As if there aren’t enough methods by which creators’ works are being stolen, copied, scanned and otherwise appropriated, we can now add another to our “Infringement Threatdown” (Tip of the Hat to Stephen Colbert).

Over the years we have dealt with infringement cases where none of the players were able to ascertain the source or method of creation of the “copied” or “offending” image.  In most cases the appropriated image, story board, lay out and so on was simply scanned by some miscreant whose identity or that of his/her employer was eventually identified by us through the pre-trial discovery process or other litigation related activities.

On occasion while representing a model, photographer or illustrator, we have been confronted with a scenario whereby it was impossible to ascertain the source or method of the copying.  Oft times these cases involved images where the original was several years old.  In the analogue days, we would often discover that a former or fired ad agency employee would literally walk off with chromes he/she had been stock piling and squirreling away from jobs worked on at an agency over the years.  That employee might – years later while working independently or for another agency  – employ those images without making payment and without obtaining the license to do so from the photographer, illustrator and/or model.  The assumption was that with the passage of time “no one would know or ever find out.”  Many of these attempts were successful.  On more than one occasion offenders charged their clients for “modeling” or licensing fees in connection with the purloined images and pocketed the payments.

In the digital age we can now add an additional culprit to the “usual suspects” (Tip of the hat to Kevin Spacey) – the simple copying machine.  It seems that most commercial machines manufactured since (at least) 2002 contain hard drives which record all or in some instance (at least) many thousands of copies made by that machine.  Those documents are easily reproducible after simply extracting the hard drive with a screwdriver and plugging it into the appropriate receptacle and printer.  The better the drive and printer, the better the reproduction.

Copy machines owned or leased by clients or ad agencies are all eventually traded in, sold, up-graded, replaced, discarded, sold for parts or re-possessed.  Those machines and there are about a gazillion of them, go into a secondary market where they are re-sold, re-leased, cannibalized for parts or shipped over seas.  Rarely, very rarely have the hard drives been removed, cleaned or wiped by the original owner or leasee leaving them intact for use by anyone in possession of the machine or just the drive itself.

These hard drives may contain trade secrets (from law firms), confidential medical records (from health insurance companies or doctors’ offices) sealed criminal records (from police departments) or photos, layouts and other intellectual property routinely copied by ad agencies and clients.  These documents and images can easily be reproduced and used for nefarious purposes by persons with minimal skills.  The information so derived can be worth tons of cash or may even be priceless.  Imagine for a moment identity theft on steroids.

CBS news did a great reporting job on this practice.  Click Here: Check out “Copy machines, a security risk? [VIDEO]”      <http://www.wimp.com/copymachines/>

The piece is scarier than watching Friday the 13th.

To those of you who are dubious as to the quality of imagery which can be derived by such process, we remind you that many of these images can easily be reproduced with sufficient quality for newspaper and similar advertising purposes.  One of our Photoshop techie geniuses assures us that given a color copier of decent quality he/she could easily “improve” the image from the hard drive to raise it to a technical standard where use in magazines and point of purchase ads would be “a breeze.”  Remember one need not get the image to fine art quality for use in advertising and promotion.  Text reproduces just fine and is easily readable.

So how to deal with yet another threat to the integrity your work?  Some suggestions:

First, find out if the agencies that you deal with have a written policy of removing, destroying, wiping or cleaning the hard drives from their copiers upon sale, trade in or discarding.  Try to get a confirming e-mail to that effect or better – a copy of that policy.  Tell them why you are asking and if they truly are unaware of this practice you are doing them a favor.  It’s up to you as to whether you want to remind them that you are doing them that favor.

Second, add the language to your invoices and contracts to that which we have already suggested, to the effect that the client/agency will, “delete all digital files of your images including any which may appear on copier hard drives.” Yes, some clients will balk or question you when they read that clause.  They will inquire as to whether you mind has left the building.  You need merely state, “If you don’t put my photos through your copier you have nothing to worry about” and/or “I don’t expect you to wipe your copier’s hard drive just for me but I think in this day and age you should be protecting yourself and your clients don’t you think?”

Third, seek to prohibit by writing or otherwise the copying of any of your images on copying machines by any third parties including the client, Kinko’s or Staples.

Fourth, suggest they view the CBS report referenced above.  I know of one medical management company which runs several medical practices in Gotham who upon seeing the CBS report immediately ordered all drives “wiped” and each machine be visited by a techie upon the return or repair of any machine or upon a copier being moved to another location for any reason.

Fifth, according to the CBS clip, Sharp is one manufacturer which sells certain copiers which do not routinely store the images on a hard drive.  There may be others.

You may or may not be successful with any/all of the above approaches but it is very important that you express your knowledge of the practice and your lack of consent to any such copying of your work.  This is a very new area.  Some of your clients will be utterly unaware of the issue.  You will need to tactfully educate them and again, they should thank you for it.