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Author Topic: How to recognize legal/illegal use?  (Read 17215 times)

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« Reply #25 on: August 30, 2011, 15:02 »
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...
@ click_click:

Now I've read about your opinion why an image ID would not work.

But what about your answers to my other questions in the opening post?
  • Have the buyers to put copyright information in the files, when they use our images in their images?
  • How do you recognize a legal/illegal use of your images?
  • What do your agents do to prevent illegal use?
  • What do you do to let the agencies prevent illegal use?
  • What would you prefer instead of a license ID for recognizing legal/illegal use?

Your idea seems to be to produce more images instead of fighting against the illegal use of images.

This would be like drawing water in a boat with a leak IMO.

Let me start with what you said in your closing paragraph: We are photographers/illustrators etc. and all we do is produce content. We are no lawyers, we are not agents and we don't get paid to do those things.

So I can take a pick whether I produce more content that is supposed to be used legally (which it is, BUT also being used illegally as well - I know that) or take my time and research online which of my images might have been used illegally.

I actually do research online from time to time to check if my best sellers are available on Google Images etc. but I need a few dozen assistants that should do this for me 24/7 for all my images - it's a lot of work.

So at this point I HAVE to focus on producing more fresh content instead of the risk wasting my time pursuing infringers that won't pay anyway. I've made up my mind. Your mileage may vary and at the beginning when I had 1000 images I did this all the time. Now since I increased my portfolio I can't spend that time anymore.

Now your questions:
  • Have the buyers to put copyright information in the files, when they use our images in their images?
Too much work and hassle for the designer. Won't work. someone at least will forget and then you have already a case that you have to investigate that might turn up as a legal use. waste of time.

  • How do you recognize a legal/illegal use of your images?
Trial and error. Everyone I have ever suspected of stealing my images, did actually steal my image. If it looks like a duck, walks like a duck and quacks like a duck - it's a duck.

  • What do your agents do to prevent illegal use?
Nothing. Watermarks are useless and they don't have money or other resources to legally pursue infringements. Furthermore as long as images are non-exclusives they won't put out money to pursue an image that might have been originally downloaded at another agency.

  • What do you do to let the agencies prevent illegal use?
I don't quite understand that question. Could you rephrase?

  • What would you prefer instead of a license ID for recognizing legal/illegal use?
In a perfect world the license ID would be enough. It's just real life problems that will lead to those IDs being stripped.

Again, either you have found an image twice online with the same IDs - they still could be used by the same buyer - which is legal or you find your images with the IDs being stripped from the files. Then you're back to square one.

That's not a very high probability that the agencies will invest money and time into something that can be easily circumvented.

In general, digital content is bound to be stolen. That's a fact. We can only go after the worst infringements and try to squeeze some money out of them, that's it.

Administrative efforts are far to big for a one man operation like me.


« Reply #26 on: August 30, 2011, 16:22 »
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  • What do you do to let the agencies prevent illegal use?
I don't quite understand that question. Could you rephrase?

Oops, please excuse my untrained English. Next try:
How you act on the agencies so that they prevent illegal uses?

« Reply #27 on: August 30, 2011, 16:56 »
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  • What do you do to let the agencies prevent illegal use?
I don't quite understand that question. Could you rephrase?

Oops, please excuse my untrained English. Next try:
How you act on the agencies so that they prevent illegal uses?

Oh, I see. No worries about your English, it's fine.

I don't tell agencies what to do. They won't listen anyway.

For example here on the forum we've "told" Fotolia to change the watermark for years but they won't change it.

I'm not getting paid to consult any agents so I don't do it.

« Reply #28 on: August 31, 2011, 11:48 »
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The copyright phrase and the image ID show you, which agency has sold a license for an image with a special ID, but it is not a unified sign for a purchased license. Worldwide everyone could copy the image and when you find it on a site, it looks like a purchased license. Only the agency could find out, whether it's a legal license purchased by the owner.

FT sells an image to a designer, who uses it for two clients A and B. C grabs it on A's site and puts it on his blog. D grabs it on C's blog and uses it in his site. The designer uses it again for client E, but this time mixing this image with another one, so original embedded ID is lost.

You find 5 instances of the image in the internet, but sold it just once. Three are legal (one without the ID). How do you know which one is which?

« Reply #29 on: August 31, 2011, 11:50 »
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FT sells an image to a designer, who uses it for two clients A and B. C grabs it on A's site and puts it on his blog. D grabs it on C's blog and uses it in his site. The designer uses it again for client E, but this time mixing this image with another one, so original embedded ID is lost.

You find 5 instances of the image in the internet, but sold it just once. Three are legal (one without the ID). How do you know which one is which?

Perfectly illustrated!
+1

« Reply #30 on: August 31, 2011, 13:32 »
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FT sells an image to a designer, who uses it for two clients A and B. C grabs it on A's site and puts it on his blog. D grabs it on C's blog and uses it in his site. The designer uses it again for client E, but this time mixing this image with another one, so original embedded ID is lost.

You find 5 instances of the image in the internet, but sold it just once. Three are legal (one without the ID). How do you know which one is which?

