“What are the odds of my work being infringed”? “With all the “appropriation” going on out there what percentage of work do you think is eventually stolen”?

We have often been asked these questions when interviewed by journalists, documentary filmmakers, professors and even creatives. Our answer of “no one knows, nor can anyone know” never satisfies them. Sorry, but that response is about as far as we can go and remain accurate.  Here’s why:

Fully 95% of all professional photographers do not register their work on a regular, on going basis. A very small percentage of professionals perhaps 5 – 15% occasionally register a single work, a shoot or small collection. These figures are based on 32 years of representing photographers, writing and lecturing nationwide, polling our audiences, clients, potential clients, readers and simply reviewing the public records at the Copyright office.

Here’s an unscientific test we suggest to anyone who doubts our figures. Pick 10 photographers of various specialties, geographic locations, ages and reputations. Go to the U.S. copyright site and see how many images/registrations they have actually made and when they were made. When we lecture to groups of approximately 200 photographers, artists and illustrators. We like to ask, “How many of you have NEVER registered anything, ever in your life? An average of 170 arms go up. When asked, “How many of you register everything you shoot, all of the time, on a regular basis”? 2 – 4 hands go up – if the stars are aligned.

Anyone opining on the number of actual infringements or percentage of works appropriated is merely guessing without the benefit of any reliable statistics – or as we say in Brooklyn “bull sh****g you”. There is simply no way to determine the number of valid licenses for use of given photos may exist at any point in time. There is no way to know what imagery may be in the Public Domain on any specific date nor what/which qualifies as an exception under Fair Use.

Computing such numbers would require a data base containing (at least) every registration, license, stock agency agreement, copyright assignments, access to the computers of every photographer, ad agency, illustrator and so on not only in America, but the entire world. This excludes amateurs who of course, possess some astronomical number of registrations the exact number of which cannot be determined at any one point in time. The only public record that exists and is at all relevant, is the number of registrations. But since most registration numbers reflect multiple images (even thousands) this figure tells us little. You can tell WHO registers but not what or how many images they have registered.

It is accurate and sufficient to state that infringements are rampant. Assigning a number or a percentage to the extent of the theft is a flat out impossibility. It should be enough of an incentive for a creative to register to know that theft is commonplace and the process of registration is quick and easy. Notwithstanding, photographers and illustrators in overwhelming numbers continue to fail to register. The thieves know that. Their clients know that. IP attorneys know that. So thieves will continue to steal safe in the knowledge that fully 95%+ of them will “get away with it”.

No one effectively (or to our knowledge even attempts) to monitor JUST all photo usage in ads/promos in the forms of: POP, magazine, newspaper, poster, billboard, television, product inserts, product packaging, hang tags, CDs, DVDs, etc., etc. Likewise, no one even attempts to monitor infringements of news, celebrity or historic works in this global economy. Stock agencies who attempt to monitor “their” works are woefully bad at it, understandably do not publicize each “gotcha” and have been known not to even report back to the creator/copyright holder. (If you are shocked by that statement, we trust that you are a “newbie”)
It is simply impossible for any company, individual photographer, illustrator or artist to monitor the entire media world. Remember, the net is but a small part of the vast media world.  Even an infringed image used as a billboard in Times Square and viewed by millions escaped the knowledge of the shooter for years. He “discovered” it in 2007 by reading a story on Dick Clark’s stroke and to his horror saw his image right there in a New Year’s Eve shot advertising a major clothing brand – in the foreground – “Welcome 1994”!

Companies purporting to police the web or who are otherwise looking for your business in protecting your image rights frequently throw out numbers and statistics in an effort to get your business.  Be aware that there are no reliable statistics, only anecdotal guessing or sales talk.  It is our experience that a prominent shooter is as likely to be ripped off as an unknown.  The quality of the shot does not necessarily affect the likelihood of it being stolen as much as the subject.  Often there is simply no rhyme or reason as we have seen cases where very pedestrian, routine images, which could have been legally licensed for peanuts, were nevertheless infringed.
Bottom line:  theft is easy and rampant.  Protection is cheap and effective.  Register everything you shoot, all of the time.  Does that guarantee that you will catch that nightclub in Houston, clothing store in Laughlin, newspaper in Bangor or restaurant in Barstow that ripped off your image?  Of course not.  Many thieves have been and will continue to get away scot free with stealing. Vigilance is required