You thought we wouldn’t notice – but we did
Mail & Guardian | News & Media 2015 | Laura Cooke
What do you do if someone steals your photograph and uses it commercially on a large scale without your knowledge?
In South Africa, intellectual property theft of photographs, design and artwork is surprisingly common, generally misunderstood and difficult to control. And it happened to me. Although I’m not a full-time photographer – I spend most of my days writing and editing – I specialised in photojournalism at university and continue to enjoy the occasional photographic project.
Six years ago, I took a photo of an aloe with its roots exposed for a plant-loving friend. The concept of showing the whole plant is certainly not original. At the time I shot my aloe, Clinton Friedman’s range of classical botanical photos was very popular. My project was mostly about helping a friend capture a plant of his choosing, using a similar expose-all style to Friedman.
My friend sourced the perfect aloe and I figured out the logistics of capturing the plant in mid-air. It took some creative thinking to set up the shoot and required significant post-processing work, but we were both very happy with the end result. I uploaded the image to a photography portfolio website and didn’t think much about it again.
Roughly a year later, in 2010, a close childhood friend of mine, who is an artist, was searching for pictures of aloes via Google Images as part of a printmaking project. By coincidence she stumbled on my photo and – seeing that it was mine – asked if she could use it for a monoprint. Of course I said yes and the resulting print was quite beautiful.
I’ve never – in earnest, at least – focused on making money from print sales or licensing photographs. The work I do is mostly for my own gratification. The aloe photo was an unanticipated hit among friends and it is on display in a few of their homes. It’s a good feeling knowing they like and enjoy my work.
When I look at the photo today, however, it reminds me of months of stressful interactions. Last year I was browsing for fabric for cushions at one of Woodstock’s popular fabric stores and came across what looked uncannily like my photo printed on a roll of fabric as part of an aloe-themed design.
At first I didn’t believe it. But a quick comparison with the original photo on my phone showed, without a doubt, that it was mine. Each root line was perfectly traceable. I was stunned: how the hell did a photo I took years ago end up on a premium fabric range? I went to the storeowner and was told the fabric was designed by interior design company T & Co, which is owned by well-known South African designer Tanya Sturgeon.
The fabric, I found, formed part of the company’s Pure Fabrication range. My photograph featured on three fabrics in the range: the Cape Aloe Traditional, Cape Aloe Charcoal and Cape Aloe Duck Egg. On T & Co’s website, the company had written that the range was inspired by Sturgeon’s “trips to Paris and various Parisian markets, but with a distinctly South African interpretation, as seen in the quintessentially Aloe design”.
It turns out the range was printed on quite a large scale by well-known fabric manufacturer Hertex, between the years of 2011 to 2014. A quick Google search shows it on cushion covers and vanity cases at a variety of online stores. It was clearly a successful design. By the time I found all of this out, I was less stunned than I was infuriated that my image was being used so extensively – and without me even knowing.
I started to read up on intellectual property law, including the Copyright Act of 1978. I discovered stories remarkably similar to mine. In 2013, filmmaker Riordan Allen’s Instagram photo appeared on a range of Markhams t-shirts. While the stock was pulled from the stores, Allen was never financially compensated. Why? According to Allen, the design company was not South African and the legal fees for an international lawyer would have been prohibitively expensive.
Similarly, in 2011, an image by photographer Kelly Berold appeared on a range of Mr Price t-shirts without her knowledge. When I phoned her to ask about it, Berold declined to comment on the details of the incident. But she did say that the matter was resolved and assured me that the company handled the situation earnestly and professionally.
Photographer Gregor Röhrig, who I studied with at university, deals with the illegal use of images constantly. He told me his photographs have been used without his permission in everything from concert promotions and books to news websites. But Röhrig said he’s never gone the legal route because the cost and time involved just wouldn’t be worth it.
“That, however, is also the problem as not enough legal precedents are set,” he said. “All in all, it is a super frustrating issue, people often just don’t consider using photographs without permission as copyright infringement because they ‘find’ them on the internet. I have had to watermark a lot of my work that is online, and even then it has been used.”
Röhrig didn’t have to add the watermark – even though many photographers do in a bid to fight off intellectual property theft – because copyright in South Africa is automatic. But most people and businesses are completely unaware of how copyright works.
It took me a couple of months to actually do anything about my photograph after I first saw it in Woodstock. I wanted to try and sort it out without making a fuss, especially after seeing the furore over the Woolworth’s hummingbird incident. That was when Cape Town-based artist Euodia Roets claimed that Woolworths had replicated her illustration on a line of cushions. In that case, it turned out that Woolworths had signed off a hummingbird design months before Roets met with Woolworths and that the illustration itself was based on the work of photographer R.W Scott.