I think the example is a little constructed. Mostly the purchased license of an image will be used once and not all images are illegal copied. But anyway, in the case described, I would have to decide to
- send a note to all website owners or
- do nothing.

Let's take another example of today's practice:
You find 50 instances of an image on sites from all over the world. You sold it 25 times. They all are without a today's copyright phrase (but that doesn't matter, they all or the half of them could have a copyright phrase).

What would you do in this case? Would you write a notice to them all? Or would you do nothing?

What about the images you sold about 500 times when you find about 1000 instances with or without a today's copyright phrase?

« Reply #31 on: August 31, 2011, 14:44 »
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example is a little constructed. Mostly the purchased license of an image will be used once and not all images are illegal copied. But anyway, in the case described, I would have to decide to
- send a note to all website owners or
- do nothing.

It is absolutely not "constructed".  Now, you will be harassing the legitimate buyers.

grp_photo

« Reply #32 on: August 31, 2011, 16:35 »
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There is nothing you can do! If you have a problem with this than RF is not for you!

« Reply #33 on: August 31, 2011, 17:10 »
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It is absolutely not "constructed".  Now, you will be harassing the legitimate buyers.

Harassing by deciding to do nothing?

Please don't turn this thread named "How to recognize legal/illegal use?" in a thread named "What's to do, when I have found images, that seem to be in illegal use"? There are some other threads with this subject. In many of them is posted about the difficulties of recognizing illegal use, too.

In this thread I tried to find out, how the contributors recognize legal/illegal use.

As I posted earlier in this thread: The idea of a license ID would only be a first step. In this first step we would not be able to recognize legal/illegal use in all cases. But for many found instances of an image in the web, we would be able to say it's legal. For the others I would have to decide what's to do. Perhaps I would do nothing. Perhaps I would write a (polite) note. A legitimate (polite) buyer could answer me, that he has a purchased license. Another legitimate buyer could feel harassed (bad luck). But the thief would get a note too (good luck).

I showed with my last examples (Reply #30), that today's copyright phrase doesn't help recognizing any legal/illegal use. Each instance of an image you find in the web today may be legal or illegal use, you can't find out.

If you don't agree with my idea of a license idea, make other suggestions please.

There is nothing you can do! If you have a problem with this than RF is not for you!
Is it possible that you mix up RF and PD (Public Domain)?

If we - the contributors - don't fight against illegal use, RF will turn into PD.

RacePhoto

« Reply #34 on: August 31, 2011, 17:57 »
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In this thread I tried to find out, how the contributors recognize legal/illegal use.


I'm not sure we can. The agencies do not require attribution, credits or anything that tells us who bought them, or from where. Which is why I asked someone else if they only sold through on agency. Once we sell through two, it becomes nearly impossible to tell if someone bought and image and who from. That's the problem.

I don't see a digital license as solving the problem, (and if we can make it, someone can remove or change it) because as someone else  pointed out, we don't know which person, is using the copy and which one paid. Lets say I have a picture that has sold a hundred times. How do I know if it's one of the 100 legal versions, or someone who is stealing one copy?

Maybe I didn't understand your points, but since we don't have a way to be notified, except sales, and no way to track each and ever sale to one customer, it's not a reasonable idea to make a complex database of every sale for every image of millions and millions of sales.

It would be nice if we knew, but for now, I don't think it's going to happen.

Back to the main question. If I sell on four or five sites, how do I know which one sold it?

« Reply #35 on: August 31, 2011, 18:59 »
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What would you do in this case? Would you write a notice to them all? Or would you do nothing?

As Sean said, you would be harassing true buyers asking them to prove they have the rights to use the image. Sorry, but it's nonsense. Even if the images have the embedded IDs you suggest, unless they were something so hidden than they would stay in the image even if EXIF/IPTC data was removed (maybe Digimarc does it), this would not really help trace illegal usage. And even Digimarc may be useles if it is a composite of several images (I don't know).

I'm sorry, I understand your being upset with illegal usage - that upsets me a lot too - but once you put your image for sale in the RF model, it is really very difficult to control illegal usage, unless it is watermarked or one that requires an EL, or infracts the contract in any other way.

Even in the RM world you would not be safe, you might just have less risk of being cheated.

« Reply #36 on: September 01, 2011, 18:42 »
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First let's have a look at Fotolia's general and download agreements. On this base I will explain in detail why I would decide to write a note to all users of the image in Madelaides example.

Quote
from Fotolia: Terms and Conditions of Use at http://en.fotolia.com/Info/Agreements/TermsAndConditions

3. Use of Works
...
You acknowledge and agree that no ownership of any Works can be transferred, and that no sale of any Works can be effectuated, on or through the Website. Only the rights expressly sublicensed in an applicable Content Download Agreement are granted on or through the Website. You acknowledge and agree that Fotolia or its licensors retain all ownership rights in and to the Works, and that such Works are covered and protected by copyright, trademark and other intellectual property rights of Fotolia or its licensors.

from Fotolia: Content Download Agreement (Standard License) at http://en.fotolia.com/Info/Agreements/StandardLicense

