Christy Turner will do a lot for a good picture of the night sky. The Calgary-based photographer feeds her passion for the Northern Lights by monitoring weather conditions at home and, whenever she flies over the Arctic Circle, by making sure to sit on the right side of the plane. Her diligence has paid off: Turner’s work has been featured by CNN, HuffPost, and the Canadian edition of Reader’s Digest. Like many photographers, however, she’s also discovered her work elsewhere, even in print, in publications that never contacted or paid her. Recently it was a shot she got on St. Helena, a remote, volcanic island in the southern Atlantic Ocean.
“I climbed up 900 stairs on an island to take a photo of the whole island, and it was used on the cover of a local magazine out there,” she says.
Turner might not have known about the photo theft if not for a pair of services called Copypants and Pixsy, which use algorithms to scour the internet for copies of photographers’ work and help them enforce their rights. They send stern letters to suspected infringers, demanding that their clients be compensated or that licensing fees be paid; in some cases, law firms that work with the companies will even initiate a lawsuit on their behalf. In Turner’s case, justice came in the form of $500 in damages.
“The technology is really incredible, because it does all the legwork for you,” she says of the firms’ copyright bots, which echo the more sophisticated algorithms that Google, Facebook, and others use to automatically find copyrighted content. “I think it teaches, over time, these publications that it’s not okay to steal photographers’ artwork in any way, and we, like anybody else, deserve to be compensated for images that are driving traffic to their site.”
For many photographers, especially those who can spend thousands of dollars on equipment, travel, and more, it’s unauthorized commercial uses—think someone appropriating a photo to promote a business or include in an ad-supported article—that are particularly galling.
“Some of them, they use it as clickbait if it’s a celebrity, and some of them they just use it for commercial purposes,” says Joseph Chen, a New York fashion photographer and Copypants customer. “One of the [infringing] companies was actually a very exclusive nightclub in New York.”
Copypants says it has represented more than 11,000 copyright holders, and has identified about 2.7 million image matches, with about 50 resulting in cases referred to Higbee & Associates, a law firm it works with.
One Problem To Begin With
But services like Copypants also renew questions about how copyright law’s often steep penalties for unauthorized use, devised in the age of television and the printing press, coexist with the modern internet, where amateurs or small organizations sometimes unwittingly incur big liability for reusing a viral or catchy image without permission. It’s also a system that critics say can lead to many mistakes and abuses—the internet is rife with horror stories—and, given the law and many defendants’ limited knowledge of it, the stakes can be expensive.
In late 2016, Betsy Combier, a New York paralegal, received a letter from Higbee & Associates about a photo on a website that appeared to be linked to Combier. The letter said the photo was the work of one of Higbee’s clients and threatened that the client was willing to seek “the maximum relief possible… up to $150,000 for intentional infringement and $30,000 for unintentional infringement.”
“To resolve this matter promptly and amicably out of court,” the letter continued, Combier would need to take the photo down immediately and pay a $2,500 license for the previous use of the image.
There was one problem to begin with: the website wasn’t hers. Combier says she had never seen the site before she received the letter and didn’t even know how to use the software it was built with.
“I don’t know how to do WordPress,” she says. Someone had apparently registered the site’s domain in Combier’s name—she’s active in the rough-and-tumble world of New York City school politics, and it may have been set up by a political opponent or a troll. Higbee and Combier both agree contact stopped after Combier said the page wasn’t hers and the site subsequently disappeared on its own.
Still, Combier says the experience was unnerving. “When you get a threat online or in the mail from a lawyer saying ‘I’m gonna sue you for using this photo, and you have no right…,” it still stops your heart,” she says. “It’s kind of scary.”
The photographer who made the claim against Combier was not a Copypants client or referred through Copypants, according to a company spokesperson and Mathew Higbee, the law firm’s founding attorney. The claimant, William Farrington, has filed copyright lawsuits against a number of organizations over unauthorized users of his work with the assistance of multiple law firms, according to federal court records. He didn’t respond to inquiries from Fast Company.
While it was ostensibly intended to ensure that creators get credited and paid for their work, the cut-and-dried world of copyright law has for decades been waging battle against the more laissez-faire, copy-paste rules of the internet, where memes, YouTube videos, and tweets are regularly shared, screenshotted, and embedded. The movie and music industries spent much of the early days of home broadband suing individual fans for sharing and downloading copyrighted content on filesharing sites, before mostly moving on to target large pirate operations.
The existing digital copyright system has also led to claims of abuses, bizarre false positives, political censorship, and even fraud. Lawyers associated with Prenda Law, a now-defunct Chicago firm that’s become infamous in legal circles, allegedly even set up shell companies to create their own pornographic movies and upload them to BitTorrent, in order to demand settlements from people who downloaded them.
While services like Copypants, Pixsy, and their other rivals don’t appear to fall into that category of so-called copyright trolls, there’s a risk that such operations could start to focus too heavily on lawsuits, using litigation or even the threat of filing a case in court to make alleged infringers settle quickly. “I think these services can fill a needed gap,” says Corynne McSherry, legal director at the Electronic Frontier Foundation. “To the extent that these services become basically settlement machines, that’s where I get worried.”
A Prolific Copyright Case Filer
Higbee, the law firm that works with Copypants, is no stranger to the intricacies—and settlements—of copyright infringement cases: The California firm was among the top 10 firms filing copyright cases in the U.S. early last year, according to data from LexisNexis analytics division Lex Machina. The firm offers a YouTube video to help explain its practices to alleged infringers, and instructs demand-letter recipients on how to promptly settle the claims against them, using an online “resolution portal.”