I wanted to be very sure I was in the right. I didn’t vent my frustrations online as Roets did – Roets’ blog post titled ‘How Woolworths really operates’ was shared, liked and commented on more than 35000 times on Facebook – I went straight to T & Co as soon as I decided to act.
I started off with an email. After following up a number of times, about a month later I finally received a proper response. The gist of it was this: a commissioned designer did the research and pattern design, which ended up being very successful, with an estimated six kilometres of the Cape Aloe fabric sold. This designer found my image via Google Images and had used it, apparently unaware that it was copyrighted.
In reply, I proposed a licensing fee based on Getty Images’ suggested rates for similar photographic work, which came to $2 495 (about R30 000). I proposed a flat rate of R13 500 with a 25% penalty for the years it was used without permission. T & Co rejected my fee.
“Michael Subotsky (sic) maybe gets that kind of price for his images as investment art pieces,” Sturgeon wrote back. “But I am not sure how you get to that price for part of a photographic image in a design. How come that image was on the internet, and never had any copyright stamp over it? And how can you control the use of an image once you upload it onto the internet?” I was pacing in fury. How could a design company know so little about intellectual property online?
But what really frustrated me was that had I been contacted way back in 2009, it’s possible that I may have quoted a far lower price. Or perhaps I would have decided that I didn’t want my photo featured on the fabric range at all. After all, it had a lot of personal value to me and having it splayed on thousands of scatter cushions in lavish living rooms across the country took that intimacy away. But I didn’t have that choice to make. I wasn’t contacted at all.
Besides, I may not be a famous photographer but that’s not really the point, is it? I finally contacted Hertex, the fabric manufacturer and explained the situation. They responded almost immediately. As is legally required, they immediately offered me the remaining stock (38 metres), removed the infringing images from their website and assured me that Hertex wouldn’t sell the designs in future. They told me they didn’t own the rights to the design, so any financial compensation on that front would have to be negotiated with T & Co.
Days later I received an offer from T & Co of R6 000. I decided that I needed some official legal advice and cold-called intellectual property lawyer Janine Hollesen from Werksmans. Possibly my biggest victory in all of this was Hollesen offering to help me for free. Having worked in IP law for 16 years, the type of fees such experience normally demands makes this amazingly generous of her – and normally totally out of reach for someone like me.
So why did she agree to help?
“The theft of intellectual property should not be viewed as being any different from the theft of a physical item,” Hollesen said. “Artists spend time and effort in creating new works, which should not simply be used by third parties without authorisation merely because they appear on the internet. The apparent lack of concern regarding the use of the image after acknowledging the use thereof was concerning.”
Business owners know that the average independent photographer doesn’t have the resources to get even the most basic legal advice. Intellectual property lawyers generally charge upwards of R2 000 an hour. And even having legal assistance and sending lawyer’s letters doesn’t necessarily help bring things to a close any faster. My own case has been going on since September 2014.
Through my interactions with Sturgeon, I have gained some sympathetic insights into the businesses and individuals who unwittingly commit copyright infringement. I also have a better understanding of how the fabric industry works.
In this particular case, T & Co earned commission on sales of the fabric. From what I learned, Sturgeon’s fee for use of the photograph in the design isn’t completely unreasonable. After starting up email correspondence again this year, I decided to accept a final offer of R5 000 and the details and payment were finalised on March 10 2015. I am relieved that we have managed to come to an agreement, as is Sturgeon.
“It really never was my intention to use an image illegally,” Sturgeon told me recently. “It was also done six years ago, and I don’t think there was the same awareness then about using other people’s images off the internet that there possibly is now.
“Ironically the designs in that Pure Fabrication collection have been fairly closely copied by other fabric companies over the last few years. I am a big advocator of designers and people in the creative business being compensated for their work, creative input and time, and so often they are not, as I have also been in that situation.”
Every image that is used illegally without licensing fees paid – no matter how small the amount – affects the real-life income of the creator. It’s death by a thousand paper cuts for photographers and artists trying to make a living from their craft.
Professional photographer Deryck van Steenderen, author of Exposed: the Business of Photography, wrote an entire book to help photographers deal with the business side of professional photography. Van Steenderen says that the lack of education around copyright and general business savvy is a huge gap, particularly in tertiary education. Photographers, designers and businesses, are grossly unprepared for dealing with it.
Businesses need to realise that copyright infringement is a criminal offence – if maximum penalties were pursued it could result in jail time and considerable financial compensation. In 2013 Getty Images had to award US$1.2-million to photojournalist Daniel Morel for copyright infringement. Photos that Morel took after the Haitian earthquake in 2010 were shared on social media and sold without Morel’s knowledge to publications across the globe. He pursued the case for four years and when asked why Morel said, “because someone had to fight for photographers”.
Money aside, using someone else’s creative expression in a way that they did not choose or approve cheapens the artwork, stripping it of its intrinsic value. The internet has made stealing, repurposing and copying images a simple click or two of the mouse and it’s practically impossible to control.
