Companies that profess expertise in the ability to find instances of copyright infringement on the web are plentiful. You’ve all seen their ads and pitches. While rarely mentioning it or hiding it in the small print, they do charge for their services. But their real profit center is in a creator’s willingness to let such companies pursue their copyright infringement actions for a (large) piece of any monies recovered, even if you end up using your lawyer rather than theirs. We have written and spoken about such companies’ fee arrangements frequently and suffice for now –  we do not recommend that any creator assign, transfer or sell all or a portion of his/her rights to pursue (or defend) a copyright action to such companies….just our opinion.

But for this column we explore a very different but related issue. The search firms, including some individuals fronting them, represent their great proficiency in infringement detection on the web. While they claim their ability to find infringements is well beyond that possessed by mere photographers, artists, model agencies and illustrators, they are uniformly silent on the issue of copyright infringements that are not “viewable” on the web and thus not routinely detectable by them.

Some of Ed’s best cases have involved infringements – most intentional and calculated – that were never “on” the web. Many infringers have double or even triple digit IQs and are thus smart enough to engage in profitable infringing activities that can not be seen on a home computer. For them crime does pay and avoiding the web while making a profit is easy and just not a consideration.

Still other infringers, which may be legitimate companies or media outlets including Fortune 500 companies, employ infringing materials daily that simply do not appear on the web because they are not intended for use on the web. Here are just a few real life examples of legal cases where copyright infringement occurred and/or a model’s image was used without consent and NONE of them appeared on the web.

This is just a sampling, we know there are a ton more examples, so please feel free to tell us of ones you know in our comment section.

In no particular order:

Restaurant Menus:

Ed’s favorite – think fast food brand, “Rich Guy” owns 15 franchises in say Florida. He runs a promotion linked to the big college football team. The ads don’t come from corporate but rather he concocts them on his own for BOTH the digital fast food menus he has just installed and the paper menus for customers used to boost school spirit for the big game. Unfortunately he selected a model who was then appearing regularly on TV commercials for the fast food chain with the biggest market share in America and which happens to be his direct competitor. There were locations where Mary Model was in ads in 2 burger joints across the highway from each other.

Jack’s favorite menu infringement involved the late great and legendary photographer Arnold Newman. While on assignment for a magazine in Las Vegas, photographing restaurants and chefs, Jack sees one of Arnold’s iconic (and very large) photos hanging in the entryway of a high-end restaurant in one of the major Vegas Strip hotels. Not unusual, but Jack notices the image printed on the cover of all the menus. When Jack gets back to NY and calls Arnold, Arnold says yes, he sold them a large print of this famous person. But no, Arnold didn’t license additional usage. Arnold, who was always great at maintaining his copyrights and usages, collected a very big check from the hotel restaurant.

Neither usage would ever appear online.

Point of Purchase Poster: 

A photograph of a lingerie model was infringed and used solely in the form of large posters at national brick and mortar retailers that carry what is a nationally well known brand of lingerie. An observer must be physically located in a physical store to see the image and thus see it in context. The photo embodied in the poster could not have been run in “family newspapers” nor would the model or photographer consent to web use that would suggest the use of the image in a pornographic context.

Counter Tent Cards: 

• The infringed photo was used at a very select number of brick and mortar banks on the desks of bank officers. These ads about 10 inches high were to promote “private banking” services for elite customers.  An ordinary customer at a teller’s window would never see these ads that were carefully located exclusively on the desks of only certain bank officers. If you were a customer with enough assets to gain entry into such an office you were likely a member of the narrow demographic the ad was directed at. Lucky you.
• In supermarkets and wine shops, free samples of local foods or wines are provided by a sales rep. They are of course always accompanied by a sales pitch and accompanying signage, that in this case displayed an infringed image.
• Prosthetic devices of all kinds, cosmetic medical procedures or specialized goods/clothing for cancer survivors and/or those with disabilities  (see also “Displays” and “Brochures” below). Yes, why bother licensing a photo for this usage.

Displays:

• Paint. You can buy it at major big box retailers and its brand name is so well known that it is likely to appear as an answer on Jeopardy. A “demonstrator” goes on tour to say 50 big box home improvement centers where he will demonstrate some new techniques and answer questions posed by potential consumers. Maybe the demonstrator has his own TV show where houses are flipped or do it yourself projects are featured. Paint company prepares stand up life size photo displays to accompany each demonstration with some space permitting each store to insert its name, location, dates and hours where the home improvement guy will appear. No web use and no license from the photographer.
• Book signings and bookstores. A hotbed of non web infringements. Big picture of author and perhaps a display constructed so as to hold the book you need to buy in order to get the autograph of the author. When it comes to books, a walk through in just about any independent book store or a Barnes and Noble type big box bookstore will reveal all sorts of in store ads aimed solely at browsers and/or coffee drinkers. As Yogi said, “You can observe a lot just by looking”.

In store videos:

Not to be confused with an infomercial intended for broadcast nor an edited TV commercial but rather a sales pitch of any length directed at the consumer at the point of sale where a sudden impulse results in the sale of a consumer product conveniently located within reach of the viewer. Such videos also contain still images and short videos that are not licensed for such use. Photographer could license use of photos or video for use on the web but this is addition usage and requires additional licensing.

