Having lived with widespread infringement of my copyrights for almost eight years now, one would think I’d eventually grow accustomed to it. But stumbling upon infringements still feels just as violating. It has taken decades to hone my craft. The miniature dioramas I create requires often tedious and time-consuming work, not to mention a heap of expensive equipment. So I have a difficult time understanding why strangers feel they have agency to exploit the value of my work, using it as free content to draw interest and attention to their own brands. As such, I’ve become a bit of a begrudging crusader in pushing back against the commercial exploitation of my work.
My experience has illustrated that there is a great deal of confusion about the issues of copyright in our digital age. Admittedly, proper licensing of online assets can sometimes be tricky for the uninitiated. But I make myself very easy to reach and my images license for reasonable rates to those who take the time to contact my studio for authorization. Still, far too many people default to the presumptuous notion that if something can be found online it can be automatically taken and used as free content.
If there is one demographic that I would hope would understand the importance of respecting intellectual property rights it would be others working in creative fields. So it was perhaps an additional measure more violating when in February of this year I discovered a couple of my copyrighted photographs published on Pinterest with Costco logos and other text over them, which made it appear that they had been used in some kind of advertising campaign.
We subsequently discovered that the images apparently were pinned from the website of a Chicago-area graphic designer named Andy Jansma. I found my images posted on his website, along with some other images of another photographer working in the miniatures genre. They seemed to be displayed among other images representing the designer’s work on advertising campaigns. A disclaimer at the bottom of the website suggested that he valued his own copyrights as it warned: “Don’t Steal My Stuff.”
Mr. Jansma never sought permission or a license to use my photographs. As my work has been published extensively around the world, and has a unique and easily-distinguishable style within its genre, it would not have been difficult to discern their ownership via a reverse image search. It seems Mr. Jansma never went to the trouble. The fact that the infringement spread beyond his site to other places only amplified the transgression, as did a lack of attribution (though credit is obviously not the same thing as permission).
There was no date associated with the post. A bit of research on the Internet Archive suggested that the images had been indexed on that website for at least a few years. Presumably, Mr. Jansma didn’t go to the trouble and expense of designing and hosting a website for fun. Sites like this are used by design professionals as an online portfolio to generate business for themselves. In this case this was being done with the use of attention-grabbing images that I created and that are not in the public domain.
When infringements like this are discovered, and I make a decision that it ought to be dealt with, my proverbial meter starts ticking immediately. Not only is there the obvious loss of licensing revenue (which could be a lot if these images actually were used in a commercial campaign for a large brand like Costco) but time must be diverted from actual revenue-generating work to launch an investigation of what happened. There were letters that had to be drafted to the graphic designer and the the legal department at Costco. DMCA takedown requests had to be completed and sent to Pinterest and to Mr. Jansma’s ISP to get the images removed as fast as possible. Searches for other ancillary infringements were done. A quick e-mail or call to my legal team was made. Basically, it burns a lot of time, is a tremendous hassle, and a diversion of energy that otherwise would go into running my business and working on creative matters. However, I view some action as a better alternative than allowing people to exploit my work with impunity.
Beyond that there are other intangibles that are difficult to quantify. For instance, a significant amount of my studio’s revenue is derived from commercial work that I do for advertising agencies. But agencies may not hire me for their clients if I’ve done work for a competing brand or if there is another campaign in the same market that is using my miniature work. This has actually happened to me in past years.
One summer I was hired by a well-known advertising agency in NYC to work on a print campaign for a major credit card company. I was several weeks into the work when some of my images appeared coincidentally in print ads for a prominent bank, which was also a major credit card issuer. We had licensed the images many months previously and had no idea when they would be used. My clients saw the print campaign in a national magazine and panicked. They were uncomfortable having me continue with the work for obvious reasons. An advertising agency wants something unique and discernible for their clients, not something that looks identical to what’s already running in the same market. It was an unfortunate coincidence that it would have been difficult for me to foresee. Still, I felt bad about it and completely understood their decision to have me discontinue the work. To their credit they paid me for what had already been shot. And the same creative director came back to hire me to produce work for other clients years later. Though it was a valuable lesson in yet another reason why it is not great to have complete strangers slapping commercial logos over your well-known work without permission. It had bearing on this situation as I simply had no way of knowing the true brand damage of having my images appear online – especially on Pinterest – with Costco logos over on them.
Costco legal responded to us very quickly that they had no record of the campaign and were confident that it was not real. Several days after reaching out to Mr. Jansma he replied that he was very sorry for his unauthorized use of my photographs. He claimed the ads I found on his website were merely concepts that he created for an agency while he was freelancing and that they never made it to print. He claimed he didn’t receive any compensation for the ads in question and ensured he would no longer use the images. He said he realized now that what he did was wrong and he’ll be more careful in the future.
Perhaps Mr. Jansma was completely sincere in his apology. I have to say though that in my years of experience with calling out copyright infringers, everyone is always sorry when their infringement is pointed out to them. What was less clear was that he was truly sorry for the scope of damage he had done and the trouble he had already caused me to that point. So perhaps one could forgive me if I consider “sorry” a devalued currency and wholly inadequate for the amount of trouble situations like this cause me. I suppose I ought to have been grateful to him for not throwing a twenty-something intern under the bus a I have to say that 9 out of 10 companies that I catch in the act of using my copyrighted work without permission claim some young employee (who didn’t understand how copyright works) was to blame. In fairness, Jansma claimed his unauthorized use of my work had been done when he was “a younger designer.”
