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A couple of months ago I wrote a piece on one of my pictures being used without a license on the website of the Berkeley Daily Planet. It was a very sour thing, because I really wanted to pursue this due to Ms O’Malley’s outrageous attitude, but the outcome would simply not outweigh the costs I’d have to make in order to do what needed to be done for this.
I shared the link to this blog post in several groups on LinkedIn I’m a member of and got many comments on how crazy this really was. One of the members advised me to write a complaint to the State Bar of California, where all the lawyers are registered. They would be able to reprimand Ms O’Malley for her idiotic behavior in this case, IF she really was a lawyer as she claimed to be.

I took the advise, and wrote the State Bar a letter. The official complaint form on the website was only for lawyer-client situations, and didn’t offer any options for different situations, which kind of made me think that my letter would disappear in a trash bin, because it was not according to the prescribed format. But anyway… I sent off my open letter, including a screenshot of the website with my image on it and every single piece of correspondence I had with the Berkeley Daily Planet and Ms O’Malley, and I referred also to the contact I had with my attorney Mr Kinne from Kinne IP Group.
Here are the main lines of what I wrote:

I would like to file an official complaint against a lady by the name of Becky O’Malley, who claims to have been, and I quote “an intellectual property attorney and a member of the State Bar of California, a status which I could easily activate if needed”.

The issue is about a copyright infringement case. This lady is, together with a gentleman named Tom Butt, working for the Berkeley Daily Planet, an online news paper.

Just recently I discovered that they had been using since early 2010 one of my images, without my consent, without the proper licenses, and even with Mr Tom Butt’s name as accreditation with the image (screenshot of the web page attached).
At first I tried to settle the matter with them directly (correspondence attached), but things soon got so bold that I asked my attorney if there was any way to pursue this matter officially.
He gave me an outline of the possibilities, and I decided not to pursue the matter, because in the end it would cost me more money and grievance than I was willing to put into it.
The fact that I am residing in Finland and that I only have a raw file, i.e. the file is not registered at the US copyright office, to prove I’m the creator of the piece was part of the decision.
However, when Ms O’Malley so blatantly and shamelessly threw in my face that I should let go of the matter and that I would get nothing out of it, this turned more into a principle matter for me.
The fact that she is, or claims to be, a former Intellectual Property Attorney and a member of the State Bar of California makes this case all the more outrageous. Tom Butt, the journalist in question, has purposefully and knowlingly used one of my images and accredited it to himself, but when I confronted the paper, and Ms O’Malley, with all her knowledge of Intellectual Property and copyright infringement, about it she had absolutely no right to justify it like she did and slam the door in my face.
With the way she behaved, knowingly and purposefully defending, acknowledging, and approving copyright infringement, she has no business being a (former) Intellectual Property Attorney and member of the State Bar of California.

I sent it, and pretty much forgot about it. A month went by, then another month in which I was abroad.
But then, when I came home from my trip, I actually found an envelope from the State Bar of California.

Response letter from the State Bar of California

Response letter from the State Bar of California

I’ll pick out the piece that matters:

Based on our evaluation of the information provided, we are closing your file. Before the imposition of attorney discipline can be obtained the State Bar must present clear and convincing evidence of willful misconduct. We have concluded that there is insufficient evidence of willful misconduct that would warrant disciplinary action. Ms O’Malley was not your attorney and owed no fiduciary duty to you. In fact, she was not acting as an attorney in said matter, but could activate her membership status if she needed to. Moreover, the circumstances you described are civil in nature. As such, the more appropriate forum in which to address your claim would be through appropriate civil action.

Ok, so I agree that the circumstances I described are civil in nature. But they have concluded that there is insufficient evidence of willful misconduct?
She may have not owed fiduciary duty to me, but with her supposed background in Intellectual Property it was her civil AND professional duty to properly pay for an image that they were using. And also her conduct in the correspondence afterward was in my eyes a very willful misconduct.

