A worker honey bee covered in pollen. Honey bees add about 20 billion dollars a year to the US economy, mostly through their pollination services. Urbana, Illinois, USA
Alex Wild
Here is a true story about how copyright infringement costs my small photography business thousands of dollars every year.
Or, maybe it isn’t. It could also be a true story of how copyright infringement earns me thousands of dollars every year. I can’t be sure. Either way, this is definitely the story of how copyright infringement takes up more of my time than I wish to devote to it. Copyright infringement drains my productivity to the point where I create hundreds fewer images each year. And it’s why, in part, I am leaving professional photography for an academic position less prone to the frustrations of a floundering copyright system.
I have an unusual, and an unusually fun, job: I photograph insects for a living. I love what I do in no small part because the difference between my profession and getting paid to be an overgrown kid, is… not that much, really. I collect ants and beetles, I play with camera gadgets, I run around in the woods. Meanwhile, publishers, museums, and the pest control industry send me enough in licensing fees that I haven’t starved to death. By nature photographer standards, business is booming. I cover a modest mortgage in a working class neighbourhood. I even afford a new lens or two every year.
I only have one complaint about photography as a career: copyright law is broken. This clichéd refrain should not be news to anyone reading Ars Technica, of course. Copyright met the Internet, and the Internet won.
Copyright and the Internet
It’s true that every once in a while Hollywood twists together enough tattered legal threads to hang some poor schlub for torrenting Scary Movie 12 or whatever. But such cases are statistical anomalies. A great deal of content on the Internet, perhaps even most content, is uploaded in violation of copyright law. Nothing bad happens to the infringers most of the time. People determined to watch Scary Movie 12 for free will find just the right offshore service to help them, and their odds of getting caught, while perhaps higher than shark bite, are somewhat less than those of getting struck by lightning. For practical purposes, the Internet has become a copyright-free zone.
While the stereotypical copyright story pits private users against large corporate rights-holders, real-world cases are often more complex. After all, most content creators are private, and many content users — as well as content infringers — are corporate. The corporate infringements are the most frustrating, as I live off photo licenses issued to corporations in the same sectors.
Licensing only works in a world where commercial content users like these must obtain permission from content creators. As long as I have the right to dispense permission, I am in a position to earn back the roughly $50 (£31) I spend to create each photograph. Money is time; I use my time to invest in more images, and the cycle continues. This is how copyright is supposed to work, and most of my photographs could not exist without it.
Today my photographs would not exist without the Internet, either. Before any of my work appeared in the glossy pages of nature magazines, it was broadcast in informal discussion forums, shared through e-mail, and posted to the webpages of university laboratories. My first paying clients, back when I was a hobbyist, found me on Google. Most of my current clients still do. Without early encouragement from the Internet, I would never have transitioned to professional photography. The Internet has been good to me.
To recap — Copyright: great! Internet: great! Where the two intersect, what could possibly go wrong?
The perpetual battle
For a concise idea of what could go wrong, let me indulge in a list of recent venues where commercial interests have used my work without permission, payment, or even a simple credit:
Billboards, YouTube commercials, pesticide spray labels, website banners, exterminator trucks, t-shirts, iPhone cases, stickers, company logos, eBook covers, trading cards, board games, video game graphics, children’s books, novel covers, app graphics, alt-med dietary supplement labels, press releases, pest control advertisements, crowdfunding promo videos, coupons, fliers, newspaper articles, postage stamps, advertisements for pet ants (yes, that’s a thing), canned food packaging, ant bait product labels, stock photography libraries, and greeting cards.
Yesterday evening, while Googling insect references in popular culture, I discovered that a small Caribbean island helped itself to a photograph I took in 2008. My photo shows a slave-raiding ant, a fascinating species that survives as a parasite on the labor of other ants. But the image had been imprinted on the back of a commemorative one-cent piece. Perhaps symbolically, this is one cent more than I received for my part in bringing the coin to the public.
In between writing the preceding two paragraphs, I sent takedown notices to a store selling phone cases, to Etsy for an artist hawking pirated prints of a fire ant, and to Twitter for an exterminator heading his company account with one of my bed bug photographs.
This rate of commercial infringement is normal, as photographers and other online visual artists can attest. I deal with most cases by using a provision of the 1998 Digital Millennium Copyright Act (DMCA) that requires Web hosts to remove infringing content when informed. I send, on average, five takedown notices to Web hosts every day, devoting ten hours per week to infringements. Particularly egregious commercial infringers get invoices.
The losers here are typically the creators
Sam Teigan/Flickr
Why fight?
Turning the other cheek seems like an obvious solution. I would at least recuperate some productive photography time, and letting infringements slide would do wonders for my blood pressure.
But the business realities intervene. I’m doing fine in part because I’m not ignoring infringements.
Images with unenforced copyrights lose their ability to generate direct income for several reasons. First is death by search engine burial. I depend on a high search ranking, as most clients arrive to my website using Google. Yet the churning tides of Facebook, 9gag, and imgur make it harder and harder for prospective customers to find my actual website in the search soup of my uncredited images. I am too often competing — and losing — against uncredited copies of my own work. If clients do track me down, they have little incentive to buy. Who wants to pay for an image that is already everywhere?
That last question is rhetorical, but I actually have let a few of my most commonly infringed images go unenforced. I could not keep up, so I left these as a natural experiment. The result confirmed what I suspected: images that become widespread on the Internet are no longer commercially viable. Thousands of businesses worldwide now use one of my Australian ant photographs to market their services, for example, and not a single paying client has come forth to license that image since I gave up.
