Are You a Photo Thief?

Have you ever gone on Google or Duck Duck Go and searched for an image and upon finding The Perfect Image, right-clicked save-as and uploaded to your site, blog, Facebook, Instagram, or Twitter?

If you have, you might be a photo thief!

On several photography forums I frequent, the question of whether it’s okay or not to grab random images off the internet. Invariably, the participants divide into two camps: for and against.

It seems most of the “for” group are 1. misinformed, or 2. entitled teen brats, or 3. blatant thieves. Mostly #1.

Before I go any further, I need to slap a disclaimer on this post: I am not a lawyer. This is not legal advice. This post is purely for entertainment and educational value. IF you believe you may have infringed on a photographer’s or an artist’s copyright by mistakenly copying and reposting an image, I strongly encourage you to take the image down ASAP. If a photographer or artist contacts you with a DMCA or an invoice, you should consult a lawyer.

A Typical Scenario

A photographer uploads a cool picture of a surfer nailing a wicked curl onto the Internet somewhere. It doesn’t matter where exactly.

A random guy…let’s call him Kevin. Because every Kevin I know is annoying. Kevin does a Google image search for surfers, and he stumbles across this photographer’s image.

“This is cool!” he shouts. Because Kevin is the sort of guy who talks to his computer. Loudly.

Kevin, being an aspiring photographer/photo retoucher, downloads a copy of this surfing image, slaps a couple filters on it, and reposts it on a different social media platform. “Look at this cool surfing picture I found!” he captions it. Because Kevin is redundant.

Kevin’s friends like/fave/heart it and reshare it on their own social media. The image slowly travels across the internet. A couple of months later, someone spots the image. We’ll call this guy Bert. The image looks familiar. He thinks for a minutes, and realizes: Hey, it’s his friend, Ernie’s image! Ernie took this photograph months ago.

Being a good pal, Bert notifies Ernie that this surfing picture has been redistributed on various social media platforms online.

Ernie, slightly miffed, sets out to track down every website and social media platform that has hosted this image and files DMCA with each and every one of them. He sends invoices to the sites that appear to either have a large viewer base or are commercial.

Common Arguments and Misconceptions

• “If it’s noncommercial, it’s okay.” “I don’t make money off this.” Even if you’re posting the images for fun, on your social media channels or on your blog, it’s still copyright infringement.
• “If it’s online, it’s public domain.” Nope. Unless the photographer explicitly assigns creative domain or public domain status to an image, its default status is copyrighted all rights reserved.
• “There wasn’t a @ symbol or watermark on it.” It’s still automatically copyrighted, per USA Copyright laws. Copyright protection is automatically assigned in several other countries, as well.
• “I credited the photographer, so it’s okay.” Unless you asked for and obtained written permission first, no, it’s still not okay.
• “It’s free exposure for the photographer!” Exposure does not pay bills. Besides, it’s a very rare situation in which exposure does pay off. It’s a lightning-in-a-bottle scenario. Unless you’re Kayne West, that’s not likely.
• “I didn’t know!” Ignorance still isn’t a legal defense.
• “It’s a victimless crime” (aka) “It doesn’t hurt the photographer because it’s all virtual.” Actually, you’re depriving the photographer of the opportunity to license the image and make a little cash. Virtual goods have value. (See: bitcoins)
• “If I embed the photograph so that it links back to the photographer’s site, it’s okay.” With a couple exception, this is no-go as well. If you’re a noncommercial blog, Getty allows this practice, though. Be mindful, if you have affiliate links or ads on your site or blog, you’re considered commercial, even if it’s only pennies. EU allows the embedding and backlinking practice…for now.
• “If they don’t want people to steal it, they shouldn’t post it online!” This is like saying “If she doesn’t want to be sexually harassed, she shouldn’t dress like that.” It’s victim blaming, and a very slippery slope to get on.
• “I have a disclaimer saying I don’t own the photographs. I’m okay.” Saying it isn’t so doesn’t mean it’s true.
• “They’ll never find out.” aka “I’ll never get caught.” That might’ve been true 15 years ago. Nowadays, there are services to help track down stolen pictures.
• “Everyone else does it.” Still illegal. Something something jumping off a bridge.

The Next Steps

So, you might’ve realized that you’re guilty of photo theft. Here’s the good news: in coming to this realization, you’re leaps and bounds ahead of a majority of the internet users.

Your next step should be to remove any images on your site/blog/social media platforms that weren’t created by you or weren’t obtained from a creative common site (eg Wikipedia).

You should also make note of when and where you got the original images, what it looked like (in case you had several), where you posted the image, and when you removed it. This is in case your lawyer needs the info. Stick the doc somewhere on your hard drive.

“Wait. An lawyer?”

Yeah, that’s the bad news. Even if you proactively remove these images, nothing on Internet is erased forever. The copyright owner can still send you a “pay or else!” demand invoice.

In rare cases, this can escalate to civil courts. If this happens, the photographer is likely suing you for loss of income or theft of goods, rather than copyright infringement. That’s why it’s good to keep records — so that it’s easier for your attorney to try minimize your losses.

A copyright infringement lawsuit is very expensive to pursue legally because that’s a Federal matter. (This may change in 2019). The likelihood of a photographer going that route isn’t likely unless s/he thinks you have deep pockets that will justify the expense.

Even if the odds of you being sued are slim, it has happened. (See here and here).

Safe Images

If your site or blog are ad-free and product free (ie you’re not selling something), you likely are okay to use Getty’s stock images via the embedding feature (info here). You can find Creative Common images on a number of sites like Wiki, Flickr, Pexel, and Unsplash.

Tread carefully, though. These sites don’t always require photographers to provide model or property releases, and it’s entirely possible that the photographer didn’t obtain the appropriate releases prior to uploading.

Another source is the Library of Congress. The images in their files are public domain, and they have well over 1.2 million digital images. However, it can be tough to wade through the files using their search engine. I hear they’re working on improving it, though.

Another safe source of images? Your own camera!

Oh, and…Kevin?

Kevin. He’s in trouble.

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