Dan Robinson's Copyright and DMCA Frequently Asked Questions
Copyright infringement is a continuous assault on the livelihoods of today's content creators (photographers, filmmakers, musicians, writers, artists). As an independent freelance photographer and cameraman, I'm also a constant victim of the problem. My total lost revenue from copyright infringement of my work in the past 10 years has exceeded the equivalent of at least four years of full-time income. Yes, you read that right: that's equivalent of a house or a significantly-funded retirement taken from me, and those funds are now in the hands of thieves. Again, that is the minimum figure based on the tens of thousands of infringement instances that I know about. That total includes license fees that I would have received from those uses of my photos and videos as well as advertising revenue for views of infringing copies of my videos on social media.
On just Facebook alone, more people have viewed infringing copies of my videos than on my Youtube channel in its entire lifetime! And there are likely far more infringements that I've not discovered yet: finding all, or even a majority of, infringements with my daily manual searches is impossible. The social media platforms refuse to grant me access to the automated tools that are the only way to track down a larger number of reuploaded videos.
The impact of that infringement on my life has been devastating and crippling. Instead of being able to do my photography and video full time, I have been forced to maintain other part-time and sometimes full-time employment to keep my bills paid. Ultimately, if my infringement mitigation actions fail to produce enough results in the coming years, I may have to shut my entire photography and video operation down. You see, I am not a mega-corporation like Disney or Warner Brothers that can absorb that kind of loss. Neither are many of my colleagues who also are going through the same thing.
It is from that place that I have launched an all-out war on copyright infringement in recent years, and I have recently ramped up that effort significantly. So much so that I'm re-publishing this article in anticipation of the usual criticisms that come along with fighting copyright battles. This is a task that I take no pleasure in and of which I would prefer to not have to take part, but it must be done to counter this existential threat to my life's work. I have signed on with rights management agencies and legal representation to attempt to both take down infringing copies of my work and recover some of that lost income. Those processes typically progress very slowly and involve significant costs of their own: attorneys, court costs, numerous copyright registrations and services from other professionals. Even after all of that, it is almost certain that I will never recover even a fraction of what has been taken from me.
One of my U.S. Copyright Office registration certificates.
Even with the help of the professionals I've enlisted, I spend at least one hour per day on infringement-related matters. For the most part, that is unpaid time. I've also been involved in many debates with infringers, their supporters and anti-copyright activists for years. Many people in the general public also don't have an understanding of what I've been going through and why I'm taking the actions I have. This article is my answer to the most common questions and objections I've dealt with.
Why are you so concerned about copyright?
I'll get into these reasons in more detail, but here is a short summary:
- Copyright infringement is an existential threat to my entire operation. I already covered that in my intro above. The lost income from infringements is the primary reason I have not been able to transition to being a photographer and cameraman full time. If I never issued any takedowns or fought copyright battles, I would have been out of business years ago.
- I'm bearing all of the costs and risks of capturing my content. I spend thousands of dollars a year on fuel and hotels, take dozens of unpaid days off of work, maintain expensive equipment and relentlessly spend 12 to 36 hours at a time in harsh weather to capture my images. I finance my own operations - I am not sponsored or supported by anyone, nor am I wealthy with lots of disposable income. My images and video that result from all that work and expense are my main 'product' that I sell, and those sales are how I am able to pay my bills and continue doing what I do.
- Competing copies of my photos and videos on the web and on social media take traffic away from the legitimate copies here on my web site, my Youtube channel and my own social media accounts. Competing copies often go viral instead of my original. I receive no benefit from that so-called "exposure" - more on that topic follows below.
- Many times the infringing copies rank higher in search engines than my original, including Twitter and Google Images searches. I'm repeatedly having to file takedowns for images that outrank me in image searches - if I didn't, the infringing copies would take more than half of all organic image search traffic away from my site. On Youtube, a competing copy (or video incorporating a significant amount of my footage) can completely replace mine in recommendations, searches and related video slots. Youtube's automated systems can also (mistakenly) deem the stolen copy as the original and consider *mine* the stolen one, causing a loss of monetization. All of those become more likely if the thief's channel is larger than mine.
