Dan Heller And PicScout CEO Offir Gutlezon Clarify Interview Points

The following is an exchange between stock photography industry analyst Dan Heller and Offir Gutelzon, CEO of PicScout,  clarifying points in my interview of Offir's Gutelzon. Original interview excerpts in bold type.

"...images for Image Tracker must be Rights Managed..."

Dan: This is a mis-statement.  A better way of saying this is that, historically, most ImageTracker clients have been agencies, and they made a business decision to only submit Rights-Managed images because of the difficulty in tracking whether any given use of a royalty-free image is, in fact, an infringement.  However, this anecdotal fact is not a requirement of ImageTracker. Since the system merely reports on the images it finds, this can be used for more purposes than just finding infringement. Clients could track image uses just to see the kind of distribution it's getting, among many other reasons. –

Offir: I totally agree with Dan's remark, about the technology capabilities, however the current implementation and business model of the image tracker is relevant for Rights managed images

Dan: It's also not entirely true that it's impossible to track and pursue RF infringements either. Despite the fact that multiple agencies could license the same images, tracking sales is still possible because those agencies are the sole distributors. Therefore, if an RF image is on a site that has does not have an accounting of where they got it from, this is as persuable an infringement as an RM image.  In fact, the music industry does this things way now that there are unlock songs being sold. Copyright law is very frank and basic here: unless you can show where you got the image from and demonstrated that you've licensed it legally, it's an infringement. Courts have never ruled differently on this count.

Offir: Again, this is purely a business decision to go after RF or not, our current clients have decided not to.

"The primary image usages should also consist of commercial web sites in order for the product to be of value in terms of revenue recovery."

Again, this is a statement based on historical behaviors of agencies, not necessarily the reality on the ground. Editorial infringements are not only possible, but are more lucrative when you combine statutory damages with the frequency of multiple uses. There are problems with tracking editorial-based websites beyond the scope of this discussion, but the quoted statement above is not actually true. –

Offir: Again, a business decision for the ImageTracker clients.

"If your images are represented by one of the agencies working with us, you are safe."

This is not quite accurate, and can be quite misleading--potentially to a point where you can misrepresent your own agency clients. Just because an agency may use PicScout to track its images doesn't mean that the agency will pursue a claim against any given infringer. They may choose that it's not worthwhile, or they might not have the time or resources to deal with all found infringements, or they might even negotiate some sort of other deal with the infringer that may not be in the best interests of the photographer. The reality is that far more infringements are "found" than are actually pursued, and it can be very misleading to suggest to photographers that they are "safe."  (One might sign up with an agency that a photographer knows uses Image Tracker, learns that his image infringements are not being pursued, and then files a misrepresentation claim against PicScout based on Offir's statement above.) 

Offir: By safe I refer to a level of security – PicScout provides the means, but the action rests with the agency.  In context of the entire business, ImageTracker provides the ability for photographers whose images are represented by an agency to have claims pursued by the agency – so it does require the agency to pursue.  The photographer should be aware of his/her own images and talk with agencies about their infringement follow up. 

Dan: Furthermore, different agencies have different terms in their agreements with photographers--some of the major agencies have full and exclusive "rights of representation" to photographers, such that they are the only ones who can pursue infringement claims. Other agencies give photographers the right to pursue infringement only if the agency chooses not to. In this case, it is perfectly within the rights of the photographer to sign up with Image Tracker, find infringements, present them to the agency, and if they choose not to pursue them, the photographer can pursue them himself.

Offir: PicScout is continuing to expand its partnerships and will announce a relationship with a large photographer platform.  Part of this announcement will be to evaluate a business model that will enable PicScout to offer ImageTracker directly to photographers.

Dan: One of the many reasons why I, personally, never signed up with an agency is because of their lack of assertiveness and strength of conviction in pursuing infringements. In short, agencies don't have a strong spine. I think Image Tracker is an excellent way for photographers to regain control of their own domain. Which leads to this quote:

"If you want to get reports directly from us, you should be aware of the efforts you'll have to make on your own behalf and the necessary fight you face to prove your rights, even when a case may seem clear."

Dan: This sounds more onerous and off-putting than it actually is. I'm not sure PicScout should be making statements about how easy/difficult it is to pursue infringements.  If your images are registered with the copyright office, and the infringement is bona fide, then a good copyright lawyer will take this on contingency, and the process is technically simple.  Now, that said, the real question is how much you want to scale up this kind of business model. Going after an infringer here and there is one thing, but if you're going to sign up for ImageTracker, chances are you're going to make a full time job out of this.  It's up to every individual to make that assessment without being influenced by PicScout on what is or is not worthwhile.

Offir: We encourage every photographer to evaluate what business approach is best suited for themselves – PicScout is committed to every image getting it’s credit and we applaud agencies and photographers who choose to pursue and protect their images through proper use.

