If we took infringement fear to the extreme, then we'd…
In today’s era of digital content sharing, photos are bought, sold, published, transferred, and frequently copied without permission with little regard for the traditional constraints of international borders.
Not surprisingly, this leads to plenty of questions and a good deal of confusion regarding international copyright considerations for photographers. One such question came from UK based photographer “Graham P” in response to our September 1 post from Carolyn E. Wright, Photo Attorney, on 5 Things Photographers Can Do to Protect Their Images Online.
We thought this would be a great opportunity to go back to the source and see what information Carolyn had to offer on international copyright issues affecting photographers and their images. She (of course) offered some
great guidance and we’re happy to pass that along to you.
Q. Graham P. wrote:
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? See original post
A. All unpublished photos, regardless of the nationality of the photographer, are protected in the United States. Any photo that is protected by US copyright law can be registered, which includes works of foreign origin. When registering photographs with the US Copyright Office, you will be asked for your name, address, and nationality or domicile (the country that you consider your “home”). You are not required to be a US citizen.
If your photos are first published in the US or in a country with which the US has a copyright treaty, they also are protected and may therefore be registered with the US Copyright Office. Also, if you are a citizen of or reside in a country that has a copyright treaty with the US, then you can register your photos with the US Copyright Office. See Circular 38a International Copyright Relations of the United States, for the status of specific countries.
Q. But should you take the time and spend the money to register your photos?
A. Unlike a US citizen, you don’t have to register your photos with the US Copyright Office to file a lawsuit against someone in the US for any infringement. But if you don’t register your images, then you are not eligible for statutory damages and attorneys’ fees under 17 USC §412 and 17 USC §504(c). See Nimmer on Copyright, §7.16(c)(1), 7-183 (2006)(the loss of remedies under Section 412 due to failure to register is applicable to works of foreign origin as well as to domestic works). Therefore, you may recover only actual damages and profits 17 USC §504(c). Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. You may recover the profits the infringer made from the infringement if they aren’t too speculative.
When entitled to statutory damages, you may be awarded up to $150,000 per work for willful infringements. 17 USC Section 504(b) and (c). Legal fees and costs also may be recovered from the infringer. See 17 USC Section 505.
Because lawyers and lawsuits are expensive, it rarely is worth filing a lawsuit when you are eligible only for actual damages. It dramatically increases the incentive to pursue an infringement when statutory damages are available.
Registering your photos with the US Copyright Office provides other benefits, as well, such as the presumption in any judicial proceedings of the validity of the copyright and of the facts stated in the certificate if the registration was made before or within five years after first publication of the work (17 USC. § 410(c)) and constructive notice of the facts in the registration and any recorded transfers of the copyright (17 USC. § 205).
Once you register your images with the US Copyright Office, you likely will find it worth the time and effort to prosecute infringements that occur in the US.
Check with an attorney to learn the best way to protect your work and to discuss your options when you are infringed.
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 will 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 who is licensed to practice in your jurisdiction.
For more information on copyright check out our post on Photography Copyright Protection: Online Resources