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How to Protect Yourself from Copyright Infringement

Published: 25/06/2019

Author: Kerry Bern

Over the past few years, I’ve had personal experience in having my images used without my permission. So, I thought it might be helpful to offer a Q&A summary of what I’ve learned navigating this difficult subject. Disclaimer: Like you, I am a photographer; I am writing about my personal experiences and opinions. I am not an attorney therefore, this is not legal advice.

Q: What are the main reasons that companies or individuals are infringing our images?

A: The top reason is that the chances of them getting caught is slim to none. Why?

  1. Infringers know that most of us will never look to see where our images are being used
  2. These parties also know that it’s a far slimmer chance that we have registered our images with the USCO (US Copyright Office). Which means that if they get caught, it might only cost them a few hundred dollars or less; or,
  3. They could just blow us off and say, “Just sue me”.

I know some of you will say “They’re just real estate photos. I got paid, they can do what they want with them.” I’ve seen this statement many times before on this blog and other places but why pass up the opportunity of receiving additional income from the re-licensing potential of your images?

Q: It’s true that we own the copyright to the images that we create as soon as it is written to our memory card so why spend money to register your images?

A: The main reason is because in the US, copyright infringement cases can only be filed in federal court. In order to file an infringement case in federal court, the images must have been registered with the USCO. Registration also makes you eligible for statutory damages, attorneys’ fees, and costs. Without registration, you are pretty much limited to sending a "DMCA Takedown Notice" to the ISP (i.e.: GoDaddy) to remove the images from the infringer’s website but you will not be able to recover any damages that may have occurred due to the infringement. Nor will you be able to receive any compensation for the use either.

Q: I don’t live in the US so why should I register my images with the USCO?

A: You do not need to be a US citizen to register your images. However, if you find some of your images used by US companies/individuals, to initiate legal action against US based infringers, you must comply with current US Copyright Laws.

Q: I’m so busy. How can I find the time to address this?

A: To be honest, like you, I don’t have the time to spend hours on the internet looking for infringements. However, there are many services available that you should consider looking into. Some will allow you to upload a certain number of images for free and then you pay a fee to upload more. You have a choice whether to use their legal services or use your own. There are others where you can upload as many images as you want but if they find any infringements, you must go through them for legal services. Here is a link to an article that lists 13 such services.

Q: Can’t I wait until I find an infringement before I go through the hassle and expense of registering my images?

A: You can but you will not have full legal protection for that infringement unless the infringement is within 3 months of the first publication. According to the current copyright law, you only have full protection if your images are registered within 3 months of first publication or before an infringement occurs. Therefore, if today you find an image of yours that you published last year that you did not register, you are not entitled to file a lawsuit for that infringement. If you now register those images from last year then you are fully covered for any future infringements that you discover.

Q: Is the internet the only place where I should focus my attention?

A: No. I’d also suggest looking at locally printed material. Atlanta-based photographer, Iran Watson (2012 PFRE Photographer of the Year), stopped in a convenient store one day and noticed an image of his was on the cover of an Atlanta Street Atlas. A few years back, I was looking through a local magazine and saw one of my images being used in an ad for a company that manufactures and installs stone veneers on homes.

Q: Okay, you’ve convinced me; what are the key steps that I should take now?

A: There are two important steps you should be doing to protect your images. The first is to present to your client and have them agree to a license agreement that informs them of what they can and cannot do with the images you create for them. IMO, this should be done before you ever schedule a shoot with them. This can minimize a lot of the infringements and misunderstandings down the road.

Q: How much does it cost to register images with the USCO?

A: The fee can be as little as $0.08 per image! This is not much of an expense. Personally, I consider it an inexpensive type of insurance.

In Conclusion:

Many have said, and I agree: It’s not a matter of if, nor is it a matter of when your images will be infringed; it’s just that you haven’t looked. I totally understand that registering one’s images can be a confusing and daunting task if you have never done it before. However, in my experience, once you go through the registration process once or twice, it becomes easy and painless.

Within the next few weeks, I plan on publishing a two-part tutorial on my workflow for registering images that I hope you will find helpful. So stay tuned!

