And so, the story continues.<\/p>\n
4. Does Their Pitch Make Sense?<\/strong> 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”.\u00a0So 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?\u00a0 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\u2019ve committed a criminal act relating to\u00a0Federal Title\u00a017 USC 506(e).\u00a0\u00a0That\u2019s what\u2019s known legally as a real \u201cno no\u201d. As opposed to falsifying the registration with these companies. That\u2019s more of a \u201cSorry, my bad\u201d. A \u201cmy bad\u201d is not the same as breaking a Federal law\u00a0which may be a crime and certainly enough to have any civil action for copyright infringement tossed out of court – at the least.\u00a0The basis of their business model is on its face, absurd and filing with them of no legal consequence whatsoever.<\/p>\n Nevertheless one firm (name omitted so as not to publicize it) claims:<\/p>\n “_____________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”.<\/em><\/p>\n Wrong answer, not a germ of truth in it. If I proclaim myself to be LeBron James\u00a0does that mean I can dunk? These companies do no checking on whether the person submitting images is actually the creator of those images.\u00a0 A statement signed by the person submitting stating that. “he\/she warrants is the creator….” is of no legal effect against an actual infringer.\u00a0 Without a copyright registration issued by the US Copyright Office\u00a0 (or in some cases a pending application) you can not sue period<\/em>.<\/p>\n One company (based in the EU) defined Copyright on their website as follows:<\/p>\n Q: “What is copyright”?<\/em> Well, not really. A patent is not “for ideas”, as the site so authoritatively states. Rather a patent is\u00a0“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”.\u00a0In short – patents are not for “ideas”. The company\u00a0does 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?<\/p>\n Their site goes on with more confusing\u00a0\u201cinformation\u201d\u00a0about copyright, the Berne Convention, and the US Constitution. The company is so obviously unfamiliar with what copyrights and patents are, it appears\u00a0that 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\u2019ve read, and the failures of several of these companies to respond to our inquires we\u2019d have to say no.\u00a0 Go to the site(s). Find the name of a lawyer based in the USA…anywhere in the USA.\u00a0 You have a better chance of finding Waldo.<\/p>\n So when they say \u201cregistering\u201d your work, all we can say is \u201cYou keep using that word, we do not think It means what you think it means\u201d.<\/p>\n <\/p>\n 5. You Don’t Need ANYONE To Register Your Copyright For You.<\/strong> Step by step video tutorials are available free by going to www.copyright.gov.\u00a0 Our book The Copyright Zone contains a step by step tutorial, as does one of our Kelby One videos.\u00a0 It\u2019s so simple a child can do it.\u00a0 Search firms want you to think it\u2019s complicated and you are unable, incapable and don’t have 15 minutes to file up to 750 unpublished images for a\u00a0single\u00a0$55 fee.\u00a0 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.<\/p>\n 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.\u00a0 I Can’t Search For infringements By Myself<\/strong> 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\u2019s 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.\u00a0Just 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.<\/p>\n Many of the most profitable infringement\u00a0cases 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\u00a0were 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\u2019s work. One day you might be the one hearing about your work. One of Jack\u2019s favorite \u201ccatches\u201d is when on assignment in a restaurant in Las Vegas years ago, Jack saw one of Arnold Newman\u2019s 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.<\/p>\n 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”.\u00a0 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.<\/p>\n 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.\u00a0 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.\u00a0 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\u00a0demand for photos of Morgan Freeman.<\/p>\n 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.\u00a0 A very, very bad deal for the infringed artist.<\/p>\n 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 \u201cstandard\u201d in locating infringements. We\u2019re constantly amazed at how some infringements are found, they\u2019re great stories told over a round of adult beverages.\u00a0 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\u2019s client was very happy to collect a large check. 7. Search Firms and Hamsters Are Very Much Alike<\/strong> 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.<\/p>\n 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.<\/p>\n 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\u2019s an army of proverbial teenagers in their parent\u2019s 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.<\/p>\n The bottom line gimmick is that these companies entice creatives by offering to relieve them of the obligation of policing their work.\u00a0They appear to offer everything for a small fee.\u00a0When something appears too good to be true, it is is. Such is the case here.\u00a0Jack and Ed have offered to discuss these issues with any\/all of these firms in a public forum and have it webcast live.\u00a0 So far none of the search and settle companies have taken us up on the offer.<\/p>\n So as they say in Latin “Fotograferus <\/em>Caveat”<\/em> – Photographer Beware.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":" And so, the story continues. 4. Does Their Pitch Make Sense? \u201cYou keep using that word, I do not think It means what you think it means\u201d. \u00a0– says Inigo Montoya (Mandy Patinkin) from the classic film,\u00a0\u201cThe Princess Bride\u201d. It\u00a0is an\u00a0invaluable phrase to\u00a0call out someone’s incorrect use of a word, phrase or concept. 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\n\u201cYou keep using that word, I do not think It means what you think it means\u201d. \u00a0– says Inigo Montoya (Mandy Patinkin) from the classic film,\u00a0\u201cThe Princess Bride\u201d. It\u00a0is an\u00a0invaluable phrase to\u00a0call out someone’s incorrect use of a word, phrase or concept. Use of the quote\u00a0when dealing with photo “search firms” is inevitable.\u00a0 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 \u201cUse your noggin\u201d a\/k\/a “critical thinking”.<\/p>\n
\nA. “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\u2019s what patents are for! Copyright protection is available for original works of authorship, published or unpublished”<\/em><\/p>\n
\nWith 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.<\/p>\n
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\nMany 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\u201d, 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\u00a0if any\u00a0training their “people” receive in finding infringements. Subscribers are buying the proverbial pig in a poke.<\/p>\n
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\nWe have all seen a hamster speeding furiously and going nowhere on an exercise wheel in a cage.\u00a0An 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.<\/p>\n