Dutch market for Stock Photography Consolidates

The recent tsunami of takeovers within the Dutch market for Stock- and Press Photography continues with new developments: the take over of “Holland in Beeld“, and the merge of “Regio Stock” with “Nationale Beeldbank“, who itself was taken over by “Hollandse Hoogte” a few months back. Hollandse Hoogte was already acquired by ANP Photo during the summer of 2018, and ANP Photo itself was bough by Talpa Media, March this year. Of five agencies, which were in business last year, only three remain. And these three remaining stock photography and press-photo agencies are now entirely owned by just one owner instead of of the former five. And that one owner is Talpa Media. Will these development turn out to be a risk or a chance?

Organigram of Ownership

I wrote previously, that the Dutch market for online stockphotography had turned into a “buyers-market”, where image buyers where able to set prices for images. That’s called fierce competition. And, with declining budgets, and the bias that everything “on the internet” is free of charge, prices for photography sank to an all time low, the past three years or so. As Nationale Beeldbank itself states in his recent newsletter: “Many customers started seeking images at international microstock sites, buying for pennies and dimes.” Not quite a sustainable environment to work in, for an enterprise which has to make a profit to survive. In the proces photographers and contributors faced rapidly declining revenues, forcing them to seek an income elsewhere.

One disadvantage of large, international microstock websites is, that specialized Dutch stock images are hard to find. Collections are just to plastic and generic for most, professional images buyers. This newly formed, much larger image- and media corporation, is able to counter balance just that. Typically Dutch Collections of images, video and more can soon be found on just one (or a very few) locations. On top of that, agencies van eliminate costs by combining resources, like sales-departments and sharing infrastructure, such as servers and software (PicturePack).

There might be a downside though: contributing photographers and photo-journalists themselves will remain vulnerable. When they left one agency in the past, for another (just to mention one example), they wil now have a hard time finding a new home if assignments are slowing down and revenues fall. On top of that, some critical issues are not jet resolved. Unclear is still, how prices for licensing of photography wil develop. Terms of contracts are even so still unclear. What happens with photographers, who have images available with multiple agencies, that are now somehow merged? Many image professionals are await of answers to their questions and remarks made earlier. The Dutch Association of Journalists (NVJ / NVF) is following the story as it unfolds. So are many other in the industry. Curiously and interested, but with just a but of “distance”.


Google Shows IPTC Fields in Google Images

Breaking news from CEPIC, the Center for the Picture Industry in Europe, yesterday, on September 27, 2018. Their talks with Google resulted in another succes for the photography industry.

Quote: “On 26 September, Google launched an important change in showing images online : creator and credit of photos as filled in the IPTC fields will now be displayed next to the image in Google Images.”

Google’s new development to show Author and Credit Line on Google Images is a very positive step forward for all visual content creators and their rights-holders. It is without a doubt a determined move showing that visual content is not an anonymous creation but the result of the creativity of an identifiable person.

This change follows a number of meetings with Google and consultations with stakeholders groups within the picture industry in Europe. As a founding member of the IPTC photo metadata group, CEPIC will work with its members toward a proper use of IPTC fields, to make picture professionals aware of best practices for using IPTC metadata to properly attribute their content with right information from the start.”

Google Images with Credit Line

Personally I believe this is one of the best results, that CEPIC made in the past year or so … It’s becoming clear to Google and it’s audience, that images and photographs are not Public Domain, but often the result of hard work and large investments by photographers, who are often dependent on an income, generated through The Internet. This is an important step towards educating the audience, that images are often copyright protected and that the photographer has a say in whether of not an image is used for a specific purpose or on a specific location.

Google Images with Credit Line

Link to the Google Blog Post, explaining these new developments.


What makes a Good Stock Photo?