2. Sublicense
Subject to the terms and conditions of this Agreement, Fotolia hereby grants to the Non-Exclusive Downloading Member a non-exclusive, perpetual, worldwide, non-transferable sublicense to use, reproduce or display the Work an unlimited number of times in the authorized media solely for (a) personal or educational purposes and (b) in connection with the operation of a business.
...
Notwithstanding the above, the Non-Exclusive Downloading Member shall have the right to sell or distribute the Work solely as incorporated onto an item of merchandise or other work of authorship if the Work has been modified to the extent that it is no longer substantially similar to the original Work (where such modification may be in the form of changes to the Work itself or the incorporation of the Work into other Non-Fotolia image(s), such as a collage), provided however that the modification must be sufficient enough to qualify as an original work of authorship.
...
Notwithstanding anything to the contrary contained in this Agreement (including, without limitation, the restriction in subsection 3(a) below), the Non-Exclusive Downloading Member may utilize all the rights under this Agreement for itself, and additionally, on behalf of one (1) of its clients. As such, the Non-Exclusive Downloading Member may sublicense its rights and obligations hereunder to one (1) such client, and such client shall have all the rights, restrictions and obligations under this Agreement, but without the right to further sublicense these rights to additional parties. If the Non-Exclusive Downloading Member desires to use the Work on behalf of more than one (1) client, then the Non-Exclusive Downloading Member will have to download and pay for additional license(s) to the same Work.
...

3. Restrictions
Notwithstanding anything to the contrary contained in this Agreement, and without limitation to any aforementioned restrictions, the Non-Exclusive Downloading Member acknowledges, agrees and warrants that he or she shall not:
(a)...
...
(h) remove any notice of copyright, trademark or other intellectual property right, or other information that may appear on, embedded in, or in connection with the Work in its original downloaded form, it being understood that the Non-Exclusive Downloading Member shall reproduce any and all such notices in any backup copy of the file comprising the Work that the Downloading Member makes;
...
(n)...


There are some more interesting rules in the agreements, but this may be enough, because I think you all - especially the Fotolia contributors - have read and know them.


Here is Madelaides example:

FT sells an image to a designer, who uses it for two clients A and B. C grabs it on A's site and puts it on his blog. D grabs it on C's blog and uses it in his site. The designer uses it again for client E, but this time mixing this image with another one, so original embedded ID is lost.

You find 5 instances of the image in the internet, but sold it just once. Three are legal (one without the ID). How do you know which one is which?


Now let's look, wether the designer uses "the image" under the terms of the agreements of Fotolia.  Please, Madelaide, don't be angry when I describe the cases of your example a little pedantic, maybe a little ironic too. Be sure - I did want it.

Madelaide: FT sells an image to a designer, ...
This isn't what happens. FT sells a sublicense to the designer. He can use the image under the rules of the agreements.

Madelaide: who uses it for two clients A and B.
The designer gives a sublicense  to one of his clients (let's say to A) under the special terms of the agreements, that's legal.
The sublicense for client B is illegal, because the designer had to buy a second license.

Madelaide: C grabs it on A's site and puts it on his blog.
Illegal use.

Madelaide: D grabs it on C's blog and uses it in his site.
Illegal use.

Madelaide: The designer uses it again for client E, but this time mixing this image with another one, so original embedded ID is lost.
We can't decide this case without having a look at the resulting image of the mix:
  • If the result of the mix qualifies the new image as an original work of authorship of the designer it's legal use.  This case has to be decided Illegal use.
  • If the result is two images side by side in one image it's illegal use, because the designer had to buy a third license and he was not allowed to delete the copyright phrase.
  • There could be other results of the mix, that we can't not decide in a simple way.

Madelaide: You find 5 instances of the image in the internet, but sold it just once. Three are legal (one without the ID). How do you know which one is which?
You have at least 6 instances of the image: one at designer (we can't see it, because it isn't on web), 3 at the clients of the designer, 2 at the thieves.
Only two of these instances are legal, the one at the designer and one at the clients (i.e. client A).
In legal use we would have 5 purchased sublicenses, 3 purchased by the designer for his 3 clients and 2 purchased by the 2 thieves.

You see: In the result of this case description it was the right decision to write a note to all site owners. The clients B and E don't have a legal sublicense. The thieves C and D don't have legal sublicenses. Only client A has a legal sublicense. Perhaps client A would feel harassed by the note, but he would have to talk about it with the designer - that's the one who misused his sublicense. Let's hope he'll never do it again.


Even if there would have been sold 50 sublicenses by Fotolia you could recognize illegal use by looking for the license ID, because all the found instances have the same license ID or no one. Both is a misuse as described above (except client A).

Without license ID it's difficult to recognize legal/illegal use, that's what most posters wrote.


PS:
I think, some of the posters didn't know that a user has to buy several licenses, when he wants to give a sublicense to more than one client. Therefore they couldn't see, that a unique license ID would help to recognize legal/illegal use in the many cases.
« Last Edit: September 01, 2011, 18:50 by ingwio »

« Reply #37 on: September 01, 2011, 18:58 »
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I think you don't realize that IS and others allow usage by one designer for multiple clients. 

« Reply #38 on: September 01, 2011, 19:11 »
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ingwio - don't go there. Please don't take that the wrong way but you took Fotolia just to make an example of madelaide's given scenario.