Another common trope that was unsurprising was the idea that his use of my images provided him no compensation. This isn’t really true. First, he said that these images were used in some connection with work he was doing (as a freelancer) for an agency. Presumably he was paid for that work and the images had some value for the work being done there, not a cent of which came back to the person who also made the images. The thing is, visual art has value, no matter the length to which people go to ignore or devalue it. People take and use my images because some find them colorful, humorous, interesting and attention-grabbing. And those images obviously did not exist before I created them. So certainly, I recognize that Mr. Jansma didn’t print out my images and sell them as posters at a craft fair. But he still realized their value in their use, both for the speculative work he did as a freelancer and also for the years they appeared on his website, ostensibly as examples of campaigns he had worked on.
I have to push back against this false value proposition fairly frequently, as an assurance that no harm was done because no money changed hands. But I refuse to have an infringer impose upon me the notion that the scope of my damages ought to be defined solely by how much the infringer did or did not benefit financially from the unauthorized use of my work. The trouble they’ve caused me is at least an equal part of the equation, despite the general tendency to conveniently ignore it.
A related fallacy is that the infringements were removed as soon as they were identified so all is well and we should just move on with our lives, no harm, no foul. Imagine getting pulled over by the police for speeding and telling the officer “Well, I stopped speeding as soon as I saw your flashing lights in my rearview. So I’m no longer doing anything wrong and you should let me go on my way without further consequences.” As much as infringers would like to believe that by ceasing their infringement reconciles the issue, a matter of law, I think the court generally weighs it in a more binary fashion: you either infringed copyrights or you didn’t. That you stopped when caught doesn’t usually absolve you of liability.
If this situation were an isolated incident I might have the luxury of looking the other way and just moving on. However, the unauthorized use of my work has been a rampant and constant war of attrition. Because I felt that there was a commercial element to this infringement, compounded by the fact that the infringer was a creative who in my estimation should have demonstrated a higher standard of respect for copyrights (and again, the disclaimer on his website suggested it was indeed on his radar), I decided that I wanted to offer Mr. Jansma a nominal settlement fee by which he could take responsibility for this matter and to settle it amicably and privately. In response, Mr. Jansma asserted that he wasn’t going to pay me anything so I could do whatever I wanted.
This is also a fairly frequent response. Just as people seem to have trouble identifying the ways they benefitted from their unauthorized, unlicensed use of someone else’s visual art, the suggestion that they be asked to pay for something they took and used (for years in this case) seems fairly absurd to them. Most often companies will automatically begin to try to negotiate the value of settlement offer, which also is pretty offensive to me, tantamount to being caught shoplifting and then trying to negotiate the value of the goods found stuffed in your pockets. In Mr. Jansma’s case, he flatly refused to pay me anything to compensate me for the trouble he caused me. (And in the comments below he seems to regard my demand to be compensated for being exploited as somehow unrighteous.) So I had no choice but to escalate the matter.
Following the initial exchanges with Mr. Jansma in February, he was contacted many, many times with offers designed to settle the matter by taking responsibility for his actions. At a certain point my Seattle-based lawyer was involved but to no avail. Unfortunately, despite what I think was significant patience on my part we were unable to come to a resolution as Mr. Jansma did not accept a settlement. The matter subsequently was handed off to my Chicago-based counsel which made one last with overture to Mr. Jansma. When he failed to accept it a complaint was filed in US District Court for the Northern District of Illinois after which there seemed a renewed urgency on his part to settle. As of the time of this writing, the matter remains unresolved. The first hearing in the matter is coming quickly.
Seeking a remedy from the court is not something that I take lightly. In fact, I always do everything I can to avoid burdening the court by adding another case to their docket. I’m often contacted by photographers who find themselves in situations similar to mine – with people and companies using their work without permission or license – because they have read in the press about past cases in which I was a litigant in defending my copyrights from infringement. After hearing about their situations, and advising them above all to seek legal advice from an attorney, what I tell them most often about my own situations is to always do everything that you possibly can to try to work out a resolution and to only involve the courts as a last resort. I have a very good success rate with negotiating private settlements by which companies and individuals can take tangible responsibility for their infringements of my copyrighted work. But in those minority situations were an infringer stubbornly refuses to come to an agreement, the court is always an option if they have the patience and the means.
After nine months now of trying to resolve the Jansma situation I see no other option for a resolution, besides just permitting him to get away with infringing my copyrights for years with impunity. Copyright falls within the realm of federal law and as such these matters cannot be adjudicated by lower courts. The CASE Act (H.R. 2426), which is currently winding its way through Congress, proposes a system of alternate dispute resolution for copyright small claims. A lot of photographers are excited about the possibilities of a new system, especially because many are intimidated by the potential expense of filing in federal court.
Personally, I’m not so sure photographers spending more time in any court is necessary a good thing. I really think that until someone creates a technological solution to the persistent problem of infringement – making it just as easy to remove infringements as it is to upload them – then creators will be on the losing side of the issue. Though in the meantime it is my sincere hope that pushing back against infringements, and illuminating challenges and issues of copyright through posts like this, will make a difference in motivating people either to stop exploiting copyrighted work without permission or license or to actually taking responsibility when exposed for it without doing even more damage by being obstinate about it.