The Fancy.com Uses Major Loop Hole In The Law To Use Your Images

The Fancy.com Uses Major Loop Hole In The Law To Use Your Images

Several months ago I noticed a spike in our website traffic from a fairly large website called "The Fancy." From a web traffic standpoint I initially thought this was good news and that one of our blog posts was picked up again. After following the link provided in the backend of our Squarespace analytics referral page, what I found was outright unlicensed image use for profit. 

ANOTHER COPYRIGHT STORY

Who We Are

I am the studio manager of a photography studio in the advertising industry called RGG Photo. We specialize in food, beverage, and product photography and have full service studios in Chicago and St. Louis. Our clients are typically medium to large scale corporations who hire us through ad agencies in charge of their marketing and/or advertising dollars. I tell you this because we spend the majority of our day bidding on projects, estimating usage fees for our images while keeping up with new portfolio work. Commercial photographers make their living off of days rates plus usage fees.

What Happened

Several months ago I was doing my routine of analyzing our website traffic through the backend of Squarespace. In this web platform it couldn't be easier to access and the web traffic information and it is all segregated in segments called overview, mobile usage, subscribers, referrers, popular content search queries, and detailed activity as seen below.

fstoppers_squarespac analytics_Fancy_Gary Martin

 

While reading the referrers section, seen below, I noticed an abnormally high website that was the second highest contributor to our page views of that day.

fstoppers_Copyright Article_Fancy_Gary Martin

Tracking Down The Image

So normally I clicked on the link to see what kind of article was driving such a high amount of daily traffic to our website. When I clicked on the link I was taken to the homepage of Fancy.com. Nowhere did I see any sign of an article, blogpost, mention, tweet, or anything about our website. The one thing I did notice was that it was full of gorgeous product photography. This is when I became suspicious of suspect behavior. I began to think of products on our blog that could potentially be sold on this website. I first decided to try a "Nixon watch" search and typed in "Nixon Watches" in their search field on The Fancy homepage. The results page came back with the following:

fstoppers_Nixon Watch Search_Copyright Article_Gary Martin copy

The Nixon Sentry Watch image (above) selling for $130 is our image. Once I clicked on our image, I was taken to a checkout page where I could add the watch to my basket, pay, and then get it shipped to me. It was here that I noticed that The Fancy website was using a hot-link to our image, which means that the image wasn't actually taken off of our website but the link to it was embedded into theirs and just our image was displayed on their website. They even cropped it in an unflattering way. So that means our web traffic was also being taxed without actually giving us credit whatsoever. So they were using the image and also our web hosting to sell their products, the double whammy.

fstoppers_Nixon Image_Checkoutpage_Thefancy

 

I also found it again randomly (seen below) while looking through more of the site after I had already found it in my search.

 

fstoppers_copyright article_fancy_garymartin

 

Contacting The Company

I decided to attempt to contact the company and see where I could send an invoice for usage rights of our image. To me it was clear that the image was being used by a large company for profit and this was a clear violation. I was able to quickly find some chat support and strike up a conversation with a nice customer service attendant that directed me to e-mail them directly at their customer service.

 

fstoppers_chat support_copyright article

E-Mailing The Fancy

So I began e-mailing the company as directed with the following message:

Our copyright department has found our copyrighted image(s) on your website being used to sell your products. We have never discussed this with Fancy and have never granted permission for the company, or its subsidiaries, to use our images for commercial purposes. Having said that, I would like for you to please provide us with the contact details for your accounts payable department so that we may invoice you for the usage of our images created and copyrighted by us, Rob Grimm Photography.

They responded the same day with the following:

I work with the Customer Care team at Fancy. Thank you very much for bringing this to our attention. Can you please send us a link to the image in questions so that I may pass along for further review? Thank you for your help and I apologize for the inconvenience.

I told them the image and didn't receive a reply back. Shortly after this I noticed that the image was gone from the website and no one followed back up with me. I e-mailed them the following message 5 days later and received no response:

I have not heard anything back from you or your organization about our image and compensation for its usage. Please get back to me as soon as possible so that we may remedy the situation.

Finally, 16 days later I received an e-mail from their legal team. Mainly because I wouldn't leave them alone.

