Copyright Industry

Pixsy: Find and Get Paid for Image Theft

Pixsy and Infringement

Visual artists consistently find themselves in a quandary: Should they upload their high-resolution images to social media? On the one hand, social media marketing is critical to success for many artists’ businesses. It is highly cost-effective and has great reach to many different types of consumers. On the other hand, having images floating around the web makes it very easy for people to steal them. Most visual artists don’t know how to keep their images from being downloaded, and even if they did, many don’t want to. After all, part of the importance of social media marketing is having friends share them with their friends. Well, there may be a solution coming in a new service called Pixsy.

The social media problem for visual artists

First, let’s look at the problem artists face when uploading to social media and some of the legal issues surrounding online infringement.

Once images are posted to social media, users can easily track the first level shares, such as when posting photos to Facebook. If someone shares the post, the artist will know. But if that photo continues to be shared by other Facebook users, tracking becomes increasingly difficult. If the share gets posted to another social media space like Pinterest or Twitter, or the image is uploaded to a website or blog, then there is no way to know where that image ends up.

One of the only effective ways for finding images across the web is to use Google Image Search. Google has the best robot crawler with the greatest reach. But in practice, it is unwieldy. The visual artist must search for every photo that they have placed out on the web, which must regularly be done to find new infringements. With each search, the artists must determine which locations found are allowed, and which should be removed. That analysis must be done with every search as their is no way to only show a new infringement. That approach is too time consuming, especially for visual artists trying to spend their days creating new work, not tracking old work.

infringements at American Eagle
AholfSniffGlue Infringement at American Eagle

The result is that most unauthorized uses go unnoticed, only found if the artist, or someone that knows the artist, discovers them organically. The dialogue usually goes something like this: “Hey Steve, Congrats!. I saw your new designs on pillows at Target.” The response usually involves ranting, raving, and then calling an attorney.

In a way, a visual artist would be lucky if the infringement did happen at a large chain store, like Target. The problem with most infringements is that the damage to the artists is rarely significant enough to warrant action. In a copyright infringement lawsuit, the artist is allowed to receive the profit made from the infringement, but the infringer can keep the profits made from other aspects of the product or service. For example, if the infringing image is on a t-shirt, we know that the only reason someone is buying that t-shirt due to the image. So 100% of the profit generated from that t-shirt can be taken in a successful lawsuit. But let’s say the image on the outside container of a candle. People buy that candle for other reasons that just the infringing picture; color, smell, or the container all play a role in the purchase. So the artist may only be entitled to 25% or even 10% of the profit. That may not be enough to justify hiring an attorney.

A few weeks ago, I wrote about graffiti artist, AholSniffsGlue, whose work was used in an Urban Outfitters advertising campaign without his permission. That may seem huge, the image being plastered throughout the world, but think about this: how much product did American Eagle sell precisely due to Ahol’s work? The ads also showed clothing that people may want to buy. The name American Eagle carries its own importance. Would sales have changed dramatically if there were a different background? More importantly, how do we even go about answering those questions? So even a case in which the infringement is clear can be complicated.

Most infringements are not t-shirts, candles or ads by major corporations. Most are just postings on websites or blogs, which generate virtually no profit. Those companies may be willing to pay a licensing fee for its use, but that requires someone to negotiate a price. In the end, having the image removed is about as much as the visual artist can expect, and if the infringer doesn’t listen, there is little that can be done. What’s needed then, is someone who will help the artist navigate this maze of choices, and help the artist get their licence fee without having to sue.

Pixsy has a solution

Pixsy is new startup launching within the next few months that plans to solve, or at least mitigate, the problems associated with infringements on the web. Their tagline “Find and Get Paid for Image Theft” is quite compelling.

Pixsy approaches the problem in two steps: 1) discovery and 2) action. First, user upload images that they want to track. Pixsy uses reverse lookup, aggregating results from various image search engines to monitor the locations of your images across the internet. When your image is found, it’s URL will show up on your Pixsy dashboard. At that point, the user can either approve the URL, or if the use is not approved, take further action.