Other agencies have different licensing terms. Some are similar like Fotolia, some are very different!

Please keep this in mind.

« Reply #39 on: September 02, 2011, 02:24 »
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ingwio - don't go there. Please don't take that the wrong way but you took Fotolia just to make an example of madelaide's given scenario.

Other agencies have different licensing terms. Some are similar like Fotolia, some are very different!
I think you don't realize that IS and others allow usage by one designer for multiple clients. 

It was Madelaide who gave the scenario with a sublicense bought from Fotolia, it wasn't my choice. Therefore I described the different cases under the terms of Fotolia's agreements.
 
Yes, I know that the license agreements of the agencies are different. That's one reason why I upload my images to only 4 agencies and not to 25. I don't care about the agreements of IS, I don't upload there.

One question of my opening post was: Would a license ID for each download help recognizing legal/illegal use?
Now my clear answer is: Yes, it would (at Fotolia).

In the next weeks I will have a look to the agreements of my other 3 agencies and their efforts to protect my images from illegal use. After that I will decide to which agencies I will upload my images in future. I think Fotolia will be one of them - perhaps even exclusive.


PS:
In the past I sometimes wondered, why some of my images were sublicensed 7 or 8 times at the same date/time at Fotolia. Now I think that was, because a designer had 7 or 8 clients for whom he wanted to use the images - and he knew the download agreements of Fotolia.

« Reply #40 on: September 02, 2011, 02:51 »
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I think its great you want to stop illegal use of your work.

I think the point is that its very hard to track (impossible) selling with a RF licence.
I don't like my work being used without licence but its a reality and I would make more money shooting and uploading more than trying to enforce licence use.

Fotolia previously listed the purchaser of your file when you sold one. They got rid of the feature when people started emailing the buyer asking to know the usage. Emailing people to prove that they didn't steal the image isn't going to make legitimate buyers happy.

Have you heard of heroturko ? After you've shut them down you can implement your license id scheme.

« Reply #41 on: September 02, 2011, 02:54 »
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Back to the main question. If I sell on four or five sites, how do I know which one sold it?
I didn't check it for all agencies, but an image that is sublicensed by Fotolia you recognize by the copyright phrase in the image file information (IPTC). This copyright phrase looks like: RacePhoto - Fotolia.

Please have a look to the agreements of your agencies at your own. It seems that nobody can answer your question.

« Reply #42 on: September 02, 2011, 05:19 »
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ingwio,

Interesting to know that FT has this restriction. I only knew it in BigStock, and I don't even know if it is still there after SS bought them. I would be curious to know if designers write any formal agreement with their clients especifically about the licensed images, regardless of the one-use rule, forwarding the restrictions of the license terms. It would be expected that the client, once having the images in his server - in a website, for instance - would find it natural to use it in other means inside his business.

Anyway, even if in my example we now have 1 (or 2) legal usages of the 5 instances found in the web, what would you do? Write to each of the users to find which is legal? And if you find 50 instances of an image you only sold 10 times?

It's also about the time spent in this and the return you may expect. In my experiece, agencies won't do much about this. I believe they only do something when it is a case where an EL is required, they won't go after a person using  a small image in a blog. And if you write people, they just remove the infringing image. Only once I got a compensation, it was when the name of the blogger was published here and she came to the forum and was morally forced to pay me something, even after removing the image.

Still, even if your purpose is noble, I can not see any improvement in the current situation. Unfortunately, the multiple sales in the microstock world will make you crazy if you decide to go after each user. It is trouble enough to go after the more visible infringement (watermakred images, large sizes), with little or none compensation.

« Reply #43 on: September 02, 2011, 05:26 »
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...
I think the point is that its very hard to track (impossible) selling with a RF licence.
I don't like my work being used without licence but its a reality and I would make more money shooting and uploading more than trying to enforce licence use.

... Emailing people to prove that they didn't steal the image isn't going to make legitimate buyers happy.

Have you heard of heroturko ? After you've shut them down you can implement your license id scheme.


RF:
All the agencies call their offer "RF". That's because "RF" isn't defined public, it's defined by the agreements of each agency and the agreements are different. But RF is not PD.

Legitimate buyers (i.e. Fotolia):
  • With today's simple copyright phrase it's difficult to recognize legal/illegal use. An image with a purchased license (i.e. from Fotolia) may be copied many times and even if the copyright phrase isn't deleted, you can't decide which one is a legal/illegal copy.
  • With my idea of a license ID you would see that an image has been copied illegal, because you find several instances of the image with the same license ID - and that's illegal use (i.e. at Fotolia). Yes, you are right, you could not find out the one who has bought a legal sublicense. But in this case you can clearly say, here are illegal copies of an image sublicensed by Fotolia. The agency would be responsible to check it and write a note to the site owners.
  • All instances of the image with a license ID used only once, will mostly have legitimate buyers. They wouldn't get a note.
  • In the case the copyright phrase is deleted (not allowed by the terms of the download agreements of Fotolia) and it's an exclusiv image or if you clearly can say, that's an illegal copy of the image at a certain agency (i.e. at Fotolia), the agency would be responsable to check and to write a note.
  • In the case the copyright phrase is deleted and it's a nonexclusiv image, the contributor can't decide at which agency the illegal copy is made. The contributor would be responsable to write a note.
  • Because nobody wants to write notes to legitimate buyers, there is the need of a unique sign for a legal purchased sublicense.
  • In some cases a legitimate buyer would get a note too, so the contributer has to think about a polite way.