So what is wrong with the juridical system of today?
The system seems to be protecting the wrong people…

So after my positive rave about PhotoDeck yesterday, I’d like to move the attention a bit more to my own side (site) again.

As you may have noticed, there’s no longer the “search for my pictures on Photoshelter” box on the right side here. It has changed now to a box that will search for my images straight from my own site, which is how I have envisioned it to be.

Stock @ arnoenzerink.com

Stock @ arnoenzerink.com

The library is growing every day and you can purchase online with PayPal and your credit card, without a hassle. If you want me to make a (discounted) quote for the use of one or more images, you can also contact me straight from the site.
The advantages? You get a better price and I get a better price, because I don’t have to pay commission to an agent (unless of course you have a good bulk deal with one of the agents, can’t fight that kind of discount 😉 ).

Ordering single prints is also possible. It’s not yet implemented in the features, but will be soon, so for now if you’d want a print, it’s going to be good ol’ manual labor 😉

So… head on out to the stock site and see if there’s anything you want/need.
I don’t do micro stock, so it’s going to cost you a tad bit more than 5 bucks, but still… You get good stuff for a good price.

Last summer, when I finished the education at Rocky Mountain School of Photography, I decided to sign up with Digimarc. We had endless discussions about how the web is the perfect place to grab images without paying for them and several of our teachers had been in the situation where they -by accident or not- found out that a company had used their images without permission. So we talked about how to prevent those kind of things from happening and which ways were the best ways to go.

Digimarc was one of the ways. Digimarc has created a plug-in for (among others) Photoshop where you can incorporate an invisible digital watermark uniquely registered to you.
I signed up for it.
And with that, I also signed up for the tracking report, which supposedly tracks down your images with that unique digital watermark on the internet. It cost me a whopping $499, but hey! If it would get me to chase people who use my images without permission, I might be able to claim that money back from them, right?

So I started using the plug-in and Digimarc them with my own unique invisible digital watermark.
The first thing I noticed was that this Digimarc is everything but flawless.

It’s very sensitive when it comes to certain color combinations in regards to visibility. When used with certain kinds of images, there’s a whole issue about how it changes the pixels. Not that you actually get to see your unique digital watermark, but see below what I mean (you might have to click on the image to check the bigger view in order to see the difference clearly):

Digimarc watermark examples: left without watermark, right with watermark

Digimarc watermark examples: left without watermark, right with watermark

Digimarc watermark examples: left without watermark, right with watermark

Digimarc watermark examples: left without watermark, right with watermark

So as long as there’s a busy background with many different structures and colors you don’t really see it (you will if you know where to look, but anyway…). However, if you have an even background the “invisible” digital watermark completely screws up the image.

And then there’s the tracking report function. That’s the thing I paid $499 for.
I have a vague memory of one of our teachers telling he tried it, but it didn’t really work for him.
I figured it couldn’t be that bad, but I guess I should’ve listened.

After two months of being subscribed to the service there was no mention in the tracking report of finding any of my images anywhere. Not even on my own website.
I wrote a mail to helpdesk and asked what the usual time was before images were tracked. They told be to have a bit more patience, that it could take anywhere from 2-6 months.
Fair enough, I thought. The internet is a big place, many websites to crawl through.
So I let time pass. I let six months pass. And according to the report the service still hadn’t found any images. I let seven months pass and still no images were found. I let one more month pass just for good faith, but when the tracking report still came back with zero found images I decided it was time again to ask for some explanation.

“This does seem out of the ordinary that our search engine has not been able to locate any of your images if they are not posted within password-protected sites, web pages behind firewalls, Flash-based galleries or database-driven websites that are not open for spiders to crawl.”

My own website only has a flash opening page, but the portfolio is pure HTML / CSS only. Coded it myself, so I know.
Then they wanted me to send some straight links to my images, so their vendor could do a direct search. So I sent them a stack of links directly to my images, on my own website, on this blog, on Imageshack and on another website still.
And again I let time pass. I let one week pass. Two weeks, three weeks… And when after four weeks the tracking report still hadn’t reported any of my images, at all, not even from the straight links that I sent them, I found it well enough. I found I had been sufficiently patient.