A while ago I attended a meeting in Berlin, in which a Stock Photography Professional (Art Director) told us about his work. Especially about the selection proces of photographic images his company  are offered on a daily bases. Below is a brief oversight of terms, he and many of his colleagues use to determine weather or not to accept images for their database. Most professional photographers will understand these factors, so I am not going to elaborate to much on them. Just a reminder what to look for, when you’re producing, processing of offering your images for upload Or when you are confronted with a selection after you have uploaded … 

Aesthetic Attributes

  • Quality of:
    • Composition
      • Symmetry
      • Golden Spiral
      • Rule of 3rds
    • Depth of Field
    • Lighting
    • Creative Approach
Commercial Relevance

  • Subject Matter / Concept
  • Visual or Commercial Trends
  • Fills Content Gab
  • Accuracy in Details
  • Styling Trends
  • Free of IP Issues
  • Tech props – current / outdated
Scarcity / Uniqueness

  • Uncommon Topic
  • Diversity & Inclusion
  • Scarce in the Market
  • Exclusive Content
Difficulty / Acces

  • Location Acces (Areal, Hospital, etc.)
  • Model & Property Releases
  • Post-Production Quality
  • Quality of Models
  • Quality of Styling
  • Streetcasting / Professionals
Emotional Impact

  • Authentic / Real
  • Emotionally Moving
  • Narrative: “Tells a Story”
  • Visually Dramatic
  • Fosters Empathy
Technical Sufficiency

  • Sharpness / Focus
  • Noise
  • Color Aberrations
  • Straight Horizon Line
  • Color
Care in Processing

  • Quality of Retouching
  • Filters: seamlessness
  • Color Balance / Profiles
Usage Factors

  • Copy Space / Room for Text
  • Part of a Series / “Campaign Able”
  • Confirms to IAB Ad Formats
  • Flexible Cropping Options

 


An industry in trouble!

As many people know, I am involved in stockphotography. Have been since I’ve started out as a photographer in 2004/05 and I’ve seen a lot of industry developments since then. For good and for not so good. Most of these developments were “interesting”, causing me to learn a lot about photography in general and the industry in particular. And I always trusted that the future would be a more or less a good one. At least good enough, to stay in business and do my thing.

Lately my confidence in a good future is somewhat in decline. It’s not only diminishing revenues, photographers like me have to deal with. It’s also negative industry developments  and outright bad news that stack up, the past few months. To name just of few factors, photographers and agencies alike, are dealing with;

Framing of Images

Read my previous blog article on this issue, I wrote with Tatjana van der Krabben here. Bottom line: image users, professional or not, can legally embed images into their websites, without paying for them, thus leaving image agencies and photographers behind without royalties or proper license fees. When image users seize to pay for the use of images, industry’s revenues will decline and future investments in production of high quality images will slow down considerably. This issue is being dealt with by industry’s organisations, like CEPIC. However, legislation on European level has to be changed. Needless to say, this may take years to accomplish. Meanwhile embedding will remain an issue.

Transition to MicroStock

Partly this is a competition issue. When high quality images are being offered for microstock prices (usually less than €1,- per image) image users and customers can’t be blamed for choosing these companies to do business with. It’s their budget. However, in the end this has serious consequences for the industry. To give you a few examples;

Blend Images is to shut down within one year. A high quality stock agency, founded in 2004 by 20 “founding partners” (photographers) who were producing high quality stock images and relying on 150 or so distribution companies world wide to keep costs low. Most of these founders are earning 10% or so, compared what they use to earn annually before 2008. This means a decrease of revenues of 90% in just a couple of years. This decline is caused by many image users and customers not willing to pay more than microstock prises for image use. Due to this decline in revenues, it’s no longer possible to invest in new productions or projects and realise a profit. Meanwhile Blend’s profits declined dramatically as well, forcing it to seize business, and layoff staff.

Masterfile has trouble paying out royalties to photographers for sold images. Especially markets USA and Canada are in decline for both RM (Rights Managed) and RF (Royalty Free) photography due to fierce pricing pressure. Again, premium images are sold by competitors for microstock prices, causing a sharp decline in revenues for Masterfile, forcing the agency to restructure it’s business. Due to this, Masterfile lost it’s ability to invest in advertising campaigns, usually costing $100 Million or so. Needless to say, this has consequences for photographers, employees (layoffs) and supplying companies who are loosing Masterfile’s business.

