Photo copyright debacle: To sue or not to sue?
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"In its new motion, Getty and AFP argue that their conduct was “careless” but not willfully malicious, thus shielding them from the maximum penalty. They argue the most Morel is entitled to is a single DMCA penalty of $2,500 and actual damages of $200,000 — legal fees in the case are estimated to have reached northwards of $8 million."
The last bit probably gets photographers worried. If a DMCA damage is only 200K, WTF is the legal fees all about?
Stolen Goods and Usage Abuse
Having your pictures stolen is probably as old as prostitution itself. These days, someone will rip your image and use it unconditionally via Instagram, posters or a soup kitchen. But there are generally two types of infringes you need to be concern about. People who stole your goods, and the people who abuse the limited copyright license of the image.
The first kind is what AFP and Getty got themselves into. They have to show that they had taken sufficient care in finding out the real owner of the pictures instead of just picking the first guy that is associated with it. By right, the photographer in this case should have sued both the thief and Getty+AFP. But the case does not mention this so I can't be sure if it did happen.
The second ones are those who bought a limited copyright license from you and used it on everything they can think of, including the condom packaging you found from a third world country. These you can do nothing about. They are after all your clients and no carefully worded demand for additional payment is going to win you compensation.
Thieves like Us
Upscaling a low resolution picture is relatively easy as long as you have the right software. There are a few out there that does just this. Often, you can upscale or enlarge a stolen picture by 3 times. Perfect Resize 8 has a fancy patented, fractal-based interpolation algorithms that makes sure your image stays the same once upscaled.
Any stolen picture from the Internet can be given a new lease of life, including the humble screen capture image. This means no picture is safe, and to post your picture up onto the Web is in some ways giving it away. I am sure as hell you haven't got a team of lawyers looking after your images.
How Pictures get Stolen
Instagram, Flickr and any image hosting service. That's how popular these spots are image thieves. I have known some restaurants or cafes who have stolen images used on their menu. Heck, why shouldn't they? You posted it, and there is no water marking or demand for payment, so sue me!
Even with watermarking, you're just adding a layer of inconvenience as any good photoshop digital artist will be able to do away with it.
Searching for Misused Images
Google Image search is probably the best way to find them. They index more pages than you have read books. Drop an image onto the Google Image search bar and you'll be given all the results. Neat. So now you know your image has been abused and misused. What do you do now?
For someone who has stolen your image, you can issue an Internet take down, which is hardly useful if pictures of your beloved Pomeranian Husky is used in a restaurant Menu in Vietnam or for that matter, for the site to be hosted on a Web server that resides in Somalia. DMCA infringement take downs are as useful as a dog whistle—not everyone will hear it. Fair use compensation? That's like asking for a free blowjob while negotiating with a Hooker.
Why Copyright Does not Pay
In the US, you need to register for a copyright of the said image to enjoy additional protection. If you do sue the party involved, your lawyers are looking at the $$$ legal fees as oppose to staking your claim. If you lose, you still have to pay the lawyer. They don't work for free Starbucks coffees.
Legal fees are totally separate from actual damages. If you wish to pursue a case against someone who has infringed on you, make sure you have a good lawyer who doesn't charge that much and are in love with your work. Or for that matter, an avid photographer himself so that he's as interested as you are in protecting image rights. Everything else is secondary.
