Companies that profess expertise\u00a0in the ability to find instances of copyright infringement on the web are plentiful.\u00a0You\u2019ve 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\u00a0suffice for now –\u00a0 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\u00a0action to such companies….just our opinion.<\/p>\n
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\u00a0mere 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\u00a0routinely detectable by them.<\/p>\n
Some of Ed’s best cases have involved infringements – most intentional and calculated – that were never “on” the web.\u00a0Many 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.\u00a0For them crime does pay and avoiding the web while making a profit is easy and just not a consideration.<\/p>\n
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\u00a0intended<\/em>\u00a0for use on the web.\u00a0Here 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.<\/p>\n 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.<\/p>\n In no particular order:<\/p>\n <\/p>\n Restaurant Menus:<\/strong><\/p>\n 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.\u00a0Unfortunately 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.<\/p>\n Jack\u2019s 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\u2019s 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\u2019t license additional usage. Arnold, who was always great at maintaining his copyrights and usages, collected a very big check from the hotel restaurant.<\/p>\n Neither usage would ever appear online.<\/p>\n <\/p>\n Point of Purchase Poster:\u00a0<\/strong><\/p>\n 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.\u00a0An 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.<\/p>\n <\/p>\n Counter Tent Cards:\u00a0<\/strong><\/p>\n <\/p>\n Displays:<\/strong><\/p>\n <\/p>\n In store videos: <\/strong><\/p>\n Not to be confused with an\u00a0infomercial 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.<\/p>\n <\/p>\n Cosmetic counters:<\/strong><\/p>\n It\u2019s 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\u2019s favorite client stories of a woman from Africa who sees unauthorized use of one of her images used in Bloomingdale\u2019s (and only in Bloomingdales). Never on the web, but she collected a hefty check.<\/p>\n <\/p>\n Post Cards:<\/strong><\/p>\n 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\u00a02<\/strong>\u00a0vintage 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.<\/p>\n <\/p>\n Sales Brochures:<\/strong><\/p>\n 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?\u00a0\u00a0Salespeople 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.<\/p>\n <\/p>\n Travel\/Tourist Brochures:\u00a0<\/strong><\/p>\n Think any chain of hotels\/motels and virtually any price point anywhere in America.\u00a0 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.<\/p>\n <\/p>\n Coupons<\/strong>:<\/p>\n Via USPS or in advertising supplements in Sunday newspapers.\u00a0 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\u00a0made 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.<\/p>\n <\/p>\n Faxed Ads:<\/strong><\/p>\n 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.\u00a0While all of us are bombarded by countless web ads how often in 2018 do we receive one via\u00a0fax<\/em>?\u00a0 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.\u00a0Cheap campaign, huge results. And what are the chances of a photographer\u2019s web based search firm finding an infringed photo used in this manner?<\/p>\n <\/p>\n Newspaper\/Magazine Ads<\/strong><\/p>\n The print and digital versions of these type publications are not identical.\u00a0An advertiser can pay to have an ad appear only in the print version – if only to save money.\u00a0Local 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\u00a0the 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 \u201creturn!!\u201d)<\/em>, knows fully well that Nana or Poppop is not reading the digital version of the local newspaper.<\/p>\n <\/p>\n Signage:<\/strong><\/p>\n 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.\u00a0Additionally, 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.\u00a0Some of those are fully legit and licensed for unlimited time, but some are not.<\/p>\n <\/p>\n Carnivals, Festivals, Music Concerts, Fund Raisers, Trade Shows<\/strong><\/p>\n On site and\/or local use of imagery for tour posters for music groups, vendors, retailers etc. By definition the event is short lived.\u00a0 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\u2019s 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 \u201cunauthorized\u201d 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\u2019ll go out on a limb and say \u201cNaw, not gonna happen.\u201d<\/p>\n <\/p>\n Jumbotrons\/ Digital Signs:<\/strong><\/p>\n We have all seen them at ballparks but now their use on boats, trucks and billboards is ubiquitous.\u00a0 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.\u00a0 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.<\/p>\n <\/p>\n So that\u2019s our sample list.<\/p>\n 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.<\/p>\n But do tell us of other real life, non web uses that you have run across.<\/p>\n","protected":false},"excerpt":{"rendered":" Companies that profess expertise\u00a0in the ability to find instances of copyright infringement on the web are plentiful.\u00a0You\u2019ve all seen their ads and pitches. 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