Sunday, January 3, 2010

Dan Heller And PicScout CEO Offir Gutlezon Clarify Interview Points

The following is an exchange between stock photography industry analyst Dan Heller and Offir Gutelzon, CEO of PicScout,  clarifying points in my interview of Offir's Gutelzon. Original interview excerpts in bold type.

"...images for Image Tracker must be Rights Managed..."

Dan: This is a mis-statement.  A better way of saying this is that, historically, most ImageTracker clients have been agencies, and they made a business decision to only submit Rights-Managed images because of the difficulty in tracking whether any given use of a royalty-free image is, in fact, an infringement.  However, this anecdotal fact is not a requirement of ImageTracker. Since the system merely reports on the images it finds, this can be used for more purposes than just finding infringement. Clients could track image uses just to see the kind of distribution it's getting, among many other reasons. –

Offir: I totally agree with Dan's remark, about the technology capabilities, however the current implementation and business model of the image tracker is relevant for Rights managed images

Dan: It's also not entirely true that it's impossible to track and pursue RF infringements either. Despite the fact that multiple agencies could license the same images, tracking sales is still possible because those agencies are the sole distributors. Therefore, if an RF image is on a site that has does not have an accounting of where they got it from, this is as persuable an infringement as an RM image.  In fact, the music industry does this things way now that there are unlock songs being sold. Copyright law is very frank and basic here: unless you can show where you got the image from and demonstrated that you've licensed it legally, it's an infringement. Courts have never ruled differently on this count.

Offir: Again, this is purely a business decision to go after RF or not, our current clients have decided not to.

"The primary image usages should also consist of commercial web sites in order for the product to be of value in terms of revenue recovery."

Again, this is a statement based on historical behaviors of agencies, not necessarily the reality on the ground. Editorial infringements are not only possible, but are more lucrative when you combine statutory damages with the frequency of multiple uses. There are problems with tracking editorial-based websites beyond the scope of this discussion, but the quoted statement above is not actually true. –

Offir: Again, a business decision for the ImageTracker clients.

"If your images are represented by one of the agencies working with us, you are safe."

This is not quite accurate, and can be quite misleading--potentially to a point where you can misrepresent your own agency clients. Just because an agency may use PicScout to track its images doesn't mean that the agency will pursue a claim against any given infringer. They may choose that it's not worthwhile, or they might not have the time or resources to deal with all found infringements, or they might even negotiate some sort of other deal with the infringer that may not be in the best interests of the photographer. The reality is that far more infringements are "found" than are actually pursued, and it can be very misleading to suggest to photographers that they are "safe."  (One might sign up with an agency that a photographer knows uses Image Tracker, learns that his image infringements are not being pursued, and then files a misrepresentation claim against PicScout based on Offir's statement above.) 

Offir: By safe I refer to a level of security – PicScout provides the means, but the action rests with the agency.  In context of the entire business, ImageTracker provides the ability for photographers whose images are represented by an agency to have claims pursued by the agency – so it does require the agency to pursue.  The photographer should be aware of his/her own images and talk with agencies about their infringement follow up. 

Dan: Furthermore, different agencies have different terms in their agreements with photographers--some of the major agencies have full and exclusive "rights of representation" to photographers, such that they are the only ones who can pursue infringement claims. Other agencies give photographers the right to pursue infringement only if the agency chooses not to. In this case, it is perfectly within the rights of the photographer to sign up with Image Tracker, find infringements, present them to the agency, and if they choose not to pursue them, the photographer can pursue them himself.

Offir: PicScout is continuing to expand its partnerships and will announce a relationship with a large photographer platform.  Part of this announcement will be to evaluate a business model that will enable PicScout to offer ImageTracker directly to photographers.

Dan: One of the many reasons why I, personally, never signed up with an agency is because of their lack of assertiveness and strength of conviction in pursuing infringements. In short, agencies don't have a strong spine. I think Image Tracker is an excellent way for photographers to regain control of their own domain. Which leads to this quote:

"If you want to get reports directly from us, you should be aware of the efforts you'll have to make on your own behalf and the necessary fight you face to prove your rights, even when a case may seem clear."

Dan: This sounds more onerous and off-putting than it actually is. I'm not sure PicScout should be making statements about how easy/difficult it is to pursue infringements.  If your images are registered with the copyright office, and the infringement is bona fide, then a good copyright lawyer will take this on contingency, and the process is technically simple.  Now, that said, the real question is how much you want to scale up this kind of business model. Going after an infringer here and there is one thing, but if you're going to sign up for ImageTracker, chances are you're going to make a full time job out of this.  It's up to every individual to make that assessment without being influenced by PicScout on what is or is not worthwhile.

Offir: We encourage every photographer to evaluate what business approach is best suited for themselves – PicScout is committed to every image getting it’s credit and we applaud agencies and photographers who choose to pursue and protect their images through proper use.

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