Gary Shuster is an inventor (255 issued US patents), a photographer (and a pioneer in projected light photography), and a lawyer with an intellectual property practice.
Gary’s take: The unfortunate advice I find myself giving out (and no, I’m not your lawyer, and this isn’t legal advice) is that creators should abandon custom photographers and paid stock photography in favor of using AI-generated images with instructions to create images that are not look-alikes or look-too-similars to real photographers’ works.
I love photography. Photographers have survived the digital photography revolution, cell phones that are nearly comparable to professional cameras (letting people make their own photos that look pro), and even the AI revolution. But they won’t be able to survive a terror-inducing campaign sent to people nationally threatening damages in the $75,000 range for using an image that was uploaded to Wikimedia and incorrectly labeled as subject to a public use license. Sure, you used that 400×400 pixel version of a 4,000 x 4,000 pixel image by accident, and you even researched the license but were misled by mislabeling, but you’re still being threatened with ruinous damages.
Why license a copy of a photograph for $25 and risk a $75,000 demand for infringement damages when you can instead pay $20/month and get unlimited AI-generated images that show exactly what you ask for? You can even create them on your own computer for free.
There needs to be a legislative fix. Judges and state bars should crack down on the unfair business practice of sending a letter demanding statutory damages for an unregistered work that isn’t eligible for statutory damages, or that is clearly fair use. But until that happens, as much as I want to support my fellow photographers, I’ve canceled my stock photography subscriptions. I just don’t need the headaches copyright t̶r̶o̶l̶l̶s̶ enforcement firms can cause.
The Getty Images site offers a photograph of the US Patent and Trademark Office for $175 (small copy) or $575 (large copy) (I’m in Canada, so this is all CAD). It’s a fantastic image by Paul J. Richards, and exactly the kind of image I would normally purchase to use on my innovationcafe site. I don’t want to get a $75,000 demand letter, so I just asked Gemini to create an image. It’s not as good. It lacks the photographer’s creative eye (reflections in the right side windows in the Getty image are amazing). But it comes with nearly zero risk.
Instead of paying Paul J. Richards (via gettyimages) for his fantastic hard work, I’m sticking with AI images like this one. Thanks, copyright enforcement entities.
There is nothing good about this. It’s another example of when I feel like apologizing for even being a lawyer. An innocent mistake should be dealt with by a takedown notice or, at worst, a demand for what the image would have cost if licensed properly. But given the catastrophic, bankruptcy-level demand letters you could receive if there is any glitch in the licensing chain (say a pirate claimed that they took the photo and tricked a licensing company into believing it), paying humans for creating artwork is now too risky.