Cosmetic counters:

It’s a very, very competitive industry and every counter at every department store has ads everywhere you look – before and after they apply the moisturizer. Readers of our book are familiar with one of Ed’s favorite client stories of a woman from Africa who sees unauthorized use of one of her images used in Bloomingdale’s (and only in Bloomingdales). Never on the web, but she collected a hefty check.

Post Cards:

This is an effective technique to reach a very discrete audience, something photographers should consider themselves for reaching prospective clients in this age of Facebook and Instagram. Two of Ed’s cases stand out. One concerned post cards directed to soon to be brides who had placed their names on a mailing list to be solicited by vendors of products and services for their upcoming weddings. Ed’s favorite – 500 post cards sent to members of (let’s say) the Corvette Collectors Club. Each member already had at least 2 vintage Corvettes. A very narrow, discrete and monied demographic indeed. Those post cards sold more product on an ad budget of $250 than millions of dollars spent on TV commercials could ever do.

Sales Brochures:

Traditionally an effective sales technique at jewelry stores, restaurants, car and boat dealers. People who buy yachts don’t buy them on line. Why spend money on TV or web ads if your customers have entered your premises with their minds set on spending a few hundred thousand dollars or more on a boat or a ring?  Salespeople use sales brochures to “up sell” customers by showing the more expensive version next to the cheaper one. And they usually contain fun, happy, lifestyle photos. Very expensive to produce and photograph well, but no expense if stealing them off the Internet.

Travel/Tourist Brochures: 

Think any chain of hotels/motels and virtually any price point anywhere in America.  You know those brochures for the local water park/outlet shopping mall/cavern tours/candle factory or all you can eat buffet where kids eat free – all stacked in the exact same stand that has been sold to every hotel since the beginning of time. Usually located in the lobby near the breakfast bar.

Coupons:

Via USPS or in advertising supplements in Sunday newspapers.  Some major direct marketers employ on line downloadable, printable coupons. Many do not. Many individual retailers don’t need or want to bother with digital coupons. There are coupons, billions of them made of old fashioned paper and they are physically distributed via hand or mail. Yet again, photos you see all the time that never see the light of day on the web.

Faxed Ads:

So right about now you are thinking what the heck are we thinking? Well folks fax advertising is alive and well. How many times have you answered your phone and you hear nothing but the sound of a fax desperately looking to hook up with a mate? That should tell you that junk faxes are still a thing. Many companies now resort to faxed ads because they get the attention of the recipient. While all of us are bombarded by countless web ads how often in 2018 do we receive one via fax?  That’s the very point the marketers make to their customers. People who receive ads via fax are far more likely to look at them if for no other reason, curiosity. Ed’s case? Faxed ad for a very exclusive couples only resort in the Caribbean. Every person who was on the fax “mailing list” had spent at least 35k on their last vacation. Cheap campaign, huge results. And what are the chances of a photographer’s web based search firm finding an infringed photo used in this manner?

Newspaper/Magazine Ads

The print and digital versions of these type publications are not identical. An advertiser can pay to have an ad appear only in the print version – if only to save money. Local papers keeping their heads above water in 2018 rely on ads for funeral homes, assisted living centers, retirement facilities and other products or services directed at senior citizens who if they get the printed publication delivered to their door are extremely unlikely to ever view the digital version. As anyone who ever got that phone call to help Nana get on the Internet over the phone, which is beyond impossible (NOO, not that button, press the one that says “return!!”), knows fully well that Nana or Poppop is not reading the digital version of the local newspaper.

Signage:

Photographs, illustrations, model’s images etc. are being incorporated into temporary signs advertising seasonal sales at brick and mortar establishments. Signs go up for say Christmas (or right after Halloween when Christmas season seems to start for retail) and come down after New Years. Additionally, many brick and mortar stores use ads/posters in the window for what seems like forever. Who hasn’t passed a barbershop, beauty supply company or tailor shop that didn’t have an ad so faded from the sun that all pigments had left town. Some of those are fully legit and licensed for unlimited time, but some are not.

Carnivals, Festivals, Music Concerts, Fund Raisers, Trade Shows

On site and/or local use of imagery for tour posters for music groups, vendors, retailers etc. By definition the event is short lived.  Ads on buses and taxis may fall into this group. Transient events typically employ transit advertising which can be “installed” and removed quickly and cheaply. And let’s not even talk about tee shirts. If you go to any major venue concert, along with the licensed tee shirts close to the venue, as you get to the other ring the “unauthorized” tee shirts are being hawked at much lower prices. Do you think these guys paid for a license for the images on the shirts? We’ll go out on a limb and say “Naw, not gonna happen.”

Jumbotrons/ Digital Signs:

We have all seen them at ballparks but now their use on boats, trucks and billboards is ubiquitous.  Your photo is simply stolen and then run digitally every 30 seconds or every 30 minutes next to an Interstate or on a huge screen on a tour bus or boat.  Yes there is a chance that someone will take a photo of that use – as in one of Ed’s cases – but more likely the use is fleeting and if infringed with a minimum amount of planning extremely difficult to detect – especially if you are searching the net.

So that’s our sample list.

While there are countless examples of web uses which infringe on copyrights and or rights of publicity, you can see there is a great deal of the world left that is not on the web….at least not yet.

But do tell us of other real life, non web uses that you have run across.