Question: If I have successfully obeyed the copyright laws 999 times and failed to notice one time where a CC photo got slipped into my twitter, and upon notification, immediately rectified my error, in that case, am I a copyright laws obeyer or a "gotcha victim"?
A single instance of someone discovering that you breached their license terms does not
automatically mean that every single other published image you have made use of is non-infringing. I'd bet good money that if you fully audited 1,000 pictures to ascertain if you are
wholly compliant with their license terms (as published across all your vectors e.g. website, blog, social media etc.), you'd find far more instances where you're breaching the terms of the license.
You've said that you outsource a lot of your work to third-parties; have you laid down strict rules/terms with them in your contract? Are you confident that they are always following procedure, and have you negotiated a "hold harmless" clause, where they pick up the cost of any legal claims
their actions expose your business to?
Since your business is ultimately legally liable for the actions of your employees or contractors, it's incumbent on you to perform a level of diligence and the occasional random audit too.
Lastly - and though this is rare - it will sometimes occur that third parties offer images with CreativeCommons licenses that they have not authored i.e. they find pictures elsewhere and then distribute them as CC works. Again, it's on the user to perform a due diligence and keep track of where images were sourced, and under what licensing terms.
Most victims never wanted to buy or license that damn photo or whatever anyways.
... yet they were happy to make use of it when they
thought there were no cost or consequence for doing so? Sounds a lot like "
Not sorry for breaking the law, just mad at being caught"
My whole point is majority of pissed ELI members are pissed because they feel personal injustice from this whole gotcha business model.
And this is where our opinions will differ vastly. From the creator's perspective, actively keeping track of licensed and unlicensed uses of their work is simply a necessary part of doing business in the digital age. It's not a business model in of itself, merely one of the inevitable consequences of the internet age.
Personally, I'd be quite happy if my works were
only used by my paying clients, even if that meant a decrease in revenues over time and/or the eventual cessation of my business in the event my services were no longer in demand.
However, if someone makes a value judgment that my photograph fits their needs for publication, then I have a reasonable expectation to be paid for their use of my work. It is a principle that, at its foundation, is no different than any other person, whether self-employed or an employee, expecting to be paid when someone else makes use of their time or skills.
If you are even a good enough photographer or artist, then don't be a coward and ask the infringers, hey, you want to buy my photo or license it. It's only $10 a photo? If the infringers ignores you, then by all means, go after them for that coveted $30,000 honeypot. In that case, those infringers rightfully deserve it.
I can't speak for other photographers, but the above is almost exactly the process I follow
except when the infringer is an entity that regularly licenses images e.g. newspapers, media companies and so on. For the latter, I almost always refer the issue to legal representation in the relevant jurisdiction/country.
For everyone else, my base licensing rates for editorial images start at around €100, and commercial/promotional uses start in the mid-three to low-four-figure range. I don't pluck arbitrary numbers out of thin air, since I rely on FotoQuote to price my licenses. I also have a client base who pay my asking rates, so I have ample evidence of my loss of income, should it come to that juncture.
These facts aside, I'll tell you this: most of my polite and cordial messages, summarised as "Hey, you used my work - but you'll need to pay for doing so", elicit the following replies
Around 30% will apologize immediately and offer to pay - and I'll send an invoice/license to them, allowing continued use, along with a bespoke replacement image file with embedded copyright management information and a specific filename (this helps me track
licensed uses of my works and, if an infringement of that file occurs, I can trace it back to the licensed source)
Perhaps 20% will say "whoops, sorry - we've now stopped using it" and then either plead poverty and/or say they're unable to pay the full fee. Depending on circumstances, I
may entertain a lower-than-standard-rate payment or drop the matter entirely, but that is wholly contingent on communications being sincere and courteous. With that said, on two occasions where I have dropped a claim, the same entities infringed on different works at a later date.
"Fool me once..."40% will cease using my work and not reply at all - forcing me to escalate the matter. Of these, perhaps half end up getting legal representation, kicking matters into the negotiation phase. At this juncture, I'll be weighing up litigation, and I'll be seeking significantly more than the licensing fee alone since I have had to incur additional costs at this phase.
9% will cease using my work, flat-out refuse to pay, and be... let's say
grossly unprofessional or reckless in their responses. These are immediately passed over to a law firm, which usually results in either a relatively quick (6 ~ 18 months) settlement, or initiation of litigation.
1% will
continue using my work and again be grossly unprofessional in their replies. I litigate
every single one of these rare instances, and have not lost a single claim yet.