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Leveraging Software to Protect Your Images

Published: 04/09/2020

Hopefully after reading Mike Boatman’s four-part series earlier this year on the importance of registering your images with the USCO, you have taken the initiative to do so. If you've missed those posts, you can find them here:

  1. Making a Case for Image Registration
  2. Real World Copyright Litigation: A Photographer's Viewpoint
  3. Copyright Registration and the Importance of "Chain of Evidence Custody"
  4. Discussing Copyrights With Your Clients--It's a Sales Tool

Like Mike said in his posts, a lot of your images are being infringed. I am not talking about the aggregators that our images are automatically syndicated to, but the other downstream 3rd parties that are using our images which is due in part from all these aggregators displaying our images. Some of them, forever.

For instance, I recently settled a case against a blogger that was using 20 of my images. To be honest, the images are not great and none of them would ever end up in my portfolio. It was a century old home with, what I believe, the original wallpaper. Here’s a couple of the images that the infringer had used:

Hopefully, this shows you that regardless of your skill level, or whether the home you are shooting is portfolio worthy, your images are valuable and deserve to be protected.

A comment that I receive from almost all photographers whom I have spoken to and assisted with registering their images is: “But, I don’t have the time to search for infringements.” This is a valid point. Likewise, I do not have the time to sit in front of a computer searching for where my images are being used either. That is where an image protection service can be of assistance to you.

There are several services available to choose from. Here are a few to get you started:

Note: PFRE is not affiliated with any of these services.

With so many choices, how do you decide which service to use? It depends on several factors. Are you willing to pay for a subscription to use the service? How involved do you want to be in the settlement process? In other words, are you a hands-on or a hands-off type? Are you able to pay for any out of pocket fees, which can be significant, if necessary? There are other factors as well.

Probably your first question is which service finds the most uses of your images? In my experience, I have found that they are all about the same in finding where my images are being used. They all use different algorithms in searching for uses of your images. Pixsy may find an image being used that Image Defenders did not find and vice versa. Thus, none of them will find all the uses of your images.

Where they differ from each other is if it is free to use their monitoring service or are they subscription based; how they pursue cases, how informed/involved you are during the process; and their settlement terms. I have had experience with four of the services: Image Defenders, ImageRights, Permission Machine, and Pixsy and want to share my experience with each of these services.

Image Defenders – There is no fee to use their monitoring service. Like most non-subscription-based services, they have first right of refusal of a case. In other words, you must use their legal services unless they decide that they do not want to pursue the case. Then you can take the case to whomever you want. They offer a list of 14 attorneys whom you can ask that a case be referred to with contingency fees from 25-40%. Any case that is settled, Image Defenders receives 20% of the total settlement. So, if the attorney’s fee is 25%, you will receive 55% (25% + 20% = 45%) of the total settlement. Likewise, if the attorney’s fee is 40% then you will receive 40%.

ImageRights – They used to be subscription based but have recently changed to a free monitoring service. With ImageRights, they have first right of refusal to any case. They indicate that they will only pursue cases where they feel at least $2,000 can be recovered. If your images are registered, then I cannot think of a situation where a potential settlement would be less than $2,000. ImageRights offers legal services in several countries. I have limited experience with their services so I cannot offer much more on them.

Permission Machine – Also offers free monitoring and has the first right of refusal on any case. You will receive 33.3% of any case they settle for you. Pursuing a case through them, chances are that all communication will be thru Permission Machine and not directly with the lawyer handling your case. As far as I am aware, Permission Machine is the only service that will front all out of pocket expenses. Even if your case ends up in formal litigation. Trust me, out of pocket expenses can be significant. I was involved in a case last year, not involving Permission Machine, that was settled in mediation. My out of pocket expense for that case was $8,000. I cannot imagine what my out of pocket expense would have been if the case ended up in Federal Court. If you do not have significant cash flow, Permission Machine might be a good choice for you.

Pixsy – Is the only service that I use that is subscription based. They also offer a free account which limits you to uploading only 500 images. What I like about Pixsy is that when they find a pursuable case, I am free to take the case to a lawyer that I have a relationship with and do not have to use their legal services. Typically, that means I receive more of the settlement than if I used their legal services. If your images are registered, the typical contingency fees for lawyers are 25-35%. Thus, I am going to receive 65-75% of the settlement. Using Pixsy’s legal services, the most I am going to receive is 50% of the settlement. I have only used their legal services for one case. The case is against a firm located in the UK and has not settled yet. Pixsy is another service that offers legal services in several countries.

Whichever service you decide to go with, I highly recommend that you do your own research after they identify a pursuable infringement. In the case mentioned at the beginning of this post there was only one image that was detected. I did some research and found that the site was using 20 of my images rather than just one. That is not the only time I have found additional images being used on a site. A settlement for the use of 20 images will be, or should be, far greater than for one image.

Typically, once a case is settled without going to court, you are required to sign a Settlement Agreement which includes a confidentiality clause which is basically an NDA (Non-Disclosure Agreement) which prevents you from discussing the case. That’s the reason why there is not much information available about settlements. Using the case mentioned at the beginning of this post, the initial demand for settlement was $44,500 with an eye toward settling the matter for more than $20,000. Normally, settlements end up around 50% of the initial demand. In the negotiation process, you are in total control concerning whether or not you take the settlement.

For this case, I ended up agreeing to settle for $12,000, which is less than the typical 50% initial demand amount. The reason for accepting the lower amount is that my lawyer had concerns regarding the current pandemic and issues relating to the collectability of this defendant. I agreed with him with the stipulation that the confidentiality clause would allow me to discuss the case if I don’t identify the infringer. My total out of pocket expenses for this case was less than $1.60 which was my cost for registering the 20 images. I netted $5,400 for this case. I feel that’s a good ROI for $1.60 and a little bit of my time. Don’t expect a quick settlement for any case you pursue. I initiated this case on Jan 11th of this year and the Settlement Agreement was signed on July 28th.

If you decide to use one or more of these services, chances are you will be shocked at how and where your images are being used. I know I was. I have found my images being used by interior designers, architects, digital magazines, freelance writers, house flippers, bloggers, building suppliers, and others. Most of which are not even located in the same state as me. Most recently, I found a house flipper located over 1,000 miles away using one of my images on their website.

I feel the main reason copyright infringements are so prevalent is since it’s only a small percentage of photographers looking for infringements and a far lower percentage who are registering their images. Companies know this fact and are taking advantage of it. And it’s not only true in our field, it’s also true in all genres of photography. If you are not entering into a rights managed license agreement with your clients and registering your images, chances are you are leaving a significant amount of money on the table. It’s not that difficult or time consuming.

It would be great to hear from the community on which image protection service(s) you have used and your experience with the service.

Kerry Bern