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.

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.

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:

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.

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

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.

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.