Image Theft and Copyright
Any serious photographer in this day and age has likely suffered the infuriating experience of image theft. People and businesses using your work without your permission or knowledge; sometimes even claiming it as their own work; or using it for their own profit while you get nothing.
Now I’ll be the first to acknowledge the fact that it’s all too easy to steal images these days. In fact, the way our internet works even encourages it. Images can shared and reposted, right-clicked and saved, downloaded and screen-shotted so many thousands of times that it’s easy to see why some people think there are essentially no rules at play here.
But there are. Stealing is stealing, and Copyright gives you absolute ownership over your work. You can’t give that away by implication just because you posted something online. And just because something was easy to take is no defence of theft.
Recently an acquaintance posted on Facebook about his experience of having an image flagrantly stolen, and it prompted me to do another quick check on one of my images. This is pretty simple to do, thankfully. All you have to do is perform a google image search for your own image and see what results come up.
This is the image I consistently find being used without my permission, so this was the one I checked first. It won a national photography competition several years ago, and was subsequently posted across lots of national and international news websites such as the BBC and The Times. Consequently it was seen by thousands of people, and still pops up from time to time. Inevitably it also means that it’s always this shot that people steal.
I got lots of hits on my image search, with it appearing across lots of different sites. These were mostly reposts of the original competition winner announcement, such as the BBC. That’s fine. But then, among the results, I gradually started to find sites I did not recognise, which had nothing to do with either myself or the photography competition.
It’s worth pointing out here that the terms and conditions of the photography contest I entered did grant the competition organisers a license to use my image in their own promotional material. But that’s all. They can use it, but they can’t sell it on. I’m always very careful to check these rules, and you should be too, because some ‘photography competitions’ are an outright scam. They’ll charge you an entry fee, and then take a generous slice of your copyright. Oh, you won a £250 prize? Good for you. With several hundred entries the ‘contest’ organiser is laughing all the way to the bank, and they now can sell your work too.
The results I was now looking at were nothing to do with the legitimate photography competition I had won. Of particular note I found pages for three separate UK based businesses using my work. Each of them were displaying my shot as a banner image on key pages of their websites. There was an architecture firm (company A), a travel company (company B), and a grocery business (company C).
Now, in cases where people steal my work and post it on social media, either claiming it as their own or more often simply because they like it, I’ll generally content myself with just getting that image taken down. You have plenty of options to do this. You can report the image. You can dm the person who posted it. If necessary you can leave a public comment that shames them into action, though I view that as a last resort as it can just lead to unproductive, time wasting and anger inducing argument.
In the case of businesses though, there’s no way I’m going to content myself with them merely taking the image off their site. You used my image. You need to pay me. End of story.
Prepare, Make Contact
If you find yourself in this same position – contemplating making copyright claims – then it can seem a bit overwhelming at first. Will it really be worthwhile chasing them for payment? After all not many people are that comfortable with confrontation. But you have to stand up for yourself. If we don’t do this as photographers then it erodes the strength of copyright for everyone. But you should take confidence in the fact that the law is on your side.
The first thing to do is prepare. Gather all the evidence you might need to prove your case. I therefore took screenshots of the website of all 3 businesses, clearly showing my image in use. I then saved copies of the complete webpages, as well as adding each page to a database that archives webpages as they appeared at a particular time. With all this in hand, I had everything I needed to absolutely prove my image was used, if it came to that.
Then I did as much research on each business as I could. I looked up the directors and owners on their websites and on companies house. I looked into their businesses to get a sense of how prominent they were in their industries and how long they had been in business. I wanted to know who I was dealing with, and whether they were essentially amateurs or the real deal.
Now it was time to make contact with each of them. I drafted an email to each, keeping in mind what my key objectives were. Firstly, for them to pay me for the use they had made of my work, and to stop using it. Those two aspects are inseparable. Secondly, I wanted to achieve that goal swiftly, politely, and without recourse to the courts.
In my emails I was sure to emphasise the fact that I was keen to settle the matter fairly and privately, but also to clearly indicate that I was not joking around, and that payment was a non-negotiable outcome. I therefore offered to grant them a retrospective image license that would apply to the use they had made of the image to date, thereby legitimising its use and in effect offering them a path to make it right by paying me as if they had been a customer all along. I also offered to extend that license if they wanted to continue using my work.
Architecture company were the first to message me back. They apologised and admitted they should have known better, and said that they knew how important it was to pay photographers for their work. They then heaped praise on the image, explained why they had ‘selected’ it to go with that particular project, but assured me they had now removed the image from their site. Furthermore, they hoped that I would ‘see reason’ and leave it at that.
To some extent this was exactly the sort of reply I expected. We’re very sorry, we’ve taken it down, please don’t make us give you money.
But beyond that, it was both baffling and infuriating. This was an award winning architecture firm with presumably much deeper pockets than my own, and their message really only lent further strength to my case. They claimed to know how important it is to pay people for their work, but then in the same breath asked me to ‘see reason’ and leave it at that? Even while extolling the virtues of my work and explaining why it was perfect for their project? What!?
There was no way I was going to let them off the hook. I was in the right, and they were in the wrong. You used my work, now you need to pay me. I sent them a reply pointing out their own words – and that if they really understood the importance of paying people for their work then it was up to them to stand by that. I attached my invoice.
All went quiet for a few days, then I had a reply asking if that would be the end of the matter if they settled. They clearly knew they didn’t have a leg to stand on. I sent them a polite affirmative. In a few days the money was in the bank.
One down, two to go.