24 comments on “How to Protect Yourself from Copyright Infringement”

  1. Hi Kerry, I've always registered my images in a timely manner and was a little annoyed when they raised the price so drastically from 'all you can download' to 750 images per download. OK, so I quit registering every image I clicked and just ones that were actually published or might be published. The last batch I registered received a reply back that now an excel spreadsheet with a title to each and every photo is required! Who has time to fill out spreadsheets every few months with up to 750 titles?! They seem to be making it as difficult as possible to register work.

  2. It should be stressed that while you can register your images after you find an infringement, your ability to be awarded legal expenses (attorney, filing fees, etc) in court is only if you file published images within 90 days of publication. You have a better chance of an attorney taking on your case on contingency if you have a timely registration.

    @Lee, After the USCO put the 750 image/registration limit into place, I just started only registering my RE images that I deliver. There hasn't been any case law that I or my attorney know of that might suggest that my raw images used in-process might have derivative protection. It might be a good argument in court if the component images of a delivered composite were stolen and infringed. My RE composites are generally for exposure and sometimes to take out unwanted elements such as me holding a flash in frame. In my workflow, I output finished images to a current holding folder that will go to the USCO as part of my registration. Making a spreadsheet of those files names takes seconds on a Mac and Kerry tells me it's much the same on Windows. I sent Kerry a screen capture of creating the spreadsheet on my Mac and we may upgrade that and add a voice-over explanation of the process.

    Look up the B&H presentations by Ed Greenberg, esq and Jack Reznicki, The Copyright Zone on YouTube. They do a really good presentation.

  3. You can create a license that's worded appropriately so that the client doesn't have to sign, such as, "receipt of images or satisfactory payment indicates client's agreement to this image license and its restrictions." Attach it to the invoice and always include something akin to t his on the email, "Please read the attached image license."

    The USCO registration is also needed to be compensated for illegal usage. I've found my images on mortgage lender, title, escrow, home improvement, and other real estate-related websites. Registration seems difficult at first but once you've got through the process, it is easier each time. Titling your images in a consistent sequence (saved to your Lightroom export presets) makes this more efficient. Example: cheriejohnson_2019_222PalmSprings-1 [I use the house number and street name] or cheriejohnson_2019_Portraits_ClientName-1. Using a numerical counter on the end makes it super simple to cut/copy into the Excel spreadsheet. There's a shortcut for Cut + Paste Sequence so you don't have to type in 2,3,4,5...etc.

    Hope this helps.
    There are good attorneys in many states that will represent you on contingency 😉 and take the hassle out of negotiating with infringers.

  4. I've said it many times before - "there will come a day when you will really regret not having registered your copyright". It's true.

    I know some of you reading this, really don't care, and will argue that it doesn't matter. Or, that it takes too much time, and you'll never get back what it cost you in registration fees etc. I assure you that you will if you handle it right. If you produce good quality images that "sell", somebody will absolutely steal them to use, often commercially.

    Remember Napster, and how the music industry fought back? What about pirated movies? Because those industries nipped it in the bud, they stopped much of the infringements because there was real risk of winding up in court. As photographers, we've been lazy and are now paying the price for it. Here's the thing, if you don't care about who uses what is actually yours - how does that impact other photographers that do? It undermines copyright laws, and furthers image theft! I finally decided to do something about it, and I assure you, it's worth it

    Kerry is 100 percent right, there are several services out there that will allow you to track infringements (Pixsy, or CopyTrack to name just a couple). Take the time and check out how many of your images are being used by people you have no idea who they are, or how they got them? When you see them on commercial sites, you have to ask yourself - what did I NOT get paid for that use?

  5. @Lee - The requirement for the Excel spreadsheet was implemented at the same time as the 750 image restriction. Like Ken, I only register the images that I deliver.

    @Cherie - I use a similar statement on my license agreement. Mine states "Your use of the Products signifies your acceptance of these terms and conditions." I also state that if payment is not received by the due date then the license terminates automatically. There is nothing wrong with including your license agreement with the invoice but, I feel if you are waiting until sending your invoice to present your terms is too late. You should be having this conversation with a new client before you even schedule a shoot for them.

  6. In professional real estate, quite apart from any legal sanctions, a breach of copyright should be seen as a breach of the Realtor's Code of Ethics. A Realtor who does not honour and protect the legal rights of others in the industry and who entices a real estate board to reproduce photographs on the MLS without the lawful right to do so, should be fined and, if a repeat offender, should be expelled from the local Board.