- Credit lines, mentions, compliments and accolades bring no tangible benefit to me and are not acceptable substitutes for payment. I cannot use a photo credit to fill up my gas tank.
Why didn't you contact me first? I would have taken down your photo/video if you'd asked.
It's always interesting that many infringers expect me to contact them first before issuing a DMCA takedown, when they couldn't be bothered to contact me
for permission to use the video/photo in the first place! The answer to this question is very simple: contacting you takes too much time. That is time that your copy of my work sits there and gets indexed by search engines, and racks up views and shares on Youtube and social media in direct competition with my original copy
. Consider that I deal with sometimes a dozen or more infringements of my work per day. I'm supposed to do tons of extra work to keep track of all of that, all the while an infringing video is making the thief thousands of dollars a day while it racks up millions of views?
My experience has been that when I do make an exception and try to be a nice guy about it, the person usually still responds angrily, defiantly or incredulously. A discussion back and forth then ensues with me trying to explain copyright law to the person and why I'm objecting to their theft. It's ridiculous, and I'm done trying to be overly diplomatic. It doesn't change anything and just costs me even more time and frustration.
Consider that it took me extra effort to search for and track down the infringement and send the DMCA notice - that is time away from my job and my personal life. It's simply not fair to expect me to go an extra mile as a direct result of the actions of an infringer.
Will you please retract your copyright claim so the strike on my channel will be removed? I'm really sorry!
No, I will not retract any copyright claims. I had to go through the extra trouble to find your copy (and many others) and manually fill out the takedown forms. That is time away from my paying job that I really should be able to bill you for (and I'm starting to do that), not withstanding file a copyright infringement lawsuit against you! A copyright strike is only fair.
It's interesting that 99% of the people asking me to retract a copyright claim also have a Youtube channel filled with other videos they've stolen from other content creators. If they are truly sorry about copying videos, they'd take down all of the infringing copies on their channel! (And guess what - they never do)
I'm giving you great publicity and exposure, right?
That statement is a myth at best, and a lie at worst
. I get all the publicity I need from my web site, Youtube channel, social media pages and when my work is purchased legitimately for publication/broadcast. Publicity and exposure does not do a thing for me. I know from experience! I've had interviews on national and international television, credits in prominent TV shows, magazines, newspapers and books
. I never get extra web traffic or sales from those! The only
benefit I received was from the license fee I was paid for each use.
Think about this for a minute. How many times have you Googled the name of someone you saw in the credits of a show or in a photo credit line in a newspaper/magazine, then went to their web site and bought something? That's right, probably never. Guess what - you're not alone. No one does that. The 'great exposure' I get from infringing use is completely useless to me. I only make meaningful revenue from usage license fees, which is exactly the thing every infringer steals from me when my image is used without permission and payment. It's no different than a shoplifter taking something from a store.
If you're a media employee or personality, you of all people should know the true value of publicity and exposure for a photographer (that is, there is none). Some of you are on TV every day. Does that publicity pay your rent and buy groceries? No, then why do you think it would pay for mine? Would you stay at your job if your GM said "You know, since you're getting all this publicity from being on TV all the time, we aren't going to pay you any longer". Copy editors and writers, does that credit line pay your salary, or is it the company that employs you?
I only benefit I get from use of my work is when I'm paid a license fee. The 'you'll benefit from the exposure' line is, at best, a myth by those who really don't think about what they're saying, and at worst a lie by the unscrupulous trying to take advantage of someone they think doesn't know any better.
My use of your work was 'fair use'.
It's most likely not. Fair Use is not based on this tunnel vision on commentary and editing that so many believe. Almost everything that has ever aired on television, media and in the movies
has commentary and editing. Just think about this for a minute: news broadcasts do nothing but comment on footage from news cameras, and that has never been considered Fair Use. The reality according to the law is that four factors
must be considered when evaluating a Fair Use claim - that includes
instances that have commentary and editing. Fair Use is supposed to be fair
, not a free-for-all against the owners of the content. You can read this from the source
at the U.S. Copyright Office. Here are those four factors and how they apply in the case of works created by photographers like me:
- "Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes": A Youtube video that is running ads and receiving AdSense revenue is commercial use! If your copy of my video is earning you money, it fails this part of the 'fair use' test right away. And no, just because it is news footage doesn't make it free. You think TV cameramen don't get paid to do their jobs? Every TV news network pays me to use my video. You are no different with a monetized Youtube channel. No further explanation needed.
