They published my photos on their site a whopping 154 times without my permission. So I sent them a takedown notice. And I learned an unfortunate lesson.
I’ve always encouraged people to use my photographs in their personal or non-profit projects. I wanted to make it easy to do that. But I’ve never wanted for-profit companies to use my photos without my permission. So for years I’ve had Flickr assign the Creative Commons Attribution-NonCommercial-NoDerivs (BY-NC-ND) license to my photos as I upload them. It set just the terms I wanted.
Not long ago a reader contacted me to say that he found several of my photos used in an article on Only In Your State. This site publishes articles about places and events in each US state. They claim to be a travel site, but it looks to me like they’re trying to take advantage of search’s “long tail” and of social-media sharing, to drive eyeballs to their site and the ads on it. The articles appear to be churned out quickly, and it looks like they mine Flickr and Facebook for photographs to use as illustrations.
I went to the page that reader shared and there my photographs were. At least they credited me by putting my name under each one.
Curious, I Googled “Jim Grey site:onlyinyourstate.com” — and got a long list of results. My Flickr stream had been a gold mine for them! They used these photos in particular many times in their articles.
A number of years ago I wrote this post about image theft. I gave it a tongue-in-cheek title, but I was serious in saying that when you publish your photos on the Internet, you should expect that people will sometimes use them when you’d rather they didn’t. When it happens, you have to decide whether righting the wrong is worth the effort. It takes time and effort to write a DMCA takedown letter. If it fails, you need to lawyer up to get your work taken down. Here’s the two-point test I posted then that still guides whether I go after someone who’s used my photos without my permission.
- Have you harmed me somehow, such as by claiming my work as your own, associating me with something I don’t support, modifying my work in a way I don’t like, or making significant money from my work?
- Are you being a butthead, repeatedly using my work without honoring my terms?
Only In Your State hasn’t materially harmed me (although I have no idea what their ad revenues are). But using my photos 154 times crosses firmly into butthead territory. So I sent them a DMCA takedown notice.
That took most of an afternoon. You have to list every single instance of your work that you want taken down. You also have to link to where they store it on their site, and where you store your original on the Internet. They used my photos 154 times — the letter was 17 pages long!
I heard back from Only In Your State within 24 hours. Their response was not unfriendly. They pointed out that there’s a well-known gray area in Creative Commons noncommercial licenses like the one I used: what constitutes commercial use? One camp says it is directly making money off the licensed work, such as by printing it on T-shirts and selling the shirts. The other says that it’s any use by a for-profit company. I looked it up; it turns out this gray area is real.
I fall into the second camp. Only In Your State falls into the first, and has no intention of removing my photographs. They did, however, offer to write articles about something I’m passionate about in my own state.
First thing, I removed the Creative Commons license from all of my Flickr photos. I now reserve all rights. But if you want to use my photos in your personal or non-profit work, email me (use my contact form here) — I’ll say yes.
Second, I told the people at Only In Your State about Indiana’s byways, especially the Michigan Road, the National Road, the Lincoln Highway, the Ohio River Scenic Byway, and Indiana’s Historic Pathways.
Maybe they’ll write articles, maybe they won’t. But from here on out, my photograph copyrights should keep them from using my images in any new articles. I hope.