Theft via Google Images

Alphabet’s search engine, with a near monopoly of 75% of the market or more (at least in most countries), offers their users a button, when searching for images. They have been doing this for years. This button enables users to very, very easily download images, sometimes even highres files from agencies, and use them any way they see fit. For free. Thus leaving agencies and photographers behind with no revenues and royalties at all. Recently Getty Images and Google made a deal, in which Google agreed to make it more difficult to download images from through their website, so there are developments. However, not in every country similar measures were taken, and some kind of downloading is still possible.

Scary thing is, this situation teaches people all over the internet, that images are free to use, where it’s actually not. This is a major reason, why a number of new companies emerge, who search the internet for all kind’s of infringements. ImageRights, Permission Machine, CopyTrack and many others, including a whole bunch of legal firms and start up enterprises, are now earning millions and millions on dealing with infringements on behalf of agencies and photographers. Many of these companies show actual double digit growth figures and can’t keep up, with the fast increase of work there are being offerend. Meanwhile Alphabet / Google is being sued and sued over and over again by European authorities, forcing them to pay over 2,42 BILLION Euro’s in damages for breaking European legislation.

Use of Watermarkt Images

Oke, I am aware, not every intern student, freshly entering the labour market and on his or her’s first job, fully know’s how things work in this industry. But professionally downloading  images from agencies websites, without payments and and publishing them inside their projects WITH watermarks still visible? Really?! Obviously not all people know the drill, and know that they have to pay a most of the times modest fee for using an image. But, it keeps happening over and over again … “Funny” thing is these people will actually pay for other purchases, acquired using the Internet. Books, music, subscriptions, newspapers and so on. Why not for images? Because they believe they’re free of charge. Meanwhile they are found by companies, like CopyTrack, who will ask them to pay a license fee. Or sue for damages. Often triple the around they would have originally payed,

UGC (User Generated Content)

Professional photographers earned millions and millions, producing all kinds of travel- end event photography for a number of companies, magazines, travel corporations, websites, catalogs and so on. Not any more. Digital photography devices, like cheap camera’s and smartphones scattered this niche inside the industry, leaving photographers and their agents behind. Participating customers, amateur photographers and actually everyone with a mobile device is now able to upload their favourite pictures to websites, where they are being used for commercial purposes, disregarding the need for payment of licenses, disregarding privacy laws, besides various other issues that may present some kind of risk to image users. UGC caused a huge and exponentially increasing influx of cheap, low quality images, which are being offered to images users for free of micro stock prises. Meanwhile leaving many premium professional image users baffled, because they cannot find their single, high quality images any longer, among the hundred and hundred millions of low quality pictures offered annually. Besides this factor, assignments have fiercely decreased, causing many professional photographers to go out of business. And agencies for that matter.

Infringements through various sources

Last February CopyTrack found a case for me, of not payed images used on a website by a small business. Turned out the owner of this business went freelance, after his company went bankrupt and closed down it’s operations. After which this business owner was presented the opportunity to take along with him, some images I made some years before. Naturally he didn’t pay any royalties and this entire situation turned out to be violation of copyright law. Finally he did pay for damages, but this shows that people use any opportunity they’re presented with, to obtain and use images for free. Besides the fact, that professional use of images costs money, this “lack of experience” on how things work, damages the industry as a whole. Photographers earn less money, start spending time on searching for infringements, often with aid of specialised enterprises. Instead of using their time, money and effort to produce new, compelling photography. However, especially photographers feel they need to pursue because other channels of earning revenues are diminishing rapidly.

Smartphone (or: people doing it themselves)

ChangePersonally I believe, that “do it yourself photography” is good. It has this informal style I like to see, and it absolutely is interesting, getting a view into someones life. In a few decades this might very well be photography that’s shown as art inside galleries and musea. Just to showcase an era. Contradictory it’s the main reason I seized doing acquisition for new assignments. For a number of reasons. Far most of the times I call a company to work for them, they’ve already “hired” an employee with a smartphone to do the job I specialise in. Or I have to compete with thirty other photographers, professional or not, all aiming their camera’s on exactly the same subject at exactly the same moment. After which their work is uploaded and sold for dimes and pennies.

