Q: Tell us a bit about yourself, and how you began working with Pixsy.
I have been a professional photographer for many years, first in New York City, and now in Berkeley, California. My work is widely collected, licensed, and published. I am an Adobe Influencer, a Moab Master, and a Zeiss Ambassador. I am also a popular workshop leader, and the author of eighteen bestselling photography books, including most recently Achieving Your Potential As a Photographer: A Photographer’s Creative Companion and Workbook (Focal Press). You can learn more about my work and career on my website, www.digitalfieldguide.com.
I have been writing a blog, and posting images to Flickr, since 2005. Once I began putting my work up on the Web, it didn’t take me long to realize that I was on the horns of a very serious business dilemma. Everything I posted was subject to image “appropriation,” a polite term for people using my images without compensation or a license. On the other hand, if I didn’t post images to my blog or Flickr stream, then no one would know about me, and I would lose a large part of my assignment and licensing business.
With no better choice, I decided that posting my imagery and accepting a certain amount of theft, just as retail storekeepers accept some “spoilage,” seemed like the best of the two options.
In early 2015, I was approached by Pixsy, www.pixsy.com, which uses automated image recognition software to discover infringements on the web, pursues commercial uses, and splits the eventual license fee with the photographer. I have to admit that I was originally somewhat skeptical but after evaluating Pixsy’s offerings, I decided to see how well the service worked on a trial basis, particularly since there are no upfront fees, and Pixsy only gets paid if they recover money on my behalf.
Q: How does Pixsy work?
Once you open an account with Pixsy, you give them the link to your work on the Web (for example, your blog feed, Flickr stream, 500px link, etc.). You can also upload images directly from your computer.
Pixsy then runs its image recognition software to find infringing uses.
Once Pixsy has identified the match, the photographer is responsible for submitting the case using the Pixsy website, indicating where the image first appeared, if there is a registered copyright, and detailing if there are any special factors relating to the image. The photographer can also set a price range for the usage, or allow Pixsy to set the price using industry standard pricing (I recommend leaving this to Pixsy).
After that, the photographer just sits back and waits for the results. Incidentally, a photographer working with Pixsy is not supposed to negotiate directly with an infringer, except to confirm that Pixsy is the photographer’s agent. I personally greatly appreciate this, as this kind of situation is stressful enough without having to enter into negotiations myself.
It’s worth noting that Pixsy cannot pursue all matches their software comes back with and even when the photographer submits a specific instance of infringement, Pixsy may still decide not to pursue the infringement.
If they do take the case, they will either contact the infringer directly, or at their discretion, ask one of the intellectual property law firms they work with to take the case. The photographer pays nothing unless there is a settlement, in which case the licensing fee is split 50-50 with Pixsy.
Q: You said that Pixsy “cannot pursue all matches their software comes back with.” Why not?
To start with, as good as the image recognition software is, there are “false positives”; for example, occasionally an image taken from a public place is identified as infringing a similar image so the photographer must make absolutely sure that the matched image really is theirs.
The photographer also needs to exclude any legitimately licensed usages that show up in the Pixsy image match. For example, my book covers, and the covers of translations, always appear in my searches. These are, of course, legitimate uses so I tell the Pixsy software to ignore these matches.
Q: Why doesn’t Pixsy pursue every infringement the photographer submits?
First, Pixsy is only interested in commercial uses. For example, they will not go after someone using one of my images as personal desktop wallpaper. Next, there are parts of the world where intellectual property law is not respected so there’s simply no recourse. For example, my work has been used commercially many times in Iran, the Middle East, and China, but there’s nothing to be done about this.
In a couple of instances, clients have continued using images after the licensing agreements have lapsed or expired. Generally, this kind of complex legal situation is beyond what Pixsy is able to handle (although they have been hugely helpful in identifying such uses, which I otherwise might never have known about).
Also, Pixsy cannot collect licensing fees from DMCA (Digital Millennium Copyright Act) common carrier sites, although they can and will help with DMCA take-down notices. (For more about the DMCA, and how it seems to enable theft of my work on Pinterest, see my blog story on this subject.)
Finally, Pixsy may determine that the amount that might be recovered is too small to justify the effort for any number of reasons, and they can (and do) reject cases under this catch-all analysis.
Q: What happens after the photographer submits a case and how long does that process usually take?
Once a case has submitted to Pixsy, they get back to the photographer in a day or two (using their web interface, and via email) indicating whether they accept the case. If Pixsy accepts the case, they pursue a settlement, either by direct contact, or through their network of lawyers. Some resolutions are swift, others (as one might expect once legal process are involved) can turn into a more drawn out affair.
Essentially, there seem to be two factors that go into how long resolution of an infringement will take. First, an organization with integrity will not want to knowingly commit image theft and will move to settle quickly. Second, as is not surprising, the larger the infringement and the bigger the settlement, the more time it usually takes to reach an agreement.
Q: What have been the results of pursuing infringements using Pixsy?
I have been astounded at the positive results of working with Pixsy. I’ve been able to pursue theft of my work by a wide range of culprits including institutions that should know better, such as the websites of popular consumer magazines, major museums, construction companies, and even the National Football League Super Bowl Committee. For an in-depth case study on some of my most infringed images, check out this story on my blog.
In general, Pixsy’s handling of these infringements has been professional and efficient. I have been very pleased with the licensing fees that have been generated, and also noticed an uptick of direct and legitimate licensing requests—which seems related to having Pixsy working on my behalf. I think there are image buyers out there who are coming to learn that it is less expensive and less risky to buy a legitimate license in the first place. An audit for unlicensed image usage is something that every major institution with a web presence should perform.
Q: Do you use Pixsy to pursue all of the infringements you encounter? If not, when would you use Pixsy and when would you use a different approach?
I am very pleased with Pixsy’s work on my behalf, and would trust them with almost any licensing assignment. That said, the nature of the Pixsy web software is skewed to infringements that take place on the web, and generally involve lower resolution files.
When there’s an issue involving an existing contractual relationship (for example, there was a publishing or licensing contract in place at one point, but it has lapsed, or the terms have been violated), I would work directly with my own legal counsel as this type of complex negotiation isn’t what Pixsy’s designed to do.
Pixsy, of course, is bound by the DMCA, and cannot pursue DMCA common carrier sites for licensing violations. I feel that this is an egregious situation, where the highly-valued DMCA websites such as Facebook and Pinterest get away with effectively appropriating intellectual property (e.g., my photos) if they comply with a few empty formalities about taking down purloined images. This is really a situation that calls for industry trade association action or a class-action lawsuit, as it is beyond a private company such as Pixsy, with possibly a remedy such the royalty pool used in comparable situations in the music industry.
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