed & Jack via the live chat forum during the show and RC Concepcion pulled the question and it created a lot of buzz. The question I asked was; Are model release forms that are generated via an app from a mobile device legal & binding? So to just stop for a minute and describe what it is I’m talking about. A model release form, all models I shoot with sign one… end of story. You don’t sign a release we don’t shoot. And any photographer who shoots models without a release is 1. Either stupid or ignorant of what he/she should be doing to protect their ass and their bank account. 2. Certainly not acting in the best interest of him/her self or the model when it comes to protecting the images.

So with all that said; late last year going under the advice from someone who is a well-known professional photographer, but… (He is not Ed Greenberg smart), told me about using an app on my mobile device to generate a model releases. The app will store your pre-written releases and when ready, the model and a witness sign and it emails a PDF and a photo to all parties involved. However because PDF’s are digital files they can be altered in Photoshop after the parties sign the release. Ouch! I never thought of this. This whole thing had been weighing on my mind for a few months now. Some time back I got to thinking about it and I didn’t know what it was, but I was getting that funny feeling that something about this “app” thing wasn’t quite right. So I guess I’ll be going back to the paper releases and storing them in a safe as I did before. After all you can’t scan them and save them, because now they become a “digital file” that can be altered.

I will post links to the episode of the Grid once Kelby has it up sometime tomorrow. The show plays live on Wednesday and goes to YouTube in 24 hours.

In my next post I will talk a little about registering your photos because Ed had a lot to say about that too. I have been registering my photos for a long time now and it is not as hard as it sounds. So for more info on copyright laws and photography pick up a copy of Jack & Ed’s book “The Copyright Zone.” Also check out their blog.

Thanks everybody for reading and have a great day.