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole: The Youtube infringers always take my best and most popular scenes and play them in their entirety (for example, the entire icy road action sequence, tornado or lightning strike scene). I make my own compilations out of my best videos, and the thieves essentially take the same scenes from those and insert it into theirs.
- Effect of the use upon the potential market for or value of the copyrighted work: It matters where content gets viewed. Why do you think the movie studios and the NFL control so tightly where you can watch a movie or a football game? Because it matters! If everyone could watch new releases on Netflix, why would they go to a theater to watch a movie? Why are Super Bowl ads so expensive? It's because you can't watch the game anywhere else. Once a viewer has watched my video on another channel, they have already "seen" it and have no reason to watch it again. If they do re-watch, they will go back to the compilation and watch it again, they will never go searching for the original, even if the link is in the description (and most infringers never post the link to the original anyway).
As I said earlier, Facebook pirates have received more views on my videos than my Youtube channel has in its entire lifetime. And I never have seen a spike in traffic from those infringing uploads. Every one of those has been a devastating financial loss to me. This goes back to the "I gave you great exposure" myth I went through above. When you take views away from my channel, you are taking money and food right off of my table. I also sell license for the use of my videos. Not only is a second copy anywhere on the internet taking views away from me, its use to begin with is something I normally charge customers for! It's no different from shoplifting in a store.
- "Nature of the copyrighted work": This is also a no-brainer. The compilation makers and re-uploaders are just taking my videos verbatim and repackaging them. Like I said before, I make my own compilations of my videos. I know how little time it takes to do those. You drag a few clips into a Premiere or even Windows Movie Maker timeline, and click "export". Boom - it's done. There is nothing added to the clips. Some make a feeble attempt around this bullet point by adding a little description of what is happening. Sorry, that doesn't even come close to "fair use" intent, especially since the use utterly fails the other three points! Think of the "caught on camera" TV shows on TruTV, The Weather Channel, etc. Those shows are doing the same thing - describing or telling a story about a video. They still pay the photographer for those clips and no court would ever say that it was 'fair use' to just take it. What makes you think that a little line of text will protect you when you are sued?
What I don't get about the insane interpretation of Fair Use that so many have is how impossibly unfair
it is. This idea essentially says that photographers have to bear all of the costs and risks of capturing content, then multi-million dollar Youtube channels and media corporations can just take whatever they want and not compensate us at all just because they added a couple of minimal lines of commentary in there. All the while showcasing the heart
of the video, which is in direct competition with our original copies on our channels.
I like to ask this question to someone who is so liberal in their interpretation of Fair Use: What, to you, would *not* be Fair Use? Can you give an example of what you think would be copyright infringement? The answers to this are usually very revealing.
Finally, the interpretation of Fair Use held by most "amateur copyright experts" doesn't exist in the professional world. Everything you see on television and in the movies has been licensed or has written permission obtained: *none* of it was taken and used under Fair Use. And those are multi-billion dollar corporations with the most powerful legal teams on the planet. If they could take things under Fair Use in the way most amateurs believe, they absolutely would, and they have more than enough legal firepower to defend themselves from copyright challenges. Why do you think a Youtuber can do what the entire media and entertainment industry doesn't do? If you're a Youtuber wanting to use third-party content, take that free legal hint from lawyers you and I could never afford: properly clear everything you use.
Think about what the world of media and entertainment would be like if Fair Use was so permissive. There would be no professional photographers, writers or artists. The only video content that would be available for the big Youtubers and media corporations to use would be amateur America's Funniest Home Videos-style cell phone clips.
You're supposed to share on social media!
Right. That's why there is a 'share' button for every social media platform out there. Sharing of most anything online is a simple one-click deal
. Quick. Easy. Painless.