Heroturko:
I've just read their DMCA information at http://www.heroturko.biz/dmca.html. It seems they know about the problems of misused media.

« Reply #44 on: September 02, 2011, 06:30 »
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RF:
All the agencies call their offer "RF". That's because "RF" isn't defined public, it's defined by the agreements of each agency and the agreements are different. But RF is not PD.

Do you think we are all stupid?

Anyways, still, your scheme of an id won't work because the content can still be comped into a design.

Also, I wouldn't use Fotolia as an example of stellar contracting: "You acknowledge and agree that Fotolia or its licensors retain all ownership rights in and to the Works, and that such Works are covered and protected by copyright, trademark and other intellectual property rights of Fotolia or its licensors. "

As we know, Fotolia does the licensing.  Its "contributors" or "suppliers" hold the rights.  Fotolia is the "licensor".  There is no agreement between the contributor and the buyer.

"Fotolia hereby grants to the Non-Exclusive Downloading Member" - What is a "non-exclusive downloading member"?  Are there people that only download from Fotolia?  Do you get a bonus for being an "exclusive downloading member" - only downloading from Fotolia?  What does downloading have to do with anything - I thought they were selling licenses?

"Notwithstanding the above, the Non-Exclusive Downloading Member shall have the right to sell or distribute the Work solely as incorporated onto an item of merchandise or other work of authorship if the Work has been modified to the extent that it is no longer substantially similar to the original Work (where such modification may be in the form of changes to the Work itself or the incorporation of the Work into other Non-Fotolia image(s), such as a collage), provided however that the modification must be sufficient enough to qualify as an original work of authorship."

So, you can't use an unmodified image in any way?  A blog post?  A news article?  Everything licensed from Fotolia has to be modified?

"As such, the Non-Exclusive Downloading Member may sublicense its rights and obligations hereunder" - So is it transferable or non-transferable?  Boy, talk about your contradictions in terms!

"the Non-Exclusive Downloading Member acknowledges, agrees and warrants that he or she shall not: ... remove any notice of copyright, trademark or other intellectual property right, or other information that may appear on, embedded in, or in connection with the Work in its original downloaded form,"

Great! Because you can never use it in its "original downloaded form" - everything has to be modified according to the earlier terms.  Or even if you crop it or flip it, it's modified.  Requirement for rights out the window...

etc.

« Reply #45 on: September 02, 2011, 17:16 »
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I think you don't realize that IS and others allow usage by one designer for multiple clients.  

I said in an earlier post, that there are different agreements of the agencies and that they have to be checked. So far I didn't check them. Because of the example of Madelaide I only checked the agreements of Fotolia.

Do you think we are all stupid?

No, at all no. I Think I answer the questions in the reply with great patience.

Anyways, still, your scheme of an id won't work because the content can still be comped into a design.

Please, excuse me, but because of my untrained English I don't know the meaning of "the content can still be comped into a design" and Google's translator didn't too. Please explain.

Also, I wouldn't use Fotolia as an example of stellar contracting: "You acknowledge and agree that Fotolia or its licensors retain all ownership rights in and to the Works, and that such Works are covered and protected by copyright, trademark and other intellectual property rights of Fotolia or its licensors. "

Fotolia repeats the rules of international right in the agreements. This is a clarification.

As we know, Fotolia does the licensing.  Its "contributors" or "suppliers" hold the rights.  Fotolia is the "licensor".  There is no agreement between the contributor and the buyer.

Here you are not right. In the terms of the Fotolia agreements the contributor (artist) gives a license to Fotolia and uploads his work under the terms of the upload agreements. The contributor (artist) holds his rights. The uploading artist (uploading member) is a licensor of Fotolia. Fotolia does the sublicensing to the clients (the downloading members).

There has not to be an agreement between the contributor and the buyer. In the case that an illegal used image was sublicensed by Fotolia, Fotolia has to fight against the misuse. In the case that you don't know who has licensed the illegal used image (perhaps because the copyright phrase was deleted) the contributor holds his rights and has the right to fight against the misuse - if he wants.

"Fotolia hereby grants to the Non-Exclusive Downloading Member" - What is a "non-exclusive downloading member"?  Are there people that only download from Fotolia?  Do you get a bonus for being an "exclusive downloading member" - only downloading from Fotolia?  What does downloading have to do with anything - I thought they were selling licenses?

The term "non-exclusive downloading member" is a term of the Fotolia content download agreement. It's declared in the first sentence of the link I gave you:
Quote
Content Download Agreement (Standard License) at http://en.fotolia.com/Info/Agreements/StandardLicense
This agreement (this "Agreement") shall be binding upon Fotolia LLC ("Fotolia") and any member (the "Non-Exclusive Downloading Member") who downloads a photograph, illustration, image or other pictorial or graphic work (the "Work") from the Fotolia.com website.