The industry as a whole is changing so rapidly, it’s hard to keep up. Traditional channels of selling and obtaining professional, premium photographic work are being closed down, leaving agencies and especially photographers out of business. As a result, highly specialised and professional employees lose their jobs. The market for freelance models and modelling agencies must have a hard time, since the are usually hired by these professionals. Former professional photographers, who took a side job to pay their bills are getting more depressed than ever and have a hard time making a hobby from their former profession. Most of the industry seems to be in decline, these years.

However, I think there are (tiny) signs of possible recovery, somewhere in the future. First of all, the huge increase of pursuing illegal image use is there to stay, teaching image users that there is always some kind of fee involved. In combination with emerging Blockchain Technology, multiple efforts to deal with Google (on several levels) I believe this alone will set new standards.

I am not sure, if the microstock industry is sustainable in the end. Somehow it seems impossible to me, that customers stay happy with millions of images as a search result, due to the exponentially increasing number of images uploaded to agencies, when they are seeking just one, specific picture. Needle in a whole bunch of haystacks?? Besides this, dimes and pennies can’t pay for the more complex or time consuming premium photography, so these will eventually seize if revenues don’t change for the better. So, there must be an end to this madness somehow, hopefully in the not so distant future.

Portrait Woman Wearing HoodyI believe (actually: I hope) in the end customers, as well as agencies will value premium photography for wat it is: a product that costs money and effort to produce. This needs proper royalties and income for image producers one way or the other. Although interest between customers, agencies and image creators differ a lot, image buyers and agencies alike need to understand that, without revenues, the profession will vanish and new premium images, series and photo reports will not longer be produced. This will be another issue for agencies. Because without the influx of new photography, image buyers will have no reason to return, and will seek their business elsewhere. Added to that, agencies to, suffer from declining revenues. Like newspapers and magazines, agencies need to transform somehow, and invent new concepts, to stay in business. What remains in a few years, can’t be all low quality photography sold at microstock prises, but pursuing present practises will absolutely not guarantee long term survival.

Important issue is also, that the production of premium imagery and photojournalism are crafts, that take some years to fully develop. So, photographers themselves must adapt as well. One way or another. They have to stay on the case. Ilvy Njiokiktjien said in Digifoto Pro: “I cannot imagine that images as a medium will lose their impact. However, it’s also possible to tell (visual) stories in new ways; with smartphones; interactive online environments and virtual reality.” Photographers (and photojournalists) have to develop a much, much broader perspective to their work. Start collaborating with nearby media and audiovisual professionals. Start collaborating with writers. With other visual artists. Don’t just rely on old, now pre historic structures  of an industry in decline, but find a ways to reinvent yourself!! And then tell us about it!!!

 Guido Koppes – April 19, 2018.

Note: if you have any comments on this article, please send me an e-mail here! Thanks!


Conference Ports and the City

Ports and the CityLast week I was present at the “Ports and the City” conference in Nijmegen, Netherlands. A two day assignment photography job, on a conference all about inland shipping, barges, harbours, container terminals and logistics. Most important question was: how to make inland shipping more sustainable and environmental friendly. The conference had been organised by Nijmegen European Green Capital 2018 and the Smart and Healthy City programme of the Dutch Ministry of Infrastructure and Water Management. The results of my work: a nice photo-report, is coming online since today.

 


Searching for Infringements

Illegally Used Image With Watermark

Watermarks in images usually protect against image infringements, although they are sometimes ignored. Photo: Guido Koppes

Since about a month or so, I am working with CopyTrack, a Berlin based company that searches the World Wide Web for infringements on my behalf. At the moment CPY is working on € 9.659,- worth of cases for me. That is: websites that actually received a letter, in which they are offered a license, for which they have to pay. That is Excluding websites, of which they couldn’t find an address; Excluding websites showing user generated content; Excluding photo’s used in printed media, etcetera, etcetera. This is what has been found after just one month of scanning and spidering.

Besides the payout’s I’m going to receive, always nice by the way, I naturally hope to find a bit more awareness with image users in the future, when using photographs made by others for publication. Not everything is free on the internet. Moreover, if you search for, and buy a drilling machine for home improvement or work, than it’s absolutely normal to pay for that machine. Why not do the exact same thing, when you purchase a photograph, to be used in your own advantage? Besides this, I rather go out and shoot new images to offer you, instead of being busy with hits and claims all day. That’s not why I am in the business of photography. CopyTrack is, though. And they seems to be quite effective in finding infringements.

