How I paid off my mortgage by chasing copyright thieves

HOW I PAID off my mortgage by pursuing copyright thieves through the courts. That was the subject of the London Freelance Branch meeting in May. (Shorter report here.) And LFB was pleased to welcome many of our colleagues from London Photographers' Branch too, including members of its Committee and of the NUJ Photographers' Council.

Our speaker was educational photographer John Walmsley. Although he has work displayed in the National Portrait Gallery and the Bibliothèque Nationale, Paris, "I'm not well known - most people have never heard of me."

John has "been a freelance photographer since I left art school in 1968. I never earned more than £25k a year, and it fell to £10k a year recently." With "my income plummeting, five years ago my accountant said, 'either you give it up or you tackle it head on'." There is, says John, "no future unless we all fight back."

John Walmsley is not closing down Image © Hazel Dunlop

Journalists, says John, "can follow a routine" like the steps needed to take copyright abusers to court, because "you all have very ordered minds."

He started by pursuing images he'd had published in books. Publishers had "bought the rights to do one edition" with John's photos in them. But, he reasoned, they must have done later editions by now. Supporting evidence came from a publisher admitting in writing in a court case in the US (not one of John's) that "we'd agreed only a 40,000 print run" but they'd "done a million" copies of one book over the years. The judge dismissed the publisher's claim that a licence to print 40,000 copies allowed them to print a million as "implausible and self-serving [and] perhaps even nonsense".

John picked out at random four books with his photos in them, from each publishing company he'd worked with. Pearson and the OUP were among these. He asked how many copies and editions had actually been produced, in addition to those specified in his contracts. The agreements had been exceeded on most and he'd not been told, so he started investigating further with more of his titles. Now it's "gone upstairs to the corporate lawyers."

It was very hard to get answers to the simple question: had book publishers brought out repeat editions featuring John's photos? In one case, John eventually got that information from the publisher's in-house lawyer.

One publisher did give John figures for their print runs including new editions for all his books. John then asked the authors who wrote the texts for some of these books. These made comments like: "the figures are about right - but what about the other two countries?" It turned out that there had been "editions of several thousands" in other countries, that were not included on the publishers' lists.

Search mission

Now John has moved on to tracking down further abuses of his copyright, mostly by looking online. He drops chunks of text or pictures into search engines. The process "works for text or pics", he says. He recommends that photographers join the Editorial Photo UK (EPUK) email network for assistance in finding abuses of their work online. EPUK has the "intelligence on how to do it." (Full-time photographers can join EPUK, which has links with the NUJ: the details and full criteria are at www.epuk.org/join). John "spent nearly three years learning how to do this,".

One thing John has learned is to register all his pictures with the US copyright office: see below.

John gave the meeting a demonstration of how he has sought out copyright abuses online. He started by showing how to take a low-resolution copy of an image for which you hold copyright, and drop it into Google Image Search (other images search engines are available, and will vary the results a bit for you: see the Freelance Fees Guide advice page on Photography / Tracking down pirates.)

Google Image Search, like most others, produces a page full of thumbnails. When you run your mouse over each the website that it was found on appears underneath the thumbnails. [This is correct in the Opera browser, 29/05/14. It will change. ed]

Starting with an image John knew was already "out there" on the internet, he brought up a screen full of found images. One of these he examined at random, noting a domain name ending with .nl denoting a website in the Netherlands. By selecting "view image" and then right-clicking on "view image info" on Google Images he was very quickly able to harvest the web address (URL) of image itself. (Mac users will hold down the control key while clicking.)

Remember that while an infringer may make your image no longer visible on the (front of) their website, you'll still get a URL if it's somewhere on their server and the search engine can still find it - which will happen if for example if it's been further "leeched" by yet another website, providing a link for the search engine to follow.)

Regardless of whether or not Joe and Joanna Public can see your picture on somebody else's website, they've still copied it, so it's still a copyright infringement. [Probably. The Freelance is eagerly awaiting some European Court of Justice cases.]

Take a screenshot of any images you find in this way "as soon as possible" - they will remove it if challenged. (Windows users should hit the Print Screen key, which is on the top row of keys on most PCs, and then paste the resulting image into a new file in any graphics program (including Paint). Mac users should use the Grab utility, which is available via the Applications menu.)

Print off copies of this screenshot (with a date if possible). Judges like to handle physical files with actual bits of paper to look at. "Copy everything to do with" the alleged infringement, John advises.

Some of John's books are "photos and a bit of text", so he puts bits of text through search engines too, and on "find plagiarism online" sites. He told the meeting: "I'm still finding uses that have been there for 4 or 5 years. I found one this morning."

Honourable exceptions...

One "nice publisher in Switzerland," on being informed of their breach "said 'Oh my God! How much we owe you?" but this is rare. John gave them a discount for their honesty when settling with them. And when he found another copyright infringer who'd used his portrait of an avant-garde composer on their CD was just "two men and a dog," he accepted just a free copy of the CD in compensation.

But such honourable people with their genuinely inadvertent breaches - quickly remedied by people who immediately concede they were wrong - are rare in John's experience.

...and others

Some "95 per cent will be lying through their teeth" on such basic questions as how long they've had his photos on their site, John finds. To help build his case in case it goes to court, he always asks copyright infringers how long they've been using his images, often in the knowledge (via the metadata on "View Image Info", which has a "last modified" field) that they've been on that server for five years. One reason for asking copyright pirates how long they've been displaying your image is that if they don't tell you soon after the beginning of the case, it counts against them when it comes to court.

Some outlets, like Johnston Press's Wakefield Today, immediately told John how long they'd been using his photo without permission, because they hadn't cottoned on to what was coming.