I think they use this term because the downloading member downloads an image non-exclusive - there may be many other downloading members who download the image and no one gets an exclusive download/sublicense.

Fotolia sells sublicenses to the clients (the downloading members), who want to use an instance of the image under the rules of the sublicense declared in the content download agreement. They are only allowed to download an instance of the image, if they have agreed to the content download agreement. And because they want to use the image, they do the download. That's what downloading has to do with the sublicensing and using an instance of an image. I think if you were a downloading member you were not glad if you only could purchase a license but could not download the image.

I didn't use the term "exclusive downloading member" and it isn't used in the content download agreement of Fotolia. It's your neologism. Please don't ask me to explain it.

"Notwithstanding the above, the Non-Exclusive Downloading Member shall have the right to sell or distribute the Work solely as incorporated onto an item of merchandise or other work of authorship if the Work has been modified to the extent that it is no longer substantially similar to the original Work (where such modification may be in the form of changes to the Work itself or the incorporation of the Work into other Non-Fotolia image(s), such as a collage), provided however that the modification must be sufficient enough to qualify as an original work of authorship."

So, you can't use an unmodified image in any way?  A blog post?  A news article?  Everything licensed from Fotolia has to be modified?

I think you didn't see the first sentence of the content download agreement I quoted in that post:
2. Sublicense
Subject to the terms and conditions of this Agreement, Fotolia hereby grants to the Non-Exclusive Downloading Member a non-exclusive, perpetual, worldwide, non-transferable sublicense to use, reproduce or display the Work an unlimited number of times in the authorized media solely for (a) personal or educational purposes and (b) in connection with the operation of a business.


"As such, the Non-Exclusive Downloading Member may sublicense its rights and obligations hereunder" - So is it transferable or non-transferable?  Boy, talk about your contradictions in terms!

You talk about the terms of Fotolia's agreements that I quoted, so contradictions wouldn't be mine. But there are no contradictions in those terms. Let's look to the following example:
The designer (as a Non-Exclusive Downloading Member) has purchased a sublicense of an image and uses the downloaded instance of the image for his client A. In this case the designer has to sublicense his rights and obligations to his client A. This is only allowed for 1 client. If the designer wants to sublicense the image to more clients, he has to purchase a license for each client. These sublicenses for the clients of the designer are more restricted as declared in the agreements.

"the Non-Exclusive Downloading Member acknowledges, agrees and warrants that he or she shall not: ... remove any notice of copyright, trademark or other intellectual property right, or other information that may appear on, embedded in, or in connection with the Work in its original downloaded form,"

Great! Because you can never use it in its "original downloaded form" - everything has to be modified according to the earlier terms.  Or even if you crop it or flip it, it's modified.  Requirement for rights out the window...

You draw wrong conclusions because you misunderstood the rules of sublicensing as explained above.

etc.

Etc. you will find in the agreements of Fotolia or other agencies.

« Reply #46 on: September 03, 2011, 11:36 »
0
Madelaide,

thanks for your factual post. I will try to answer.

I would be curious to know if designers write any formal agreement with their clients especifically about the licensed images, regardless of the one-use rule, forwarding the restrictions of the license terms.

I think there will be designers who don't know the rules of the license agreements they have agreed with. So they won't write a formal agreement about the special rules of the sublicense they give to their clients. But my experience is, that many designers write agreements to protect their own work. In result it often makes no difference for the clients of the designer: the client gets a work that is protected by an agreement. In other cases there may be clients of a designer, who never would use the image in a further instance, because they are unable to handle digital media, create or change a website etc. So the rules of license agreements are protected by this.

It would be expected that the client, once having the images in his server - in a website, for instance - would find it natural to use it in other means inside his business.

Yes, that's right. And the client is allowed to use it inside his business. He has rights similar to the rights of the designer (as declared in the Fotolia content download agreement). But he is not allowed to sublicense the image again.

Anyway, even if in my example we now have 1 (or 2) legal usages of the 5 instances found in the web, what would you do? Write to each of the users to find which is legal? And if you find 50 instances of an image you only sold 10 times?

Under today's copyright phrase:
5 or 50 instances, exclusive image: I would write one note to Fotolia with the description of the (perhaps) illegal use.
5 or 50 instances, non-exclusive image: If I can find out that Fotolia licensed the image (by copyright phrase in the image, by the name of the downloaded file etc.), I would write one note to Fotolia with the description of those instances. The other instances are those with deleted copyright phrases, I would write a note to the owners of the sites.

Under my idea of a unique license ID:
Exclusive image, 5 or 50 instances: I would write one note to Fotolia with the description of the perhaps illegal use.
Non-exclusive image, 5 instances as described in your example: I would write one note to Fotolia for the instances with the same image ID. For the instances with deleted license ID/copyright phrase I would write a note to the owners of the sites.
Non-exclusive image, 50 instances: I would check the license IDs. Then I would write one note to Fotolia, but only for the instances with identical image IDs. Instances with deleted license ID/copyright phrase I would include in the note to Fotolia, if the source is an Fotolia licensed instance (see above). Otherwise I would write a note to the owners of the sites.