So I wrote a mail to helpdesk again in which I kindly told them I paid $499 for a service which was supposed to track images on the internet where I couldn’t find them and that it couldn’t be the idea of the service that the customer supplied links to where to find the images. That I found my patience had been enough after over nine months of nothing and that I thought a reimbursement of the invested $499 was in place.

And even though the tracking service didn’t function properly (or actually, not at all), the customer service does deserve a compliment, because they made no issue whatsoever out of my reimbursement request and the lady told me she’d arrange things with their finance department.
(Now I just hope that it won’t turn out to be a second Rodale where I have to chase after my money for a year).

But anyway… Conclusions of the story:
1) Digital watermarking sucks, it destroys your images
2) Digimarc’s tracking service needs a lot of work before it actually functions
3) Don’t always second guess your teachers, sometimes they actually CAN be right (sorry David 😉 )
4) Best way to protect your images? Big fat visibly transparent watermark right in the center of the image.

So… now that I know that I don’t know a lot about photography, I started applying to a number of stock agencies. And even if I knew better, I also submitted a number of images from my previous life. I guess some were crap and got rejected by most of the agencies.
Not by all, though… And guess what…
After a first super sale which brought in a whopping $.30 (WOOOHOOO!!! Don’t get me wrong, I’m not greedy or ungrateful or anything, but yeah… start wondering why I don’t put my best pictures in there when I get a magnificent $.30 per download) I was notified with a significantly better sale through another website. Another one of the images from my previous life made it into the sales books. At almost $5.
So yeah… For all generic images that don’t have that WOW factor it’s an easy little extra that builds up unnoticed over time.
I’m not going put that image here, because I don’t want everyone to copy my …. ahem… Just kidding  😀

D200, ISO100, 30 sec @ f/5, Sigma 28-200mm

D200, ISO100, 30 sec @ f/5, Sigma 28-200mm

National Geographic here I come!!!! 😀

Recently there’s been a whole riot about Google’s new browser Chrome. Or rather… Its terms and conditions.
Most of the people just sign up, register, and check the box I agree for for a wide range of different things and applications without actually reading the small print. In most cases that’s ok, because most people don’t really have anything of value to share.
But if you’re a photographer and you have your “Content”, as they officially call it, posted on a website, it’s darn important to know what you sign up for.

Take for example Google Chrome. In point 11 of their first version of the Terms of Service it read

By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any content which you submit, post or display on or through, the services. This license is for the sole purpose of enabling Google to display, distribute and promote the services and may be revoked for certain services as defined in the additional terms of those services.

Thanks to the people who actually DID read the Terms of Service and started making a big deal out of it, this was changed into something a lot more agreeable and a lot less dodgy:

You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services.

This is still quite an open book, but at least if you catch them using your pictures without permission, you can knock on their door and hold up your hand.

But then the other big fish… Facebook.
I usually don’t put any pictures of importance on those kind of sites anyway, but I must shamefully admit that this one also slipped through my attention. I didn’t read the Terms of Use on their website when I signed up.
But here, all you photographers, I know you’re on there, so read this, and read this carefully. This is an excerpt from Facebook’s Terms of Use:

When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content. Facebook does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content.

This basically means that no matter what images you post on Facebook, they can use them whenever, wherever, how ever, how much, and in what possible edited way they want, and they can even sub license YOUR images. And you’re not getting paid a dime.
So really, what you want to do if you must post images on Facebook and they are sellable and precious to you, is either make the resolution so low that they can’t really reproduce the image, or put a big fat watermark right in the middle of it.

Ok, maybe the chances are slim that they will actually use the pictures, but I know I would be seriously annoyed if I’d find out about something like that and there’s nothing I could do about it.

What the h*ll's going on?? Do you have the right??

What the hell's going on?? Do you have the right??

Anyway….
Some food for thought.