My advise to all of you would be: if you want to use a photograph in one of your publications, and you can’t find a: “Pay-Here-For-The-License-Button”, don’t use it! Because that image is nevertheless copyright protected. Which means: use only if a proper license is obtained! So, rather search for an image, that has a: “Pay-Here-For-The-License-Button” right beside or underneath it. If you like the picture, and want to use it, press that button and pay the proper fee. Saves me (us) a lot of work afterwards. And saves you a lot of stress afterwards. Not mentioned that properly purchased licenses are often cheaper than the alternative … Right?


Is Kodak Gambling with Cryptocurrency?

Portrait woman with M.S. / Multiple Sclerosis diagnosis.A while age I published an article here, about Eastman Kodak, who was entering the blockchain / cryptocurrency hype … To service photographers and the photo industry, they would establish a world wide copy right register, so photographers could be payed in cryptocurrencies. As the New York Times stated in his January 30, 2018 article: “This month, Kodak lent its name to a digital currency called KodakCoin, which is billed as “a photo-centric cryptocurrency to empower photographers and agencies to take greater control in image rights management.” The basic idea behind KodakCoin is to use the blockchain to help photographers manage their collections by creating permanent, immutable records of ownership. The company also struck a licensing deal for a Bitcoin-mining computer called the Kodak KashMiner, which allows users to generate their own cryptocurrency. Kodak’s stock rose more than 200 percent following the announcements, and has not fallen much since.”

Although the idea is initially a good one, and it might benefit the market and individual photographers, some questions were raised about the details of the program … Turns out it isn’t even a full Kodak project at all … Kodak has just a couple of percent share in the project, which is initialized by a somewhat vague, penny stock entrepreneur, Mr. Cameron Chell … In the New York Times article a couple of interesting questions were raised, unfortunately remaining without any satisfactory answers by Kodak  and the people involved … And these are not the only valid remarks, that raise eyebrows and remain unsolved for now …

This sincerely diminishes my enthusiasm about the Eastman Kodak project, and blockchain technology in general … It just doesn’t seem trustworthy anymore … At least not in this, specific case …

Interested in forming your own opinion? Read the article on NY Times here!!


KodakCoin & CryptoCurrencies

Industrial Building behind FencePhotography dinosaur Kodak steps into a hype with a new, crypto currency: the KokakCoin … It gets around in the industry, raising all kinds of questions …

Kodak will create an encrypted, digital ledger of rights ownership for photographers to register both new and archive work that they can then license within the platform. With KodakCoin, participating photographers are invited to take part in a new economy for photography, receive payment for licensing their work immediately upon sale, and for both professional and amateur photographers, sell their work confidently on a secure blockchain platform. KODAKOne platform provides continual web crawling in order to monitor and protect the IP of the images registered in the KODAKOne system. Where unlicensed usage of images is detected, the KODAKOne platform can efficiently manage the post-licensing process in order to reward photographers. Kodak CEO Jeff Clarke stated: “For many in the tech industry, ‘blockchain’ and ‘cryptocurrency’ are hot buzzwords, but for photographers who’ve long struggled to assert control over their work and how it’s used, these buzzwords are the keys to solving what felt like an unsolvable problem.”

Kodak claims, that the platform will offer:

  • Image Registration. Provides immutable proof of ownership and enables member to take advantage of the platforms wider services.
  • Rights Management. Every license is documented by a smart contract on the blockchain which confirms the copyrights and licensing terms and conditions of the associated images.
  • Transparent Accounting. Receive royalty payments instantly via a smart accounting and reporting system. Community members don’t need a separate accounting system as all payments and accounting information is saved on the blockchain.
  • Community Marketplace. Our marketplace enables coin holders to buy, sell and book products and services such as flights, hotels, models, venues and studios with their coins. The marketplace will also create kickstarter opportunities for startups and service companies.
  • Distribution Platform. KodakOne is building a distribution platform for rights cleared images. On this distribution platform buyers (licensee) and licensors can buy/sell trade images based on the licensors licensing terms and conditions.
  • Post Licensing (Legal Enforcement). KodakOne provides continual web crawling in order to protect the IP of its members. Where unlicensed usage of images is detected, KodakOne can efficiently manage the post-licensing process.
  • Image Tracking. Community members can track usage of their photos and use these insights for more efficient and effective marketing of their assets.
  • Instant Payment. smart contracting payments are executed instantly as all payments will be made in Kodak Coin.

