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Discussing Copyrights with Your Clients--It's a Sales Tool

Published: 30/03/2020

Author: Mike Boatman

A copyright discussion with a client can be used as a sales tool. Copyright registration is a benefit for the client which will help to differentiate you from your competition and establish you as a professional essentially working as a limited partner for the success of your client.

This is a fundamental change in the perception of how copyright registration is viewed by clients. Clients' perception of copyright registration is based on the ways that photographers have used copyrights in the past. From 1976 to approximately 2008, commercial photographers typically used copyright registration as leverage to force less than ethical clients (infringers) to pay their bills. And I’m sure that there have also been some less than ethical photographers who have used copyrights to force payments that may not have been justified by the quality of the work delivered. It’s safe to say that copyright registration has created a wedge between photographer and clients.

I would even go as far to say that some clients greatly resented photographers registering their images because it was standard commercial practice for a photo studio to be given a very detailed comp, also known as an artistic rendering, or marker comp rendering, of exactly what the photograph was to look like. From the client’s perspective, the artistic value of creativity was created in the comp and the photographer was simply acting as a technician to convert the rendering to photographic medium. Quite frankly, as a panel member in the past, I have argued on the side of the creative director/art director on this subject matter. As a result, some of my fellow photographers were not necessarily pleased.

That was then.

The comp was identical to the product

Unfortunately, or fortunately, some clients have not been victimized by contemporary copyright infringers. The nature of copyright infringements has changed. Now it’s third parties harvesting images from your clients and using them for nefarious purposes and at times in direct competition with your client. Today’s copyright infringer is a third party, completely unrelated to your client, who is harvesting images.

My images being infringed are the industrial photos. They are being used as bait for the honey trap.

I have edited the image by blurring out explicit elements.

I briefly touched on this in my blog post titled, Is Your Photographer Copyright Registering, Third Party Infringements. In this article, I wrote about one of my real estate images that was used as a poison link to redirect viewers to a hard-core porn site, complete with explicit sexual images to entice the redirected victim to venture further. How many of your real estate agents would be delighted knowing that images from one of their listings was redirecting people to porn? (If it happened to me, it can also happen to you.

I picked a cartoon porn image hoping for the most non-offensive example and blurred out the explicit elements. Of course, there was plenty of explicit videos which out of decency I chose not to use. And the website has now been taken down. Note: The source of the harvested image refused to remove my image from their data which would have broken the link to the downstream infringer.

Here's how I'm protecting my clients using copyrights. This is now part of my photographic service to my clients. I guarantee that I will:

  • Copyright register the images.
  • Utilize a service (at my expense) to monitor the Internet for any unauthorized usages of the images.
  • In the event that an unauthorized usage is found, at my expense and within the extent of the law, I will have the usage removed from the Internet.

I recently finished a product shoot where the client’s final deciding factor to hire me was based on these efforts that I make to protect the images I produce for them. This client had already experienced their product images being used by other businesses for ads that directly competed against them.

Because my client is not the owner of the copyrights, they have no legal standing for the above services that I offer. Traditionally, the client’s option would be to utilize civil law, which can be very costly in terms of money (the five and six figure range) and time. By utilizing a DMCA takedown, I can have the image removed virtually instantly.

My client is also not in the business of monitoring the Internet for unauthorized usages, and typically stumbles over these infringements after substantial damage has already been done. By utilizing a service to monitor the Internet, I can identify an infringer and in many cases, mitigate before my client has suffered substantial damage.

Now you might be asking, “Why should you take on this additional responsibility and burden other than to establish yourself as the professional in your marketplace and offer a service that your competition doesn’t?”

The answer is simple. I am the owner of copyrights. This means all damages from unauthorized use of the work, such as statutory damages, go to me. This offsets any additional labor or expense for offering the service to my clients.

It’s a beautiful, symbiotic relationship. My client gets free protection and legal assistance to safeguard their business and I get to stop infringers and be paid damages from lost usage fees. My client is delighted that I am protecting them, and I am delighted to recover lost usage fees for work that was stolen.

And of course, my attorney is really happy too.

Resources:

Pixsy searches online for unauthorized usages. You pay a subscription fee. In exchange for paying a subscription fee, you’re free to use any attorney you want. This resource is best for photographers that want a more proactive hands-on approach in defending their copyrights.