As for myself, I’ve learned a lot through this process and not just about copyright. I’ve had a small glimpse into how challenging it is to stand up for your rights when those rights aren’t respected. As a journalist, I also know that I have far more power than the average South African in my ability to communicate and educate through media.
I also have 38 metres of fabric. Cushion covers anyone?
How Gallo protects its images
Gallo Images, the local arm of international stock photography company Getty Images, deals with infringement regularly.
“Unfortunately it does happen on a regular basis and we also have models and owners of property and artworks contacting us in this regard,” says Leigh Benson, media sales manager at Gallo Images South Africa.
When contacting businesses or individuals who’ve used images illegally, Gallo generally finds that it was done by accident and as a result of misunderstanding or ignorance of copyright laws.
“Many people think that they will not get caught and are prepared to take the risk. People tend to assume that if they credit a picture they are exempt from legal action, but unfortunately credit lines do not pay the bills for those who are producing the content be it images, text or illustrations,” says Benson.
Gallo, being a stock photography company, tries to protect the rights of the artists and photographers they represent. They deal with illegal usage all the time and use PicScout software to find images and inform businesses about the infringement.
PicScout trawls the internet and finds images which are used without the correct licences. Gallo will then get in touch with the individual or company, show them the proof from PicScout and find out where the images were sourced.
Internationally, Getty is often called a bully or copyright troll for its pursuit of illegal use of images. Many people feel the company bullies people into paying for images with the threat of lawsuits, which are unlikely to materialise due to the enormous cost involved.
Cases in copyright infringement
Art Rogers vs Jeff Koons
Artist Jeff Koons created a sculpture closely based on a photograph by Art Rogers holding a row of puppies. The case went to court in 1991 in the US. The court found the similarities too close and Koons had to pay a monetary settlement.
Jane Alexander and Die Antwoord
In 2012, Die Antwoord’s music video teaser was pulled after it referenced artist Jane Alexander’s anti-apartheid sculpture, the Butcher Boys, without permission.
Euodia Roets and Woolworths
In 2013 year, Euodia Roets accused Woolworths of using her hummingbird design on a range of pillows. There was a huge social media outcry around the issue, but Woolworths had a paper trail to prove that it was not her design. This is unlike in 2012, when the Advertising Standards Authority ordered Woolworths to withdraw soft drink packaging with the words “good old fashioned” which was used by Frankies Olde Soft Drink Company.
Shephard Fairey and Mannie Garcia
Street artist Shephard Fairey created a poster based on freelance photographer Mannia Garcia’s image of US President Obama. The poster became extremely popular and Associated Press, who commissioned Garcia, demanded compensation. AP and the artist reached a private settlement in 2011 including a profit share of the work.
Your rights as a photographer
Photographers (and artists) who create their own images (unless commissioned) own the copyright to those images by default. You’re entitled to sell the License for Use of your images for 50 years.
In South Africa, there is one exception.
If a photographer is employed by a newspaper/magazine or similar, the employer owns the copyright by default. Likewise, if an image is commissioned, the commissioning agent owns the copyright. However, a mutual agreement between employer and photographer can legally override this.
As the owner of copyright you have the exclusive right to reproduce the work in any manner or form – whether it’s on fabric, wallpaper or billboards. This also covers adaptation of the work. This “includes the transformation of the work in such a manner that the original or substantial features thereof remain recognisable”. In the case of my aloe photo, it was clear that the image on the fabric was my photograph, but it’s not always that simple to prove.
Steps to take if your work is used illegally
- Contact the company or person using the image illegally and ask them where they found the image.
- Send an invoice for past usage, using stock photography rates as a guideline, as well as a cease and desist notice which lets the company know about the infringement and to cease further infringement.
- Be open to negotiation in the hopes you can reach an amicable agreement.
- If you’re not able to reach an agreement, hand the invoice over to a debt collection agency.
- You have the right to request the infringing copies and insist that all physical or digital plates as well as copies are destroyed.
If someone continues to use your work after they’ve been notified of the infringement, they will be guilty of a criminal offence and could be fined or imprisoned.
How to protect your work
While not legally required, include a copyright notice on your work to warn third parties that copyright exists.
Use online resources to track the use of your images. These include Tin Eye and Google’s Reverse Image search.
What should businesses know?
- Copyright infringement is a serious accusation. If someone notifies you that you’re using a copyrighted image and you continue to use it, you could be found guilty of a criminal offence.
Google Images is not a free image service.
- Images don’t need to display a copyright symbol to be copyrighted.
- Make sure you understand image usage rights when using images for your business.
- Keep a paper trail. Says Hollesen, “It is imperative to ensure that during any decision process or adoption of any artwork or trade mark, the process be properly documented to indicate that such property had been independently created to prove that no infringement has taken place.”