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Drew

Beware of how your photos are being used by operators

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A friend of mine, Will Postlethwaite, notified me about a site that was using his picture without his permission.

 

http://www.equatordiving.com

 

This website advertises trips (and even on WP) and I assume they are either a reseller or agent, selling trips for commissions, as well as organizing trips on various operators for various destinations. The website is simple enough, using pics from the promoted operator's website to promote Equator Diving's own trip or the operation so they can get a commission. I checked out the site and found other friend's photos (Burt Jones/Maureen Shimlock etc) were featured on the site, with credit line below the images.

I sent links to the relevant people and Burt Jones replied saying they gave permission for Equator Diving to use 4 of their images, but the ones used on the website were not among them. I contacted Equator Diving's Ben Jackson (who happens to be advertising their trips on WP, the reason why I was asked to look into this) and he claimed that he had permission from the operators to use the pics which are on their own websites, and had proof in the form of email correspondence. In essence, he said so long as the operator says it's ok, then he assumes he has permission. This is incorrect and possibly an illegal assumption.

Photographers need to be careful. If you've sent a few pics of your trip to the operator for use on the website gallery etc, the operators may use them for promotional purposes without your knowledge or permission. The operators may be innocently doing so, or just assume you've signed over rights to them so they can use it however they want. The point is that photographers need to be aware of how their photos are used by operators and inform them of how they can use the pictures.

It's a big world out there and many people will always want things free instead of paying for it. Photographers may be acting in good faith and kindness by giving some photos to the operator, but they should also stipulate clearly how those pics can be used. Always ask to deal directly with anyone wanting your pics. In Burt's case, he did and it still went bad.

Equator Diving have very quickly removed the unauthorized pics. However, should the onus of monitoring be on the photographer or the people using the pics? Unfortunately, copyright knowledge is astonishingly (perhaps intentionally) poor on the internet. We always hear the phrases like "I didn't know" or "someone said it was ok", which really doesn't absolve them of anything but probably irritate the copyright owner. The ignorance, feigned or genuine, is no longer an acceptable excuse, especially when it is a money making enterprise.

I write this post not as a chastisement to Equator Diving, but as a warning to photographers to be more aware of how their photos will be used. How the photographers choose to deal with Equator Diving regarding the use of their photos is between them. So beware of who you send your pics out to and also what guidelines you will allow them to use it under.

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Sage advice indeed. Here's how I let the users of my images know what they can and cannot do with any images:-

 

1. Issue a delivery note with the images.

2. Make sure embedded metadata carries copyright notice in every image.

 

The delivery note details, among other things, the following:-

 

1. Description of the image(s)

2. The terms of the right to use, such as single use - one printed copy of xxx magazine - for example

3. Where the image might be used. For web use this is usually restricted to a named website site only.

4. Territory of where the image can be used, such as UK, or USA.

5. Duration of use. Ties in with 2. but for FOC web images (for example) then a 1 or 2 year limit is automatically applied.

6. Exclusivity - does the user have exclusive right to use the image? 99% of the time 'non-exclusive' is entered.

 

This is issued for every image, free-of-charge or not. Sometimes I wonder 'why bother'......its time consuming and an administrative burden.......and then something goes wrong or there is some doubt and both the user of my work and myself can refer back to what uses were granted at the time of issue. Anecdotally, I think it makes the recipient aware that you value your work, but I can't be certain.

 

It won't stop infringement - deliberate or otherwise - but at times of high stress, having accurate records really does help. Nothing leaves the hard drive nowadays without a printed or PDF copy of the delivery note.

Edited by decosnapper

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I should add that the delivery note is time consuming, but at present I can't find a quicker way to tell the user what they are allowed to do with my work.

 

Here in the UK, we have just seen published the Hargreaves Review into copyright and how to make life easier for all. Its a whopping 180 or so pages.....

 

The good news is that there appears to be no fair dealing law recommendations based on the US model. Building what is fair and what is not through the courts and via litigation would not be my preferred way.....

 

The other (potential) good news is that there could be a rights-clearing organisation set up to help connect those who want to buy rights with those who have rights for sale. I say potential as there is inclusion of orphan works.........but there is reference to much that gives me heart that photographers may well actually get a say in how this system could work.

 

I have added this here on the basis that the current delivery note with every image practice is long-winded, but might no be needed in the future.

 

Perhaps.

 

Full update on Hargreaves and the recommendations ASAP.

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Hi Drew,

 

Thanks for highlighting this issue- it's being a tricky situation for us.

 

In response we've contacted as many photographers as we can to check that we are ok using their supplied images and thankfully so far we have had 100% positive response. Although one photographer did point out that they had not authorised the operator to distribute their images to a third party but they were willing to let us use them in this instance (thanks to this person). Of course to Will and Burt/Maureen we apologize and this has definitely being a learning experience for us.

