History of Image Licensing

When print was the predominant form of publication, many professional photographers were able to successfully earn a living from their trade, primarily based on a combination of assignments to create new work and the licensing of their preexisting works. Images were traditionally licensed on a “rights-managed” basis—an industry term for licensing an image on a per-use basis, often limited to size, geographic territory, purpose of use, number of units or print run, time period of use, and exclusivity. The photographer would be paid an additional licensing fee for any expansion of the use, or additional usage each time the image was licensed to a newspaper, a magazine, an advertisement, or other context. Companies known as stock image libraries developed to streamline the licensing process by aggregating the images by subject matter and creating a market for publishers, designers, and advertisers, among others, to find images already created that suited their use. Many early stock libraries were small specialty libraries known for images of nature, science, sports, news, travel, history, or art, while some larger companies developed libraries of images of broader commercial subject matter, suitable for advertising. Actual physical images, or transparencies, were lent out under terms requiring their return to the library after a review period for refiling and reuse.

The digital age changed the landscape significantly. New companies with technology expertise and funding entered the market and began acquiring and consolidating the specialty libraries. These companies made significant investments in scanning images that were not already digital, and developed online platforms where one could use keywords to search for images of any subject matter and view them for potential licensing, all in the same online environment. With the improvement of the quality of digital cameras, professional photographers could create digital images for easy upload to these platforms for distribution and licensing.

These digital revolutions also brought about changes to the traditional licensing models that were more compatible with licensing in an online environment, requiring less individual negotiation. As the appetite for more and more images grew, in order to enhance digital publications and websites, the types of licensing models expanded. In addition to rights-managed licensing, companies began to offer a “royalty-free” model, in which images could be licensed on a broad, nonexclusive basis and without one-time use restrictions, subject only to the licensor’s particular limitations (such as usage or resolution limitations). Royalty-free licensing of individual images and subscription-based licensing, where a user is offered access to a large collection of images for a flat monthly fee, became popular licensing options, with subscription licensing attractive for users with a large appetite for visual content. Some companies, recognizing that certain noncommercial users might even find those options out of range, offered users the right to embed images under agreed-upon terms. Getty Images, for example, released their Embed system to allow noncommercial users to in-line link to certain Getty Images content for free.¹

Despite this evolution of the licensing economy and its multiple licensing options, copyright infringement of visual works on the Internet became widespread as the ease of “right-clicking” and dragging an image from one location on the Web to another became easy, even for users with limited technology skills. Rather than visiting an image library, registering as a user, and agreeing to terms and conditions of use and paying a licensing fee, those seeking a particular image may simply rely on large image search engines like Google as the source of visual content. The current scale and pace of infringements is difficult for large licensing companies to police and manage, let alone individual photographers whose works are being used without permission. Although the U.S. Copyright Act contains various causes of action that entitle these copyright owners to seek redress for unauthorized uses, it is debatable whether the traditional federal court system offers a realistic enforcement venue given the volume of alleged infringements, the requirement of a registration certificate before filing, legal costs, and the lengthy litigation process, among other issues. Given these challenges, how exactly does a photographer protect his or her works on the Internet?

The Life Cycle of a Digital Photograph Online

The life cycle of a photograph begins with its creation. A digital photograph is captured as a raw file or jpeg/tiff and saved on a memory card or hard drive. This file contains not only the data necessary to render a visualization of the image, but also a set of data about that image called the metadata. Camera-generated metadata usually includes administrative and technical information such as the type of camera and lens used, the owner of the equipment, and the technical details of the image such as the f-stop and aperture settings. Additional metadata such as keyword tags, descriptions, and rights information are also often added once the file is processed by the appropriate software. Under the Copyright Act, the photograph is protected at the moment it is “fixed in any tangible medium of expression,” such as the digital file saved to the drive or device.²

At some point the photographer will upload the image to the server hosting the photographer’s website, or transmit the image to a client who will upload the image to its website. This makes the photograph publicly available, and if it is public and searchable (e.g., is coded with descriptions or keyword search terms), the image will appear in Google or other search results, broadening its potential reach. It is at this point that the image may be viewed, linked to, framed, downloaded, and copied onto other web pages. The image may appear on individuals’ Tumblr blogs, on a local or national news website, on Instagram and Twitter feeds, and so on. Even though the photographer may have included attribution metadata with the image on the initial upload, or a credit line on the original web page, this data is likely to be lost as the image spreads across the Web.

Some or all of these uses may be unauthorized and unlicensed, depriving photographers and their representatives of legitimate licensing fees. What are the photographer’s rights, and what can the photographer do to enforce copyright and encourage legitimate licensing?

