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.
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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
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.
(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).
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.
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!