It's also about the time spent in this and the return you may expect. In my experience, agencies won't do much about this. I believe they only do something when it is a case where an EL is required, they won't go after a person using  a small image in a blog. And if you write people, they just remove the infringing image. Only once I got a compensation, it was when the name of the blogger was published here and she came to the forum and was morally forced to pay me something, even after removing the image.

In my opening post I described the result of Google's image search. It was the first time I used it, therefore it took a little longer. In the meantime if have trained the workflow and a search takes only about half a minute per image (plus the time to check the found instances and write the note(s)). Every week I search for 10 images, from week to week I change the images I search for. 5 minutes for search per week - that's much less time than I spend for discussion in this thread.

Fotolia says, they can't check each image that seams to be misused. They will only do something in case of misused exclusive images or when the source of the illegal used image is clearly an image licensed by Fotolia. And there are cases, they can't do anything, because of international rights and the ownership and rights of the uploading member. I agree with that. I don't have experience what will happen - future will show.

Would I write a note to a blogger who uses a small image?
I would have a look at the blogger's site and then decide. A blogger like Robert Kneschke (http://www.alltageinesfotoproduzenten.de/) would get a note. By the way, I just saw a new article (in German) on his blog: The story of a picture in internet - copied, stolen, used (Die Geschichte eines Internet-Fotos Kopiert, geklaut, benutzt, 2011-09-02). Seems to be interesting.

I think, mostly I won't get compensation. But I think, mostly the one who got a note will not misuse an image again.

Still, even if your purpose is noble, I can not see any improvement in the current situation. Unfortunately, the multiple sales in the microstock world will make you crazy if you decide to go after each user. It is trouble enough to go after the more visible infringement (watermakred images, large sizes), with little or none compensation.


It's a long walk, we all together have to go to prevent RF turning to PD. With or without license ID: In clear cases the illegal user must get a (polite) note. Otherwise he will steal images again and again, because he doesn't know about copyright (after the first note he will know) or he doesn't want to pay for using an image (then there is to decide what's to do next, but that's another already existing thread).


PS
Let me tell an example of another case:

Last year my son asked me to go to a photographer (specialized on portrait and wedding photography, studio, some employees), who took some pictures of him two years before. My son had seen pictures of that session in the gallery at the website of this photographer. My son had not agreed in publishing and he didn't want the pictures to be public.

Not just a good job for me - the photographer is an acquaintance of mine. So we had a small talk first: good weather, nice studio, great website etc. Then I asked him, wether he had agreements with the persons he published in his gallery. He didn't know, because one of the employees was responsible for the website. But he suspected that there would be no agreements. However, he said, if anyone should be against the publication of his picture, he could sue in court.

This example also shows that you have to fight against the violation of your rights.

« Reply #47 on: September 03, 2011, 11:57 »
0
...
PS
Let me tell an example of another case:

Last year my son asked me to go to a photographer (specialized on portrait and wedding photography, studio, some employees), who took some pictures of him two years before. My son had seen pictures of that session in the gallery at the website of this photographer. My son had not agreed in publishing and he didn't want the pictures to be public.

Not just a good job for me - the photographer is an acquaintance of mine. So we had a small talk first: good weather, nice studio, great website etc. Then I asked him, wether he had agreements with the persons he published in his gallery. He didn't know, because one of the employees was responsible for the website. But he suspected that there would be no agreements. However, he said, if anyone should be against the publication of his picture, he could sue in court.

This example also shows that you have to fight against the violation of your rights.

This guy shouldn't have a studio if he is not even aware of the rights he or his models have or not have. This is ridiculous.

Any semi-professional photographer has the model (or their legal guardians/parents) sign a release that governs all possible uses of the images taken. As the photographer retains the copyright both him and the model want to be clear how the images can/could/will be used for.

I understand that the models are not aware of such proceedings but the photographer could find himself indeed in deep trouble if he/she hasn't taken care of the legal side first.

Naturally we will fight for our rights, but it has to be in proportion to the time we're investing compared to the recovery we get.

If someone sues a photographer for using their image commercially without signing a release they could recover a significant amount of money from the photographer.

What the heck do we get for an image that's used on a web site 500x300 pixels which would have earned most people 25 cents at SS (or a bit more)?

That's why I asked if you have ever talked to an IP attorney about this issue.

The first thing an attorney is going to ask you is: "Did you register copyright?"

If you happen to register copyright the next question will be "What are your damages?"

So, what are the damages? Well you say I missed out on 25 cents for that sale. You can consider yourself to be lucky when you have this conversation over the phone because by now the attorney will be fuming for wasting his/her time.

Do you seriously believe that any attorney in this world will take on a case for lost royalties in the amount of (possibly) 25 cents (or let it be 38 cents)?

You do realize that attorneys don't work for free right?

Having an attorney represent you even for out of court settlement negotiations could be costing you $1.000 or more. Who is paying that?
Oh right, since you registered copyright the infringing party has to pay that. Ooops, I forgot to mention that a significant amount of infringements are occuring outside of the US.

Now your attorney has to subcontract an attorney in the country where the infringing party lives in.

So, double the costs.