In step 2, Pixsy provides the user with several options. Pixsy can send letters to the infringer asking for attribution or initiate a takedown request. But Pixsy’s primary revenue model is to help the artist negotiate a reasonable licensing fee for use of the work. As the starting point for a meaningful negotiation, Pixsy will use a pricing structure based on fotoQuote, the industry standard photo-pricing guide for stock and assignment photography. Pixsy will confirm those numbers with the artist, of course. For any successful negotiation, Pixsy will retain a percentage of the licensing fee.

Pixsy is not taking a Getty Images approach to infringement, in which a lawsuit is threatened unless the infringer pays several hundred dollars. Pixsy understands that infringers aren’t always intentionally trying to rip-off artists. While the Internet is an amazing tool, we must all admit that it has a habit of spreading disinformation, particularly regarding laws surrounding intellectual property. Getty uses that lack of understanding to generate a revenue stream based on coercion. Pixsy wants to generate revenue based on mutual agreement and understanding.

I would suspect that Pixsy will have some gatekeeper system in place so that the company isn’t overwhelmed negotiating for licenses they know will be fruiteless. Perhaps some requests will be automated, and not person to person. Attribution or removal will probably be the norm for certain types of sites. One added benefit is that Pixsy will not only focus on the United States but internationally. Negotiations with potential infringers will be available in many countries, with language and cultural barriers that would be difficult for the artist to navigate, will fall on Pixsy’s shoulders.

This could be a game changer for the photography industry. Pixsy’s success will depend on the number of people that join. The first Beta round should be commencing in about a month with a full rollout soon thereafter. I am sure that as with any startup, there may be some growing pains, some false positives and some missing infringements. But as the company grows, and they improve their algorithms, we should expect to see a robust system unfold. So if you want to be part of it, just head on over to Pixsy.com and sign up for the beta.

If any beta participants want to share their experiences, please leave them in the comments section below.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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  • Pixsy’s model makes sense to me. After years of spending hours trying to find people who’ve stolen my photos, I realized I was spending more time fighting theft than working on my photos. Pixsy’s changed that. They find usage (and reusage) that I never found, and they get me paid for it. I have no complaints so far, and the 10 or 15 fellow photographers seem at first shocked (by all the found theft) and then pleased by having a simple way to curb it. Perhaps having a lawyer is better, but for many it’s not cost effective. Pixsy works for me.

  • I find it very strange that this article made no mention of statutory damages for registered works. Aholsniffsglue had registered his work and is seeking statutory damages.

    Also, PIXSY seems to be catering to artists who are ignorant of copyright law. In the United States, registered works can garner up to 150,000.00 per willful infringement. Pursuing an infringer legally is also not hard as most IP attorneys will take cases on a contingency basis and most settle out of court. The facts on the PIXSY website are incorrect and seem to be trying to take advantage of artists who don’t understand copyright law.

    • I didn’t discuss statutory damages here, and I probably should have. My apologies if that created any misunderstandings and thank you for pointing that out. For those interested in this topic, try this article on The advantages of Copyright Registration

      As for the Ahol case, he did not did not register his work prior to the infringement, so he is not entitled to statutory damages, although he did register the work as required to bring a copyright infringement case to Federal Court. You can read more and see the actual complaint in this article on AholSniffsGlue v. American Eagle.

      It would be great if more people registered their works but sadly, only about 1% of photographers do so, according to the Copyright Office, and even that seems a little high given what we tend to see in practice.

    • I am an IP litigator with over 36 years of experience litigating, writing and lecturing on these topicson behalf of photographers and illustrators. You are exactly correct. This “service” as it competitors, rely on illustrators, photographers and artists being ignorant of the USC Title 17 – The Copyright Law. We address the “math” and “foundation” of these services in our article “Lies, Damned Lies and Statistics” in our blog thecopyrightzone.com. Register your work and prevail in court and you may be awarded all or more than all of your attorneys fees.

      These services hire inexperienced, non-lawyers to evaluate and typically settle early claims the true value of which they know not. Artists like to avoid conflict and think that these services will make them money. Naively they do not realize that any competatnt attorney will put far more money in their pocket on any viable case. One never, ever assigns the right to pursue or defend their copryights to anyone.

      Pixsy (nor its competitors) are law firms. They need no level of expertise or experience and when, as and if they decide to employ a lawyer, they hire their lawyer without the client’s input. The business model makes no sense for anyone who registers their images and has any understanding of copyright law.

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