    Real Estate Boards should show they clearly honour and protect copyright by explicitly including a clause to that effect in their Code of Ethics.

    When it comes right down to it individual Realtors, Real Estate Boards and the industry in general cannot expect to be respected as true professionals if they do not act as such in respect to other professionals associated with the industry. That fact is a no-brainer and it requires more than empty lip-service to make it so.

    A real estate board that use photographs outside of the lawful right to do so is in breach of the law. Why then would any board condone one of its members placing it in such a position and why would a professional body with a Code of Ethics condone unethical conduct by any of its members?

  7. What about sites like Zillow that have images of mine up long after a transaction closes. What kind of demand can be made of sites like this where they get the images from the MLS (ostensibly through some type of relationship). My contract with the agent states that copyright remains with me. However, the agent has no control over what the MLS does with the images.

    Thoughts?

  8. @Andrew McGibbon,

    I don't worry about Zillow having the listing up with my photos after the home has sold. I find it handy to look up old postings to see the layout of a home the last time it was on the market. I draw the line on reuse of the images for a different purpose. If Zillow were to repurpose the image(s) for an e-zine or transfers the images to somebody else, that would be a separate use as far as I'm concerned and would need a license. The same would apply if the MLS were to do the same thing or resell the images to a third party. It boils down to lost sales opportunities. I doubt that Zillow would pay me a licensing fee to maintain the listing images. I would prefer that the listing agent that commissioned those images was linked so somebody could contact them if they liked the images and wanted to hire them as I could get the job to make the photos. Ideally, it would be illegal and a strong precedent set against the stripping of meta-data so people could see my information embedded in the image. Photo credits are typically worthless, but the meta-data being present would let third parties verify with me the license status of an image they plan on using. I see image credits going to Zillow and other real estate portals and would bet that the use is infringing.

  9. @David Eichler, A few years ago Newscorp (Rupert Murdoch) bought a company that was the backbone of RE IDX feeds which sent Trulia and Zillow scrambling at the time when they were separate entities. Is Redfin being operated as its own entity. A couple of my clients have nothing but bad things to say about Redfin. A couple more won't feed their listings to T&Z, but those agents are a bit nuts anyway. They still think the MLS is king.

  10. Just yesterday, I was reading a notification published by our local MLS (I am a broker as well as photographer) regarding unauthorized image use. Below is the rule which puts both agents and photographers in an awkward position:

    "Use of Media without prior written authorization:
    The Participant and/or Subscriber represents and warrants that he or she either owns the right to
    reproduce and display such media or has received a perpetual, world-wide, irrevocable, royalty free license
    with the right to sublicense from the appropriate party, and has the authority to grant and grants CRMLS and
    other participants and subscribers the right to reproduce and display the Media. Much like copyright violations,
    licensing issues subject agents, brokers and the MLS to legal risks, and a violation of this rule carries a higher fine
    and does not provide for a warning for those reasons."

    The MLS has a $1,500 fine for the above violation.

    My license terms grant the agent the "right to reproduce and display." But it does not grant "perpetual, world-wide, irrevocable... right to sublicense". And, that's what is happening when the MLS feeds images to third party sites or IDX feeds.

    I see it as we are all in this mess together. MLS systems need to protect themselves from infringement issues and have made rules to protect themselves. Agents need to get their listings photographed and have those images distributed to market the homes. Photographers need to be compensated for their efforts and not give away future value of their creative works.

  11. Sorry, my previous comment was not correct. Zillow does not own Redfin. They are still competitors of a sort. However, I seem to recall that Zillow made an acquisition some years ago that gave them legal access to mls idx content.

  12. @Robert Boerner, My license terms allow agents to use my photos broadly to advertise the property while they have the listing contract as well as to advertise themselves. I don't allow transfer of the images and since there are limitations on duration, I don't need to say anything about revoking permissions. If the invoice for the photo(s) is not paid, the license is void.

