May 26, 2017Bug Photographer Goes to Court to Fight His Own Pests

Alexander Wild is a bug photographer, selling his images of fire ants, bed bugs and other critters to pest control companies, board game developers and publications ranging from Nature to National Geographic. But Wild also has to deal with his own pests: Companies, government agencies and others that use his photos in their own advertising without permission and without paying a fee.

Wild, an entomologist, owns the copyright to his images. Each picture costs him an average of $50 to make when he figures in travel expenses and equipment. So it annoys him when he sees people assume his photos are free for the taking since they're on the internet.

Wild sued Cypress Creek Pest Control of Houston for alleged copyright infringement earlier this month in federal court in Houston, alleging the company used one of his photos of rover ants, the 2 mm bugs that swept through Texas about a decade ago from Argentina and are keeping pest control companies busy. He is seeking damages up to $150,000, according to the complaint.

Cypress Creek is just the latest company to face legal action for using someone else's creative work in its marketing materials. A whole industry has sprung up that searches online for violators and then demands money, usually in the form of speedy settlements.

Wild hires a third-party company that scours the internet for images used without permission and then asks the offenders to pay licensing fees for the photos they're using. Most of the time the images are removed or the license fee is paid. But when companies don't respond, the copyright cops take legal action. At any given time, Wild has dozens of pending cases. Wild said he can't comment on this lawsuit because he isn't familiar with it.

Zach Ivey, president of Cypress Creek Pest Control, described the situation as a learning experience, albeit an expensive one. He said he didn't realize the company he hired to design his website didn't have rights to use Wild's photo of rover ants. Then on his lawyer's advice, Ivey ignored offers to settle the dispute for more than a year on the assumption he wouldn't face financial penalties since he took down the photo immediately after hearing of the copyright protection.

"I didn't intend to steal property," said Ivey, who is the third generation of the family-owned pest control business that started in 1968 on a dining room table. Ivey recently settled the lawsuit for a confidential sum. He is expecting it to be dismissed soon.

Intellectual property experts say that business owners often find themselves faced with big penalties if they don't settle. A cottage industry has popped up to represent photographers and other artists who discover their work is being used without a licensing agreement.

"It's a bit of a vigilante thing," said Steve Levine, intellectual property lawyer with Carrington, Coleman, Sloman & Blumenthal in Dallas. "But they are enforcing the legitimate rights of the author."

Where it gets murky, he said, is when some representatives become overly aggressive, demanding, for example, a $30,000 fee when the photo would never have sold for that kind of money. Since most disputes are settled long before they reach the courthouse, artist representatives often have the upper hand in negotiations, he said.

Wild, an ant specialist with a Ph.D. in entomology from the University of California, Davis, began taking photos of insects 15 years ago to complement his scientific work. Along the way, his photographs become popular, with some images generating tens of thousands of dollars for books, magazines, board games and museums.

But he also began to notice his photos showing up in places that didn't pay for them. Ant photos are especially popular to purloin, especially fire ants. So are termites and bed bugs, said Wild, who travels to bed bug labs, including one at the University of Kentucky, to get those pictures.

Popularity of an image affects value, said Wild. The more common an image, the less it's worth. Buyers often ask for unpublished photos, said Wild, who is also curator of entomology at the University of Texas at Austin.

Wild said he wished there was an easier way to fight copyright infringement. He used to do the copyright sleuthing himself but it took hours each week tracking down the scofflaws. A while back, Wild hired a third-party company that does it for him, Boston-based Image-Rights International.

Joe Naylor, CEO of ImageRights, said he launched the company in 2008 after one of his friends complained he was trying to launch his career as an photographer but his images were being taken from his website without compensation. Naylor, an engineering graduate from the University of Texas working in Silicon Valley, did some research and found photographers had little recourse because it would cost more to hire a lawyer for one hour than they'd get for one photo.

To boost efficiency, Naylor built a platform to continually search websites for photos by his clients that were uploaded. When violations are found, the company can take legal action.

ImageRights seeks fees that are commensurate to what the photographer charges for the images, he said. "It's their livelihood," said Naylor, who represents 8,000 photographers.

Chris Schwegmann, intellectual property lawyer with Lynn Pinker Cox & Hurst in Dallas, said he's never seen a copyright claim involving bugs. It's much more common with real estate.

Real estate companies put together marketing materials but instead of hiring their own photographers, they use photos shot by previous owners they find online. Another common problem is when on-line travel sites use photos of hotels and restaurants without buying the image rights.

"It happens more than you think," Schwegmann said. "It's people being sloppy and looking for images to suit their purpose."

Wild pursues companies and government agencies that use his work, but the one group he can't do anything about are the online websites operated by robots that steal popular stories and photos. They're typically based offshore, don't respond to take-down requests and are impossible to trace, he said.

"It's maddening," Wild said.

L.M. Sixel Business Writer, Houston Chronicle