To Stop Photo Theft, The Best Defense Is A Good Offense

My "Animal Antics" funny animal pictures, such as these two bulldogs sumo wrestling, are my most infringed upon images.
Appropriated Images And Lost Opportunities
Sometimes it makes me a little crazy when I do a Google search for my images and find image after image appropriated with no reference to me at all.  The vast majority of these infringements are not worth chasing after, but they still annoy the heck out of me. I also can't help but wonder how all of these pictures, that I have worked so hard to create, being loose on the internet without my name represents a "dilution" or at least a lost opportunity in regards to my personal branding. But what to do? How can I defend against such image theft?

Minor Infractions And An Unhappy Ego
I few times I have tried to request that offenders take down my pictures, but the amount of time I have to invest in that is kind of ridiculous. When I complained to flickr about an infringement what they required of me to get them to take action, well, I looked at for a moment and said “aw the hell with it!”  Same deal with Squidoo, or innumerable other cases of bloggers and such making use of my photos; minor infractions with a lot of hassle to get my images taken down. Most of these cases of my purloined imagery hold absolutely no opportunity for any monetary gain, so it might just be a case of my unhappy ego, or as mentioned above, a dilution or loss of branding opportunity.

The Best Defense Is A Good Offense
It has taken awhile, but I have come up with a defense strategy. In this case it is a return to the old maxim that "The Best Defense Is A Good Offense". That strategy is to get my images up as quickly as possible in any and all searches that might return them in the results, and to have my name on those images.  I put that name up as ©johnlund.com.  That way people know the images are copyrighted, and if they have half a brain (I might be generous here) they can find me to license the images, or at least ask for my permission. Recently I have had several examples of people tracking me down because they did see my images used somewhere and did have that credit line on them, so I know, that at least to some degree, that process can work.

SEO, Name And Copyright, And Personal Branding
I have already wholeheartedly committed to SEO and getting my images seen, but this adds just that much more incentive to do so. People only steal the images if they find them, therefore I want them to see my images first with my copyright and name clearly on them. That way there is a much higher probability that I will benefit at least in some way, and that outright theft will be lower. Years ago a friend and I created a company to distribute training films.  Our first film was titled "The Ten Billion Dollar Rip Off". It was a video to show to store employees detailing the damage of employee theft and the various repercussions.  Apparently, just showing that video to employees, significantly reduced employee theft.  Having your name and copyright notice on an image is a step in that direction. I don’t think it will stop non-commercial picture pilfering (love that phrase), but it will at least increase my name awareness, my personal branding, if you will, and will contribute to deterring commercial use of unauthorized images.

Crowd Sourcing Crowd Enforcing?

Crowd Sourcing Might Become Crowd Enforcing

A few days ago I had a very interesting conversation with Randy Taylor of The Copyright Registry. The Copyright Registry is a service to help photographers deal with the ramifications of passage of the Orphan Works Bill (should it pass). But the interesting thing to me, at least at this point, is a possible side benefit of their service, finding, and establishing a record of unauthorized use of images. Figures on copyright infringement on the Internet indicate the problem is truly staggering with upwards of 80% of photography usage being without permission.

The Copyright Registry makes it possible for anyone to find the copyright owner of any content, as long as the content has been entered into the registry. The Copyright Registry sends out spiders that use image recognition software to match photography on the Internet with the works identified in their registry. This process creates a record of where and for what time periods those works have been used. This information then becomes available to the owners of the work and can be used to ferret out unauthorized uses and help establish abuses for use in legal proceedings.

As you can imagine, The Copyright Registry isn’t the only registry out there, but they do have some unique approaches, and at $25.00 per year, they seem like a bargain. The efforts of The Copyright Registry and other such services just might turn the tide against the massive copyright infringement that we see on the web today. If it becomes simple and affordable for every photographer to protect their work, then crowd sourcing might not just be the origin of so much artwork, but also the ultimate safeguard of that artwork.

Some salient points about The Copyright Registry that Randy shared with me:

-Users can find the owners from copies of their
images, including the uncredited, altered,
unattributed, stolen ones. It's all about
enabling users to find image owners.

- No pictures are uploaded or stored. It's all
done with text, which can be a simple database
export with hundreds of thousands of records at a
time. Very easy and efficient.

- Though we created this to counter the effects
of Orphan Works legislation that is progressing
worldwide, it has real-world benefits right now,
today, while statutory damages still apply.

- The cost is $25/year to register unlimited
images - a price set to attract semi-pro
photographers. Photo agencies get a huge benefit
from that ultra-low price point.

- Though it seems too good to be true, there is
no risk, no downside. Rights granted are less
than those granted in click wrap agreements with
major search engines. No images are exposed
beyond their current web exposure. Rights holders
are merely enabling people to find them from
copies of their images.

Check them out for your self: C-Registry.com