Permission Machine searches online for unauthorized usages. They do not charge a fee for the search but if an infringement is found and you choose to pursue enforcement, you are obligated by contract to use their services and their attorneys. Typically the attorney will take a 30% share of the reward as a contingent fee. Permission Machine will take 50% of whatever you are awarded. Permission Machine will manage litigation.

This is a good choice for a photographer who doesn’t want to be bothered with the nitty-gritty of enforcing copyrights and is looking for a turnkey solution.

Image Defenders searches online for unauthorized usages. There is no charge for their search. You can use one of their attorneys or use your own attorney to enforce your copyrights. If you enforce your copyrights their percentage is 20% of settlement or award from the court.

There are numerous companies out there with varying degrees of terms of usage which will fit the comfort zone of just about any photographer wanting to enforce their copyrights and protect their clients.

 

8 comments on “Discussing Copyrights with Your Clients--It's a Sales Tool”

  1. Mike, thanks as always for your insights and information. You are doing a great service to the industry with these posts. And thanks also for the shout out for Permission Machine. I just have one minor correction to what you wrote: negotiated and pre-litigation settlements are split into thirds with the client, attorney and PM each receiving an equal share after any costs are deducted.

    All the best,

    Michael

  2. While agents probably aren't going to be concerned about what happens with the photos once their listing sells, but if you work, or intend to work, with builders, remodelers, etc. they are going to be concerned about what other entities are using the photos that they have invested in. Like Mike said as the copyright owner you are the only one that has the ability to control how and where your images are being used.

    Like Mike I have also found a few of my photos being used on porn sites. I don't know about you but it makes me sick that my photos are being used as bait like this and the potential harm it could do to my reputation.

    Registering your photos is not all that time consuming and it definitely is not expensive. And it's the only way to fully protect your IP. Not only that but it's an easy way to generate some passive income. Just this month alone I received a check for $831 for the use of one photo editorially and another check for $1,776 for the use of one photo by an interior designer. Those two checks alone will far more than pay for my time and cost associated with registering my photos. I'm not telling you this to boast or anything. For me I consider the time and cost of registering as cheap insurance for my photos. In fact, it's the only insurance that can actually generate income that I am aware of. But, especially right now, the passive income is really nice to have.

    Do yourself a favor and start registering your photos in a timely manner and use one of the many image search services to track, control and collect from the infringements that you will eventually find.

  3. Kerry.... Well started. Thank you

    Michael.... Thank you for the correction! I always want the best correct info going out.

    Group, I can't over emphasize as a sector of the photography industry no other sector is as copyright infringed as you are.

    Your images are being used to profit aggregators by hundreds of millions, on a lesser amount some MLSs are selling access to their data (data in part = images) for profit. Your images are currently by some aggregators are being distributed outside of the real estate industry into mainstream advertising as stock images. Nefarious organizations are using the images as a fishing malware and ransomware as bait to redirecting potential home buyers to porn sites where they can have their digital devices infected.

    I was reading a post the other day where a representative in the photography for real estate industry was explaining that real estate photographers are commercial photographers. I agree 100%. Although it's quite true for many real estate photographers it's entry-level into the commercial field. As a commercial photographer you are absolutely judged and competing based on the quality of your image. The second level of evaluation by buyers is your reputation. Lastly buyers look at price.

    You're really not interested in the buyers that look at price first. You're better off letting your competition have those clients because, there's always going to be downward pressure on you concerning price. You're much better off focusing on quality of image and your reputation. I've been in this industry of commercial photography this month marks my 41st year and I can tell you that when there's very little difference between the quality of your image and your competitor the deciding factor many times falls on reputation.

    Reputation:
    how easy are you to work with
    how honest are you
    and now due to nefarious internet sites are you associated with porn?

    You can control a lot of the perception of your reputation by controlling your images. BUT, You can't control your images effectively without copyright registration..... Just saying..... it's your reputation.

  4. Also, like Kerry said by not controlling your images..... you are taking a hard pass..... on passive income.

    In the commercial photography sector the value of the image and the value of the assignment is based on usage!!!!!! The value of a stock image in mainstream advertising is priced on usage, distribution and the potential for increased revenue by the user.

