Joanne Maly: Photographer: Beware ImageRights International

Notable American photographer Kalliope Amorphous has published a warning to other photographers who are considering protecting their copyright using ImageRights International. She accuses the company of an “egregious grab” that forces photographers to use the company’s legal services.

ImageRights is one of a number of companies that have popped up in recent years that helps photographers search for copyright infringements online, file claims against infringers, and collect settlement payments. Amorphous, however, was taken aback after reading ImageRights’ “Recovery Service Agreement.”

“These terms bind the user to the use of Image Rights legal services whether you want them or not,” the photographer writes. “When you sign up for Image Rights, it’s all or nothing. You can’t just use them to scan for infringements.

“This means that once you upload your images to Image Rights, it doesn’t matter how you found out about your work being stolen; Image Rights has the right to pursue it, and if you don’t let them pursue it, they will come after you for half of any settlement you receive.”

Here’s Amorphous’ warning, published at her request, followed by an official response and statement provided to PetaPixel by ImageRights President and CEO Joe Naylor.

A Warning to Photographers and Artists Regarding Image Rights International

Written by photographer Kalliope Amorphous

As a lifelong advocate for artist’s rights, I am compelled to write this article in order to warn others about Image Rights International, a reverse image search engine which also pursues copyright infringements on behalf of photographers and artists in the event that infringements are detected by their software. It is one of several “copyright enforcement” companies that have cropped up over the past few years. These companies typically operate by encouraging photographers and artists to abandon traditional attorney-client relationships in favor of their service.

I could discuss my concern over how the approach of Image Rights dissuades artists and photographers from seeking their own legal counsel, or how they offer to charge photographers to register their copyright with the US Copyright Office for a fee of $99 in addition to the filing fee when photographers can simply register on their own by paying the $55 filing fee. I could also ramble on about how their marketing copy tends to be filled with meaningless word salad such as their offer to “serve as your authorized correspondent for your registration filing” or their service which allows photographers the “Use of the Protected by Image Rights Logo And Watermark” (both of which have little to no value in terms of copyright protection) as part of their monthly paid service plans.

I could also express my outrage over how companies like this take advantage of artists and photographers who may not understand intellectual property law, or those who find the idea of logging onto the US Copyright website to register their work too daunting. I’ve found that these companies almost always portray the enforcement of intellectual property rights as a tedious and time-consuming mystery in order to convince artists and photographers to turn over the process to them instead of a copyright attorney. But, I want to focus specifically on the Image Rights Terms Of Service and the rights grab hidden in those terms.

I didn’t sign up for Image Rights. They bought a company that I loved and acquired all of my images and personal information during the acquisition. I used to be a subscriber of a little Australian company called Image Witness. For a monthly fee, they would search all of my images and find where they were being used without authorization. It was one of the best services I’ve ever used. They didn’t try to convince me to get their team of letter writers to contact infringers, try to make IP law sound like a great big mystery that I needed their assistance with, or hide sneaky rights grabs in their Terms of service; they just scanned my images once a month for a monthly fee and delivered them to me on a regular basis. I register my work with the copyright office regularly, my work gets stolen very often, I have my own lawyers, and I have pursued thieves in and out of court many times. But, I rarely know who is stealing my work unless someone tells me or I see it in a magazine, so a service that scans for stolen work is invaluable to me.

One day I logged into my Image Witness account and I was redirected to Image Rights. I didn’t understand what had happened until I saw it in the news: Image Rights had acquired Image Witness. No doubt, Image Rights acquired them because they had the best scanning software on the market. During the transition, all of my images were transferred to Image Rights and I found myself faced with the conundrum of having had my favorite service transferred to a company whose practices I didn’t agree with. I decided to take a closer look at the Image Rights Terms Of Service and learned that the company was more troubling than I had originally thought. The Image Rights Terms Of Service links up to an additional agreement called the “Recovery Service Agreement”, which states in part:

…In the event that You are involved in litigation or other legal action relative to a Recovery Asset, You agree to notify ImageRights immediately of any information material to ImageRights’ ability to perform its obligations herein, including but not limited to: (i) the initiation of such litigation or other legal action; (ii) the identity of the Recovery Asset(s) involved in litigation or other legal action; (iii) any settlement, judgment or other resolution in the litigation or other legal action; (iv) the Dollar amount of any settlement, judgment or other resolution, and (v) any other information reasonably requested by ImageRights.

