5 Things Photographers Can Do to Protect Their Images Online

Image security and copyright protection
are perennial hot topics. As online content sharing continues to evolve
photographers face new opportunities, and challenges, for striking the
right balance between promoting and protecting their images online.

There are a lot of options for
protecting your images online, but none that comes with a guarantee.  In
the end it comes down to understanding your rights and finding the
level of security you are personally comfortable with.

We asked Carolyn Wright, The Photo Attorney to share some tips on keeping your images safe as they travel across the web.  She went a step further and showed us some useful things photographers can do to increase the likelihood of recovering what you are owed if your image copyrights are infringed upon.

Carolyn’s tips offer ways to add some piece of mind to your online image sharing.

Copyright Carolyn E. Wright, Esq.
www.photoattorney.com
All Rights Reserved

It’s almost a must now for photographers to post their images online.  With the advantages of a broader and more accessible market, the Internet also has the disadvantage that it’s much easier for others to steal your work.  But there are things you can do to protect your photos.

1.  Register your copyrights to your photos.*  When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages.  Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees.  You also may recover the profits the infringer made from the infringement if they aren’t too speculative.  Unfortunately, actual damages usually don’t amount to much so that attorneys will not take your infringement case on a contingency basis. 


If your photo is timely registered for an infringement, you will be eligible for statutory damages of up to $150,000 for a willful infringing use.  See 17 USC §504(b) and (c).  Legal fees and costs also may be recovered from the infringer.  See 17 USC §505.  Additionally, you need to have received your registration certificate to file a complaint for a copyright infringement lawsuit in most jurisdictions.

*Check Carolyn’s article for how to register your work and the PhotoShelter  step by step tutorial on how to register your copyrights

2.  Put your copyright notice on or adjacent to each of your images.  The official copyright notice has three parts: the first part is the © (the letter “c” in a circle), the word “Copyright,” or its abbreviation, “Copr.”  The second part notes the year when the work was first published.  The third required part of a copyright notice is the name of the copyright owner.  The final form looks like this: © 2010 Carolyn E. Wright.  You may use the copyright notice without registering your images with the U.S. Copyright Office.  Including a copyright notice is no longer required for copyright protection, but it is a good idea to use it.

When you use the copyright notice it may stop someone from stealing your photographs, either because it serves as a reminder that the work is protected or because the notice interferes with the use of the work when it is part of the photo.  When you post a copyright notice along with your registered images, then the infringer cannot claim that the infringement was innocent (reducing the damages to as low as $200 per work) and the court is more likely to find that the infringement was willful, supporting the maximum in infringement damages.   

3.  Put your copyright management information in, on and/or adjacent to each of your images.  Copyright management information (“CMI”) “means any of the following information conveyed in connection with copies of a work or displays of a work, including in digital form (such as in the metadata of your photo file):

(1) The title and other information identifying the work, including the information set forth on a notice of copyright.
(2) The name of, and other identifying information about, the author of a work or
(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.

Section 1202 of the U.S. Copyright Act makes it illegal for someone to remove your CMI from your photo to hide the infringement.  The fines start at $2,500 and go to $25,000 in addition to attorneys’ fees and any damages for the infringement.  You don’t have to register your photo in advance to recover under this statute. So, if possible, put your CMI as a watermark on your photo and in the metadata of your digital file (be careful that your CMI is not removed when using the “save for web” function). 

4.  Make it more difficult for others to use your photos without your permission.  Even though a burglar can break into your home, you still lock your door and set the alarm.  Do the same to protect your images.  First, disable “right-click” so that novices cannot easily copy and save your images.  Second, read the terms and conditions of any website where you may post your images or contest that you enter to make sure that you’re not giving up rights to which you’re not aware.  

5.  Prosecute unauthorized uses of your images.  Many people think that they have a right to use your photos or they won’t be caught if they do.  Fortunately, there are many tools to battle copyright infringement. 

One easy option is to prepare a DMCA Take-Down Notice.  Thanks to the U.S. Digital Millennium Copyright Act (“DMCA”) enacted in 1998, the Internet Service Provider (“ISP”) that hosts a website is not liable for transmitting information that infringes a copyright only if the ISP removes the infringing materials from a user’s website after receiving proper notice of the violation. The notice must: be in writing, be signed by the copyright owner or the owner’s agent, identify the copyrighted work claimed to be infringed (or list of infringements from the same site) and identify the material that is infringing the work.  Additionally, the notice must include the complaining party’s contact information, a statement that the complaint is made in “good faith,” and a statement, under penalty of perjury, that the information contained in the notification is accurate and that the complainer has the right to proceed (because he is the copyright owner or agent). Check my article here: http://www.naturescapes.net/docs/index.php/articles/314  to learn more about how to prepare a DMCA take-down notice.  Even if you don’t reside in the U.S., you may use this great tool to stop an infringer whose ISP is in the U.S. from  using your work.

Another option is to prepare a “cease and desist/demand letter yourself.  When you don’t want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer), you may want to contact the infringer to explain that the use is not authorized and either request payment of an appropriate license fee, a photo credit with a link to your website, or that the infringer cease use of the image.  It’s best to do this in writing – a letter by surface mail seems to have more clout than email correspondence.  There are some risks in sending the letter yourself.  First, the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized.  This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don’t want to litigate.  Second, your demand for payment may be admissible against you if an infringement case is filed.  If you demand too little, then it may limit your ultimate recovery.  To avoid this possibility, include in your demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”

You may hire a lawyer to send a demand letter.  When an attorney gets involved, the matter is escalated and tensions rise.  While the infringer may be more defensive, the weight of your demand letter is dramatically increased if it comes from an attorney and the infringer generally takes the matter more seriously.  Some attorneys charge a flat fee to send a letter; others may charge a “contingency fee” which is based on the percentage of recovery or the fee may be a combination of both. 