Copyright Registration

Copyright registration, while not required under the Copyright Act for basic protections, entitles the copyright owner to claim certain additional benefits insofar as it is a prerequisite to filing a copyright infringement claim for U.S. works, and seeking statutory damages and attorneys’ fees (if the work is registered prior to the infringement). Yet the registration system is set up in an arcane manner better suited to creators with a relatively low output of works, such as writers or visual artists working with paints, pencils, or other analogue materials. Photography is by its nature a high-volume art form, and the process of registering individual works is entirely impractical for photographers. Furthermore, the registration process differs for published and unpublished works, and these distinctions are often difficult for photographers to track. As a result, photographers generally do not participate in the copyright registration process, and therefore are unable to take advantage of the statutory benefits provided by the Copyright Act.

The Litigation Landscape

The Copyright Act grants photographers the exclusive rights to reproduce, create derivative works of, distribute, and publicly display their works.³ These exclusive rights entitle a copyright owner to sue those who, without permission, make copies, circulate copies, show copies to “a substantial number of persons outside of a normal circle”⁴ of family or acquaintances, or create new works based on the original. Because copyright law today is exclusively within the purview of the federal courts, photographers may only sue for copyright infringement in this court system. It is a costly, time-consuming, and often utterly impractical solution for photographers looking to stop rapidly multiplying online infringements.

In addition, in 1998 Congress passed the Digital Millennium Copyright Act (DMCA), which implemented a notice and takedown system that provides copyright owners a relatively standardized system for notifying Internet service providers (ISPs) of alleged copyright infringements by the ISPs’ users.⁵ Upon receiving a proper notice, the ISP is immunized from monetary damages if, among other things, it expeditiously takes down the infringing content. This alternative to filing a copyright infringement action in federal court is often a cheaper and faster solution to the issue of copyright violations on the Internet, though it does not provide copyright owners a way to obtain compensation for the infringement of their rights. Further, infringements are global and not all countries have a similar notice and takedown system. In addition, requesting that an image be taken down does not mean that it will not be uploaded by another user, creating a scenario where an artist may need to continually send takedown notices of images that have gone viral, an exhausting and perhaps futile effort.

Finally, the Copyright Act offers a cause of action for the intentional removal or alteration of copyright management information (CMI) for the purpose of facilitating an infringement.⁶ For photographers, CMI might include a variety of watermarks and camera-generated and photographer-created metadata. This cause of action can be asserted together with or independently of a copyright infringement claim if a user of an image intentionally removes or changes any of the information accompanying an image. Because the exclusive rights under the Copyright Act do not include the right of attribution, the protection of CMI may be an important legal tool for photographers whose works can easily become reappropriated time and time again without proper attribution of the image’s creator. Yet CMI is fragile and anything but robust, and some software scrubs files clean of their CMI without the user’s knowledge. These facts make it difficult to prove that a party has intentionally removed CMI from an image file on the Internet.

These three potential remedies do not come without their challenges. Beyond the slow process and financial expense of a copyright infringement or removal of CMI lawsuit, the evolution of the Internet—including technological developments, the ways in which developers and ISPs have employed those developments, and the cultural norms that have evolved on various blogging and social media platforms—has to a great extent outpaced the effectiveness of legal recourse.

Framing

Framing HTML code gives web developers the ability to show content on a website without hosting it on their servers, by linking to that content’s source in another location. The code creates a portal-like “frame” such that the content seamlessly appears on the website when it is really stored on another website’s servers. In Perfect 10, Inc. v. Amazon.com, Inc., the Court of Appeals for the Ninth Circuit ruled in 2007 that framing is not direct copyright infringement because, under the so-called “server test,” when the alleged infringer shows images that are not stored on its own computer/server, the alleged infringer does not publicly display the image under the meaning of the Copyright Act.⁷ This interpretation of the definition of a public display requires that the alleged infringer possess and control a material copy of the image displayed on the website to constitute copyright infringement. Thus, web hosts may not only use a technological workaround to save space on their servers for other coding and content, but they also can skirt copyright’s exclusive right of public display.

Since the Ninth Circuit’s 2007 endorsement of framing and in-line linking coding, these tools have become more and more prevalent on the Web. Google Image Search now shows image search results in fairly large formats, with only discreet references to the images’ sources such as on a minimized credit line that appears only when a mouse moves over the image. Many websites, from personal blogs to local and national news outlets, also use this kind of coding to show visual content on their web pages. Although other circuit courts of appeals have not addressed this question, the Ninth Circuit’s interpretation of in-line linking as noninfringing has led to its use as standard operating procedure on the Web, leaving individual creators with little recourse in federal courts for much of the unauthorized use of their works on the Internet.