Legal Response From The Fancy

The legal team wrote to me and explained that the Fancy is a "crowd sourced" photo sharing site and as required under the DMCA (Digital Millennium Copyrights Act) that they remove all copyrighted content upon notification from the copyright holder.

After a few more e-mails with long gaps in between my correspondence with the legal representative, I finally got some specific information on how this was possible:

I appreciate your continued follow up regarding this matter. The image was posted to the Fancy site by a member of our community.  Our storage of this image is protected by the safe harbor provided under Section 512(c) of the Digital Millenium Copyright Act.   We had no knowledge that the material posted by our member was infringing any copyright, nor were we aware of any facts or circumstances from which infringing activity is apparent.  Upon notification of the claimed infringement, we have responded to remove the material that is claimed to be infringing. We do not derive any financial benefit directly attributable to the infringing activity. Moreover, even were we to derive such a benefit, we do not have the right or ability to control infringing activity by our members.  Our members certify to us that the images they post are free of infringing activity.  We rely on this certification and grant our members the freedom to post images to our website.  We do not have the right or ability to control the materials posted by members of our community.

I hope this helps to clarify our position and I apologize for the confusion.

That was my last e-mail that I received from the Fancy legal team on June 27th, 2013. I've since asked a few more questions regarding the matter on June 27th, July 22nd, August 21, and February 27th and have received no answer back. The latest e-mail was in regards to commenting on this article that I informed them I was writing. They still have yet to answer my one last question of " Are the members/curators the ones that profit financially from the sale of goods on fancy and how are the images verified for usage rights?

Conclusion

I am not saying that the Fancy has done anything wrong or that they owe us any money. I am not a lawyer and do not claim to be skilled in the art of figuring out the legal jargon of the DMCA of 1998. To me it seems that the Fancy has found a giant loophole and they have built a business around getting a huge crowd of people to go out and take images from around the Internet that look "Fancy" and then post those image hot-links onto their website to help them sell the products. In an article from Forbes titled "Another Dig Against Pinterest: Fancy Let's Users Make Money" author Hannah Elliot explains how the Fancy works:

Each time a user shares, say, an image of a Rolex Daytona, he will get a link with a unique referral code. If someone else discovers and buys the watch through that link–whether via Twitter, Facebook or elsewhere–the user who shared the photo gets two percent of the value of the purchase 30 days later as credit in his Fancy account.

I don't doubt that this business model is somehow legal but I do doubt that they are doing their due diligence to verify that the images being used by their members are licensed.  What happens to the user when they are caught using images that are not licensed? How many people have been kicked off of the site for copyright infringement?

I will say that this is terrible for our industry and goes against everything we work hard for. Take a look around their website for a minute and judge the quality of the photography being used to sell stuff. In my opinion the photography on their website is beautiful, captivating, and entices you to click on the images and explore cool gadgets, watches, and consumer goods. Now do the math using image licensing fees and try and guess how much money that would cost to produce and use those images to sell goods online world wide? I would guess in the millions if not tens of millions per year. The good people at this website know this and that's why they are crowd sourcing these images from members who aren't really employees at all of the Fancy. I do not know if the Fancy is paying for any photography whatsoever since they declined to comment on this article but I would go out on a limb to say that we are not the only ones that this has happened to. I will also say that it is quite dubios to be using hotlinks of the images but I guess that helps them cut down on storage. I guess they were relying on me not to change that image of something NSFW.

Call To Action

The curators/members of the Fancy are the people who are scouring the internet of amazing images and then using them to sell products for the Fancy. They are the pawns doing the dirty work for the Fancy. Just look at the Fancy member OVG WebDesign that took the image of our Nixon watch without asking us to use it to make money. Do you think he took all of those photos or contacted the photographers to ask permission? While the Fancy probably isn't doing anything illegal I know they know that all of these images are not properly licensed. Do they care? Probably not because they have a bottom line to worry about and a loophole to hide behind. The DMCA was passed into legislation in 1998 before Facebook, Twitter, Pinterest, Instagram, and social media as we know it today. It's quite unfortunate that yet another company takes the road of ROI and not business ethics.

If you are a photographer, or support the work of another photographer, don't support this loophole and don't buy from companies that use the DMCA in this way. You have a choice. If you are a photographer that has had their images used on Fancy without your knowledge please comment below and let me know. If you are a lobbyist please do us all a favor and get that section of the DMCA  in the hands of the right people so that it can be updated to reflect today's Internet climate.