These terms bind the user to the use of Image Rights legal services whether you want them or not. When you sign up for Image Rights, it’s all or nothing. You can’t just use them to scan for infringements. This means that once you upload your images to Image Rights, it doesn’t matter how you found out about your work being stolen; Image Rights has the right to pursue it, and if you don’t let them pursue it, they will come after you for half of any settlement you receive. I was shocked by the prospect of such an egregious grab. Surely, they couldn’t be claiming the rights to legally represent every image uploaded to their service? I wrote to the owners of Image Rights to confirm if I was actually interpreting this correctly. I heard back from Elizabeth Connolly, Senior Claims Analyst, who informed me of the following via email:

Under our terms of service we request first right of refusal for every sighting that was first found by ImageRights. We have our Flex Recovery Plan that allows you to take on claims on your behalf or through your own legal team as well as pursue your claims through ImageRights if you choose. Pricing for the Flex Recovery plans start at $208 per month or $2,495 per year.

In my reply to her, I suggested that artists and photographers need to be informed of the ROFR up front as not everyone will read the fine print. Artists who were customers of Image Witness because they simply wanted an image scanning service needed to know that they now would have to pay close to three thousand dollars or they must fire their lawyers or they would risk having their court cases attached by Image Rights. Even worse, subscribers of Image Witness who had their accounts transferred over to Image Rights after the acquisition, would now be bound to new Terms Of Service if they stayed on. How many former Image Witness subscribers stayed on and didn’t read the new TOS? I informed her that I would eventually be writing an article about the company and its practices. Her response to me was that, “The choice to sign up for our service is in the hands of every Image Witness photographer. We are not binding you to our terms via this acquisition. I have reached out to our CEO as well as ImageWitness’s CEO to get into touch with you.”

I agreed to speak with Joe Naylor, the CEO of Image Rights. I wanted to ask him these questions myself, as I was curious what his answers would be. We scheduled a time to speak, but he never called. I never heard from them again and because I was traveling extensively at the time, the whole issue dropped off of my radar. About one month ago I learned of several other image scanning services and decided to compare them against the capabilities of Image Rights in order to pick something comparable. So, I decided to sign up for Image Rights for two months. Knowing and temporarily accepting their horrible terms, I hoped that there wouldn’t be any major infringements during the time of my little experiment. Luckily there wasn’t, but they did turn out to be the best of all of the scanning services because they bought out the one company that had excellent scanning capabilities. Regardless, I didn’t want to stay with a company that takes advantage of artists, has horrible Terms Of Service, and buys out their competition.

I asked my assistant to contact Image Rights to change the payment card on my account and she was informed that the old account that they acquired from Image Witness was still open despite my asking them to close it. I wrote to them again personally and asked them again to close the old account and explained that I was assessing the capabilities of a few scanning services so I would keep my Image Rights account for one more month. In this email, I also expressed my disappointment that I was never contacted by Joe Naylor and received an odd response from Elizabeth Connolly. Rather than apologizing that I was never called, she said: “That is too bad you were unable to connect with Joe after he called you.” She then informed me that clients of Image Rights are only able to use Image Rights. In other words, no matter how you end up stumbling upon your work being infringed, Image Rights is going to sue you if you don’t use their legal services. In Connolly’s words:

If you were to take the sightings we delivered to a different service, we would still require our share of the settlement. To avoid any potential problems our clients only use our service for sightings and pursuit.

In their own words, Image Rights appears to be pressuring their customers to use them and only them for any sightings and legal recovery so that they don’t run the risk of being sued by the service they are paying for.

I hope this serves as a warning to any photographers and artists who may have not read the entire Image Rights Terms Of Service. As it states in the Recovery Service Agreement and as it was reiterated to me several times by the company via email, once you upload your images to Image Rights, you are agreeing to be bound to them in all legal actions arising from those images if their service also detected that infringement. If you find someone infringing your work on your own and that infringement is also detected by Image Rights, you cannot sue that person with the help of your own attorney or Image Rights will sue you for the settlement. Based on these terms, if you sent an invoice to an infringer for a licensing fee after finding it via Image Rights scanning service, Image Rights will come after you for a portion of what you recovered.

