South Florida Sun-Sentinel Palm Beach (Sunday)
Content theft is a pricey mistake
Florida businesses, residents being sued for using online photos
The photo of that beautiful sunrise you found through a Google search? It would look great on your Airbnb website to show guests how nice South Florida’s beaches can be in the morning.
Just copy and paste it next to the pic of that charming beachfront cottage you’re renting out.
Perfect — until you hear from an attorney representing the owner of that photo.
The letter says you committed an act of copyright infringement and you need to cough up a good chunk of cash if you want to avoid having to defend yourself in federal court.
You’ve just learned that the free-wheeling internet isn’t so free.
A phone call alerted John Abdelsayed, a Realtor with the West Palm Beach-based Trends Realty USA Corp., that he was being accused of illegally using a photo as a profile image of a community that included a property he was trying to sell.
“At first I thought it was one of those IRS scams — you know, ‘send money now or someone will be at
your house to arrest you.’ I had used a photo from MLS [Multiple Listing Service] but thought I was allowed. Then I got a demand letter and thought it was a scam,” he said. “It wasn’t until they filed suit that I realized they were serious.”
The letter demanded $30,000 to avoid litigation, Abdelsayed said. The lawsuit, on behalf of Palm Beach County-based Affordable Aerial Photography, sought up to $150,000, but rulings in the case since then make that outcome unlikely.
Content and controversy
Twenty years after the music-file-trading service Napster alerted content providers to the ease and volume of copyright infringement activity online, internet users are still helping themselves to content they don’t own and paying thousands of dollars when they get caught.
And as the infringement continues, it has resulted in a “slow but steady” increase in the number of content owners, attorneys and paid services that look for violators and target them, says Mitch Stoltz, a staff attorney focusing on intellectual property at the Electronic Frontier Foundation, a nonprofit organization that advocates for free speech and privacy rights protections online.
Even posting a photo you don’t own on a social media site such as Facebook or Instagram can make you a target if your page promotes a business or if you are a recognizable brand. NBA star LeBron James and NFL quarterback DeShawn Watson learned this when they were sued for posting in-game images of themselves taken by freelance sports photographers on their own social media pages. Both athletes chose to settle the claims.
And in the new copyright frontier, photographers are suing companies who use
their social media posts containing copyrighted content and embed them on websites — something that tech giants such as Facebook and Instagram make easy to do.
Either way, infringers pay
Most enforcement activity takes one of two forms, Stoltz says. “There are lawsuits trying to uphold people’s rights to their creative work, and there are suits basically trying to make money off of threats to litigate,” he said.
Which is which depends on the content owner and the law firms pursuing claims, he said. But one thing is certain: If you get a letter demanding payment to avoid litigation, you’re going to pay. You’ll either pay to avoid a lawsuit, or you’ll pay an attorney to defend yourself.
In U.S. District Court in South Florida, a handful of businesses have been showing up again and again as plaintiffs in copyright-infringement suits. One is Strike 3 Holdings, a Delaware-based company that sues people who use file-sharing sites to download adult movies. The company files suit against
defendants based only on their IP addresses, then subpoenas internet service providers for the names of customers using those IP addresses.
Three are photography studios. Affordable Aerial Photography, which takes photos of high-end South Florida homes for real estate listings, has filed 134 lawsuits since 2014, including 89 in the Southern District of Florida dating to 2020. Its targets are mostly real estate agencies but include insurers, a wealth management group, resorts and web-design firms.
Another is Prepared Food Photos, a Lake Worth company that sells subscriptions for access to hundreds of stock photos of popular restaurant-style dishes, meats, seafood and produce.
The studio has sued 58 businesses, including 22 in South Florida ranging from produce wholesalers, meat suppliers, food delivery services and small restaurants.
Blaine Harrington, a Denver-based travel photographer with more than 45 years of experience working for national magazines, book publishers, nonprofits and large corporations, has filed more than 100 infringement suits since 2017, including 21 in South
Florida against a variety of defendants, including hotels, travel agencies, yacht brokers, tourist attractions, and even Monroe County over a photo taken in the Florida Keys.
Attorney: Creators deserve to be paid
Daniel DeSouza, a Coral Springs-based attorney and partner in the firm CopyCat Legal PLLC that represents the three photography businesses, says his clients deserve to be compensated for commercial use of their work. Failure to protect their content, he says, could lead future infringers to claim that the creator must not care if their work is used for free.
“If you have an aggressive client, often they will be called a copyright troll and too overly aggressive,” he said. “Taking the opposite approach can be construed as allowing infringement. I’ve had too many suits where the defense is, ‘This person didn’t protect his copyright.’ ”
Harrington has taken 500,000 images in over 80 countries and about 50,000 are posted on his website, he says. Because he has disabled the ability to directly download his images from his website, infringers can only obtain them by taking low-resolution screenshots or finding them on other websites.
Harrington’s website is plastered with copyright notices. One says that no photos on the site “are within the public domain.”
And yet a reverse image search of one of Harrington’s photos — a pastoral view of a road winding through Kentucky horse country — turns up 624 uses across 16 pages of Google search results.
On the Wikimedia Commons site, where creators post images for royalty-free use, the photo is credited as owned by someone else and labeled as freely available for any use. Users who rely on that assurance risk an infringement suit.
DeSouza says prolific content providers such as Harrington must rely on third parties, including law firms that practice copyright infringement law, to protect their rights. “He has 500,000 photos,” DeSouza said. “It would take this guy 85 years to track all infringements.”
In an interview, Harrington said he has been portrayed by opposing attorneys as a copyright troll “who puts this material out on the internet solely for the purpose of hooking infringers.”
He takes issue with such accusations, as a sought-after professional who has been shooting high-quality photographs since the 1970s for magazines such as Time, Forbes, National Geographic and many others.
In addition to nearly five decades of experience, he has invested about $100,000 in camera equipment, computers, monitors, hard drives, software and a drone. Then there are outlays for travel, hotels, renting helicopters or hot air balloons, and liability insurance.
“This is my point of view,” he said. “I took these pictures and I deserve to be paid. I don’t have a lot of sympathy for people who can’t be bothered to find out how to license a photo.”
Some content creators pay companies, such as TinEye, to constantly search the internet for infringing uses. There are also law firms that perform searches, though DeSouza says his firm is not among them and relies on creators to alert the firm to potential claims.
And there are content owners who pursue claims more aggressively than others, DeSouza says. Most law firms take copyright infringement cases on contingency — meaning they only get paid when they win in court or convince targets to settle, because content owners typically can’t afford to pay lawyers’ hourly fees upfront, he says.
That results-dependent arrangement is why targeted infringers almost always end up paying something. For every lawsuit that’s actually filed, there’s an untold number of targets who pay up to make the threat go away, Stoltz said.
Typically, content owners resort to lawsuits when accused infringers ignore their initial communications, DeSouza and Harrington said.
“You reach a point in negotiations in trying to obtain a settlement that the infringer either is not acknowledging the case or is not being serious about trying to resolve the matter,” Harrington said. Then “it becomes necessary to file suit. In the majority of these cases, if not all of them, this has led to settlements.”
For Realtors, it’s complicated
Most targets of Affordable Aerial Photography’s efforts are Realtors who should know better, DeSouza says.
BeachesMLS, the listing service for Realtors in Broward, Palm Beach and St. Lucie counties, states on its website that users must obtain written consent of the owners of any intellectual property, including photos from the widely circulated Multiple Listing Service, before using them in their own materials or websites.