Santa Monica photographer Michael Grecco posed Janet Jackson against a splatter-paint backdrop wearing her signature hat and a single hoop-and-key earring for a portrait he shot in 1989.
The photo became an iconic representation of the performer, said Grecco. So iconic that this year, on the 30th anniversary of Jackson’s hit song “Rhythm Nation,” the image began circulating on a slew of blogs and mainstream media sites without his permission, he said.
“Everyone claims they see the picture on the internet, so it must be available,” said Grecco.
Angered at seeing his work used without compensation, the 38-year professional photographer began negotiations with three major media operations, over their unauthorized use of his copyrighted material. Grecco subsequently received five-figure settlements with each company.
Scott Burroughs, a partner at Doniger/Burroughs, a Venice law firm that has represented numerous artists in copyright cases and is handling a portion of Grecco’s claims, said that over the last decade what started as a trickle has become more of a flood.
This is due in large part to a handful of notable court cases, advances in technology that make it easier to identify misuse, and the growth of industry associations that work to educate photographers about their rights, said Burroughs.
“It’s a function of the photographers becoming more aware of their rights and attorneys being more willing to assist them in pursuing their claims,” he said, estimating that thousands of commercial infringement cases occur across the country each year.
Grecco said he is slogging through 35,000 possible instances of copyright infringement and he works with a team of eight law firms throughout the country to address illegal use of his photographs.
Doniger has handled two- to three-dozen photo copyright cases in the past year or so, getting about 95 percent of its clients a financial payout, said Burroughs.
While he would not say how much it generated from these actions, “revenue from the photography cases has certainly increased our bottom line. It is difficult to put a number on it, however. Our involvement with these cases has more than doubled in the last year and they have resulted in hundreds of thousands of dollars going to photographers.”
While many cases end in settlements in which terms are typically kept private, some that are public – ones that make it in front of a judge or jury – have ended in million-dollar judgments. In August, a judge upheld a $1.6 million jury verdict in favor of Andrew Paul Leonard, who, represented by Doniger, sued Stemtech Health Sciences Inc., for using his photographs on its websites, publications, and video presentations without permission.
While the internet might be to blame for facilitating copyright infringement, a changing media industry has also added to the challenges for photographers, said Mickey H. Osterreicher, general counsel of the National Press Photographers Association. Osterreicher, who has been a member of the organization since 1973, said that while its primary function used to be securing photographers’ rights to shoot in public spaces, it has evolved into serving largely as a resource for copyright protection.
When Osterreicher began his career, most photographers worked on staff at news outlets, so the copyright to their work vested with their employer, he said. That model has shifted, with the ranks of staff photographers shrinking and the pool of freelancers or independent photographers growing. These professionals pay for their own equipment and insurance and must register the copyright to their work themselves.
“As more and more companies are laying off staff … you either, as a photographer, find a new line of work or you freelance,” said Osterreicher.
While the copyright process should become part of every photographer’s work flow, many still neglect to register their images, he said, so even if a photo is used without permission, the photographer is only entitled to actual damages – damages that can be proved in court.
“When I teach copyright and I talk about it, my first slide up is, ‘It’s complicated,’” said Osterreicher. “It can be less complicated if you register prior to the infringement.”
There are an array of tools and online programs available to help streamline the copyright process for photographers. Google has a reverse image search process, which uses a picture as its search term and then locates other uses of that image on the internet, that can be used to identify possible copyright infringements.
So does Image Rights International Inc., a Boston company that allows photographers to upload their images to the site and then uses code to scour the internet, compare the “unique fingerprint” of the uploaded image to other photos on the web, and alert the photographer to a possible infringement if a match is found.
Brian Wolff, veteran photographer and founder of International Intellectual Property Inc. in Yardley, Pa., said these are just two of the tools he uses to pursue copyright infringement cases. Wolff, who has covered wars and helicoptered over active volcanoes, said these images lose their exclusivity when they’re widely and illegally distributed.
“You used to be famous for 15 minutes when there was television. Now you’re lucky to be famous for 12 seconds,” said Wolff.
A spattering of noteworthy lawsuits in recent years have encouraged both attorneys and photographers to seek legal remedies for copyright infringement. In 2013, photographer Daniel Morel was awarded $1.2 million in a case against Agence France-Presse and Getty Images for their use of photos he took in postearthquake Haiti. His pictures, originally posted on Twitpic, also were used by The Washington Post, ABC, and CBS.
In December, New York artist Richard Prince – who has been sued for copyright infringement before and is notorious for appropriating others’ work – was sued by photographer Donald Graham for allegedly reproducing his photo and using it at an exhibit featuring blown up Instagram photos.
“I call (Prince) a misappropriations artist. I don’t even know about ‘artist,’” said Osterreicher. “He just keeps taking people’s works and thumbing his nose at anyone who tries to bring a copyright claim.”
Filing a copyright claim might get easier. The Copyright Alternative in Small-Claims Enforcement Act of 2016 was introduced in Congress in July. The bill would create a small-claims court for copyright cases and allow photographers to seek damages even if they can’t afford lawyers to file a full-fledged suit.
While Osterreicher said this tool could prove helpful, the overarching issues of copyright infringement are much broader. Photography as a whole has become universally accessible by nearly anyone with a smartphone, and the line between professional photographers and everyday social media users has blurred. On Facebook alone, there are more than 450 million images uploaded every day.
“That itself devalues images and people don’t realize there are a number of people who earn a living by taking pictures,” Osterreicher said.