 

We have tried to be a through as possible in addressing the issues of this week but if anyone does spot something we have missed and wants it removing please just let us know and we will remove it promptly. Photos supplied to us with photographers names are obviously easier to chase up than images operators supply as their own with no names. As some background to Equator Diving we do indeed sell holidays to a selection of resorts and liveaboards but our speciality is in group adventure/photo trips. Hence we look forward to working with many of the photographers on WP in the future.

 

Best wishes,

Ben

 

A friend of mine, Will Postlethwaite, notified me about a site that was using his picture without his permission.

 

http://www.equatordiving.com

 

This website advertises trips (and even on WP) and I assume they are either a reseller or agent, selling trips for commissions, as well as organizing trips on various operators for various destinations. The website is simple enough, using pics from the promoted operator's website to promote Equator Diving's own trip or the operation so they can get a commission. I checked out the site and found other friend's photos (Burt Jones/Maureen Shimlock etc) were featured on the site, with credit line below the images.

I sent links to the relevant people and Burt Jones replied saying they gave permission for Equator Diving to use 4 of their images, but the ones used on the website were not among them. I contacted Equator Diving's Ben Jackson (who happens to be advertising their trips on WP, the reason why I was asked to look into this) and he claimed that he had permission from the operators to use the pics which are on their own websites, and had proof in the form of email correspondence. In essence, he said so long as the operator says it's ok, then he assumes he has permission. This is incorrect and possibly an illegal assumption.

Photographers need to be careful. If you've sent a few pics of your trip to the operator for use on the website gallery etc, the operators may use them for promotional purposes without your knowledge or permission. The operators may be innocently doing so, or just assume you've signed over rights to them so they can use it however they want. The point is that photographers need to be aware of how their photos are used by operators and inform them of how they can use the pictures.

It's a big world out there and many people will always want things free instead of paying for it. Photographers may be acting in good faith and kindness by giving some photos to the operator, but they should also stipulate clearly how those pics can be used. Always ask to deal directly with anyone wanting your pics. In Burt's case, he did and it still went bad.

Equator Diving have very quickly removed the unauthorized pics. However, should the onus of monitoring be on the photographer or the people using the pics? Unfortunately, copyright knowledge is astonishingly (perhaps intentionally) poor on the internet. We always hear the phrases like "I didn't know" or "someone said it was ok", which really doesn't absolve them of anything but probably irritate the copyright owner. The ignorance, feigned or genuine, is no longer an acceptable excuse, especially when it is a money making enterprise.

I write this post not as a chastisement to Equator Diving, but as a warning to photographers to be more aware of how their photos will be used. How the photographers choose to deal with Equator Diving regarding the use of their photos is between them. So beware of who you send your pics out to and also what guidelines you will allow them to use it under.

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Thanks for highlighting this issue- it's being a tricky situation for us.

In response we've contacted as many photographers as we can to check that we are ok using their supplied images and thankfully so far we have had 100% positive response. Although one photographer did point out that they had not authorised the operator to distribute their images to a third party but they were willing to let us use them in this instance (thanks to this person). Of course to Will and Burt/Maureen we apologize and this has definitely being a learning experience for us.

 

It would have been a very good idea to understand the laws surrounding use of copyright protected material beforehand. Understanding the fundamentals of copyright would have prevented a tricky situation and eliminate the risk of legal action against your business.

 

It is only the goodwill of the photographers that has ensured (so far) that no one has sought damages. Not all are so forgiving......Those photographers you cannot find have the same rights as those you have sought retrospective permission from, as there is (at present) no way of legally licensing in the UK what is known as an orphan work.

 

You might not be aware of this, but the US has a system of registering copyright protected works and if registered there are statutory damages for infringement ranging from around $30,000 to $120,000 (approx) per image. I mention this because the worst case scenario would be one of those unknowns turns out to be registered and the photographer is not in the mood to forgive.

Edited by decosnapper

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Most photographers should be registering their photos with the US Copyright Office - I believe one-time fee per submission is ~$35 (and you can put as many images on a CD/DVD as necessary). Here are the details straight from the "horse's mouth": http://www.copyright.gov/fls/fl107.html

 

However, most do not do so. Even fewer take legal action because that is a big hassle and cost in both time and money.

 

If copyright infringement occurs without the image(s) in question having been registered, then damages are quite small. The idea here is to make "both parties whole", and there are no punitive costs associated with the settlement, which will be the average "going rate" of either your work or photos like it...so up to a couple hundred US dollars per photo depending on its aesthetic qualities.

 

So I am reluctant to admit this, but the chance of legal action against a dive operator as a result of unauthorized photo use is extremely remote. They certainly should make every effort to contact the photographer and get permission (and compensation if they're making money off of it, in an ideal world).

 

But if they do not do so there are virtually no consequences. That is why so many images are appropriated on the internet. There really is a lack of incentive to respect copyright law., and this is especially true if the dive operator is located outside the United States.

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