The DMCA

While the DMCA takedown procedure provides something of an alternative to the copyright infringement route, insofar as it allows copyright owners to contact ISPs to facilitate the removal of infringements from their services, the inconsistent and sometimes cumbersome way in which this procedure has been implemented by various ISPs when compared with the rapid rate of copyright infringement occurring on their services has become untenable in many respects. In 2011, Google received a few hundred thousand DMCA takedown notices a week across its various platforms, including YouTube, Google Images, and Blogger, while in 2016 it received 20 million notices a week.⁸ During this same period, the rate of adults using the Internet in the United States increased from 79 percent to 88 percent.⁹ The more than fortyfold increase in DMCA takedown notices speaks not only to the overall increase in Internet use over the past five years, but also the manners of use that have proliferated during that period.

The DMCA notice and takedown process requires the owner or authorized agent of an owner of a copyright to send a signed and written notice identifying the copyrighted work(s) and the location(s) of the alleged copyright infringement(s), including the complaining party’s contact information, and two statements made under the penalty of perjury that the notice is accurate and made in good faith.¹⁰ While many ISPs have set up forms that claimants can fill out to submit their takedown notice requests, thereby streamlining their compliance with the statute, the variations from one ISP to another can create headaches for creators simply trying to control the rapid unauthorized spread of their copyrighted works across platforms. Furthermore, because there is no “takedown and stay down” component to the DMCA, the fact that one instance of infringement on a particular ISP’s platform is removed does nothing to prevent subsequent instances of infringement of the same image on that same platform. Because low-resolution images are so easily and rapidly copied, it is virtually impossible for a copyright owner or his or her authorized agent to keep up with the pace of infringements.

Notably, Google’s recent DMCA statistics show a slight decline in the number of takedown notices the company receives weekly.¹¹ It is unclear why there is this decline, though given the burdensome and seemingly futile nature of the process it is easy to imagine that some creators have simply given up trying to police unauthorized uses of their works on the Internet.

U.S. Copyright Office Initiatives

In the past few years, the U.S. Copyright Office has begun several key studies into the practical issues facing creators such as photographers today; some of these initiatives have the potential to lead to changes in the law.

Most recently, the Copyright Office issued a notice of proposed rulemaking seeking input on the group registration process for photographs.¹² The purpose of the proposal is to increase the efficiency of the bulk registration system in a way that will encourage greater participation from the photography community and facilitate the creation of a more robust copyright record system. The rulemaking, if implemented, would create for the first time a registration option for a group of unpublished works. This would enable photographers working in a fast-paced commercial or editorial environment to register a group of images that they have to quickly deliver to a client prior to the photographers’ final review of their work.

This study may be a result, at least in part, of the summer 2015 notice of inquiry put out by the Copyright Office, which sought comments from those involved in the current marketplace for visual works, such as visual artists, their licensing representatives, and licensees, with a goal of coming to a better understanding of the obstacles each of these players face in the digital age. Responses to the notice came from a wide array of individual artists, local artist societies, and national trade associations, such as the American Photographic Artists, the National Press Photographers Association, the Digital Media Licensing Association, the Professional Photographers of America, and the Copyright Alliance.

In December 2015, the U.S. Copyright Office commenced an ongoing study on the effectiveness of the DMCA, called the Section 512 Study, in which they are looking both at its general efficacy as well as its practical costs and burdens on different participants in the copyright community.¹³ In the past year, they have asked for a series of public comments and held roundtable discussions in New York and California with a wide variety of stakeholders. Although this process will take time, and ultimately only provide recommendations to Congress on ways the DMCA may be modernized, the Section 512 Study has the potential to greatly improve upon the preexisting notice and takedown system.

The Copyright Office was also studying a variety of other copyright-related issues affecting the greater community of authors and creators. Perhaps most notable at the moment is the 2013 Copyright Small Claims report, released by the Copyright Office, which laid out detailed recommendations that Congress create a specialized small claims court for small-stakes copyright claims.¹⁴ As a result, two bills have been proposed in the House of Representatives: Representative Judy Chu of California introduced the Fairness for American Small Creators Act,¹⁵ and representative Hakeem Jeffries of New York introduced the Copyright Alternative in Small-Claims Enforcement Act of 2016 (CASE Act).¹⁶ Both bills establish a voluntary alternative forum to the federal court system for the resolution of certain copyright-related claims that do not exceed $30,000. If passed, the law would create a less expensive and more efficient alternative for photographers who seek to be compensated for the unauthorized use of their images. In particular, a small claims board would provide a realistic forum for photographers seeking compensation who are not entitled to statutory damages because of their failure to register the copyright prior to the commencement of the infringement.