“If you are watching this video, the chances are that you have received a letter or email from us that says one of our clients believes that you have been, or still are, using their work without authorization,” Higbee says in the video. “Our client would rather save you the cost and stress of litigation by having you work with us to resolve this matter outside of the courts… Do not make the mistake of trying to ignore this. Resolving it is easy.”
Higbee, who recently started offering a Copypants-like reverse-image search service through his firm’s own website, makes no apologies for his aggressive pursuit of all sorts of copyright infringement. “These cases settle outside of court in very high percentages,” he says. “Probably 75 to 80 percent of these cases that we take will resolve outside of court.” Those that do go before a judge are usually quickly resolved well before trial, he adds.
“Because copyright law is so clear and the facts are usually indisputable as to whether someone has taken an image without a license, it rarely goes to court, because there’s not much for the court to have to decide,” he says. “The parties know what they own and the parties know what they don’t own. The parties know what they took without a license and what they didn’t take.”
Higbee partnered with Copypants in 2016, a year after the Vancouver-based startup was founded. “We met Copypants at a trade show in New York, and our relationship is built around our mutual missions, and that is to help artists and intellectual property owners protect their work,” he said.
When Copypants’ computer vision algorithms spot client work in an unexpected place, the service can help users send their own takedown requests or ink a licensing deal without the need for a lawyer.
The company provides what it calls “proven templated messages” that customers can use to send requests for takedowns, credit, or compensation. Customers pay a monthly subscription fee that varies with the number of images they want to protect, with a free plan covering up to 250 pictures.
When it finds a match, the service also offers users the option to go the legal route, sending out cease-and-desist letters or demands for payment through Higbee or through the customer’s own lawyer. In some cases, the site will nudge users to send demand letters. “From time to time,” says the Copypants website, Higbee’s lawyers “may suggest opening cases for certain matches that they believe have a high chance of settling.”
In a blog post last year, Copypants explains when customers might want to consider requesting that alleged infringers license work and when they might want to jump straight into a legal case. The company even offers the option to let customers automatically involve the Higbee firm if a license request goes unheeded for a week, according to the post. “If you choose not to opt in for automatic escalation we will send you an email after one week, asking if you would like to have the case escalated,” Copypants says.
In the Higbee firm’s letters, the payment demands to infringers can vary based on a number of factors, with licensing fees ranging between $750 and a “couple hundred thousand dollars,” says Higbee. The firm generally charges Copypants users 50% of any trial award or settlement and charges them nothing if they’re not successful. Copypants gets 10% of the settlement amount as a referral fee, Nicholas Mackenzie, a marketing strategist at the company, said in an email.
Chris Adlparvar, the founder and chief executive of Copypants, tells Fast Company that most of its work centers on asking for credit, not demanding cash. “That’s really important to these people because before, they had no ability, no easy ability, to be able to manage their marketing around their work—to be able to say, ‘hey, do a Facebook shout-out for me, or let people know I was the person who created this work.'”
Pixsy, with offices in California, Europe, and Australia, works with about 26 different law firms around the world to represent its roughly 22,000 users, says chief operating officer Kain Jones. The company offers similar pricing to Copypants.
“The photographers would authorize us as their agent, and then we would contact the image user and try to get that resolved, either by getting the photo taken down, compensation for prior use, or an ongoing license to continue using the photo,” says Jones. “We will pursue cases of commercial use—we certainly don’t pursue matters of noncommercial use.” When money is collected through a law firm, Pixsy and the firm (the company works with multiple firms around the world, it says) each get a portion of the amount, he said, but wouldn’t specify what that portion is.
Calls For A New Copyright Regime
When individuals or smaller organizations publish a photo they may not realize isn’t free to use, the situation can also get murky.
Hong Luo, a professor at Harvard Business School, is coauthor of a paper published in 2016 that looked at records from a large stock photo agency. The agency wasn’t named, but it’s not uncommon for such services to use automated tools to find infringement. In 2011, Getty Images, the Seattle stock photo giant, acquired PicScout, a copyright enforcement search tool of which it had been a customer.
In one three-month period in 2014, when the agency described in the academic paper sent letters to 909 companies using its images without permission, 85% said they were unaware of the unauthorized use or blamed it on a third-party web designer. The numbers were even higher for smaller companies.
“Unawareness can occur because an infringer is not aware that the image is displayed on their website (perhaps because an intern placed it there), or because the infringer obtained the image through an online search, without realizing that its use required authorization,” the authors wrote.
Everyday people see images seemingly shared on social media, or popping up in image search engines, and often simply don’t understand they can’t be used without permission from the photographer, Luo says.
“It’s very difficult for a normal user to understand, because there’s not very clear rules in the legal system,” she says.
And the firm rules that do exist in U.S. copyright law make it clear that ignorance isn’t much of a defense: Even unintentional infringers can still be required to pay damages under the law, says McSherry of the EFF. “Inadvertent infringement happens all the time, and it’s frustrating for everybody, and the problem is that copyright is a strict liability law,” she says. “That creates a very, very difficult situation for people.”
Congress is currently considering a proposal to launch a small claims court under the U.S. Copyright Office, which proponents say could help individual creators like photographers more easily gain relief in infringement cases, rather than resorting to costlier legal actions. Congress could also change the existing copyright laws to more firmly protect people who unintentionally use images or other copyrighted content, she says.
“If you were operating in good faith, you wouldn’t be on the hook for that level of damages,” says McSherry, adding of the current legal regime, “These are sort of provisions that were drafted before the internet, and they just don’t fit particularly well with the current reality.”