I will say thanks to Squarespace for giving us the analytical tools to track down people who take our images.

 

 

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42 Comments

Change all hotlinked images to genitals. Problem solved.

Lee Morris's picture

I said this exact same thing :)

Yup agree, this works like a charm. Make sure its a very short one.

like yours?

Classy.

Aden Priest's picture

perfect.

Lee Morris's picture

I personally have a different opinion on this situation but I come from a very different place compared to Gary and Rob who can make literally hundreds of thousands of dollars from a single image.

To me, embedding an image from another server is the exact same as embedding a youtube video or simply linking to website or image that opens in a separate window. If you made a video about a product and put it on youtube, I could embed your video on my site selling that product and nobody would think twice.

From Gary's point of view Fancy has figured out a way to have world class advertising photography for free but from my point of view they are doing same thing that every website on the internet does.

I'm proud to own a website that has so many different writers with so many different opinions and although I understand Gary's point of view 100% I also can't say that I believe Fancy is doing anything wrong.

************Edited***************

The difference between embedding a youtube video and what fancy is doing is that the youtube video actually links to the owners channel. And by embedding, the owner still gets views on youtube and all the bells and whistles that come with views....

For you not to see the difference tells me you haven't paid much attention to the issue, or this site lately...

Lee Morris's picture

I'm not sure that's a solid argument because attribution wouldn't be enough to make Gary happy either. He would never allow any of his images to be used with payment which is totally understandable.

Gary Martin's picture

I think there is a big difference between a site that generates dollars by pay per click through the distribution of information and humor and a site that uses top images to sell a tangible good. In addition, your code of conduct in journalism is to give credit and ask permission before the content is shared. Unless of course it is a public domain viral article on the 38 Fluffiest Cats That Cuddle Buzzword Buzzword.

Lee, you have a code of conduct that respects the content creator and balance that with being first to publish, staying relevant, being entertaining, posting consistently, and educating the community.

A website like The Fancy recognizes the situation but has capitalized on a loophole to use the hardwork of others and offer absolutely no compensation whatsoever in their clandestine use of the image to sell a product they don't even make. Who values click on a photo? I will tell you who doesn't and his name is me. You may argue it helps SEO but the benefits are negligible for a photographer that doesn't monetize their photos via pays per click. We make our money off of a day rate and licensing images. Neither one of those exist in your world of information and entertainment.

The difference to me is simple and it's called Business Ethics.

You and Lee actually have to fight to the death now. This IS the internet. Sorry!

Jokes. I have to agree with Gary, and the thing that bothers me the most about it is how a legal team can, with anything close to a straight face, claim ignorance over whether or not a photo needs to be verifiably licensed. It also wouldn't take moving heaven and earth for the Fancy to make that a workable solution.

All the fancy would have to do is require contact info for the originating license holder of the image re: the photographer. (If CVS's photo lab can ask for that, so can the Fancy) They send an email to the photographer, get a yes that everything is kosher, and move forward. Build in user license agreement terms that any dishonesty on the part of the members as far as usage rights WILL be met with fees or, at the very least, forwarded documentation to the license holder detailing abuse of copyright to be used by the photographer in pursuing damages, upon complaint from a legitimate license holder.

Preach, Gary. Business Ethics have continued to be increasingly watered down in our industry. It's about time someone took a public stand against it.

You seem to have the same glasses as those lawyers...

It explains alot of why this site is down in quality in the last year or so...

Enough or not, would you agree that it is the right of every creator to set the terms for their creations? Sometimes we set those terms explicitly (ToU, embedded metadata, CC licensing stub on the page), sometimes implicitly (by uploading to a site that has specific terms, such as YouTube).

If I post an image, on Squarespace (I am not sure I agree with Gary on the greatness of SS, for being a photographer's site they have painfully little tools to actually manage your photos well, including hotlink management), Flickr, Google Photos, this site, etc., or sell it to, say, Getty, I set my terms or have them set for me. I can agree and post or I can disagree and not post. But once I do, no matter how lenient or stringent my terms, I should be able to expect whomever interacts with them to obey that license, no?

I'd say since the idea of youtube is that it's embedable and designed to be shared you are implicitly giving permission for that use (it's likely in the TOS also). A portfolio doesn't exactly fit that bill and as such no permission has been given.

