Do microstock agencies violate photographer’s DMCA copyright?

I am NOT a lawyer. This post does NOT constitute legal advice. This post does not constitute an accusation of legal wrongdoings. Any action you take (or do not take) as a result of reading this post is entirely your own responsibility.

If you do not agree with the above statement, stop reading now.

This post IS an investigation (you may notice my title is a question, NOT a statement of fact). All statements are my own and I do not state them as legal facts… merely as observations given the evidence I have gathered. My sample sizes for testing agency compliance are NOT statistically significant, and are only used as indicators and prompts in requesting further information from agencies. My purpose is to investigate whether photographers ‘might’ be being harmed by practices which do not reinforce the ownership rights of photographers over their work.

The goal of this post is to further the interests of photographers by examining the microstock industry’s efforts at attaining the goals described within the Stock Artists Alliance Metadata Manifesto (particularly section 4, under the heading “As an Image Distributor”).

I am still investigating and have sent this post directly to all microstock agencies mentioned below (and others) for responses. Any which respond will have their responses included below or in follow-up posts.

1. Member States shall provide for adequate legal protection against any person knowingly performing without authority any of the following acts:
(a) the removal or alteration of any electronic rights-management information;

(b) the distribution, importation for distribution, broadcasting, communication or making available to the public of works or other subject-matter protected under this Directive or under Chapter III of Directive 96/9/EC from which electronic rights-management information has been removed or altered without authority,
if such person knows, or has reasonable grounds to know, that by so doing he is inducing, enabling, facilitating or concealing an infringement of any copyright or any rights related to copyright as provided by law, or of the sui generis right provided for in Chapter III of Directive 96/9/EC.

2. For the purposes of this Directive, the expression “rights-management information” means any information provided by rightholders which identifies the work or other subject-matter referred to in this Directive or covered by the sui generis right provided for in Chapter III of Directive 96/9/EC, the author or any other rightholder, or information about the terms and conditions of use of the work or other subject-matter, and any numbers or codes that represent such information.

REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT INFORMATION-
No person shall, without the authority of the copyright owner or the law–

(1) intentionally remove or alter any copyright management information,

(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or

(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law, knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

(2) ACTUAL DAMAGES- The court shall award to the complaining party the actual damages suffered by the party as a result of the violation, and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages, if the complaining party elects such damages at any time before final judgment is entered.

(3) STATUTORY DAMAGES- (A) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1201 in the sum of not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service, as the court considers just.

(B) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000.

I’ve been unable to find any copyright metadata at all for Dreamstime, Shutterstock and 123RF.

Dreamstime and 123RF in particular appear to strip all metadata from their sold files, titles, description, keywords and seem to be using the php-gd library to resize their images, which does not retain metadata as part of it’s resize operations.

Shutterstock also appear to strip all metadata, but then do apply a ‘transmission reference’ to some images, which is presumably so they can identify violations by their clients transferring their purchases to others. This is ‘technically’ a worse violation than 123rf or Dreamstime, since Shutterstock clearly have the capability and knowledge to remove/add metadata, it is not ‘just’ a part of their resize process.

Images purchased from iStockphoto fare a little better, of 40 or so images tested, I found one which contained the copyright metadata set. Though the iStock results are somewhat inconsistent since several images also had ALL metadata stripped, whilst some retained makernotes. This suggests that somewhere along the line iStock changed to/from a stripping system, to/from a retaining system. I can’t know for sure which is currently active. I also had a report from an image-buyer that size XXL and above contain copyright/artist metadata, whilst sizes below appear to be stripped.

Fotolia purchases are equally inconsistent, they appear to fare somewhat better than iStock in that I’ve found 3 images in 35 to contain artist metadata in exif, though none with their xmp ‘copyright’ field set (the one photoshop displays), despite other xmp metadata being in place. Fotolia also make prominent use of the artist’s name to buyers on checkout and subsequent downloads of purchases, though it is not clear as a buyer if they are required to use this at all (except for Editorial usage, where it is in the contract).

Crestock‘s investigation is made a little more complicated by the success of their ‘free wallpapers’ images, which do consistently contain artist/copyright metadata and are watermarked. However I could not find any non-wallpaper images from crestock which DID have artist metadata embedded.

Deposit photos retain all makernotes and title/desc/keywords, and I found 1 image with the ‘artist’ field set, but no copyright metadata fields set.

For Pixmac I found 1 image with a by-line set, and 1 with ‘artist’ set. Though it’s hard to know for Pixmac which are partner-sourced images or not and from which partners metadata can be retained.

My ONLY requirement for an agency to reach the green box was that a quarter or more of tested images contain copyright metadata. None of them made it here, not even close :/

I’ve had read-receipts, but no response yet from: iStockphoto, Fotolia and Panther media.
I’ve had no response yet from: Corbis/Veer, Shutterstock/Bigstock, Canstock, 123rf, Yay micro and Envato.