    The High Desert MLS put similar language in their Rules and Regs and the NAR national office wasn't supportive of the language. I think the national office is more sensitive to the realities of visual marketing norms. I don't believe that all photographers would stop doing RE photography, but the better ones may drop out since the pay is rather low and a broad assignment of rights or outright transfer of Copyright would prohibit/lessen secondary licensing. The CRMLS is overreaching. This may be due to having an attorney that doesn't have any Copyright experience other than what they may have been taught in law school years ago. The MLS may just be trying to CYA without a rational reason for doing so or they may be looking at ways to further monetize the association via image sales.

    I've been working on a fee schedule for a buyout option that I'll post on my website at some point. The image pricing will still be competitive, but competitive with other commercial advertising photos and I'll base fees on the initial listing price of the home. In return for the higher pricing, I'll book the entire day for the photography of that one property. I expect that post production will be much easier as I will have the time to work each image on site. I will retain portfolio rights unless I am willing to forego that and an additional fee is paid.

    I'm not expecting to have agents opting for buyouts (unlimited rights is the same as far as I'm concerned). What I would hope to convey is that I am willing to go that route and what prices are typical of that sort of arrangement. I don't want to keep having the conversation about assigning my Copyright for the prices I charge for licensed images. I also hope to convince other RE photographers to do a similar thing so the difference in pricing penetrates the marketplace. The analogy is renting a car versus buying. If you need a car for a couple of months, you can rent one. To counter the agreement at the rental desk by insisting that they sell you the car at that price is silly. The rental company expects to rent the car over and over so they can make a profit. The same goes for photos. Many of us hope to relicense a number of the photos we make so we can offer a good price on making them in the first place.

  13. There are multiple problems with Zillow (and other) keeping the images online long after the listing is sold, or expired.

    1. They are building an image library. Ever asked yourself why?

    2. It does not mirror the rules of MLS, who typically remove all but one frontage shot of an inactive listing.

    3. It severely infringes on the privacy of the home buyer, who may not want the interior of their new home plastered all over the internet.

    4. Zillow is by far the most common source where people have copied images from, in the copyright infringements cases I encountered.

    5. Zillow does in fact use these images in their interaction with other entities. For example, they trade image use for "branding" and recognition (value received).

    All I'm saying, is that none of these web based 3rd party users would even exist if it wasn't for our images. They have built massive enterprises using our work, without any type of compensation. They managed to do that, because most photographers never said stop. As far as they are concerned, since we are not stopping them, we must be okay with whatever they are doing. The longer is is permitted to continue the harder it will be to stop. I believe that at this point, it will probably take a class action suit, to get these entities to stop abusing our copyright, and actually have a conversation with photographers, about what is fair and what is not. So far they've been laughing all the way to the bank.

    Register your copyright. Trust me it's worth it!

  14. @george and everyone really - this very specific issue, somewhat prompted by our Zillow lawsuit is definitely part of what prompted the founding of AREP.

    It's easy to say "not my problem" as so much of the economic value of the IP we create is realized at the time of sale, and its extremely rare that we as photographers monetize after the fact. I get it. Hell, my post the other day on "how you measure success" doesn't touch on long term value.

    Then you look at sites like Diggs -- something that quite literally only exists and generates value due to the imagery that we all create. Wether it be from future display outlets, platforms, or just data derived from imagery (I can wax poetic on what I can do with a few million images and some Computer Vision at a later date): we are generating immense value, and that value needs to be protected.

    If we don't take IP seriously, no one will.

  15. "It severely infringes on the privacy of the home buyer, who may not want the interior of their new home plastered all over the internet."

    I think this is completely misguided and unhelpful to the argument. If the seller has agreed to market the property publicly, then the photos will have already been widely displayed on the Internet (perhaps for months or even years), legally and illegally, and withdrawing the photos from the MLS cannot undo that. Furthermore, unless the buyer has also purchased all the furnishings along with the home, there is nothing about the contents of the home that is associated with them, so there is nothing in the photos that will reveal anything personal about the buyers.

    That aside, no one is going to chase down all of the unauthorized uses of the photos; and some of these would be impossible to stop even if we wanted to, because the infringements have occurred in places where there is no legal remedy available.