    We all already agree that real estate photographers are part of the commercial sector. What you may not know according to PDN magazine, real estate photography in some form is represented in every income level of commercial shooters and as a whole represents 15% of all money in commercial photography. When your image is stolen by an infringer it shouldn't be calculated based on what you originally created it for as a listing image. It's not being used as a listing image any longer!!!!! It has a new usage and therefore a new value that you're giving away free because you're taking a hard pass on collecting passive income from infringers.

    Kerry has been gracious enough to share this month's passive income. $2,607

    By enforcing your copyrights you are telling the marketplace that stealing images is not okay and you get paid a passive income for the value of the usage, for lost license fee, for what they stole; compared to a current unchecked stream of stolen images flooding the marketplace.

  5. Boatman,

    Do you know which MLS systems are selling data...aka photos? I would love that information.

    Also, I would guess that, most, if not all, photographers who compete on price will most likely not ever register.

    What would be your response to the bottom of the RE photography scale?

  6. Frank, photographer that I don't wish to name, in Southern California told me that she was in a meeting concerning copyrights with several other photographers and their lawyer, MLS president and an lawyer representing the MLS when the head of the MLS stated, " We sell those images." According to the photographer at that point, the attorney representing the MLS took over the conversation and ended the meeting.

    I've heard other reports from other photographers as well. Everybody in the real estate industry, above the photographer and the listing agent seems to understand the value of the images.

    For those photographers competing on price, in your words not mine, "the bottom of our a photography scale"..... If you're just looking at price how foolish are you to take a pass on passive income that will net you 100 times the dollars of the real estate listing based on a per image? That's just being stupid. Kerry was gracious enough to share his passive income for this last month and I'm thinking if I read it correctly based on two to four for images. $2607 compared to a bottom price person selling 36 images for $125. That's $3.47 an image compared to between $651.75 to $1303.50 based on if it was two images or four images. Come on guys are you really that short sighted if you're just looking at price which would you rather have.

    Look at the image above of the front elevation that was used for the poison link, there is not a photographer in this group entry-level or not that can't match that image. That was truly by my standards a nothing image. Quite frankly, I would never put it in a portfolio and only for this group am I even willing to admit it's my image. A similar nothing image was used for the backdrop of a rocket mortgage ad. The lower scale entry-level photographers on a skill set who may be feeling that they can only compete based on price are being infringed just as much as more experienced photographers like myself. The skill level of the photographer It doesn't change the fact that if you're not enforcing copyrights you're still taking a hard pass on thousands of dollars.

    If you have a box and for every dollar you put in it, it spits out $100 what would you call the photographer that says, I'll take a hard pass, I don't want to put a dollar in the box? And I'm okay with letting my images be used by porn sites, hacker for identity theft and possibly sex traffickers, I'm good with that..... So Frank what would you call this photographer????

  7. I am hoping the entry-level photographers are just naïve and that my articles are educational and give them direction to build a profitable sustaining business. I hope and pray that very few photographers fall into the category of what I asked Frank to name.

    What I'm doing today is documenting, gathering evidence, capturing screenshots of 53 Infringements of my images that are currently being used in 15 countries. This is a total of 770 screen captures divided out per 15 separate folders one per country. Fortunately the infringer is based here in the USA.

    There's no shortage of infringements regardless of skill set of the photographer.

    There only seems to be a shortage of photographers interested in doing the minimum amount of work to collect on damages from what was stolen from them. I'm still hoping and praying it's only from a lack of knowledge.

    As more and more photographers enforce their copyrights and get paid for lost usage fees there will be less and less infringements and I believe more assignment work. Paying a photographer for their work is far less expensive than paying for an infringement. But this isn't going to happen until more photographers enforce their copyrights. As Kerry indicated and I'm bound by confidentiality but I think I can say there have been some years where recovery of loss revenue has equaled 1/3 of $1 million for me this indicates to me that there is a financial incentive that will drive a change in behavior of infringers.

    So the question metaphorically is why aren't you guys put a dollar in a box?

  8. Boatman,

    Again, thank you for such great advice. I shouldn't have said bottom of the scale. I felt it was alright for me to do that since I would bet, in this group anyway, I am that bottom of the scale photographer.

    Thanks again.

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