Your most aggressive option is to pursue your legal remedies by filing suit.  Unless you have a breach of contract or some other state claim, you must file your infringement claim in a federal district court (http://www.uscourts.gov/districtcourts.html).  To file suit, it is best to hire an attorney to help you because the legal procedures are complicated.  Note that you have three years from the date of infringement to sue for copyright infringement.

Carolyn E. Wright is a licensed attorney dedicated to the legal needs for photographers.  Get the latest in legal information at Carolyn’s website, www.photoattorney.com.  These and other legal tips for photographers are available in Carolyn’s book, The Photographer’s Legal Guide, available on her website.

NOTE: The information provided here is for educational purposes only. If you have legal concerns or need legal advice, be sure to consult with an attorney.


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Carolyn will be speaking at the Telluride Photo Festival this September on defending and protecting your copyrights. PhotoShelter will also be there to share insight on SEO for Photographers and to give some lucky attendees a Website Makeover live on stage!

Are you a PhotoShelter member? Be sure to use your discount code from the August Newsletter and save on registration!

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There are 13 comments for this article
  1. Eric Leslie at 5:57 pm

    It was nice to read on this subject from a more legal angle. I didn’t know you could protect yourself from statutory damages by filing for copyright. Can this strategy be applied to images that are licensed CC?

  2. Graham P at 4:55 am

    Just wondering how a non US citizen (UK) stands on registration of copyright if for example a US publication used one of my images without my permission and I was looking at a legal challenge to the use of such image??

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  5. Sam at 10:34 am

    Firstly I’d like to say good article. Thanks for sharing all that information Michelle, apart from one point I think it’s great.

    I know this article is old, but for anybody who is setting up a website and stumbles across it like me I think I need to point out a major problem I have with one of the points.

    If you don’t already know it, this point is number 4. Disabling right-click is one of the worst things you can do to your website, especially in this day and age where a lot of people use extensions and gestures and rely on right clicking. Not only does it make your site less accessible it also looks unprofessional. And the worse part, it doesn’t even protect your photos! Anybody can just hit the print screen button on their keyboard and in a single press have your picture copied to their clipboard. Or they can drag the picture into the address bar and the right click and copy it. If you don’t want people to copy the picture either display it with flash or use javascript to simply disable copying of the photo.

    It annoys me when someone prevents me from using right click. To be honest it annoyed so many people that I’m not sure if the feature is still even supported in most browsers, I know there are options and extensions to stop websites from imposing these restrictions.

    So in summary, follow the steps above but do not annoy your user by imposing a block on the right click and pretending you’ve “locked your front door”.

  6. edie raye at 1:04 am

    i would think the image sharing sites would be EXCELLENT, FREE advertising for anyones’ work. van goghs’ starry night has been seen by billions and rarely in the louvre. if people fall in love with your work why would you not want them to share it? i am naive but curious why would you put something on the internet knowing that “when it is out there it is out there” – ask paris hilton. if i don’t charge to share the image and thus make no profit where would the damage be? i see it as showing a magazine picture to the guy sitting next to me on the train. one last question would be about quotes on pictures – who has the copyright – the photographer or aristotle who he is quoting and is long dead – pretty sure he didnt consent to having his words used so who has the copyright when you print on the image? also you took the picture of a tree (tree belongs to God) with a camera (made by canon) and put it on paper made by kodak – now what part of this work is really yours? BE GLAD SOMEONE WANTS TO LOOK AT IT AND SHARE IT WITH THE WORLD. now…can i copyright what i just wrote or is it true they are the same 26 letters you use in a different combination and therefore you would be infringing my “writing?”
    what is art anyhow ever borrow a cd and listen – did you send money to the artist hmmm i must think on this. can thoughts be stolen??? ask a schizophrenic :).

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  9. Destination360 at 8:48 pm

    Nice to see people are discussing copyright and the different aspects on how to protect your images. We didn’t start off placing a copyright on Destination360’s travel images for aesthetic reasons. But we’ve seen such an abuse of our images we have been forced to add a copyright. Even with this we find people still take them and in some cases recrop images to remove copyright. Most are not using images for fair use but for commercial gain. There’s so many resources for free images and cheap stock photos its just lazy on the part of a creating content to take the first image they see on Google.

    Destination360

  10. Philippe B. at 11:14 am

    first, this is a great post, copyright laws are complex and help is always welcome.

    this is a answer to Graham P.

    if your not a US resident, uou should register with your own national copyright office (most country have on). But the U.S. Copyright Office is the only one providing a mechanism to deposit a copy of work’s content that is the subject of the copyright registration.

    that means in most cases, you only restering the title of your pictures ( not really conviennent to get protection in case of illegal use…)

    to complementaury your registering copyright with national copyright offices, I suggest you to combine it with a online depot of your copyright to prouve your work. I think http://www.myrightskeeper.com is the most efficient site you could find. it will strongly enforce the protection you obtain with your national copyrighting office. The MRK recordal will supplement the registration by providing digital time stamped evidence of the actual work.

    hope it’s helping

  11. Jamie at 3:45 pm

    Awesome article!

    I would (personally) also suggest the following (making it incredibly hard for anyone to steal your images):

    For WordPress, I use WP Content Copy Protection available here: http://wordpress.org/plugins/wp-content-copy-protection/ – This plugin is used by over 115,000 users. They have a pro version that uses image layering technology for protection.

    For non-WordPress, I would recommend this aggressive little jQuery plugin: http://www.securiilock.com/super-content-copy-protection-jquery/ (really good at protecting images and text content for any website)

    Thanks

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