New York-based photographer, Ben Franke, was recently featured in The…
Earlier this month we did a live webinar with Carolyn E. Wright – aka The Photo Attorney. Carolyn is a full-time attorney whose practice is aimed squarely at the legal needs of photographers. During the webinar talked extensively about copyright infringement, and what photographers need to know when they think their copyright has been infringed (you can watch a video recording here).
Needless to say this is an expansive topic, and there were several questions that we didn’t get to during the live event. Carolyn was gracious enough to answer your most pressing questions – check them out in the Q&A below.
What’s the best way to search for potential copyright infringements?
Fortunately, there are a variety of ways to search for use of your images online. Some are:
Each of these options have pros and cons. Research them to find the best alternative to fit your needed. After you find any use of your images, make sure that the use isn’t authorized (either by license or fair use).
What is the biggest mistake that photographers make in copyright registration?
- Not registering their images at all, or
- Not registering their images correctly, usually by not grouping them correctly. Check this blog entry for how to group your registrations.
What if a non-U.S. company infringes one of your images registered in the U.S., and vice versa?
It can be difficult to recover from foreign entities for infringements, especially if they don’t have a strong presence in the U.S. No other country has statutory damages as we have in the United States, but will have different ways to award damages for infringements. Check with your photographer friends for referrals to attorneys in other countries who help photographers, such as:
- Australia: Peter Knight of Banki Haddock Fiora
- Canada: Dan Pollack of Dan Pollack Law
- UK: Mark Corran of Briffa
If your images is infringed in the United States by a non-U.S. entity, you likely will have jurisdiction over the entity to sue it in the United States. Check with your attorney for assistance in analyzing your options.
With the increasing popularity of photo-sharing sites like Pinterest and Tumblr, do you think the line between photo “sharing” and copyright infringement is getting thinner?
Legally, the question with these sites is whether the uses would qualify as “fair use.” Copyrights give the owner the exclusive right to do, or to authorize others to do, specific things with your photographs. Copyright law effectively gives the copyright owner a legal monopoly to use the photo. Specifically, when you own a copyright, the Copyright Act states that you have the sole right (known as the “exclusive rights”) to:
- reproduce the copyrighted work;
- display the copyrighted work publicly;
- prepare derivative works based on the copyrighted work; and
- distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.
17 USC § 106
Fair use is the legal right to use copyrighted works without the copyright owner’s permission. It was designed as an exception to the exclusive rights granted above, permitting limited and reasonable uses without the owner’s consent as long as the uses do not prejudice the copyright owner’s rights or interfere with normal exploitation of the work.
But fair use has its limits, too. Specifically, Section 107 of the Copyright Act states that:
“the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 USC § 107.
For example, courts have held that Google’s display of photos for Internet searches are fair use. It’s difficult to determine whether a court would hold that pinning a photo to Pinterest or sharing a photo to Tumbler is a fair use. In its favor, Pinterest links to the original source. But Pinterest risks liability for removing the metadata from the photo’s digital file and for physically copying photos to its server. Hopefully, we’ll soon get a clearer sense of whether these uses are fair uses.
If my work was published in a magazine/newspaper/website/etc., does the copyright notice on their property cover my photo?
Photographers often publish photos along with other images and/or text in magazines, books, calendars, etc. While the publishers of those pieces, also known as “collective works,” usually are quick to register their copyright in the collective work for their protection, photographers sometimes aren’t as diligent. The question then is whether the publisher’s copyright covers the photographer’s image, as well.
Section 101 of the Copyright Act defines a collective work as “a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” A collective work is a type of “compilation.” Section 103 defines a compilation as copyrightable subject matter. It is a “work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” It is not necessary that the contributions come from different authors or photographers to comprise a compilation, but they often do.
As with magazines or books, a collective work may be registered and the registration protects all of the copyrightable elements that comprise the collective work. That is, the specific selection, coordination or arrangement of the individual works that make up the entire work is protected.
However, a publisher’s copyright registration extends only the compilation – not the individual works that make up that compilation, unless the publisher also owns the copyrights to those works. So if your photograph is part of a collective work or compilation, don’t rely on the publisher’s copyright registration to protect you. It won’t. Instead, register the copyright yourself.
Likewise, the publisher’s copyright notice probably wouldn’t extend to your photo as published in that collective work. To be safest, get the publisher to include your copyright notice.
If you photograph a sculpture/building/park/etc., does that image belong to the photographer?
The question of whether photos of other copyrighted works (such as sculptures) are infringements remains. Specifically, as explained by my November 17, 2009 blog entry, courts have disagreed as to whether photographs of copyrighted works are derivative works. If not, then the photographer owns the copyright to the photo. If so, then the photographer has infringed the copyrighted work and does not own the copyright to the photo of the copyrighted work. This was the issue when sculptor, Jack Mackie, sued photographer, Mike Hipple, because Hipple “used the image of [a part of the sculpture] in a piece of graphic art . . . [and] obliterated Mackie’s copyright notice, but used other parts of the rest of the [sculpture].” Hipple had offered the image for licensing through stock agencies. Just before trial, Hipple and Mackie settled their claims.
The U.S. Court of Federal Claims considered similar facts and legal issues in the Gaylord v. The United States case. The facts are convoluted, but, in sum, the artist of “The Column” (a sculpture depicting 19 Korean War soldiers that is part of the Korean War Veterans Memorial KWVM in Washington, D.C.) sued the USPS for its stamp that contained a photo of the work. While the trial court first held that the stamp was a fair use, the appellate court ultimately held that the stamp was an infringement.
What details should you include in the copyright info in the metadata of an image file?
The copyright notice as provided by 17 USC 401(b) should include:
(1) the symbol © (the letter C in a circle), or the word “Copyright”, or the abbreviation “Copr.”;
(2) the year of first publication of the work; in the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying text matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful articles; and
(3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.
The year used for the copyright notice is not when you took the photo or when your register it. Because you publish your photo only once, the year of first publication doesn’t change.
It’s also good to include your name and contact information as part of the copyright information in the metadata of a file. You want potential licensees to be able to locate you. Also, 17 USC §1202(b) provides states that:
No person shall, without the authority of the copyright owner or the law, intentionally remove or alter any copyright management information knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.
Copyright management information includes things, such as:
(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.
(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.
The damages for violating 17 USC §1202 alone start at $2,500 and go to $25,000 per violation, in addition to any fines for copyright infringement. 17 USC §1203(c)(3)(b). So include your copyright notice and contact information whenever you make your photos available to others.
What is the best strategy to turn a copyright violator into a customer?
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.
What factors determine whether an attorney will take a copyright infringement case?
Most attorneys are willing to assist you with copyright infringement claims if you have a valid claim and are willing to pay the attorneys for their time. Some attorneys may assist you on a pro bono basis, such as through a program provided by the California Lawyers for the Arts or other volunteer lawyers for the arts. However, for an attorney to take a copyright infringement on contingency, the potential for damages must be significant enough to make it worth the attorney’s time. Timely registering your copyrights and including copyright management information on and in the metadata of your photos helps to increase the damages available to you for infringements.
When you register prior years’ images as a batch, do you have to include a copy of each image you want to include, or just a blanket reference to all images from a specific year?
Yes! In sum, you need three things to register your copyrights:
- An application
- Deposit copies of each photo being registered
- Payment for the registration
Check this blog entry to learn how to prepare your digital images for registration.
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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