And so, the story continues.

4. Does Their Pitch Make Sense?
“You keep using that word, I do not think It means what you think it means”.  – says Inigo Montoya (Mandy Patinkin) from the classic film, “The Princess Bride”. It is an invaluable phrase to call out someone’s incorrect use of a word, phrase or concept. Use of the quote when dealing with photo “search firms” is inevitable.  When the phrase comes to your mind you will know that your ability to think has kicked in, or as they say in Brooklyn, “Yuze ya head”, or if you speak Mid Western “Use your noggin” a/k/a “critical thinking”.

Some advertising claims made by these companies imply or flat out state, that signing up with their search firm is the equivalent of “registering your work”. So if Ed who as a photographer doesn’t know the difference between an f stop and a bus stop, steals an image shot and created by real photographer Jack Reznicki and then “registers” that photo with one of these services under Ed’s name, does such submission prove that Ed is the creator and copyright owner?  Submission to a company has no legal meaning whatsoever. Only registration with the Copyright Office (for US purposes at least) counts. If you falsify such a claim with the Copyright Office you’ve committed a criminal act relating to Federal Title 17 USC 506(e).  That’s what’s known legally as a real “no no”. As opposed to falsifying the registration with these companies. That’s more of a “Sorry, my bad”. A “my bad” is not the same as breaking a Federal law which may be a crime and certainly enough to have any civil action for copyright infringement tossed out of court – at the least. The basis of their business model is on its face, absurd and filing with them of no legal consequence whatsoever.

Nevertheless one firm (name omitted so as not to publicize it) claims:

“_____________gives you proof of creation if used when you first create an image. This can help you when sending cease and desist orders or DMCA requests”.

Wrong answer, not a germ of truth in it. If I proclaim myself to be LeBron James does that mean I can dunk? These companies do no checking on whether the person submitting images is actually the creator of those images.  A statement signed by the person submitting stating that. “he/she warrants is the creator….” is of no legal effect against an actual infringer.  Without a copyright registration issued by the US Copyright Office  (or in some cases a pending application) you can not sue period.

One company (based in the EU) defined Copyright on their website as follows:

Q: “What is copyright”?
A. “Copyright is a form of intellectual property protection. It applies to tangible things like images, books, movies and music. Copyright does not cover ideas. That’s what patents are for! Copyright protection is available for original works of authorship, published or unpublished”

Well, not really. A patent is not “for ideas”, as the site so authoritatively states. Rather a patent is “An exclusive privilege granted to an inventor to make, use or sell an invention for a set number of years; a government authority or license conferring a right or title for a set period, especially the sole right to exclude others from making, using, or selling an invention”. In short – patents are not for “ideas”. The company does not know the difference between a copyright, trademark and/or patent. You want these folks who don’t know their posterior from their elbow to represent your claim?

Their site goes on with more confusing “information” about copyright, the Berne Convention, and the US Constitution. The company is so obviously unfamiliar with what copyrights and patents are, it appears that they do not have any lawyers who are part of their team. Has any legal expert reviewed their website or ads or was one even consulted to proof read and correct their absolutely confused, incoherent and erroneous understanding of what copyright rights you have? From what we’ve read, and the failures of several of these companies to respond to our inquires we’d have to say no.  Go to the site(s). Find the name of a lawyer based in the USA…anywhere in the USA.  You have a better chance of finding Waldo.

So when they say “registering” your work, all we can say is “You keep using that word, we do not think It means what you think it means”.

5. You Don’t Need ANYONE To Register Your Copyright For You.
With very, very rare exceptions no one needs to have a third party “service” register – for a fee or otherwise – your copyrights which can be done quickly, cheaply and efficiently by any photographer, artist or illustrator without paying or relying on a third party “service” or attorney.

Step by step video tutorials are available free by going to www.copyright.gov.  Our book The Copyright Zone contains a step by step tutorial, as does one of our Kelby One videos.  It’s so simple a child can do it.  Search firms want you to think it’s complicated and you are unable, incapable and don’t have 15 minutes to file up to 750 unpublished images for a single $55 fee.  It is in these companies interest to keep you ignorant so that you will lack the confidence to make simple filings as a natural part of your workflow.

Be aware the Copyright Office is proposing into raising the fee to $100. Register early and often before the increase early next year. And write in comments protesting this increase. A link is in our previous blog piece is available for you to complain to the USCO about proposed changes to the registration process.
 

6.  I Can’t Search For infringements By Myself
Many model agencies, stock photo agencies and individual shooters simply hire a very bright computer geek to do image searches on a regular basis. Grad students seem to work out best. They are more effective and far cheaper than the “services” in finding infringements. Give a bonus when they “ring the bell”, but remember that many great copyright infringement cases have little to nothing to do with the web. Note that the services don’t reveal what if any training their “people” receive in finding infringements. Subscribers are buying the proverbial pig in a poke.

