weekly feature | Feb 21, 2024 |
A lighting company stole a designer’s image. It’s more common than you think

One morning in January, Lindsey Black woke up to find that her kitchen was all over the internet. The Memphis, Tennessee–based designer had received a note from a follower that a photo from one of her projects—a revamp of her own home—was being used in a listing for budget lighting on Bed Bath & Beyond’s website. The vendor had photoshopped out Black’s fixture and inserted its “6-Light Classic Mid-century Chandelier” in its place. Neither she nor the photographer, Stefanie Rawlinson, had been consulted—or paid.

The scale of the problem quickly got worse. As Black began posting about the theft on social media, followers sent her more examples. The same kitchen was being used … everywhere? “It’s on Lowe’s, Amazon and eBay. It’s being used to sell cabinetry. It was on some real estate agent’s Facebook page,” she says. “It spiraled into a big can of worms.”

Black’s kitchen, a cheerful space in tasteful green, had committed the sin of being appealing. As a result, the designer discovered that her work had been mercilessly replicated—sometimes by murky brands, other times by everyday professionals looking for a nice picture. She began sending out a flurry of polite but firm emails in the hopes that everyone would quit copying her kitchen. But she was realistic about what to expect: “Once it’s out there, it’s hard to reel it back in.”

Black’s experience is depressingly common. Only a few years ago, Home Depot made headlines by copying images from designers’ portfolios and tweaking them into ads for its products. Meanwhile, an architectural photographer won a gobsmacking $6.3 million judgment late last year against a senior living facility that had used 43 of his images on its website without securing proper permission. But big, splashy examples and flagrant image doctoring are in some ways a distraction from the rush of everyday transgressions that make up the bulk of intellectual property theft that happens online, most of which lingers in the gray space between sharing inspiration and outright robbery—an influencer reposting a picture without credit, a brand using a photo on its site without asking first, a blogger “just grabbing” pictures for a post.

Copyright infringement online is genuinely confusing, and the permissionless copying of photos is so common that it’s hard to separate the practice from the internet itself. In some ways, the constant quasi-legal sharing of photos is the internet. As a result, the culture around what’s OK and what’s not has gotten muddled.

Many people perpetrating the crime (and even the victims of the crime) aren’t entirely sure that a law has been broken. Those who know exactly what they’re doing can cynically exploit the murkiness, banking on the fact that they won’t get caught. And if they are? Well, lawsuits are expensive. The result is a chaotic landscape.

“Ignorance or willful disregard around copyright issues leads to many cases of [IP theft] happening every day,” says Joel Sanders, a photo agent who works with architectural photographers. “It’s the Wild West.”

One of the crucial things to understand about the copying of photos online is who exactly the “victim” is. Though designers are often the first to find out that their project is being used in an unsavory fashion, they do not usually have legal standing to do anything about it. That’s because under U.S. intellectual property law, an interior design scheme cannot be copyrighted as an artistic work. A photograph, on the other hand, can.

From that little wrinkle emerges a lot, including the basic economics of interior photography. As part of their fee, photographers typically grant designers a license to use the images in various circumstances. However, photographers retain ultimate ownership of the copyright—as far as the law is concerned, the picture is theirs.

As a result, when a fly-by-night vendor steals an image of a project, they may be stealing the creative effort of a designer, but the intellectual property usually belongs to a photographer. That twist adds to an already difficult situation. Designers may suffer the moral injury of being ripped off; photographers are the ones getting legally robbed.

Unsurprisingly, photographers are quite familiar with the frontlines of IP theft. For them, the situation can often take on a delicate dimension. It’s frustrating, but simple enough to get angry if a faraway lighting manufacturer uses your picture to hawk cheap product. What’s more complicated is when a trade brand—a company that technically should pay for a license, and may one day be a photographer’s client—uses a photo without permission.

“It's extremely rampant, and it puts photographers in a position where they have to make some really tough choices that they shouldn’t have to make,” says Sanders. “They can either take the time and the energy to try to track this down and enforce the copyright—and in the process ruffle feathers of their [current] and potential clients—or they have to see their work used without compensation. All photographers are grappling with this and figuring out the best approach.”

Eric Piasecki, a veteran interiors photographer who has worked with top designers like Katie Ridder, Juan Montoya and Timothy Corrigan, says that the culture around brands using photos without permission has been changed irrevocably by Instagram.

“Brands used to hire photographers, rent a location, and do a three-day shoot to create their yearly marketing materials. Now what they’ve realized is that it’s far more economical to follow the top designers and architects on Instagram—they see their product in an image and they share the image on their site,” he says. “A lot of times, there’s no credit [or payment] for anyone involved. There are brands that have 40, 50 or 60 of my images on their site and over 100 on their Instagram feed. It’s become a real problem.”

Left: The original image of Black’s kitchen Stefanie Rawlinson | Right: The photoshopped image used to sell budget lighting across a range of e-commerce sites

As with the original Wild West, traditional law enforcement is only so useful in the Wild West of the internet. (Try rolling into your local police station with the claim that a picture of your client’s bedroom was stolen.) In its place has emerged a class of unofficial sherifflike entities that police the web on behalf of copyright holders—for a price.

ImageRights International is just such a sheriff. Founded in 2009 by former tech executive Joe Naylor, the site began when one of his former colleagues, a budding photographer, noticed that his work was being copied online. Naylor built a tool (before the days of Google’s image search) to help photographers find instances where their work had been “shared.”