But the thieves don't do that. No, they go through the extra steps to download the image or video and repost a separate copy of it to their account! Answer this very simple question: why would someone do that instead if just clicking 'share' or 'retweet'? Why would they go through all of that extra trouble? It's because they know they're going to get all of the viral benefit instead of the photographer by doing that! I invite anyone to try and defend that - you can't. That's not sharing, that is stealing.
"Sharing" is good, and all of the platforms have made it easy to do it. Stealing an image is never accidental - it requires additional, deliberate steps (right click, download, re-upload). As opposed to the simple one click of a legitimate share. Stealing diverts all of the viral traffic, likes, shares, retweets and links to the thief's account instead of mine, causing their following to grow instead of mine. And again, the little credit line or mention I'm sometimes given in such cases doesn't do anything for me in reality. People will not click over to my account and/or search for me from the infringing post (I know and have the site traffic data to prove it!). They're just going to re-share or RT the thief's post without ever giving me a second thought. If they can see the photo on Twitter, why would they click over to my web site to see the same image again?
This is especially true of mobile users (on phones or tablets). They'll see an image or video on their feed, and they are just going to engage (comment/like/share) THAT copy, then keep on scrolling. No one on a mobile device is going to click away from Facebook, Twitter or whatever app to try and find my original or go to my web site. It just doesn't happen! I wish people would just stop and think about this for five seconds before giving me the "you're getting great exposure" speil.
If that doesn't explain it enough, here's a more detailed post and infographic I put together on it.
What's the big deal? It's just a Twitter/Facebook/Imgur image or blog post!
Half of the time, an infringing photo ends up ranking higher in search engines than my original copy. This is especially true of TV station sites and media blogs. Twitter has a Google pagerank of 10 and Facebook a 9 - a copy of my photo on those sites will almost always outrank my copy here on this site. That means when someone searches for the image in Google/Bing/Yahoo/whatever, the infringing copy sometimes shows up first - then that
link gets re-shared, boosting the infringing copy even more.
Furthermore, a competing copy on social media takes engagement (likes, shares, comments, favorites, retweets, new followers) away from my account and diverts it to the thief's. Their copy could go viral in the future, and leave me with nothing. Again, people are generally not inclined to go searching for the original copy of an image, they'll just do what is easiest and re-share the first one they see. I already covered that above.
Copying something doesn't cost anything, so you lost nothing when I copied your photo.
Again, my primary income from photography and video comes from selling copies of my work to be used by third parties. Most of a musician's income comes from selling copies of a song or album. A copy does have value, it is the cornerstone of how artists, photographers and content creators make a living.
If you can't make money from your work because people steal it, then find another job.
This is like telling a store owner that if he can't make money because of shoplifters, then he should find another career instead of doing loss prevention and prosecuting the thieves. It's interesting that those who say this are acknowledging that the work is desireable enough to steal and use for their benefit and profit, but somehow not worth paying me for so I can make a living. It's a double standard.
A true artist doesn't worry about money, only that his work is appreciated by others.
The person making this statement is really saying that there should be no such thing as a professional artist, photographer, writer or any type of content creator. When they say 'no, I'm not saying that', my next question then is how does the professional content creator make a living? The answer is usually along the lines of 'he should freely give and let the money situation work itself out'.
"Be passionate about your work, and the money will follow" is a utopian fantasy that does not work in the real world. I know it because like many photographers, I did just that back when I was starting out. It would be nice if I could freely give everything away, then have all of my needs just magically taken care of as a result. I always ask someone who says that if they could suggest a scenario or plan on where all this magical money is going to come from. So far, I've never received an answer.
Copyright should expire earlier/not exist because free creative works would enrich society.
I'm sure society would benefit if Wal-Mart gave away all of their products for free, carpenters and plumbers gave their services away for free, and Dairy Queen gave away free ice cream cones. That sure would enrich a lot of people's lives! That is, until all of those companies and people went out of business because they weren't bringing in revenue. Then there would be nobody making free stuff to give away.
If you believe that free creative works are so essential, so vital to an enriched society - then why don't you do something to help out the content creators that are producing them? Why is that burden on us 100 percent? We have to pay full price for all of our costs of producing content - cameras, travel, etc. And you can't see fit to pay us anything? You call us 'evil' for expecting to get paid and protecting our copyright? This absolutely boggles my mind that so many people think this way, and I have yet to hear a rational basis for it.