Practical Solutions for Photographers Today

Despite these early-stage initiatives of the Copyright Office and Congress, photographers are largely left with the same set of laws they had in 1998, when the DMCA was first passed. The Internet has changed so much in the past 19 years—and copyright infringement is, as a result, as widespread as ever. With massive rates of infringement on the Internet, it is virtually impossible for individual photographers to manage the protection of their works alone. In the vacuum between the tools provided by the DMCA and this reality, a number of tech companies have partnered with photographers and image libraries to assist in image protection and enforcement. In some respects, these technologies and the companies providing management and enforcement services are the most practical solutions for photographers hoping to protect their copyrights on the Internet today.

The Picture Licensing Universal System (PLUS) Coalition was formed by a global community of creators, licensors, institutions, and image users to develop standardization in language for licensing and an image registry for the purpose of solving some of the thorny issues of digital distribution, such as loss of metadata and attribution, and inability to locate rights holders. Using reverse image search, the information regarding image ownership and licensing authority can be identified. The registry is in early phases with a scalable option to be launched in the near future.

Other technology companies, such as Idée with TinEye, PicScout, ImageRights International, and Image Protect, among others, also offer reverse image search services that can find uses of visual content on the Web. These services generally allow a user to upload a thumbnail image to the system, and it then searches the Internet for locations where the image is being used and creates a report of all located uses. The user can then cross-reference that report against his or her records of all known licensed uses. Those without a license would be presumed unauthorized (with the exception of fair use in the United States). This cross-reference process can pose challenges, especially for photographers with images represented by multiple representatives, or who have offered broad rights licenses, as image usage reports may not include enough details, either because the licensing entity’s information is different than the name of the website ultimately using the image, or because under royalty-free models the usage of an image is broad and not disclosed. Image libraries face the same challenges in enforcing copyright licenses on behalf of their contributors.

In addition, some companies like ImageRights International and Digimarc offer copyright enforcement services wherein they will provide legal services to contact suspected infringers in exchange for a percentage of the recovery amount. Some critics have equated these services with copyright trolls, while others point out that without such services many photographers and photography representatives would not have the resources to pursue infringers in the federal courts. This is an unfortunate use of the term “troll,” as patent trolls refer to entities that never invented anything but purchase patents for the purpose of suing, whereas copyright owners who try to legitimately enforce copyright in works they create to stem the tide of infringement require technology partners to find the far-flung uses in the vast digital world. Without these technology solutions, regardless of how imperfect in some respects, as long as images can be right-clicked easier than licensing, photographers and visual artists will need to rely on these partnerships.

Conclusion

Largely because of the high rate of infringement on the Internet, the current solutions provided under the Copyright Act and the Copyright Office’s regulations are inadequate to protect the exclusive rights of photographers in the twenty-first century. The Copyright Office continues to study important areas of the law that impact photographers and encourage Congress to make much-needed changes to the law. In the meantime, certain technologies and services provided by private companies offer some solutions to photographers unsatisfied with the other options under the Copyright Act. Hopefully, a combination of these efforts will drive legitimate users who want to do the right thing to use licensing schemes that work for their needs while still incentivizing professional photographers to continue to create, as the works of visual artists add to our knowledge, culture, empathy, and understanding of the world. A picture is still worth a thousand words.

Endnotes

1. Embed, Getty Images, http://www.gettyimages.com/resources/embed (last visited Mar. 17, 2017).

2. See 17 U.S.C. § 102.

3. Id. § 106.

4. Id. § 101.

5. Id. § 512(c).

6. Id. § 1202(b).

7. 508 F.3d 1146 (9th Cir. 2007).

8. Rani Molla & Shira Ovide, The War on Internet Piracy, Bloomberg Gadfly (Mar. 23, 2016), https://www.bloomberg.com/gadfly/articles/2016-03-23/google-and-media-titans-clash-in-a-war-on-internet-piracy.

9. Internet/Broadband Fact Sheet, Pew Res. Ctr. (Jan. 12, 2017), http://www.pewinternet.org/fact-sheet/internet-broadband/.

10. 17 U.S.C. § 512(c)(3)(A).

11. Requests to Remove Content Due to Copyright, Google Transparency Rep., https://www.google.com/transparencyreport/removals/copyright/#glance (updated daily) (reporting closer to 15 million notices per week toward the end of 2016 and beginning of 2017, but back up to 20 million notices per week by the end of February 2017).

12. Group Registration of Photographs, 81 Fed. Reg. 88,643 (Dec. 1, 2016).

13. Section 512 Study, U.S. Copyright Office, https://www.copyright.gov/policy/section512/ (last visited Mar. 17, 2017).

14. U.S. Copyright Office, Copyright Small Claims (2013), available at https://www.copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf.

15. H.R. 6496, 114th Cong. (2016).

16. H.R. 5757, 114th Cong. (2016).