Still a lot has to be explained about this initiative. What is a Kodak Coin worth in terms or Euro’s? Will it be continually fluctuating? Will the value change between the time the customer makes a payment and the time the photographer uses it to actually buy something? How does the photographer buy groceries with a Kodak Coin? Will photographers only be able to transact business with others who are willing to accept Kodak Coins for the products and services they provide? How will usage fees be established? Will there be a schedule of fees for certain uses? Will photographers have to accept those fees or not participate? Will the licensing be RF or RM? Will each photographer be able to set his own fees? Will there need to be direct communication between the photographer and the buyer for most sales and, if so, how will that inhibit sales given the current ways image licensing is conducted?

And a few more questions: what percentage will KodakOne take of sales? They will have to get something for the service they are providing and presumably a lot considering how hot investors think this investment is. (Kodak shares rocketed up more than 120 per cent on news of the KodakCoin’s release.) How will KodakOne get a significant, diverse collection of the images that are in demand? Why would any photographer give their images to KodakOne exclusively? Big risk. If they put their images with KodakOne non-exclusively then the only sales KodakOne will record are the sales made through KodakOne. Potentially, there will be a huge number of other legal uses out there that Kodak can’t track including all the uses made worldwide prior to actually launching KodakOne. In order to do any legal enforcement, they will have to come back to the photographer to determine if the use was authorized or not. How will this marketplace get instant credibility and attention from image buyers? Getty Images, Shutterstock and Adobe Stock currently control 65% to 70% of the worldwide market. Why will customer suddenly switch to Kodak?

My personal and favorite question: “Do I need to switch from my present agencies, and license all of my images (made in the past ten years or so) through Kodak Coin? Thing is: we’re all going to have to learn about cryptocurrencies and blockchains. And it’s worth to stay on top of this new development. However, it’s way to soon to make final decisions. For now I am curious on how Kodak implements this idea, and how existing industry adapts to this new development.


Embedding Images: The Legal way to Steal 

Using protected images without permission, without payment of royalties or even giving credit to the creator. In the European Union you can do that, provided you do so via embedding. Creators and sellers of images refuse to accept this legal loophole. They are not dinosaurs failing to embrace progress: this is where legislation is lagging behind.

Embedding

Embedding, also referred to as inline linking, framing, and, typically when applied without permission, hotlinking, allows you to make content visible on multiple webpages via the original location. By means of a link to the original website an image, but also text or video, can be shown on another website.

The embedded content acts as a seamlessly inserted window to the website where the content is hosted: the content appears to be part of a third party’s webpage, but is in fact retrieved and loaded via the website where it is hosted. In 2014 the Court of Justice of the European Union has ruled that the embedding of protected content without permission constitutes no copyright infringement.

Embedding without permission is legal in the EU

Normally, when copyright applies, the creator is in control of what can and cannot be done with his work. The creator is the person who decides where his work is published and whether royalties need to be paid for the use of his work. The problem is that embedding is always legal in the European Union, with or without permission. This has opened a door to legally using protected images without paying royalties. Whoever posts content online has no legal means to counteract hotlinking.

The technical details regarding the embedding of content greatly influence the legal side of it. Embedding acts like a link to the original content. To embed content, copying or downloading the content is not required. Embedding therefore does not create an illegal copy. The content is not published elsewhere: you are in fact viewing the original via a link. Strictly speaking, embedding only increases the visibility of the original. This circumstance has led to the conclusion that embedding is in accordance with copyright laws and is therefore allowed. Even without permission.