  16. @Vince, AREP might be a good idea for our industry and might head in the right direction to get these sites to respect our IP. AREP claims to have 2500 members. How many of them are independent photographers and not part of a company like yours? I'm guessing that probably over 90% of those 2500 members are members by proxy and not actual paying members. I haven't joined AREP due to it appears that it is being run by all of the major tour companies (including your own) and the unfair cost of membership. Why should I, as an independent photographer pay $185 to join while a large tour company can sign up all of their contract photographers for as little as $8/photographer. Looking at your website you indicate that all of the photographers that work with you are independent contractors. Since they are independent contractors and not your employees then why wouldn't they have to pay the same membership fee as me? Since AREP currently is being run by large companies, like yours, I don't feel confident that the association will give me a fair voice and will always side with the ones that brought in most of the membership even though that membership is simply by proxy.

  17. Re. my last comment. Also, what about all the other photos that have probably been taken of the home, by previous occupants and their relatives and guests, some of which are probably already on display on social media or on somebody's blog. Also, there will be the snapshots of the home that prospective buyers often take with their cell phones. It is a non-sensical position that the suppressing the usage of the listing photos by the listing agent or photography well prevent widespread distribution of photos of the home. The only possible exception I can see is a brand new home where the seller has strictly limited who can take photos of it and how they can be used, and in that case I would need to be compensated with a fee premium for exclusive usage of the photos.

  18. @David, I'm in total agreement with you that our images do not “....severely infringes on the privacy of the home buyer, who may not want the interior of their new home plastered all over the internet.”

    Even a new custom home the owners can't control where or how exterior images of their home is used on the internet as long as the home is located in or ordinarily visible from a public place.

    As far as interior images that we create for agents to be used to market the home to sell it the new owners have no say since they didn't own the home when the images were created. Even if they are the owners when our images are created as long as we are allowed into the home for the purpose of creating images then I believe that would be considered implied consent. Thus, we can do what we want with our images.

  19. @Ken, once they started limiting to 750 per submission, I also limited my photos to only the ones sent to agents. But I also have personal images such as landscapes, wildlife, etc that I sometimes post on social media and sometimes print to sell. So I can easily fill 750 images in a month rather than every 3 months of unlimited images. I used to batch name the whole submission by month or quarter. Not individual shoot names or descriptions. That's where I'm struggling with the time involved to create an excel spreadsheet with dozens of names at the very least.

    @Kerry, when they first started the 750, my submission was kicked back because I sent too many. No mention of the spreadsheet at that time, but I lost my fee because I sent too many. I didn't bother re-submitting that batch because by the time I received the notice, it was after the 90 day limit for published works. This current submission will also be a lost fee because I don't have time to create a spreadsheet. I'm pretty much done submitting if a spreadsheet is required.

  20. @Lee, if you are using a Mac, I can send you a screen capture video on how to make the spreadsheet in just a minute or so. It's a piece of cake. The short version is you select all of the images in the folder, copy and paste into the spreadsheet. MS Excel will put each file name on it's own row. Ragtime will do the same thing. I expect that Open Office/Libra Office won't be much different. If you drag and drop, you will bring in the full path to the file (USCO doesn't want that).

    I also shoot lots of personal stuff but I don't post on "social media" so I'm not publishing those as far as the Copyright office is concerned. If I do, I'll use my Lightroom preset to output those images to my Copyright collection folder. Unpublished images don't have the 3 month time frame and can be registered whenever. Stuff I post on Flickr are snapshots that I don't care much about and don't generally register.

    I get that it's more expensive. If you average 25 photos per job, that's only 30 jobs worth of photos per submission, but that's only $2.50/job for "image insurance". You could even get picky and not submit small bathrooms, small bedrooms, vacant spaces and other low value images that you wouldn't do if you could get away with leaving them out of the gallery you submit to the agent. Murphy's law will come back and bite you with the image of the thrash metal teenager's room being the one you left out that gets infringed.

    The HUD home I did today I'm considering not registering. It's a wreck and the second time I've photographed it as the contractor requires updated images if the home's been on the market for 30 days or more. I had to load the last round of images on my tablet to reference so I'd make some different compositions. About the only thing that's changed is somehow a bird got inside and died.

  21. @Ken, I would be very grateful if you could share how you create your spreadsheet. I'm all Mac, but do use MS Office (Excel) as well as Numbers. Thank you so much for offering to help!

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