Copyright

SAA White Paper Report: Infringements

Read the Report here or Download the PDF

Infringements of Stock Images
and Lost Revenues

September 2007

Introduction

Nearly all aspects of the stock photography business have been transformed in the past decade. Film-based capture and overnight delivery of analog images have been replaced by digital images and electronic delivery. High-speed databases and broadband internet connections have made it easy to market, sell and deliver images anywhere in the world- all with the press of a button.

In addition, the internet has brought a major shift in how and where images are used. Print uses are declining and new media uses-such as online and portable devices-are proliferating. In the future, the stock photo industry will rely more heavily on revenues from these new media formats and non-traditional licensing models.

Along with the opportunities of the new digital age, significant challenges for the stock industry have also emerged. One challenge in particular is not yet fully appreciated, although we think this challenge also creates an opportunity for photographers, image distributors and industry groups to create new customers, new markets and new revenue streams.

Easy online access to millions of stock images has also made them extremely susceptible to theft and misuse. With just a click and a drag, users can move a digital file from any web site onto their desktop-without payment or license. Although images sourced this way are typically low-resolution, they are often good enough. High resolution is traded for an unbeatably low price-free.

In addition to outright piracy, digital media have also increased the potential for legitimately licensed images to be used outside the scope of the original license. Once downloaded, image files can be easily repurposed and redistributed to other users. File names are commonly changed and identifying metadata is stripped or altered, making these images vulnerable to misuse.

This paper addresses how and why the stock photo industry is subject to this theft; we also try to gauge the size of the problem. We describe what is being done now, obstacles to overcome, and suggest additional steps to minimize piracy of stock images, protect our copyrights, and maximize revenue opportunities for photographers and the distributors of their images.

The Size of the Problem

To learn more about the extent of the infringement problem, the Stock Artists Alliance teamed up with PicScout, a company that uses advanced visual recognition technology to track images on the web. Starting with a repository of copyrighted images, PicScout crawls the web to find matches and the technology is able to reliably identify unauthorized usages.

In 2003, SAA became aware that PicScout had begun searching commercial web sites for the Rights Managed images of several major stock collections and uncovered a shocking rate of abuse-nine out of every ten images they found were unauthorized uses.

This suggested a staggering loss of potential licensing revenue to those companies-and to copyright holders. PicScout further observed that these infringements could be classified into two general categories-inadvertent misuse and intentional theft. While some customers exceeded legitimate licenses, a large fraction of cases they reported were blatant infringements.

It is difficult to know how to interpret the real-world significance of this startling finding since many infringing uses cannot practically be converted into new licenses-yet. But these practical difficulties have not stopped many stock distributors, archives, and some individual photographers from aggressively pursuing some of the worst offenders, often with real revenue gains as the result.

Public records indicate the largest stock distributors today convert many infringers into paying customers and generate millions in revenue that used to go uncollected. Mid-sized and smaller archives too have reported significant revenues recovered by pursuing leads.

White Paper

Infringements of Stock Images
and Lost Revenues

September 2007

Introduction

Nearly all aspects of the stock photography business have been transformed in the past decade. Film-based capture and overnight delivery of analog images have been replaced by digital images and electronic delivery. High-speed databases and broadband internet connections have made it easy to market, sell and deliver images anywhere in the world- all with the press of a button.

In addition, the internet has brought a major shift in how and where images are used. Print uses are declining and new media uses-such as online and portable devices-are proliferating. In the future, the stock photo industry will rely more heavily on revenues from these new media formats and non-traditional licensing models.

Along with the opportunities of the new digital age, significant challenges for the stock industry have also emerged. One challenge in particular is not yet fully appreciated, although we think this challenge also creates an opportunity for photographers, image distributors and industry groups to create new customers, new markets and new revenue streams.

Easy online access to millions of stock images has also made them extremely susceptible to theft and misuse. With just a click and a drag, users can move a digital file from any web site onto their desktop-without payment or license. Although images sourced this way are typically low-resolution, they are often good enough. High resolution is traded for an unbeatably low price-free.

In addition to outright piracy, digital media have also increased the potential for legitimately licensed images to be used outside the scope of the original license. Once downloaded, image files can be easily repurposed and redistributed to other users. File names are commonly changed and identifying metadata is stripped or altered, making these images vulnerable to misuse.

This paper addresses how and why the stock photo industry is subject to this theft; we also try to gauge the size of the problem. We describe what is being done now, obstacles to overcome, and suggest additional steps to minimize piracy of stock images, protect our copyrights, and maximize revenue opportunities for photographers and the distributors of their images.

The Size of the Problem

To learn more about th extent of the infringement problem, the Stock Artists Alliance teamed up with PicScout, a company that uses advanced visual recognition technology to track images on the web. Starting with a repository of copyrighted images, PicScout crawls the web to find matches and the technology is able to reliably identify unauthorized usages.

In 2003, SAA became aware that PicScout had begun searching commercial web sites for the Rights Managed images of several major stock collections and uncovered a shocking rate of abuse-nine out of every ten images they found were unauthorized uses.

This suggested a staggering loss of potential licensing revenue to those companies-and to copyright holders. PicScout further observed that these infringements could be classified into two general categories-inadvertent misuse and intentional theft. While some customers exceeded legitimate licenses, a large fraction of cases they reported were blatant infringements.