Why embedding without permission should not be legal

Embedded images are used in exactly the same way as purchased images. You may reason that the embedded content is not actually posted on another website, as brought forward in the abovementioned case law, but it is visible elsewhere. And is so for a reason. The image is obviously not randomly selected and displayed, but is functional to the content in which it is embedded and as such adds value to it. The image is being used for profit, without permission or a mention, and without paying royalties. According to creators and stock photo agencies the impact of embedding protected images without permission is therefore no different than that of creating and publishing illegal copies of protected work.

By allowing the embedding of protected content a situation has been created which seems contrary to the whole point behind copyright laws; it limits the protection of creator rights substantially. Embedding is a legal solution with illegal characteristics: it is the legal way to steal images.


Embedding and bandwidth theft

Embedding not only affects copyright issues. The embedded content is not multiplied, but is retrieved and loaded via the website where it is hosted. When retrieving and loading web content bandwidth is being used. Bandwidth use is not free and is also limited for most websites. When that limit is reached because of embedded content, the website owner literally has to pay the price for the additional bandwidth use, or the website may be taken offline. Embedding can lead to a situation where the creator actually has to pay for the unauthorised use of his works; a bizarre side effect of the European legislation with respect to embedded content.

The distinction between embedding with permission versus embedding without permission (hotlinking) is important. YouTube, for instance, consciously and explicitly offers the option of embedding content. YouTube is well aware that running heavy video files via your website or blog greatly affects the loading time of a webpage and the website’s bandwidth use. To make the sharing of video (with added paid ads) more appealing, their website is designed to support embedding and is able to process the bandwidth use that comes with that. The average website is but a dwarf compared to an online heavyweight like YouTube and will therefore reach the limits of its maximum bandwidth use far sooner.

Unauthorised use of images: no small matter 

The unauthorised use of protected images is already out of control. Take for instance the example below: that image can be found on 21,000,000 online pages, yet has only been purchased 4 times. There is no balance.

Search Results on Google Images

Of course that number of hits in this Google search result includes the official channels where this image is shown for promotional purposes, like stock photo agencies, but a few dozen functional hits is but a fraction of the total of available views for that photo.

This case is not unique. Photographers, stock photo agencies: it happens to any creator or seller of images. A watermark offers little protection against hotlinking. Any watermark is rendered useless by shrinking the image to the point where it becomes virtually invisible. Now consider that a stock photo agency offers millions of images. The loss of turnover is huge.

Embedding is a stealthy phenomenon. It managed to stay under the radar for a long time, hidden among a lengthy list of hits when researching the online use of images. Because where does one begin assessing and addressing unauthorised use, when you find dozens or in some cases even millions of hits per image? Hard data regarding the occurrence of hotlinking are currently lacking. Yet now is the time to address the issue. The industry is already at the point where it cannot afford a further increase of unauthorised and unpaid use of protected images, but that is exactly what is about to happen.

The practice of embedding is increasing

Vincent van den Eijnde, director of Pictoright, author’s rights organisation for visual creators in the Netherlands, believes that hotlinking is still a latent problem: “People have not yet caught up with the legal facts. Once the word truly gets out, the damage will become really great really fast.”

Van den Eijnde’s estimate seems realistic. Even without hard data it is a safe guess that high volume users of ‘free images’, such as bloggers, mostly still pick images with a creative commons license and illegal downloads, depending on the level of knowledge of and respect for copyright laws. When you do an online search for royalty-free or free images, you still primarily find information about the public domain and copyright laws. The moment online searches of that type start yielding information about embedding content in the top results, the practice of hotlinking is expected to really take off.

Hotlinking is not new, but knowledge of it used to be limited to a relatively small group of people with more in-depth knowledge of html, mostly web builders. Through the publicity surrounding the abovementioned case law, knowledge regarding hotlinking is spreading little by little, together with the realization that it is legal in the European Union. The fact that hotlinking offers legal access to an infinitely larger pool of images than otherwise available for free use obviously is a great incentive to resort to embedding: this is a growth scenario in the making. And anyone can do it: step-by-step instructions on embedding in html are easily found online.