One service, which unfortunately we can not name, was using 12 year old children in a foreign country to search the web for infringements. Ironically one of the kids was damn good – the only way Ed found out that it was in fact a kid, was because the child nailed a big one for one of Ed’s cases and if not settled he was going to have to be a witness at trial. Fortunately the infringer had an epiphany and wrote out a check before a trial commenced. Just as some “web designers” are high school sophomores, the qualifications of the the employees of these companies are not disclosed nor are their names or locations.

Many of the most profitable infringement cases have involved infringements not on the web but rather on usages: billboards, shirts, product inserts or side panels, liner notes on CDs and DVDs, key chains, on an old fashioned board game, in a video game, merchandise geared to special events, and even a prominent background in a major Broadway show. None of those images were ever seen online nor appeared on the web in any form. Keep your eyes open and all photographers should be on the lookout for violations of their friends and fellow photographer’s work. One day you might be the one hearing about your work. One of Jack’s favorite “catches” is when on assignment in a restaurant in Las Vegas years ago, Jack saw one of Arnold Newman’s famous portraits used on the front of the menus. He called Arnold to ask if it was a licensed usage. Nope. Arnold was more than happy to collect a very large check from that restaurant.

Point is that search firms don’t shop in retail stores, look at signage at concert venues, buy custom made goods, or dine at fancy Las Vegas restaurants. Law firms who are experienced in these cases actually put “boots on the ground”.  Ed has had people looking for infringements attend trade shows, classic car events and even shop in mega malls looking for posters, point of purchase infringements or prints for sale.

You don’t necessarily need to pay anyone. You get an intern via a local college, university, grad school. They get school credits and you pay zero. You simply must do this all through the school so as to avoid any labor issues at all. Interns would rather work in a law firm or photo studio than go to class. Two of the largest model agencies in NYC use “free interns” who for 3 school credits put in about 5+ hours a week – no charge.  They search for the unauthorized use of the images of of up to one hundred models signed with the agency.If for example if you had photographed Debbie Reynolds and/or Carrie Fisher over the years you could have called your intern when they both died within 24 hours of each other.  That was the time infringements would be most likely to occur and you could narrow your search down to just two subjects. Similarly there is now a sudden and unforeseeable demand for photos of Morgan Freeman.

If you choose to have a service do your searching (ONLY searching) for you that is not terrible so long as you do not rely solely on their abilities. They promise nothing and often deliver less. And be very, very careful reading their terms of service, as some firms require that you pay them 50% of any recovery of any image they locate, even if you use your own lawyers. You can spend many hours and thousands of dollars settling an infringement, and the search firm who only spotted the images will take 50% of your net recovery.  A very, very bad deal for the infringed artist.

It is our collective experience that most infringements are caught by our clients who do as we suggest and run at minimum, a periodic Google Image search. The best cases “pop up by themselves” such as on a TV show, DVD cover, billboard, T shirts, venue posters like at a pro sports event or music concern or in/for a first run movie. There is no “standard” in locating infringements. We’re constantly amazed at how some infringements are found, they’re great stories told over a round of adult beverages.  Ed’s favorite has his client throwing out a candy wrapper at an airport only to see his full page image on a discarded Sunday newspaper in the garbage. Like the Arnold Newman story, Ed’s client was very happy to collect a large check.
 

7. Search Firms and Hamsters Are Very Much Alike
We have all seen a hamster speeding furiously and going nowhere on an exercise wheel in a cage. An important point that none of these services will tell you is – the web expands faster than the services can scour it. These services actually scan much less than a tiny percentage of 1% of the web. That 1% figure is not a misprint.

No service or combination of services can search the entire net, which expands exponentially second by second. The services that do searches are very good, but up to a point. Your own in-house searches are more valuable, targeted, and effective because you know which/what images are likely being infringed at any given moment. That is why we cited the Debbie Reynolds/Carrie Fisher example.

Even searching 24/7 anyone would be incapable of viewing everything. One expert put it this way. “Assume that you have all the time in the world and don’t need to sleep or eat. You go into a supermarket that adds 5 new aisles every second. You can shop 24/7 and see less and less of the store the more you shop. Now maybe you will find what you are looking for in aisle 1 or 12 but not likely will it be found in a timely manner if it is in aisle 4,567,987,453.” That was actual court testimony by the chief “searcher” at what was then the second largest stock agency in the world with admittedly the most sophisticated software available.

Remember that these services are not staffed or capitalized like Google, Microsoft or Apple. They tend to be small companies with staff’s whose credentials are not disclosed nor what type of computer power they have at their command is advertised. You have no way of knowing whether they have an army of servers actively searching for infringements for all their clients, or if it’s an army of proverbial teenagers in their parent’s basement in Dusseldorf working on a 5 year old laptops. An intern or employee who works solely for you and only for your images is far more likely to catch something than someone searching for hundreds of customers.

The bottom line gimmick is that these companies entice creatives by offering to relieve them of the obligation of policing their work. They appear to offer everything for a small fee. When something appears too good to be true, it is is. Such is the case here. Jack and Ed have offered to discuss these issues with any/all of these firms in a public forum and have it webcast live.  So far none of the search and settle companies have taken us up on the offer.

So as they say in Latin “Fotograferus Caveat” – Photographer Beware.