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Can a Kinder, Gentler Approach to Copyright Enforcement Work?

Interview by David Walker



Businessman Glen Carner launched Copyright Services International to provide image tracking and copyright enforcement services to photographers. In contrast to aggressive tactics used by some stock photo agencies to collect fees and penalties for unauthorized uses (see "Agencies Step Up Copyright Enforcement As Infringers Fight Back" in PDN's January issue), CSI asks nicely on behalf of its clients for standard usage fees without penalties. Carner explains why CSI is taking a friendly approach.

PDN: When did start Copyright Services International, and why?
Glen Carner: I own a small art sales company called Hawaiian Art Network. In 2009, we got into the stock photo business, and there was concern by our photographers about the infringements they were seeing online. We teamed up with a well-known image tracking company, and we started pursuing infringements. We became fairly successful at collecting revenue retroactively, so we created CSI to take the lessons we learned, and offer [recovery] services to individual photographers.

PDN: Is copyright infringement such a widespread problem that there's a profit to be made by starting a company like this?
GC: The data we have collected shows about eight infringements for every one legitimate license. The internet has made infringement commonplace. We're not making money like gangbusters, but photographers want the protection, and they can make money retroactively. Our goal is to offer them a solution.

PDN: How does the service work? You get image usage reports from the tracking company, and then what?
GC:  If the photographer confirms that a use isn't authorized, we'll move the case out to a collections partner.

PDN: What's a collections partner?
GC: We are working with a number of folks whose role is strictly to ask for the license fee that would have been paid up front had the [infringer] licensed the image legitimately. No penalties are included. We won't even mention copyright in our initial pursuit, and this is unique to CSI. No threats of attorneys, or any of that.  We invoice them and offer them a retroactive license. That feels more palatable to the image user. And it feels good to the photographer, even if it's less revenue than what copyright law can provide. It's a great balance we're trying to strike between an attorney [threatening to sue] and letting the user go with just a simple take-down notice.

PDN: It sounds like you're bending over backwards to be nice to people who are stealing images. Why is that?
GC: In a way, we are bending over backwards because of our experience in stock photography. When we started pursuing infringements at Hawaiian Art Network, we found a lot of attorneys who were willing to pursue [infringers] to the fullest extent of the law. Many small businesses out there do not understand copyright law and why taking an image from Google Images or another website is illegal.
     Look at the push back against copyright law. I've been labeled a copyright troll by websites that think it's unfair to ask businesses to pay for stock photos retroactively. It's embarrassing and very one-sided. So I'm trying to find the model that can be a middle ground to all parties, where people use the images, and we find a way to collect on that without the heavy-handed use of copyright law. You can call it bending over backwards, fine, but it [recognizes] reality. We don't even refer to unauthorized users as infringers. We call them "image users." And if they're willing to license the image retroactively, great. But words like theft--we don't find those kinds of words productive at all, and we also don't find them sustainable over the long term, for the benefit of the industry.

PDN: You're painting yourself as a nice guy, but ExtortionLetterInfo.com has posted heavy-handed demand letters that you've sent out, and they've taken you to task for it. [editor's note: Extortion Letter Info helps infringers fight legal demand letters for unauthorized use of images. For more information, see "Agencies Step Up Copyright Enforcement as Infringers Fight Back" in our January issue.]
GC: CSI does not send out any kind of heavy-handed demand letter. We approach this as a licensing matter, not an infringement manner. ExtortionLetterInfo [ELI] has recognized this as a step in the right direction. If the infringer dismisses what we consider a reasonable offer, then the matter goes to the photographer and its up to them whether or not to go to an attorney to pursue it further.  I think [ELI] is several people representing a group of people using images.  I think it's helpful to listen to them, and try to find a balance. [Some photographers] think that's silly, and that we should come in as heavy-handed as possible on every case, but I don't believe that. Is the model always going to be attorneys asking $2,000 to $10,000 per image in every case? Or are we going to find a model that is compatible with  lower level infringements that are frequently not worth an attorney's time?

PDN: The argument against  your model is that it imposes no penalty for taking images without asking. So why would anyone ever bother getting a license up front, if there's no penalty for theft?
GC: That is a great question. I agree with you: if there's no penalty, then why would they [license legally]? I'm sure penalties were a deterrent for some folks. But are the penalties really a deterrent, considering the magnitude of infringement on the internet? Illegal use is vastly greater than legitimate use. So rather than fight that, we're trying to find a solution.  
    I wish penalties [worked]. I'm sure when this [interview] is posted I'll get criticism like, "Mr. Carner is naive."  But you can find many images with thousands of [unauthorized uses.] There has to be some model to monetize that so photographers can be appropriately compensated for small infringements. If a small business does not want to pay, there is legal recourse available to the photographer but our [approach] is a good first effort.

PDN: What criticism are you getting from photographers or other agencies about your position?
GC: We have had photographers who didn't want to work with us, in the retroactive licensing side of it, because they felt the recoveries were too minimal.

PDN: Are sites like ELI making it harder to collect fees from infringers?
GC: I believe that if you receive a letter from an attorney, you are going to get on the internet and look for any justification for why you shouldn't pay. And Extortion Letter.com provides that justification. That didn't necessarily make [collection] harder because the law is ultimately on the side of the photographer, but it certainly provides people with a reason [to resist] paying for what they have used.
    ELI is less about resolution, and more about  providing fuel for people who feel wronged [by] receiving [demand] letters for unauthorized use. Despite that, they provide some good information about what questions to ask if you receive a letter. They frequently encourage their users to confirm a claim, and [instruct them on] how to check the validity of copyright registrations. These are important things for the infringer know, and they should have a place to get advice in their defense.
    
PDN: You say you're going after commercial users, not bloggers. Why is that?
GC: There's a monetary and ethical issue there. Photographers and attorneys don't want to pursue cases that are going to take a significant amount of time [with little return]. It becomes less palatable to pursue those [blog] uses for a significant amount of money, versus pursuing a for-profit company using an image to promote goods and services. There's a much clearer justification for demanding serious compensation from for-profit companies.  I don't feel comfortable pursuing mom and pop blogs that are not profiting from the use of the image.  

    
PDN: How are you getting paid by your clients?
GC: The collection partner reimburses the photographer and then we bill the photographer for our services.

PDN: What percentage of recovered fees are you collecting?
GC: If we found [the unauthorized use] through our service, then we bill the photographer 50 percent if the case is successful [ie, the infringer paid the retroactive license fee or a settlement was reached]. If the photographer found the case and provided it to us to build up the evidence and pursue payment, then we bill the photographer 40 percent if the case is successful.

PDN: if someone refuses a request to pay a retroactive license fee, do you wash your hands of the case?
GC: The photographer might then pursue it [with their own attorney.] If their attorney is able to collect, then we bill the photographer for our fees.

 

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