Fighting the copyright fight is not all bad. An unanticipated benefit is that, when done politely, a certain upstanding percentage of my infringers decide to pay for an image so they can continue using it. A few even return for more images later. I have yet to find a better system for cold-contacting potential customers than casting a broad net of polite takedown notices. These conversions are only around one percent of infringers, but they still amount to an extra couple thousand dollars of income each year. It’s not enough to offset the time I spend on infringements, but it’s something.
Sue them all!
If a polite request doesn’t work, however, the only other option is to escalate things to the lawyers. Leaving aside the logistics of assembling five lawsuits per day, in most cases the risks of a lawsuit for a small rights-holder far outweigh the benefits. Many infringers don’t have the cash on hand to even cover my own legal costs, leaving me on the hook. If they did have that much cash, they’re liable to be able to outspend me anyway.
The US copyright office estimates the median cost of litigating an infringement to a conclusion is $350,000. Since the typical infringement only costs me a few hundred to a few thousand dollars’ of lost revenue, why would I risk bankruptcy on the hopes of a distant payout? The math doesn’t add up.
Most content creators-writers, artists, and musicians-are in the same boat: independent and broke. According to the US Labor Department, the median photographer’s income in the United States is only $28k (£17k)/year; roughly half that of a high school teacher. Likewise, most infringements are committed by equally broke individuals or small businesses with just a handful of employees.
The average infringement isn’t a celebrity pop song with millions in royalties at stake. Instead, it is a small businesses swiping $300 (£184)-worth of an independent artist’s work, often by accident or just out of ignorance.
Our copyright system is not designed for people like me, facing infringers like mine. It was designed to help large players with extensive legal resources sort out rare, highly damaging disputes-exactly the opposite of the modern intellectual property landscape.
Copyright infringement for most artists is death by a thousand paper cuts. One $100 infringement here and there is harmless enough. But they add up, and when illegal commercial uses outnumber legal ones 20 to 1 in spite of ambitious attempts to stay ahead, we do not have a clear recourse. At some point, the vanishing proportion of content users who license content legally will turn professional creative artists into little more than charity cases, dependent only on the goodwill of those who pity artists enough to toss some change their way.
CC is great in principle, but it’s not some magic route to winning the copyright game
Dennis Skley/Flickr
Many options, none of them good
What can be done under the current system? There is not enough time in the day to track all the infringements and send enough takedown notices. Suing small infringers is pointless. Suing large infringers is dangerous. And we can’t sue the Internet. Besides, I did not become a photographer to spend so little time photographing.
Naturally, I complain about my copyright-related problems quite often. Also naturally, well-meaning people within earshot offer advice.
“Why don’t you watermark your images?”
I do, thanks.
I cannot, however, require my clients to watermark. My most chronically infringed images, to the extent I can trace their history, are usually taken from the sites of high-profile clients, rather than my own. I have very few options for countering the problem. Most Web designers understandably want clean, unwatermarked images, and I wouldn’t make many sales if I required them to maintain a mark.
Also, a shocking number of people actively remove watermarks.
“You should use Creative Commons licenses, that way you at least get credit.”
I admire Creative Commons (a non-profit that provides a standard set of open content licenses) and appreciate what the organisation is trying to do. But in practice, too many users of CC-licensed images don’t credit properly. Instead, I see a lot of images attributed to Wikipedia or not credited at all.
“Your business model is outdated.”
I would happily switch to a new model if it encouraged image creation instead of being a variant on “do something else and make images in your spare time.” In fact, to an extent, I already have-a sizeable share of my business is not copyright-related. I teach photography courses and workshops, for example. These courses are fine, fun, revenue-generating events. But I can’t teach and photograph at the same time, and the more time I spend running workshops, the less time I spend creating useful images.
Alternatives to the current ailing copyright system should not be tasked with providing a living to artists (after all, artists should be free to fail the old-fashioned way, where no one understands their work). But any alternative needs to preserve the central rationale to copyright-an incentive to create.
“If infringement is so frustrating, why don’t you find something else to do for a living?”
I am starting a fantastic new job in January, thanks! It’s exactly the sort of academic position I trained for as a graduate student many years ago, and I am excited for the move. My frustrations with copyright were not the primary factor in deciding to move on, but it is fair to say online copyright failure makes the photography business less enjoyable than it used to be. That did weigh in my decision.
“If you don’t want your work infringed, don’t post it.”
Of all the varieties of infringement-related comments, the “stay off the Internet” refrains are the most toxic. In one go they both acknowledge that infringement is bad for artists while also showing no concern for the Internet, which would be poorer for their absence. “Don’t post it” is the ultimate nihilistic diss.
Worse still, too many artists heed this advice to their (and our) detriment. Too little copyright protection carries a pervasive chilling effect of its own, one that is common but nearly invisible. We simply do not see the creative works that are not shared.
At my workshops, I invariably meet people who bring fantastic images. Stunning katydids. Rare behaviours of parasitic wasps. Artfully anthropomorphised arachnids. You will never see their efforts online, though, because fear of infringement keeps many of them from uploading. This self-censorship is common, and the result is bad for everyone.
The Internet, as rich as it is in content, is less rich than it could be. If we ever needed an incentive for copyright reform, this is it. New laws and new technologies should, of course, grant greater flexibility for non-commercial sharing, provide stronger fair use guidelines, and shorten the bizarrely long copyright terms. But reforms need also provide concrete assurances to artists, reassurances that the mere act of participating online won’t force them to choose between bankruptcy and chasing infringers through the rabbit hole of ineffective copyright enforcement.
More artists online will make for a better Internet, and we all could use an Internet with better stuff.
This article originally appeared on Ars Technica
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