“Photographers were signing up, saying, ‘OK, now we’re super pissed because we see all the infringement. It’s real, but we don’t know what to do about it,’” he recalls. As he began reaching out to negotiate fees on their behalf, the opportunity for a bigger business became clear.

Today, ImageRights exists as a kind of all-in-one service for photographers looking to police the way their work is used online. Naylor’s site can sift through the web and find instances of infringement that Google doesn’t index. Maybe more to the point, his service targets websites that are likely to pay a (belated) fee for photo use—the search is not likely to turn up results on an anonymous message board, for example.

The company has also brought automation to the copyright process—photographers can batch-upload their images and, for a fee, register their work. This, says Naylor, is crucial to the moneymaking element of the enterprise: extracting fees from infringing websites and, when they don’t pay, passing the case on to a lawyer to open a lawsuit. However, Naylor points out, “We learned early on that if your work isn’t registered with the copyright office, you don’t have a leg to stand on when you negotiate.”

ImageRights collects small service fees for registering copyrights and, in some instances, charges a kind of annual membership. But the bulk of its money is made by sharing in the profits when it extracts a fee from an infringing website. In most cases, the sum is agreed upon out of court. But Naylor’s site was behind the aforementioned $6.3 million judgment won by architectural photographer Scott Hargis—the biggest in U.S. legal history for a case of this nature.

ImageRights isn’t for everyone. Since it represents copyright holders, it’s primarily useful for photographers, not designers. And even within that pool, the site typically only takes on clients with some level of renown (or agencies that represent them). He is also candid about the limitations of the company’s approach. Because it uses lawsuits—or the threat of lawsuits—as a key instrument, it is most effective in countries with an accessible legal system.

“A few years ago, the Chinese government was trying to change its image in respect to IP. They created these copyright courts, and this agency was having success running claims. We were excited and went over there and met with them,” recalls Naylor. “But what it all came down to is that if you won your case, you might win $300 per photo, which would have to be split several ways. … So, it can be very difficult and often impossible when you're being infringed by some company in Asia.”

That particular problem became apparent to Black when she started trying to reclaim her green kitchen. It was easy enough to see that her images were being used on e-commerce sites like Bed Bath & Beyond—more complicated to figure out exactly how they had gotten there. In some cases, the vendor’s identity was completely hidden. In others, it was provided, but the brand name was an unfamiliar acronym.

“I have sent emails to every place I could find that was using the image to whatever email I could locate, and all of them are in China and Taiwan,” says the designer. “I requested that the images be taken down and explained the situation, sending a screenshot of what they were using and also a screenshot of the original image. I have yet to get any response.”

Black had better luck posting on social media and reaching out to the retailers directly, some of whom began to respond. Bed Bath & Beyond removed the picture; so did Lowe’s, which also volunteered a direct apology and an offer to discuss compensation. Black was somewhat heartened by the reaction from Lowe’s—a good reminder that a direct request (and a little public callout) can push brands toward doing the right thing, even without a lawsuit hanging over their heads. (In an email to Business of Home, a representative for Bed Bath & Beyond said, “We take confirmed copyright infringement very seriously. It’s our policy to take immediate action on it once it has been evaluated and confirmed after giving our third-party sellers time to respond.” Lowe’s did not respond to a request for comment.)

As is often the case on the internet, it’s hard to know exactly what happened. Was it the vendor who snagged Black’s kitchen and jammed its own lighting into the image? Did they know they had stolen a picture, or was there some kind of misunderstanding? Was it a third-party graphic designer taking a shortcut? Did they know they were breaking the law? Did they care?

It’s also difficult to know why Black’s green kitchen had been copied in the first place, though she has a theory. “Early on in my career when I was just getting started, I did my own house, and I put the pictures up on Houzz, including the picture that was copied,” she says. “Later, I took down my whole Houzz profile, but the image got traction [on the platform], and I think it was saved thousands of times.”

Again, it’s impossible to know if placement on Houzz led to the designer’s kitchen being copied. However, the site does have a complicated history of using designers’ images beyond their original purpose, drawing fire in 2018 for using project photos to advertise look-alike products. In 2020, Houzz says it changed the policy to allow designers to opt out, but the site’s terms of use agreement grants it an “irrevocable” worldwide license to “use, reproduce, process, adapt” content in perpetuity. Black’s kitchen remains on Houzz to this day.

It’s a good reminder that even in an era when stealing an image online takes little more than a right-click, there’s a world of difference between putting an image on your own site and uploading it to a social media platform. Piasecki, not alone among interior photographers, has a policy in his contract limiting licensees from posting his work to Houzz or Pinterest. “Once it’s up there, they can basically do what they want with it,” he says.

But beyond some basic digital hygiene and a willingness to criticize photo thieves, the sad truth is that there’s not always a ton that designers can do to stop their work zinging around the web. If technology provides a silver lining, it may be that AI—with its ability to quickly spin up convincing rooms—will do away with the necessity to trawl the internet for pretty kitchens to copy.

Maybe, but Naylor has his doubts. “People will still infringe,” he says. “Early on, we were advertising that we could identify photos that had been cropped, flipped, filtered. But we found people were largely just copying and pasting images. At the end of the day, infringers are just lazy.”

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