As long as your images are on Image Rights, they own your work in terms of copyright enforcement. If you aren’t happy with that, you can pay them $2,495 per year for just the image scanning. But, you won’t see that pricing option anywhere on their website because apparently, they only tell this to people who question them about their Terms Of Service. If a person were foolish enough to pay $208 a month for the scanning service alone, they would be agreeing to a price hike of $179 since Image Witness used to cost $29 a month. In this regard, it seems to me that Image Rights acquired Image Witness and raised prices on their former customers by $179.

My point in writing this is to let artists know that by signing up for Image Rights and paying them a monthly fee, you are granting them an enormous amount of legal control over your intellectual property. This may not be a problem for those who don’t mind having their cases handled by Image Rights, but this is problematic for anyone who has their own lawyers and/or wants to maintain legal control over their work, may be using Image Rights for reverse image search, or was transferred to Image Rights after their acquisition of Image Witness and did not realize the Terms Of Service had changed.

In conjunction with the other issues surrounding Image Rights, I hope that artists will look more closely at these types of services before giving them access to valuable work. While Terms Of Service are a legal necessity, some companies abuse this necessity knowing that very few people will actually take the time to read them. The problem is that for the company it is always in their best interest to ask for all the rights they think they can get away with asking for. Since few people actually read the terms they are agreeing to, companies will often overreach. In the case of Image Rights and other similar “copyright enforcement services”, many people may not realize that they are turning over all legal control of their work to the company.

As I always tell artists who ask me for advice about safeguarding their work: register all of your work with the copyright office and always have one or two good lawyers that you trust on hand. It’s really that simple. An image scanning service is important, but unfortunately Image Rights bought out the best one. Developers might want to take note and build a strong reverse image search API that can offer detailed image searches without trying to sucker artists into overreaching contracts with a network of mystery attorneys for minimal recovery and potential future hassle when these mystery attorneys bungle a case before it even gets off the ground.

A Response to Photographer Kalliope Amorphous

Written by Joe Naylor, CEO of ImageRights

Why I started ImageRights:

Ten years ago, I left my career in tech to start a new company called ImageRights International. The idea came from my longtime friend Ted VanCleave, who was a professional photographer. He asked me what I thought about starting a company that would help him and other photographers find where their images were being used online since copyright infringement was rampant and costing photographers thousands of dollars in lost revenue.

We launched the image search service in 2009. By the summer of 2010, the overwhelming feedback from our photographers was – you found someone using my images, now what do I do? So, we launched our ImageRights Recovery service, where we (literally I) would call the infringers and try to negotiate a fee for the unauthorized use.

Through our experience negotiating with infringers and their attorneys, we learned how critical registration with the US Copyright Office (USCO) was when pursuing claims in the US. At that time, ASMP has surveyed their membership and found that less than 3% registered their work with the USCO. They understood how critical this was and launched a nationwide tour where they set up workshops to show photographers how to submit a registration through the USCO’s eCO website.

I attended the workshop in the Boston area and we spent 30 minutes just trying to help one photographer log in to the eCO website. At that moment, it became clear to me that we needed to offer a service whereby we would register the works on behalf of our photographers.

Fast forward to 2018 and we have assessed more than 50,000 copyright infringement claims for free, recovered more than $8 million across four continents on behalf of our photographers, and have registered more than 700,000 images with the USCO. I couldn’t be prouder of what we have accomplished over the past 10 years.

Response:

ImageRights is not a reverse image search engine. We are a comprehensive copyright enforcement service, focused on recovering compensation for our photographers. To support this objective, we have developed a platform that integrates image search, automated registration with the US Copyright Office, and our copyright infringement case management system that is utilized by both our clients and the more than 40 legal partners from around the world who we have engaged to handle their claims.

We have developed our own proprietary web search technology, which was augmented by the code we acquired from Image Witness. Given the significant investment we have made into our platform over the past 10 years and the ongoing costs of operating such a service, we require that any infringing uses of our photographers’ works that are discovered and reported by our image search service be submitted to our ImageRights recovery team for assessment. If we opt out of pursuing the claim, then they are free to pursue in whatever manner they choose.

We do offer another type of service plan, ImageRights FLEX, to photographers who prefer to do their own recoveries, either directly or through their own attorneys. In exchange for charging a higher fee for these service plans we waive the right of first refusal to pursue the claims our search discovers. On average, these accounts easily cover the annual cost of their FLEX plan with the proceeds from a single settlement.

In response to: “It doesn’t matter how you found out about your work being stolen; Image Rights has the right to pursue it.”