Verkoop geschiedenis

The consequences of unauthorised use of images

Creators and sellers of protected images are already struggling to keep track of and follow up on illegal publication and use of their protected works. Now hotlinking is adding to the amount of unauthorised use, which, on top of that, simply has to be put up with at this point. Excessive unauthorised use leads not only to missed royalties per use. The increased visibility of works poses another problem. Images which can already be viewed ‘everywhere’, lack exclusivity and uniqueness, and are of less value to potential clients. Unauthorised use of protected images makes the value of entire portfolios and catalogues subject to inflation.

Work which remains unpaid on an ever larger scale, leads to increased financial damages and eventually to a decrease of high quality works. After all, it is not realistic to continue to involuntarily make works available to the public and at the same time continue to invest in the creation of high quality images. The aspect of investment in the creation of photos and images is often overlooked or trivialised. The reality is that a photographer works with expensive equipment, has travel expenses and spends many hours creating images. That one photo the public gets to view, is preceded by an extensive process. When going through that process ceases to be profitable, more and more photographers will be forced to discontinue their business, in the process limiting the selection stock photo agencies are able offer.

Image creators face a catch-22

“So, then don’t put your work online.”

If creators would get a Euro for every time they hear that… This line of reasoning is obviously void of logic. Every serious entrepreneur can be found online and shows (examples of) his portfolio. Consumers are ever more visually oriented. Words are therefore to be enforced by images. A baker not only describes his assortment, but also aims to work up your appetite with visuals. A clothing brand shows what look you can create with items from their collection. Photographers show images to indicate what type of work they have to offer. This is how you do business nowadays.

Online visibility is essential to even get the opportunity to showcase your work online. In order to be found via search engines and find new clients, you need to aim for the top search results for relevant keywords in search engines (SEO). In order to achieve this, you need to post strong content online, and regularly add to or update that content. A photographer simply cannot avoid the online posting of high quality works. Moreover, stock photo agencies serve as a web shop for photos and images and therefore have no other option but to display everything they have to offer.


Technological developments vs. legislation

Creators and stock photo agencies have obviously been put at a disadvantage by the abovementioned court rulings, but they beg to differ that this ends the debate on the lawfulness of hotlinking. In that case law the focus has been on the technical details, where, in short, it was deducted that embedding does not represent publication to a new audience. The consequences of hotlinking have since become more apparent. The focus of the debate has therefore now shifted to the question whether the effects of the embedding of protected images, as felt by the creators, is in the spirit of copyright laws.

Technology evolves at a rapid pace, whereas legislation moves much slower, but in the end laws can change. Industry organisations such as European Visual Artists (EVA) and Centre of the Picture Industry (CEPIC) therefore focus their efforts to raise awareness regarding the downsides of hotlinking for the industry on the European Parliament, especially now that there are new European directives in the making.

Sylvie Fodor, director of CEPIC, says that several members of parliament who have in-depth knowledge of copyright, following from their background in journalism or the cultural sector, have already been convinced of the negative consequences of allowing the hotlinking of images. Furthermore, some encouraging amendments have been put forward, which would encompass embedding. CEPIC has also presented their views on the draft-directive proposed by the European Commission and how it can be improved to cover embedding in an official public hearing of the Committee on Legal Affairs (JURI). Fodor thinks that there is a slight chance that legislation will be changed within the present negotiations on copyright in ‘Brussels’.

Protecting images against hotlinking

At the moment the only way to counteract hotlinking is online protection of content, using .htaccess. Through .htaccess hotlinking to images can be blocked or a redirect can be created which shows an alternative image (switcheroo) on the webpage where the hotlink was placed. A switcheroo can for instance be used to display an image with a message that embedding is not appreciated. Your own website will remain intact and will display the correct image.

But when you ask image creators that is not the type of protection they seek in the first place. According to them, what is needed, first and foremost, is a legal ban on unauthorised embedding of protected images, by treating it like illegal copying and downloading. After all, the effect of embedding protected images is equal to that of illegal copying and downloading: the image is being displayed without payment of royalties, which would otherwise not have been allowed, resulting in financial loss.

*Rulings of the Court of Justice of the European Union:
Nils Svensson and Others v Retriever Sverige AB
BestWater International GmbH v Michael Mebes, Stefan Potsch

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