Why this Swiss photographer sued Shutterstock

Swiss photographer and filmmaker Stefan Forster takes impressive photos and videos of the natural world. Some of them have made it into well-known productions, including Planet Earth III and Our Planet. Media companies such as the BBC and Netflix pay top dollar for this sort of rare, premium footage. Three years ago, however, Forster suddenly saw his clips appear in the SRF documentary show Einstein. He’d never given the broadcaster permission to use them.

When he contacts them, Forster finds out that the production company, mobyDOK, legally purchased the clips from Shutterstock, a US stock photo agency. The thing is, Forster wasn’t the one who offered them for sale. Someone else had downloaded videos from his YouTube channel, neatly edited them into short clips, posted them on Shutterstock and, without holding the copyright, raked in the cash. Forster finds more than 130 such clips on Shutterstock – at rock-bottom prices. «Some of them were already marked as top sellers,» he says.

MobyDOK turns out to be as surprised as Forster. When the Berlin-based firm finds out what’s happened, it replies, «We’re shocked by this matter,» and immediately pays Forster a 1,200-franc licence fee. «I don’t blame SRF or mobyDOK,» Forster says. «They thought they’d bought the footage legally – they’re victims themselves.»

This closes the book on the mobyDOK case. But as it turns out, Forster’s odyssey had only just begun.

Retroactive licence fees possible in Switzerland

It soon becomes apparent that the people who stole Forster’s footage are based in countries where they can’t be prosecuted. Forster contacts Shutterstock and demands it remove his material from the platform. He also requests a list of people who’ve bought his footage so that he can charge them licence fees (as he did with mobyDOK).

It’s possible to charge retroactive licence fees in Switzerland. Martin Steiger, a lawyer specialising in digital issues confirms as much: «Legal action can be taken against both providers and users of the images. The problem with suing the users is that there’s very little understanding on their side, because as far as they can see, they’ve licensed the material. But that isn’t necessarily a problem for the photographer from a legal standpoint.»

Steiger goes on to say it’s important that copyright owners can prove they still own the rights to their images: «Many photographers assign some of the rights to image material, for example to photo agencies.» This doesn’t apply to Forster: «I never use agencies. I only ever sell my work directly.»

The parties aren’t always as quick to agree a licence fee amount as Forster and mobyDOK were. If there’s doubt, a court ultimately needs to decide. According to Martin Steiger, photographers are sometimes in for a nasty surprise: «They need to be aware that their images may not have the commercial value they claim. Sometimes, they have unrealistic expectations in this respect.»

Major obstacles for international lawsuits

To get Shutterstock to take the stolen photos down, Stefan Forster submits an official notification of copyright infringement. According to the US Digital Millennium Copyright Act (DCMA), he has to prove in each individual case that he’s the creator of the footage. Forster does this, but it takes two months for the clips to be taken down. He doesn’t receive a list of buyers. Not even after numerous written requests. He hands the case over to lawyers at the German agency Photoclaim, which specialises in copyright law. They file a lawsuit,

with the Regional Court of Berlin ruling in favour of the photographer. According to the verdict, Shutterstock is responsible for ensuring that sellers on its platform own the copyright to the material they’re offering. The company receives an injunction and an invoice for the costs of the proceedings. «Fortunately, Photoclaim covered the lawyer fees up to that point,» says Forster. The court fees and the cost of translating the injunction, however, were Forster’s responsibility.

But the judgment comes to nothing. Forster says there’s been radio silence from Shutterstock ever since the verdict. The company has stopped responding to e-mails and letters, leaving Forster stuck with the bills. «This is before we even start talking about compensation for the unlawful distribution of my work.» Doing that would require yet another lawsuit. A problem Martin Sieger is familiar with. Although a legally binding judgment awarding financial compensation would be enforceable, Sieger says: «It can be very time-consuming in international cases. Depending on the amount of money at stake, it might not be worth it.»

The Digitec Galaxus editorial team gave Shutterstock the opportunity to respond. A company spokesperson said: «As a marketplace for creatives, Shutterstock relies on user integrity regarding their submissions to the platform. They assure Shutterstock they own all necessary rights when submitting content.» When copyright infringement is reported, Shutterstock says it takes the content offline as quickly as possible. In the event of repeated violations, the company says it blocks the offending accounts. Specific questions about Forster’s case remained unanswered. Including the reason why he hasn’t received a list of buyers or any compensation.

The balance between visibility and risk

Forster is disappointed by Shutterstock’s behaviour. He believes the burden of proof is on the wrong side: «For me as the injured party, it was difficult to have the material removed. On the other side, someone can apparently create an account within minutes and sell stolen images and videos with zero verification.»

Image theft is a major problem for professional landscape and nature photographers in particular. Getting shots like Forster’s can be extremely time-consuming, involving expensive expeditions, days of waiting for the perfect moment and writing off lost equipment such as drones. «I invested at least 20,000 francs of my own money to shoot the glacier collapse,» explains Forster. To make this worthwhile, he charges upwards of 3,000 francs for a 10-second clip. Something he’s able to do because the rarity of his material makes it valuable – and, crucially, because it’s not available from stock photo agencies at low prices.

Did Forster make a mistake in uploading his films to YouTube? «No,» he says, «these days, there’s no other option.» Anyone looking to get noticed as a photographer or filmmaker needs reach: «Scouts from large media companies and advertising agencies comb YouTube for good material. If you’re not on there, you basically don’t exist.» It’s only after years of networking that he now has direct contacts he can use.

To Forster, uploading videos in poor quality is out of the question: «Nobody’s interested in videos in 720p resolution.» He limits the resolution of photos on his website to an edge length of 1,800 pixels. This makes it slightly more difficult for thieves to sell them illegally. Alternatives such as watermarks, which Forster uses for his films on YouTube, dampens the aesthetic and are of little use. The whole exercise is a balancing act between good self-promotion and theft prevention.

Forster wants to see legal precedents

Digitec Galaxus uses Shutterstock images too. For certain pieces of work, we wouldn’t be able to produce the material ourselves, and commissioning it would be too expensive. Responding to my press enquiry, SRF says it’ll also continue to use material from stock agencies as symbol images. MobyDOK says it’s often impossible for them to work without stock material: «We produce films touching on cross-regional issues. We often need clips we can’t shoot ourselves in order to tell a story.»

«I completely understand that,» Forster says. «It’s not realistic to buy or commission everything directly from artists.» However, he advises his fellow photographers and filmmakers to avoid cheap agencies like Shutterstock. «Our work is worth more,» he says. But, he continues, it’s an uphill struggle. As well as pros, amateur photographers in particular are flooding the market with some very good material: «The poor pay doesn’t usually matter to them because they aren’t reliant on it. They just want to see their name under the picture.»

Forster believes photo agencies hold most of the responsibility, arguing they should reverse the burden of proof: «I think companies like Shutterstock should demand proof from uploaders that they’re the rightful creators. An example of that could be uploading the RAW file.»

Stefan Forster doesn’t believe Shutterstock will put obstacles in thieves’ way of its own accord. «Agencies like that have no incentive to do it. After all, they earn money from the sale of stolen material too.» Sure enough, forums like Reddit are full of cases similar to Forster’s. For the situation to change, he’d like to see legal precedents: «It’d take painful fines to make these companies have a change of heart.»

Stefan Forster is unlikely to set such a precedent. On the advice of his lawyer, he gives up. Additional lawsuits wouldn’t be worth the effort. «Reality caught up with me,» Forster says. Nevertheless, he doesn’t regret trying: «I wanted to stand up for my rights.»