It is difficult to know how to interpret the real-world significance of this startling finding since many infringing uses cannot practically be converted into new licenses-yet. But these practical difficulties have not stopped many stock distributors, archives, and some individual photographers from aggressively pursuing some of the worst offenders, often with real revenue gains as the result.

Public records indicate the largest stock distributors today convert many infringers into paying customers and generate millions in revenue that used to go uncollected. Mid-sized and smaller archives too have reported significant revenues recovered by pursuing leads.

Orphan Works

Orphan Works 2008
Resources

What can you do?

Orphan Works legislation will impact all artists worldwide, directly or indirectly, so regardless of where you live, you should communicate your concern.

It is critical that members of both Houses of Congress who are drafting and considering this legislation hear from all of us who care about this issue. Please let them know how important this is to YOU. 

Make your Voice Heard

If you're based in the U.S.

Contact your Congressional representatives.
Contact Information for Members of Congress

Contact House Judiciary Committee members, particularly
the Leadership and Ranking Members, and your Senators.
FAX numbers for House Judiciary Committee Members

You can use this online resource to write to members of Congress, developed by the IPA and used by 60+ artists associations. Go to the IPA CapWiz site

Or, feel free to edit the text of this sample letter and copy it onto your letterhead.

If you're outside the U.S.

Make your concern known about the impact of this Bill on international copyright law. Use this online resource

Resources

Following are links to commentary posted by fellow associations, along with other sources, which further help explain the specifics of the current draft legislation, as well as provide a range of perspectives. We will add to this list as more resources become available.

SAA Orphan Works Page
SAA Orphan Works Blog

APA - Advertising Photographers of America - Orphan Works Page
APA 2008 Orphan Works Position Paper

IPA - Illustrators' Partnership of America - Orphan Works Page

ASMP - American Society of Media Photographers - Orphan Works Page

John Harrington's Photobusinessforum blog

Public Knowledge.com blog

Key Documents

2008 Orphan Works Bills:
House Version: H.R. 5889, Orphan Works Act of 2008
Senate Version: S.2913, Shawn Bentley Orphan Works Act of 2008

Copyright Office Report on Orphan Works, Jan 2006

House Subcommittee on Courts, the Internet, and Intellectual Property Hearing on Promoting the Use of Orphan Works : Balancing the Interests of Copyright Owners and Users, March 13, 2008

U.K. Gowers Review of Intellectual Property, Nov 2006

SAA's Orphan Works 2008 coverage was prepared by:
David Sanger, SAA Legal Chair
Betsy Reid, SAA Executive Director

Orphan Works - Recommendations

SAA Recommendations to Congress

We urge Congress to amend this draft legislation to expand on the new ideas they have put forth which seek to minimize potential abuse, and better balance the needs of those who legitimately seek orphan works exemptions while better serving those who seek protection of their copyrights.

Specifically, we propose the following:

Regarding the Provision for Certified Private Searchable Databases:

1. Before any Orphan Works law goes into effect for visual works, there be at least two certified searchable databases in service (removing the alternative effective date of Jan 2013)

2. Best practices specified by the Copyright Office would require anyone seeking the Orphan Works exemption to search both databases should they fail to find the copyright owner in one search.

3. At least one of these databases allows copyright holders to submit works without fee or charge. (The financial support for such a system should come from the prospective users of the works, and not from the artists whose copyrights are being challenged by the effects of this legislation.)

4. All images registered with the U.S. Copyright Office through their new online registration system be automatically added to the searchable databases upon upload, and that provisions be made for the transfer of all electronic deposits made to the Copyright Office to both databases.

5. New exemptions under this statute be available only for as long as the Copyright Office can continue to certify that such searchable databases are fully functional. If this ever ceases to be the case, then new Orphan Works exemptions would no longer be available.

Regarding the "Notice of Use" Provision:

1. There be a fee for filing a "Notice of Use."

2. A copy of each work be included in the "Notice of Use" filed by an infringer.

3. A "Notice of Use" be required to have specific detail not just "how" and images is to be used (e.g. "print," but exactly "where the image will be used, including name, date and location of publication.")

4. The archive of "Notices of Use" of claimed orphan works exemptions, containing the digital copies of the work used, be available to registered copyright holders so that they can perform a visual search for infringements of their images.

Regarding the Provision for Reasonable Use Fees:

1. The exemption for payment of reasonable use fees by nonprofit educational institutions, libraries or archives be removed. These entities are well accustomed to paying usual licensing fees and ought to continue to do so, just like other infringers, if the owner of an "orphan work" presents a legitimate request.Regarding Best Practices

Regarding Best Practices:

We urge that the Copyright Office commit to work closely with photography and other visual arts professional associations, and industry leaders from across the image licensing community, to ensure that the documented "best practices" for searching for copyright owners be sufficiently stringent and comprehensive that, while allowing for legitimate searches, they prevent idle or casual searches which would abuse the system.

We also urge a public commitment by stock photography agencies, particularly members of PACA, BAPLA and other industry groups, to ensure that their entire collections at all times be searchable in Copyright Office certified databases.

SAA is part of the Imagery Alliance, an ad hoc group of Visual Artists associations concerned about the protection of copyright. The alliance provides a forum for sharing information and strategy concerning Orphan Works and other legislative issues. There's been a broad range of opinions on the current bills expressed so far, and we can expect more views aired in the days to come.