Viral Images and Photographer Licensing

Story by Sean Fitzgerald, NANPA Past President

A  Manatee Image Goes Viral

An interesting article in PetaPixel raises a whole host of troublesome issues for the modern photographer. https://petapixel.com/2017/09/13/shot-hurricane-irma-photo-went-viral-wasnt-paid-dime/ Michael Sechler, a self-professed “photography enthusiast”, shot a very fine image of a manatee beached out of the water by the tidal surge from Hurricane Irma.

He posted it to Facebook, the image went viral, and then the real fun started. Fox News called. The Associated Press called. Everyone wanted to use the image in news stories, but they all wanted it for free.

Color me shocked.

Michael was admittedly unprepared. What should he do? Ask for money or just give it away and ask for credit?  He ended up giving it away to numerous media outlets including the AP. He got some credits, but not a penny in licensing fees.

The whole experience left him bewildered and regretful, wishing he’d made at least a little money for his image.

Our Photos have Value

When we post an image to social media site like Facebook or Instagram, we know and even hope it might go viral and be shared by others within that site.  The value we get is the exposure and added followers that can result.

But what about when other “image-users” see your image and want to use it? The Acme Daily News can’t legally take your image off of Facebook and use it on their news site without getting permission from you.

Whether to charge for image use is a personal and/or business decision. Mr. Sechler wanted to make the world aware of the plight of the manatees and is not a professional photographer, so making money on the image was not a priority.  Fair enough.

Personally, I wish he had held his ground and put a fair value on his image. Every time someone gives away an image to a user who can and should pay at least some licensing fee it devalues all similar images. This image was unique and valuable, and I have no doubt that Mr. Sechler left thousands of dollars on the table. Even if he did not want or need that money, I am sure a manatee rescue organization in Florida would have loved a donation.

Part of his problem was that he had no idea what the image was worth. I purchase a service called fotoQuote** (http://www.cradocfotosoftware.com/fotoquote/)  to help give me suggested licensing rates for various image uses. That gives me a starting place for negotiating but at the end of the day an image is worth whatever someone will pay for it. If you don’t ask, though, they will always want it for free.

Image Licensing Protects You

The second issue here is the importance of image licensing. When we license an image, we are simply setting out a simple agreement as to who can use the image, for how long, where, and how.

Mr. Sechler ended up licensing the image to the AP for free and with licensing terms allowing the AP to license the image to anyone they wanted, forever, without a penny in compensation ever coming back to him. Yikes!

We will talk more about image licensing in future posts.

Copyright Registration is the Ultimate Protection

Mr. Sechler’s story and the comments reveal many copyright myths and misperceptions. Some comments poo-poo the value of copyright and even wrongly assert that it is already too late to register for Mr. Sechler.

Registering an image with the Copyright Office gives a number of advantages if the copyright is then infringed, including much higher statutory damages.

For Mr. Sechler, it is clearly not too late. Even though his image has now been published worldwide, he can still register the image within 90 days of the first publication of that image! He could then pursue a copyright claim and statutory damages against anyone who already used the image without permission or who might use it in the future.

**NANPA Members can get a 15% discount on Cradoc fotoQuote. Log into your Member Account to find out how.

Sean Fitzgerald is a Deep Ellum-based environmental and fine art photographer whose images have been widely published in books, magazines, calendars and more. His fine-art prints are found in private and corporate collections across the country, including banks, hotels, hospitals, and convention centers. Sean creates images that are simple, graphic, evocative, surreal and that in some way evoke a reaction, provoke an emotion, or tell a story. While his photographic subjects are widely varied, he is repeatedly drawn to nature and wildlife and the impact of man on both. Learn more about Sean: http://www.seanfitzgerald.com/