Before we go on, let’s take a moment to consider the legal and moral position here.
Firstly, it’s not sufficient for an infringer to simply stop doing the naughty thing and get away without any kind of consequence. It’s not about whether they are using it any more. It’s about the fact that they used it. Taking down my image is the smallest part of their obligation at this point, so they don’t get to hide behind that as demonstration of how nice they are.
Secondly, copyright is strong. It really is a tremendous ally to photographers and you are probably standing on much more solid ground than you realise if you find yourself in this same position. When a business has used your image for commercial purposes, you’ve every right to take them to the cleaners for damages. They have caused you loss of income. They have profited by the use of your work. They have done so flagrantly in clear violation of the law. They have potentially caused you further loss by ‘orphaning’ your work and making it more likely that others will now steal it too.
It’s a daunting idea that you might need to take them to court to settle if they don’t comply with your demand for payment, but if that does happen then you’re probably in a much stronger position than you might at first realise. At the very least they’ll have to pay their own legal fees, and assuming you win then they’ll have to cover that too. Add on the potential amount in damages and they could be looking at a very chunky bill.
My goal was to avoid going down that path and settle things with these businesses quickly, and for an amount I deemed fair.
Travel company were the slowest to respond to me. In the end I had to phone them because more than a week after my email I had received no reply, and my image was still on their site. I spoke to the company director. He apologised too, but then he explained that the company had failed and was already in the process of being liquidated. A few days later their whole website was taken down.
I know how difficult it can be to run a small business and they had my genuine sympathy. I know firsthand how hard the pandemic hit travel businesses. Still, that didn’t make it right; but with the business having no assets there wasn’t much I could do. I asked them to file my invoice with the liquidator. Maybe in a year I’ll get a cheque for fifty pence. Not exactly a satisfactory result, but you have to know which battles are worth fighting.
Two down. One to go.
This leaves us with the grocery company. Of all the businesses they were by far the most difficult and frustrating to deal with, but there are a couple of interesting legal points to go over.
Grocery company replied to me by saying they were simply a distributor for a different company’s products (a farm), and that they got the image from the people who ran that business. They insisted that they would settle the issue only once they had spoken with them.
At first I was content to offer them some time to do this. But when I followed up a few days later they said they hadn’t made contact yet. This seemed odd to me, but I decided to give them a few more days. A few more days came, and they still hadn’t spoken to them. They said they’d emailed and were awaiting a response.
I’ll have to admit that I let my frustration get the better of me at this point. It seemed to me that they were doing their best to either pass the buck or ignore the issue, and this was compounded by the fact that despite my repeated requests for my point of contact to give me their name, they constantly ignored this and remained anonymous. They hadn’t even apologised. I felt like I wasn’t being fairly treated and consequently my emails became rather more heated than I originally planned. The patronising responses I was receiving (‘different businesses have different processes and timescales… things don’t always happen when you want… blah blah blah’) were really not helping me keep a cool head. Things had got too tense, so I decided to back off and leave it for some time. But in the meantime I was weighing up my options of taking them to court.
The interesting legal point here, of course, is the fact that they claim they were given the image by someone else. But from a copyright point of view that really doesn’t matter. Breach of copyright is an absolute offence, so even if they are given the image by someone else, they are still responsible and on the hook, as well as the person who gave them the image. There is legal precedent that supports this. Distributing my image and displaying my image are technically two separate breaches.
The thing is that I could see no sign that the farm business were themselves using my image. So, technically, I had no case against them at that point, other than the word of the grocery business, unless they should suddenly decide to come forward and admit to distributing it. Therefore I still wanted the grocery businesses to settle, and I emphasised this in my earlier messages.
After a couple of weeks I followed up again with the politest and most reasonable email I could write, saying that they had now had ample time to consult their distributor. To my surprise, I got a polite email back this time (still no name though), and then a message from the farm too. They apologised for using my image, begged ignorance of how this had happened and asked me how I thought we could settle the issue.
As if they didn’t know.
I pondered my options for a while, weighing up the merits of pursuing both businesses vs just settling with the farm. Both businesses had broken my copyright. Both technically owed me damages. If the grocer wanted to chase their farm for the resulting expense that would be a matter between them.
In the end though I decided to keep in mind my original goal. Swift, fair settlement was what I had in mind. Therefore I went back to the farm and said I would be willing to waive any further damages if they would take responsibility for the grocer’s copyright breach and settle my invoice promptly.
They agreed, and a few days later the money was in the bank.
This isn’t the first time I’ve defended my copyright successfully, but it’s the first time that I’ve had to handle three consecutive claims. I was obviously happy to get a good result on all but one. These are my key lessons for any other photographers out there in the same positions as I was.
- Have confidence. You’re right; they’re wrong. The law is strong and the law is on your side.
- Don’t let them off the hook just because they took the photo down now. That’s literally their smallest obligation – they didn’t do you a favour by complying. They stole your work; they stole your time; they stole your expertise; they stole your profit. Get paid.
- Keep a cool head. Be polite, but be firm. If their responses make you angry then take as much time as you need to calm down before replying. Keep your goal in mind at all times.
- Be prepared to go to court. Offer them a fair recourse, but make it clear what the alternative is. You have to stand up for your copyright. The court is there to help you. Your case is strong, and if this is the route that must be taken then it will be much worse for them once you consider all the extra damages and fees they will have to pay you.
- Value your own work. There is an all too common perception these days that quality images are cheap, or even free. Your skill is valuable. You put in the time in the field. You invested in the kit. You worked hard to gain the knowledge. Get paid.