photo by Christopher Boffoli.
I’ve written a lot in the past about the fact that I don’t get too worked up when people rip my work from the internet and use it. Especially if they are using it for personal or non-commercial use — I have no problem with that personally. But just because I’m pretty lenient with how people use my work, doesn’t mean that there are not repercussions when people do rip work off the web — especially when it’s used for commercial use.
It was interesting to hear yesterday from photographer Christopher Boffoli who has done a lot of freelance work lately for the West Seattle Blog. Boffoli wrote me and told me about a situation where a Seattle based Realtor, Laura Miller with Catalyst Commercial Partners, used an unauthorized photo of his for a real estate listing (photo above) of hers and ended up having to pay him a $1,000 small claims court judgment over it.
I’ll let Boffoli tell part of the story in the email that he sent to me:
“Having contributed features, photographs and video packages to the WSB for a couple of years now I’ve occasionally stumbled upon my work in other places as readers of the WSB have downloaded and re-hosted my images without my permission. I have found these situations to be an unfortunate consequence of working in the medium of digital photography. Most of these situations can be remedied with a polite take-down request. Generally, the violator will apologize and remove the image. In perhaps six instances over the past 2 years I have had to submit one written take-down notice to a blog host. In every case the image was uploaded for a non-commercial use. It is an annoyance to be sure. But I’m a reasonable person so I’m usually satisfied if the person takes responsibility and removes the image. However another situation has arisen which is something quite different: a commercial entity appropriating an image, without permission, for profit.
Last November the WSB reported the closure of a popular local restaurant. I ran out in the cold and dark and grabbed a couple of night shots of the exterior of the restaurant. My image ran at the top of the story on November 6, 2008, just weeks before the restaurant was closed and listed for sale. Many months later, while doing research on a commercial real estate website, I stumbled upon the image I had taken. Someone had apparently downloaded it and posted it to a six-figure commercial real estate listing. This discovery was made more odious by the fact that the website had applied a copyright flag to the corner of my image and was representing it as their own. I immediately sent a polite but firm e-mail to both the listing agent and the webmaster for the site. The webmaster responded almost immediately. She apologized for the violation and told me she’d have the image removed from the site within 24 hours. She also alleged that it had been the listing agent, a woman named Laura Miller, who uploaded the image and in doing so had had to falsify a statement pledging that she owned the image and had the right to use it.
My image came off the site as the webmaster had promised. But the listing agent never even had the courtesy to respond to my e-mail. So feeling a bit annoyed, I generated an invoice and mailed it to her office. The price for the unauthorized use of my image was far less than what a comparable image from Getty or Corbis would cost for six months of similar use. I figured I’d give the real estate agent an opportunity to be responsible for what she had done. I was not surprised when she ignored that too. After 30 days had elapsed with no response I gave her one last opportunity to respond. When it was absolutely clear that she had no intention of being responsible I decided to file a case in small claims court.”
According to Boffoli this issue about unauthorized use was not really about the money to him. He told me that if the agent had simply had the courtesy to respond to his initial email to him professionally saying that it wouldn’t happen again that he would have been satisfied with that. He said that he didn’t even need an apology. But when, according to him, the agent didn’t even have the courtesy to respond to his email, he decided to pursue the case in small claims court.
So yesterday was Boffoli’s big day in court. More from Boffoli:
“I’m delighted to report that my small claims case went very well today. The judge ruled in my favor, awarding me $1,000 (the exact amount I was seeking) plus court costs. The real estate agent’s only defense was that it was her assistant who used my image and they didn’t know where it came from so it was OK to use. I compare that argument to a thief being caught red-handed with stolen property and telling the police “I don’t know where I got this” so I’m not responsible for stealing it.
The case was very quick. The judge just asked if the picture was mine, where it had been published, and if my name was listed as a credit along-side the image. Then she instructed the defendant that “just because something is up on the Web it doesn’t necessarily mean it’s free.” The rest of the conversation was consideration of my supporting materials for the monetary value of the image.”
Now $1,000 for illegally using an image is kind of a lot to pay. But illegal image use can often end up costing the infringer far more than it would have ever cost them to simply license an image correctly in the first place. In fact, I thought it was interesting when putting 68 of my photos into contract with Getty Images as part of the Flickr/Getty deal that one of the potential ways to earn money with your photos over there is actually when Getty finds unauthorized use of these images and recovers money for that use. Getty actually actively scours the internet and encourages people to report unauthorized commercial use of our images that they represent.