And... how again did you get the name and address of the infringing party in another country anyway?

« Reply #48 on: September 03, 2011, 16:29 »
0
click_click,

I didn't answer the question about consulting an attorney, because the subject of this thread is: How to recognize legal/illegal use? As you see in the posts of this thread: recognizing legal/illegal use under the rules of the agreements of the agencies is hard stuff enough.

Asking how to fight against illegal use before you have clearly recognized illegal use is like doing the second step before the first - you will stumble. Therefore I beg you, don't turn the subject of this thread.

Nevertheless I will answer (some of) your questions in short.

Yes, I did. I asked my attorney, who worked for me for many years in good and in bad cases. Mostly I've won, sometimes a compromise had to be closed. Mostly he was paid by the opposing (loosing) party. He took the time to discuss the problem of illegal use of images with me - under German right.

I'm not an attorney, therefore you must go to an attorney in your country. Copyright is international right, there are not so many differences. But the rules of justice and the judgements may be different in the several countries.

What are the damages?
  • In case of a non purchased license for an illegal copied image with a copyright phrase (i.e. ingwio - Fotolia), the damage would be the commission I didn't get. I would write a note to Fotolia, they are responsable to check and (perhaps) write a note to the illegal user.
  • In case of a non purchased license for an illegal copied non-exclusive image without a copyright phrase, the damage would be the market price. The thief would not be able to rely on the price at the agency (i.e. Fotolia), because he has not agreed to the terms and conditions, especially not if he is not even a member of Fotolia. In my opinion (but I'm no attorny) you could calculate the price for the image like a non-microstock photograph would do (size, purpose, number of copies etc.). And that's a little bit more than the artist's commissions of the microstock agencies.

I will pursue copyright violations step by step, first in my home country (Germany), then maybe USA, the other European countries etc. Hard work is only the first time for each country. I hope there will be no illegal users in China or Japan, because I'm not so good in Chinese and Japanese. There is no reason to hurry, the illegal used copies will wait till I find time for them (except those which are deleted in the meantime).

Some of your other questions are already answered in this forum. Please, have a look at the other threads of this board "Image Sleuth".
« Last Edit: September 03, 2011, 16:32 by ingwio »

« Reply #49 on: September 04, 2011, 10:28 »
0
I think you don't realize that IS and others allow usage by one designer for multiple clients. 

Do you think we are all stupid?
...
Also, I wouldn't use Fotolia as an example of stellar contracting: "You acknowledge and agree that Fotolia or its licensors retain all ownership rights in and to the Works, and that such Works are covered and protected by copyright, trademark and other intellectual property rights of Fotolia or its licensors. "
...


sjlocke,

do you want to annoy me?

Here are some terms of the agreements at IS:
Quote
from CONTENT LICENSE AGREEMENT at http://www.istockphoto.com/license.php

2. Standard License Terms

We hereby grant to you a perpetual, non-exclusive, non-transferable worldwide license to use the Content for the Permitted Uses (as defined below). Unless the activity or use is a Permitted Use, you cannot do it. All other rights in and to the Content, including, without limitation, all copyright and other intellectual property rights relating to the Content, are retained by iStockphoto or the supplier of the Content, as the case may be.

3. Permitted Standard License Uses

(a) You may only use the Content for those advertising, promotional and other specified purposes which are Permitted Uses (as defined below). For clarity, you may not use the Content in products for resale, license or other distribution, unless (i) the proposed use is allowable under an Extended License which is available for the Content; or (ii) if the original Content has been fundamentally modified or transformed sufficiently that it constitutes an original work entitling the author or artist to copyright protection under applicable law, and where the primary value of such transformed or derivative work is not recognizable as the Content nor is the Content capable of being downloaded, extracted or accessed by a third party as a stand-alone file (satisfaction of these conditions will constitute the work as a Permitted Derivative Work for the purposes of this Agreement). ...

(b) Seat Restrictions. Only you are permitted to use the Content, although you may transfer files containing Content or Permitted Derivative Works to your clients, printers, or ISP for the purpose of reproduction for Permitted Uses, provided that such parties shall have no further or additional rights to use the Content and cannot access or extract it from any file you provide. ...

(c) Permitted Uses. Subject to the restrictions described under Prohibited Uses below, the following are Permitted Uses of Content:
...

4. Standard License Prohibitions

(a) Prohibited Uses. You may not do anything with the Content that is not expressly permitted in the preceding section or permitted by an Extended License. For greater certainty, the following are Prohibited Uses and you may not:
1. ...
...
9. remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content;
10. sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content or the rights granted under this Agreement;
11. install and use the Content in more than one location at a time or post a copy of the Content on a network server or web server for use by other users;
...
15. ...
...


The result of this at IS: retained rights, only 1 user, 1 client - 1 license, 2 clients - 2 licenses (or EL), deleting the copyright phrase is not permitted etc.

For me these rules are nearly identical to those of Fotolia. In some cases they are even more restrictive than those of Fotolia (read more at the above given link).

It seems you don't know the agreements of the agency you are a member of. But you should know the terms before you compare them with the terms of the other agencies. Please, read them at your own before posting and don't waste our time.


 

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