I gave you lots of compliments!
I genuinely appreciate that, but it doesn't make stealing my work OK.
I'm non-profit/not making any money from your images or video.
You are causing me to lose viewers on my own web site or Youtube channel, which does cost me, even if you're not making any money. I also have to spend time sending DMCA takedowns and searching for infringing copies like yours.
Content on the internet should be free!
If that's true, then so should my cameras, fuel, hotels, groceries, health care, rent, internet access, utilities, insurance, you name it. Figure out a way for me to drive thousands of miles a year, take weeks of unpaid time off of work, buy and maintain professional gear, keep gas in my car and take care of my living expenses for free while I capture my images and video, and I'll give a free license to use my work. Deal?
You're just worried about money.
I don't understand what is meant by that. Of course I'm worried about money, because I have groceries, health care, rent, internet access, utilities, insurance, car payments to pay every month just like you do, on top
of the costs of producing my content!
Just take a quick browse around my site and Youtube channel. News flash: it takes money to produce all of that. Not exposure, not credit lines, not likes on social media. More than 90 percent of what I've captured would not have been possible without license fees and ad revenue I earn from my content. And think about how much more I'd have been able to produce if it weren't for the huge amount of funds siphoned away from me by copyright infringers, preventing me from doing this full-time!
You're an evil capitalist for wanting to earn money from your video/enforce your copyright.
So the small-time photographer that bears all of the costs, risks & workload to capture the core content is evil for wanting to be paid to cover his rent and groceries, but the multi-million dollar Youtuber or corporation getting rich from *using* the content without paying is perfectly virtuous. Way to stand up for the worker there, comrade.
You sure do complain about this a lot.
As would you if up to half of your paycheck (after taxes!) was stolen every year.
You are a copyright troll.
So, given everything I've just finished describing in great detail, exactly what
do you think I should do in response? Nothing?
Is that what you mean when you say I'm a copyright troll? If you (or your company) suffered even a fraction of the losses I have, you'd be on the phone with an attorney in five seconds, and everyone would be supportive of you. It's absolutely mind-boggling that I get this accusation when I try to do anything
to fight back.
Every action I take is completely justified and in accordance with the law. And I haven't made, nor do I ever expect to make back all or even a majority of the losses I've suffered. I've always found this accusation like something you'd hear from a cartel. It's like a small mom and pop business being told "you're going to let us take as much of your inventory as we want, and you're going to be happy about it. And if you complain or fight back, we'll ruin your reputation". Infringers and their defenders say and do the exact same thing to me.
You're being too stingy with DMCAs. You're not being very nice about this.
Notwithstanding the fact that it certainly wasn't very nice to steal my image/video - if a DMCA seems harsh, consider that I have the right and the option to send the case to the attorney's office. If the infringer is a major TV personality or business, that's likely happening anyway - in addition to the DMCA.
Please understand that this is nothing personal. I take no pleasure in having to do any of this. I would prefer that all of my work is shared properly and/or a valid license purchased, and I didn't have to spend one minute searching for infringements and issuing takedowns. If I didn't actively patrol for infringement, it would get out of control very fast. Even despite all of my current copyright enforcement efforts, I've lost years of income to infringement!
How can I help?
I know I have many viewers and supporters who understand what I've been going through. I am very thankful for all of you. I'm often asked what kind of help I could use in this battle. These are the most effective things you can do not only for me, but any creator you follow and want to support:
- Let me know if you see an infringing copy of my videos or photos anywhere other than on my official Youtube channel, official social media account or this web site. You can email me here on my site or you can message me or post at me on Twitter/X @stormhighwaycom.
- Don't follow or share content from accounts that appear to be stealing content. A social media account that constantly posts lots of viral videos and photos is almost never doing it with permission or a license from the owners. Again, If you see mine or any other creators' work on these accounts, the best thing to do is let the owner of the video or photo know so they can file a DMCA takedown. It usually only takes three DMCA takedowns to get the account shut down.
If any of what I said above is news to you, I implore you to read up on the basics of copyright. It might save yourself or your company significant trouble in the future. Here are some helpful links:
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