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By Alan Kotok
Former White House photographer Pete Souza recently received a notice of copyright violation for a photo he took while working at the White House. A few weeks earlier, I got a similar notice from the same organization and, independently, we took similar actions that got similar results: The notices were retracted.
In both cases, the notices came from a copyright enforcement group called Copytrack GmbH, based in Germany. Since 2018, Copytrack has acted as the enforcer for WENN Media Group, a company in the U.K. that claims to hold the rights to libraries of entertainment images, then sends Copytrack to collect penalties from those accused of improperly using its images.
In Souza's case, the claim of copyright infringement is utter nonsense. Souza shot photos of the president for the White House. Thus, as government property, those images are in the public domain. After he explained that in a response, Copytrack told Souza its claim was an error and retracted the violation notice.
My case was different. Copytrack sent me a notice on July 7, 2022, saying an image in our November 2011 Science & Enterprise story violated WENN's copyright. Science & Enterprise is a daily news site reporting on the intersection of science and business, including robotics technology. In November 2011, we wrote about advances in robot intelligence that the Honda Motor Co. said made its Asimo line of humanoid robots more autonomous.
The story featured a photo of an Asimo robot, which Copytrack said was copyrighted and used without WENN's permission. I took the photo from a press release with Honda's announcement. But according to Copytrack, I owed them EUR 220 in damages and another EUR 250 a year if I wanted to continue using the image.
When news reporting is "fair use"
As a photographer as well as a publisher, I'm sensitive to use and misuse of images and steer clear of copyrighted content. So I went back to the Honda company website and found that same November 2011 announcement. The Honda release was accompanied by a set of images, including the image Copytrack said was copyrighted by WENN. A little more checking revealed a separate Honda website for the Asimo project, with that same release and image embedded in the text.
I'm not a lawyer, but after working in publishing since 1990, I know a little about copyright. I searched provisions of the U.S. copyright law in the government's website and discovered section 107 of the law spells out exemptions for fair use of copyrighted material that include news reporting. One factor in determining fair use is the nature or purpose of the copyrighted material. In this case, the image was part of Honda's press materials designed to disseminate news.
In addition, I made sure Copytrack knew I was ready to call in help. In my response to Copytrack on July 10, I cc'd the Electronic Frontier Foundation and the Society for Advancing Business Editing and Writing (SABEW), two groups I support, and noted in my message that they're "two organizations that monitor abuses of copyright law threatening legitimate news gathering, reporting, and publishing."
On July 12, Copytrack sent me a message saying, "We have reviewed the information you have provided us and decided to close the claim. Thank you for your kind cooperation."
You can decide for yourself if WENN and Copytrack are just sloppy in checking out the validity of their claims, or if they are going after anyone they can, then backing off when shown they're wrong. But if you're in the media business today, you need to know at least the basics of intellectual property law so the likes of Copytrack and WENN can't push you around. And you need to set standards and follow those standards when using materials from other sources.
And finally, join industry groups that help protect against copyright trolls. You don't have to fight those bullies alone.
Alan Kotok is editor and publisher of Science & Enterprise and co-chair of the National Press Club Photography Team.
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