In some cases unauthorized use can actually result in far, far, greater penalties. In one case last year in fact, photographer, Liz Ordonez-Dawes, was successfully awarded over $12 million by a Florida Court over unauthorized use (you can buy a lot of Hasselblads with $12 million).
And these days especially it’s getting easier and easier for photographers to find unauthorized commercial use of their photos online. One tool that I’ve played around with a bit in the past is TinEye. A reverse image search engine that allows you to upload your photo and see where else they are able to find it on the web.
So the moral of this case/story? Beware of ripping images off the web and using them commercially. It just may end up costing you far more in the end than had you simply inquired about licensing an image correctly with a photographer in the first place.
By the way, Boffoli in general is pretty flexible about people using his stuff and allows people to use his stuff for personal use and he generally also allows bloggers and others to use his stuff if they are polite enough to ask. Also a lot of the work he’s done for the West Seattle Blog he’s also done for free as a service to his community because he believes in its vision of providing hyper-local news. He also has made a lot of prints for people for cost. But Boffoli’s gear isn’t free and there’s a cost to the work that he does and when it comes to commercial use and especially use the infringer doesn’t step up and take responsibility for the use, he’s not afraid to use the legal resources available to all of us to make his point.
I did contact the realtor, Laura Miller, who was sued by Boffoli in this case to get her side of things, but she responded to me that she’d rather not discuss the case.
Fascinating. This is the first time I’ve heard of a copyright related case being heard in Small Claims. Most of the armchair internet lawyers say that copyright is under federal jurisdiction only and cases must be filed in federal District Court.
Thomas, Great article! I know how open you are with the use of your photos, but I am glad to hear you sticking up for those who wish to have more control over the use of theirs.
Having read this article with interest I have to say I am pleased this matter has been taken seriously by the US justice system.
Running an international digital photography site I am constantly warning people to use low resolution small images to reduce the instances of image theft, it is so nice to see an article where the thief has actually received their just desserts.
PLEASE let thisbe a warning to both photographers that they are constantly under threat of having their work stolen and to the thieves that they cannot get away with stealing other peoples work!
To Mr Christopher Boffoli, Sir I take my hat off to you for doing the right thing and I am really pleased you got the result above, well done.
PS We have a link to this article on my own photography forums, I hope there are no problems with that (I will remove the relevant post if requested).
Interesting story.
You might be interested to know, however, that the small claims court was without jurisdiction to hear the photographer’s case. Federal law vests exclusive jurisdiction for all copyright claims in federal court. See 28 USC 1338(a). No state court, let alone a small claims court, has the authority to hear a copyright infringement case. Moreover, there is no mention that the photographer had obtained a copyright registration for the photograph prior to filing suit. Such a registration is a mandatory jurisdictional prerequisite for filing a copyright infringement lawsuit. See 15 USC 411(a).
This inability to litigate a copyright infringement claim as a small claims court matter is precisely the reason why the Copyright Office provided testimony to Congress in 2006 suggesting that such a remedy be built into the Copyright Act: http://www.copyright.gov/docs/regstat032906.html. To date, no such allowance has been made in the statute.
In contrast to these jurisdictional requirements for a copyright infringement suit, there are no such limitations on the kind of “take-down” notice that Mr. Boffoli sent to the ISP under the Digital Millennium Copyright Act (“DMCA”). Such DMCA notices may be sent even without a copyright registration.
There’s also the fair use act that will allow you to use images in a fair way. I think you can take a famous image, put it on your blog, talk about it and not tell the owner.
good post. will reference it. thx! đŸ™‚
Mr. Beall: FYI, I did have a copyright registration certificate from the US Copyright Office the day I went into court.
As this story has spread I have heard from a number of lawyers who have concurred with your opinion that the lower court should not have adjudicated this case. However, I wonder if there are other ways to look at the case. Was it strictly a copyright case? Or could the judge have viewed it more of an issue of property? Even though the Copyright Law is clear on the issue of jurisdiction, isn’t it possible that the small claims court, as more of a binding arbitration court, would indeed be able to hear a case such as this? Whatever the case, the judge seemed to have no problem at all ruling swiftly and confidently. And the defendant never raised the issue of jurisdiction. So who is to say others might not have success with a similar approach.
Just a quick follow-up: I’m happy to say that all of the talk about jurisdictional issues did not prevent Ms. Miller from paying the judgment. She took every one of her 30 days to pay it. And she felt the need to write a couple of colorful things on the check. But I have the payment in hand. Though it seems she is still not prepared to graciously admit her mistake and be responsible for what she did, I hope my experience will be an instructive lesson for other business interests who think they can steal creative works with impunity.