Crestock say:

I have reviewed the matter with my technical support staff and have confirmed that Crestock’s upload system does not strip off metadata or embedded copyright information. The responsibility for applying copyright notices to images rests with the respective owner/creators.
Provided the original image creator has embedded this data, it will always be preserved in the version which buyers download from Crestock.

Dreamstime initially took some of the content of my draft post as a personal accusation and so didn’t read the post fully, though we back and forthed a bit and we got to the bones of the issue (though still a bit of a mixed message, as I was talking about purchased files, and DT seemed to reference only thumbnails/previews).

[Dreamstime's initial response removed on request] though Dreamstime’s CFO subsequently sent me a very thorough response which I’ve included below in it’s entirety.

Deposit photos sent me several screenshots of original images against their resized versions opened in metadata-viewing software showing unmodified copyright-metadata side-by-side along with the following response:

We appreciate sincerely your making request for our explanations since your conclusions are absolutely incorrect as far as our stock photo agency is concerned. We believe that the same is true for our competitors; however, all of our assertions concern exclusively our services.

We do not remove or alter any copyright management information.
You can easily check it just filling all copyright metadata fields, uploading the image at our website, and buying it. You will make sure that all the fields are filled as before. The point is that the many of our contributors don’t provide this information. We are taking care of photographer’s copyright and ask all of our contributors to provide the required data on a mandatory basis.

Moreover, we are already working on the automatic filling of copyright metadata fields for images that do not have metadata.

Pixmac sent me this response, and connected me with their technical team to find out more:

We’ve been working on implementation of copyright information to the large thumbnails and also to the sold files, but I’m not sure if [tech guy's name] managed that already as we’ve been busy moving our servers to a new location.

As for our strategy, we’re going that way:
http://fairstockphotoagency.com/

And we’ll be also adding at least nickname + our brand to the images we have from third party agency that doesn’t give us more than that. So at least we’re able to trace the source and Original Author.

The short answer to your headline question (Do microstock agencies violate photographer’s DMCA copyright?) is respectfully, notwithstanding your assertions to the contrary, a categorical “No.”

We at Dreamstime are proud to be part of an industry that provides an efficient and legal online marketplace for stock photo licensors and licensees. In general, our industry is fully compliant with the letter and spirit of both the EU INFOSEC Directive and the US Digital Millennium Copyright Act (the “DMCA”).

In your post, you quote the following very important provision from the Section 1202 of the DMCA:
[quoted my text from above]
But you do not quote the following key language that appears at the end of subsection b: knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

The underlined language above, which is not quoted or discussed in your post, is of crucial importance in determining if a microstock agency legally operates within the protections of the DMCA and INFOSEC. Without including the underlined portion of Section 1202(b) in your analysis of the DMCA, one might conclude that removal of meta data, under any circumstances, in an infringement of the photographer’s rights. However, such a reading of the DMCA is not consistent with the law. As noted by a recent decision from a federal district court in California reviewing this very issue, in order for there to be a violation of Section 1202(b)(1), a defendant must have (1) without authority of the copyright owner or the law, (2) intentionally removed or altered copyright management information (“CMI”), (3) knowing or having reasonable grounds to know that the removal will induce, enable, facilitate, or conceal an infringement of the federal copyright laws. The manner in which legitimate microstock companies conduct their business is specifically outside this provision of the DMCA.

As you are of course aware, microstock agencies take the role of broker in transactions between photographers interested in selling certain rights in their works of authorship and willing purchasers who receive permission to make approved uses of those works. In this relationship, the microstock agency’s role is not unlike that of an art dealer. The agency doesn’t claim to the author, nor does the agency claim to own the work of art, but merely facilitates its purchase and keeps a small percentage of the sale price for its services. Because of the nature of the transaction, all participants (and nonparticipants for that matter) acknowledge that the microstock agency is not responsible for acts taken by the photographer or the purchaser.

As you know internet-based microstock agencies provide, as their primary distribution channel, a website where willing purchasers can browse photos that are available for license. Most, if not all, of these websites have been developed and customized – for the convenience of photographers who are voluntary members of the contributor community – to permit a photographer’s submission of new photos through the websites. Often this submission process includes a number of automated tasks, which are (again) provided for the convenience of the photographer. With only a few clicks of the mouse, one is able to submit his or her photo for licensing, and that photo may be cropped, resized, and watermarked, among other transmutations, each of which are generally required to install that photo into the catalog of available photos presented to a browsing purchaser. By clicking that “Submit” button, the licensing photographers are executing all of those transmutations themselves. Dreamstime, like most microstock companies, does not initiate and is not responsible for those actions; it merely provides the facility for quickly performing them, without the need for repetitive and time-consuming conversions on the user’s end before upload.

In the case of Dreamstime, specifically, every contributing photographer acknowledges and agrees that we are not the parties performing any conversion tasks that take place during submission. In particular, we direct your attention to a particular acknowledgement in our terms:

“Any modification of Images uploaded by Dreamstime’s users, such as the addition of a Dreamstime watermark, is performed by an automated process. Accordingly, as the Contributor is aware that such modifications shall take place automatically upon upload, the Contributor shall be deemed the party responsible for such automatic modification and shall be considered the ‘author’ of such automatically modified Image. Dreamstime is not responsible for modifications that occur to Images as part of its automatic posting process.”