If one of our photographers finds an infringement on their own, they do not have to submit it to us. However, most of our photographers submit the infringement claims they find themselves to us as well, as that is the primary reason they work with us to begin with.

This passage from our recovery service agreement was also cited:

…In the event that You are involved in litigation or other legal action relative to a Recovery Asset, You agree to notify ImageRights immediately of any information material to ImageRights’ ability to perform its obligations herein, including but not limited to: (i) the initiation of such litigation or other legal action; (ii) the identity of the Recovery Asset(s) involved in litigation or other legal action; (iii) any settlement, judgment or other resolution in the litigation or other legal action; (iv) the Dollar amount of any settlement, judgment or other resolution, and (v) any other information reasonably requested by ImageRights.

Then it was stated in the blog post that “These terms bind the user to the use of Image Rights legal services whether you want them or not.”

This actually means that if a photographer submits a copyright infringement claim for us or our partner attorneys to pursue (i.e. the Recovery Asset) and she is currently litigating a case involving the same images, then she needs to let us know that. This would clearly be critical information that we, and more specifically, the attorneys we have engaged to represent her, should know. This is standard practice and not anything specific to ImageRights.

There is a very important distinction though between what we have built and what many of our competitors offer. Many have simply written a script that scrapes Google’s reverse image search results, with no filtering of the results whatsoever. We tested one company and the search results were identical, including in the same order, as those returned on the first page of results from a Google reverse image search.

At ImageRights, the AI that we developed analyzes the sightings our crawlers found and only presents those sightings on sites that we already know are pursuable for monetary recovery, which we in turn deliver to their Inbox. The remaining sightings are automatically sorted into a number of other folders (e.g. Assessment Required, Out of Recovery Area, Blogging Platforms, Authorized Use, etc.). This saves our photographers a tremendous amount of time and generates a much higher revenue return on the time they do spend reviewing the sightings and submitting claims to us.

Through the combination of the web crawler technology that we developed, our AI that helps assess claims, and our internal license compliance team, we received payment from one infringer within five hours from the time the photographer submitted a claim to us for assessment.

In addition to our own internal license compliance team, we have pre-negotiated terms with more than 40 law firms around the globe to take on copyright infringement claims for our photographers. The benefit of our IRLC team is that we will pursue claims that don’t meet the criteria that most copyright attorneys require to take on a case. However, if a claim does meet the criteria for one of our partner attorneys, then we pass it directly to them to achieve the best possible outcome for our photographer. In fact, this is our preferred avenue for recovery as our attorney partners on average achieve the best results – primarily because we are delivering them cases that can be filed if an amicable settlement cannot be reached.

A fundamental component of our service is that ImageRights fronts all the out-of-pocket legal expenses on behalf of our photographers, so that the cost of a court filing for example doesn’t inhibit them from pursuing an otherwise perfectly good copyright infringement claim. It also allows them to pursue many claims in parallel without having the legal costs serve as a deterrent from doing so.

ImageRights is also the only company to have fully automated the copyright registration process with the USCO. We have even developed an Adobe Lightroom plugin that enables photographers to register their photos with the USCO directly from within Lightroom. The registration is integrated with our image search and case management platform, which enables our system to automatically determine if the infringed images are registered timely for a given case and factor that into the recommended course of action for pursuing that infringement claim.

Timely registration provides significant advantages to copyrights by providing them an option to pursue statutory damages and attorney’s fees. This is why we constantly emphasize the benefits of USCO registration. Most photographers trying to complete the application themselves are completely lost. That statement says nothing about photographers, but rather how difficult and cumbersome the USCO registration application process can be. With the automated registration service that we have built (largely based on my first-hand experience with doing them manually), it now takes our photographers less than five minutes on average to submit their applications. For this we charge a $34 fee in addition to passing through the $35 or $55 eCO filing fee. We also receive the USCO certificates of registration back within 1-4 weeks vs. the eight months quoted on the eCO website.
For those who only want to register copyrights with the USCO through us and don’t want to utilize our search or recovery services, we do offer USCO registration for $99 plus the eCO filing fee.

We are passionate about helping photographers. We were founded to help photographers. That’s what we do. We have not only helped thousands of individual photographers and photo agencies, we are doing our part to help the industry as a whole by tamping down infringements and compelling serial infringers to reconsider their business practices. Anyone who has any questions about our service I would encourage to call me or someone from my team and we will happily answer.