Given that you have to pay for the bandwidth your website uses (although, sure, there are accounts with "Unlimited" (see "Fair Use Policy" to understand exactly how much "Unlimited" is with your host) bandwidth), it's at least inconsiderate to do it unless the host (like Youtube) specificalyl allows it.

Embedding a youtube video also links to the owner's content (as it does with Getty now, also).

Attribution is not a substitute for permission. Those that don't want to allow hotlinking (but don't because they don't know how to prevent it), with no attribution and/or no payment should rightly feel pissed off.

I can understand why someone would be annoyed. But there's not a great deal you could do if it's all legal.. so why not just disable hotlinking of your images?

Good article. Though might want to fix "licked off of the site"

I started out writing what looked like an essay, and then I stopped myself. Aaaaaand it's still lengthy.

I'm with you on this Gary, it sucks, it's "technically" legal, but it's not right. A few things you can do, from tame - to most extreme:

1. Send the Fancy all the evidence you have that points to the infringing user in question, they could take action to revoke his membership. Maybe you've already done this? It sounds like they really don't care though, sigh.

2. Contact the company that licensed the image. I doubt they'd be happy that some company is using an image they paid thousands of dollars to style, shoot, and license.

3. You could just start trolling the site for nice images, find the source, and alert the source/creator if you can find them. They'll have to start removing stuff pronto.

3. Get a lawyer and subpoena the Fancy's records (if that's an option?). Go after the infringer, and sue HIM, or send him a bill? If you can prove to a judge how much money you lost, how much profit the user gained, and while you're at it, the Fancy's profits, a Judge might side with you and at least go after the user. Unless the Fancy also shields their users from legal liability? I'm not a lawyer, so keep that in mind.

4. You could write your congressman. Explain the issue, the problems, and think about not just how it affects you but other businesses and industries. It's extremely hard for something like this to get traction, but if you persist enough on it and get in touch with the right people, maybe something can happen. THAT piece of advice is from a close family member of mine, that actually worked on Capitol Hill for 5 years.

Just because it's "legal" doesn't make it fair, or just. Just keep reading your web stats and be vigilant!! Best of luck to you guys.

E Port's picture

This has been an issue with file sharing/hosting sites for many years. The best they can do is ban the user and suspend any pending payments.

If you think this loophole will be resolved anytime soon, just look at the MPAA or RIAA that've thrown millions into 'fixing' this issue. (hint: It's not going to happen)

The best you can do is be on top of your images through web analytics and reverse image search engines like Google images. Then give out takedown notices when needed.

This is nothing new, this has been going on for years. Just setup a .htaccess redirect for unauthorised hotlinking domains.

I am a little surprised squarespace doesn't do this by default.

Randy Curtis jr's picture

How would one do this for bluehost?

Assuming bluehost is running Apache (I've no idea if they do or not)...

https://kb.mediatemple.net/questions/1694/Prevent+hotlinking+with+a+.hta...

Should get you started.

Randy Curtis jr's picture

Thanks ill get on this

Thanks for the info Kaouthia.. You've done your homework!

well it´s simple for photographer with their own webspace.

i watermark my images. not some tiny watermark on the bottom.
no, a watermark pattern with 50% transparency all over the image.
i know that is not a solution for blogger.
but to be honest many bloggers violate copyright all the time.
they are not the victims.
photographer are the victim.
so make images, you put on the net, unusable.
it may look not as nice but peope will have to buy your work instead of stealing it.

Or they simply go elsewhere....like say....getty

I'd like to chime in and contend that the US juridical system is so profoundly flawed and unpredictable that the only way to get assurance is to take the case to court. Unfortunately the associated costs would probably by far exceed the yield which renders the entire action moot from a pure economical point of view.

Fancy's business model though vaguely reminds me of the act of fencing. Maybe the company should call itself "Fency". While the fence (concealer) doesn't steal goods himself he facilitates the illicit chain of purloinment and misappropriation.

For the sake of the discussion, please consider that this was an Ebay seller using your product photography to advertise it's auction item. Happens all the time, with images being ripped off Google Image Search or the official product website. Would you sue Ebay for infringement?

This is a matter of The Crowd vs the photographer, and it's a hard game to win in a world where legions of non-professional people populate community driven sites with copied content... and probably meaning well even.

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