John Walmsley explains Image © Hazel Dunlop

A bizarre number of people John contacts about their use of his images tell him, "we found it on Google, it was free", and when pushed, then say, "You forgot to put that it was copyrighted, it's all your fault".

You have copyright in your words or pictures whether or not there's a notice on them. And it's not that hard to find out that John has copyright in a lot of these images. Among a page of Google Image results that came up for a particular image that he knew had been copied, there was another version of exactly same photo with the words "Copyright John Walmsley" written prominently across it.

How much work does this all take? "An hour a week," says John, "Start with the stuff you know to be online already: boring stuff like the Closing Down sign he photographed and used to illustrate a blog article some years ago. (The same Closing Down sign photo turns up everywhere!)

You win some, you lose some...

A long time ago, John did a photo project on the legendary Summerhill School and its founder A.S. Neill. Penguin published it as book. The book's photos recently found their way on the website of a language school in Cambridge. John found out how long the photos had been up there and established that what the school had done isn't covered by educational exceptions to the Copyright Act: it was to promote their institution, not for use in the classroom. The school offered £25 (a common opening gambit, typically accompanied by declarations they aren't doing anything wrong, John finds) Then came an offer of £600. Eventually it ended up in court. The judge looked at all the evidence, and told the school that what they had done "in this age of copyright awareness... was just stupid." After two months, John walked away with £1000 plus £300 court costs.

Going back to John's avant-garde composer portrait used as a CD cover, that cover photo then wended its way into the Daily Telegraph website, easy for John to spot because he never did that much news photography. The Telegraph offered John £25 in compensation, and it went to court where things get a little scary when he found it was "me and the Telegraph's four lawyers." He "presented the case badly - we learn as we go - the judge "didn't even tick them off." An interesting figure did get mentioned during the hearing, though - "50,000 photos used in a week. "Are they paying for all those?"

Pre-court paperwork

You have to be very sure you've named the correct entity you're going after. [That is: a lawsuit against Jo Shmo Limited is probably ineffective against Joe Shmoe Limited - ed]

John never names the clauses in the Copyright Act under which he is bringing the action: he leaves it to the judge. "I tend now to be less specific," and adds on his court papers, "I am very happy to accept what the judge decides."

Normally, when an infringer sees John's pre-court paperwork, they settle for a sum in the lower four-figure range, but insist on a clause indemnifying them against any future legal risk. Then "one by one they take clauses away" and there's a settlement. Publishers "never offer a reason why they are making him sign on such clauses. While full disclosure in a court means your fellow journalists have more evidence to go on when they later take the same infringer to court, accepting a confidentiality clause does mean you get it done sooner.

The court says you should consider mediation before going to them. John's tactic is to say, yes, that's fine, as long as the result is public, but that otherwise he's not prepared to try that route. As far as the court's concerned, that's fine, you've "considered mediation." If it's in court, then it's public.

Other advice? Never speak directly to the other side's lawyers. Say "My lawyer says I mustn't talk to you." Get it in writing. Any letter or phone call should he headed up: "Without prejudice." [This means that you intend that it not be usable in any court hearing. Judges can overturn it. ed]

Cases of this kind are now heard at the new Intellectual Property and Enterprise Court - under the High Court, all at Royal Courts of Justice in the Strand, with hearings often taking place in the judge's chambers round a table. In the case of the commercial blogger who first offered £25 and then stretched to £100 in settlement for a stolen Closing Down sign photo, and then refused to accept any of the court papers sent Special Delivery - the judge said she could decide it "on paper." John didn't even need to turn up.

While John can "prove my rates, the courts accept this," these are his rates for "editorial photography." One judge said, "No, this is commercial", thereby doubling everything up to the commercial photography rate. The copyright abuser now has to pay John £2300 including costs. One copyright-infringing government department paid John £11,000.

The worst that can happen, should you lose a case, is that you pay the other side's costs, and in the Small Claims track these are limited to £250. "It's down to the judge to work out how much they need to pay you," John notes.

US copyright - statutory damages

Then there's US copyright. If you have registered your work with the US Register of Copyrights, and someone uses it, you can ask a court to award "statutory damages", up to $150,000, rather than having to prove the loss you have incurred as actual damages.

It can, though, be a "nightmare" to arrange all this, says John. David Hoffman, an NUJ freelance photographer who was in the audience, regards the US as "the biggest source of infringement recovery." David won $15k in one case there, after sending "a couple of emails." There are services such as the Copyright Defense League who will do mass automated searches of "a couple of thousand images" looking for infringements of your work - for a fee, usually about 30 per cent. For more on David's track record of prising money out of copyright infringers, see here.

Copyright in words too

Freelance Organiser John Toner recommended that NUJ members call the Freelance Office before launching proceedings, to ask for advice on whether they have a case.

Assistant Freelance Organiser Pamela Morton said the NUJ has already run one seminar on the new Small Claims Court track, and if there is sufficient demand the NUJ can run future "how to do it" seminars.

John Toner clarified that there is no copyright on the facts in news. Other media outlets can legally rewrite your story in their own words. Copyright in words is only infringed if a "substantial part" of the exact arrangement of words is lifted: see herefor more detail. LFB members have succeeded in getting money out of outlets that rip off a substantial part of their exact words without permission. Back in 2007, LFB's Andrew Mueller told how he had extracted money out of copyright abusers based in Australia, Germany and - after paying a Calcutta lawyer what it would cost to send one letter - from India.

There is currently an NUJ Freelance Copyright Survey which asks whether you have been the victim of plagiarism or of copyright infringment, including plagiarism in translation. The results of the survey will shape the Union's response to this problem. One possibility being looked at is subscriptions to anti-plagiarism software services for NUJ members, if there is sufficient demand.

© Matt Salusbury