Therefore, with respect to Dreamstime’s contributing photographers, as well as in the case of other similarly operating services, to the extent that any meta data is removed from an image submitted using an automated process, that removal is done at the direction of, and therefore with the permission and authority of, the contributing photographer.

Since the rights holder in this situation gives consent to meta data removal, that is really the last word on the question of whether there is a violation of the DMCA’s anti-circumvention provisions. Moreover, the simple fact is that the bulk of our contributors do not populate any copyright meta data fields at all in the images that are originally submitted. An anecdotal survey of the top 15 Dreamstime contributors reveals that only 6 submit images with meta data containing copyright information, 3 of whom have the EXIF copyright fields filled in only, 2 who have both copyright information in both the EXIF and IPTC fields, and 1 using only IPTC copyright data fields. Even if we were to modify our current submission process to preserve meta data, which by the way would cause our data storage requirements to substantially increase and significantly slow down our website for browsing licensees, it would make little sense to transfer IPTC data (i.e., the place where you store copyright info in your own images) to every version of each submitted image, as the vast majority of contributors do not use the Adobe software that would populate the IPTC fields. IPTC data has limited usefulness, in any case, as it not easily accessible through a simple right-click or other operation. Although EXIF data is more accessible and user friendly, it still presents the same size and bandwidth problems, as it is not possible to just keep the fields associated with copyright information.

We respectfully suggest that, given the limited number of contributors who include copyright information in the meta data attached to their photos, and given the economic and technical challenges associated with the implementation of changes you recommend, that any changes to the manner that the industry operates should obviously be balanced with the very important consideration of what, if any, fee increases that microstock agencies would be required to charge for their services as modified. This consideration is crucial, lest the cure be more harmful than the ailment.

While we can’t make every improvement that everyone recommends, Dreamstime and the rest of the microstock industry generally value and respond to meaningful suggestions from our user community, and in partial response to your comments, we certainly intend to continue consideration of the cost-benefits associated with potential future revisions to our platform, including the possible implementation of functionalities that would address your concerns in some fashion.

In addition, we have revised our terms, without any suggestion that a revision was necessary, to emphasize the automated revisions that contributors are performing by submitting their photos through our platform, specifically highlighting that such processes currently include the removal of meta data.

Your proposed blog was forwarded to my attention, as legal counsel to the trade association Picture Archive Counsel of America (PACA) whose members consist of stock photography libraries including microstock companies.

As I have been practicing in the area of photography law for over 25 years I am familiar with all aspects of same including the implications of the DMCA.

In reading your analysis of Section 1202(b), I can see that you have misinterpreted the language. Section 1202 (b) does not impose strict liability for removing metadata. With statutes, every word counts.

For liability there must be several factors

1, INTENTIONAL removal of copyright management information without authority.
2. KNOWING that it will induce, enable, facilitate or conceal an infringement.

Stock libraries may alter, add or subtract metadata for many sound business reasons. Many software programs reduce file information for the web to make the digital files easier to manage. However, this is never done by stock agencies to enable infringements. Photo libraries may use watermarks, identify the image owner, copyright holder or the name of a representative adjacent to the image on the agency website, include user terms that must be agreed to in order to download content and in general take standard industry precautions to reduce infringements.

Without this intent element, a DMCA Section 1202(b) claim fails.

I am aware of no court decision that supports the interpretation that removal alone satisfies the DMCA and would entitle a contributing photographer to damages under Section 1203 without proving intent.

In addition, photographers who contribute to a photo library enter into an agreement giving the company the right to distribute the images in the manner the company chooses , in its discretion. Consequently, there would be no removal without authority. Further, content is required to be submitted in accordance with company guidelines.

I’m content with your rationale that these 2 factors must be met for the DMCA to apply, but I wonder…

1) As far as I can find, agencies do not specify in their contributor contracts that they require the authority the remove photographer’s copyright metadata. This would (to me at least) seem to imply they (those agencies who do remove metadata) are intentionally (even if purely for technical reasons) removing it without authority.

2) Removing photographer’s metadata from an image, thereby losing it’s ownership details on further transmission to (or subsequently by) an image buyer is knowingly facilitating the misuse of that image.

I must disagree with your assumption on Number 2. Removing metadata does not knowingly induce infringement. If you have a case that states that, I would be interested in reading it. Intent is much more difficult to prove in a court case than you propose. As I mentioned, it is not sufficient to remove metadata without establishing intent at the time of removal. No microstock agency intends to facilitate infringement. Removal without intent would be strict liability and the DMCA is not a strict liability statute.

I do not believe that removal of metadata needs to be specified in a contract if a contract in general permits the company the right to distribute in any way it sees fit and that there are submission guidelines which are followed by the contributor.

The EU directives would not apply to images distributed out of the US.

I cannot answer why metadata is removed and I am sure there are many reasons. Most agencies have specific metadata to their company and gear images to web use.

Cepic has a handbook you should review