Now That You’re Outraged, Register Your Damn Copyright

Now That You’re Outraged, Register Your Damn Copyright

Photographer Max Dubler struck a nerve with an article documenting the theft of one of his downhill skateboarding images. After finding a skateboard brand using one of his photos without authorization, he did as he always does – he contacted the offending party and requested a payment of $25 for social media usage.

Dubler’s straightforward, non-confrontational strategy has worked in the past, but not this time. The offending brand responded:

“Seriously? We don’t pay for Instagram shares and we always give proper credit, I mean, who pays for Instagram shares lol. I will take it off if you wish Max”

Dubler spent considerable effort constructing a line-by-line response, which drummed up photographer outrage. But the central problem remains. Dubler writes, “They still haven’t paid me. I doubt they ever will, but in the 48 hours since those posts went up, half a dozen companies have contacted me to pay for for skate photos I didn’t even know they’d used. I’m calling it a win.”

Dubler scored more than a moral victory given that the piece led to newfound revenue. But his frustration and the outrage that it provoked did nothing for the long term benefit of photographers because of one simple thing: he didn’t register his copyright.

When I emailed Dubler about copyright registration, he responded “I didn’t, mostly because copyright exists from the moment of creation and I rarely ever have disputes about it.”

In the US, a photographer does own the copyright the moment he/she presses the shutter. But damages for willful infringement are generally capped at the market value. Presumably $25 in Dubler’s case since that is the precedent he set. But when you register your image with the US Copyright Office, you can be awarded up to $150,000 per image for a willful infringement plus legal costs.

And according to The Copyright Zone authors Jack Reznicki and lawyer Edward Greenberg, you can still register a photo even after it’s been infringed. “And we advise to register it even then. You just lose some rights that you would have if registered before the infringement, which is the right to statutory damages and collecting your lawyer fees. In some cases that may be a deal breaker for some cases, but then there is the Alan Paul Leonard case where the photographer was awarded $1.6 million plus $400,000 in interest for a registration done after the fact.”

The public doesn’t understand copyright

As Dubler incident illustrates, most people have a poor understanding of copyright – an issue that is exacerbated by social media sharing. Most of the major social media platforms have an embedding features that usually falls under a “share” link or icon. Embedding is generally seen as a mechanism that doesn’t run afoul of copyright laws because the Terms of Use usually require the uploader to consent to embedding.

But taking posted content and republishing it in one’s own account is equivalent to making a copy, and that is illegal. That Dubler’s image appeared in Instagram doesn’t mean another account can “share” it by uploading it to their account.

The threat of fines are a defense against infringement

Insect photographer Alex Wild noted in Ars Technica, “Most copyright holders are individuals; most infringers are businesses. Things are broken.” Content creators don’t wield the power of a corporation, but copyright gives them some significant protections.

Reznicki and Greenberg said, “One of the facts about suing and collecting through settlement or trial a large amount, is that it greatly discourages future infringements.” Suing is, for better or worse, a check-and-balance on corporate exploitation.

Whether $25 is the “right” amount somewhat misses the point. The market will bear what it will bear, and $25 may very well be the value of a license for use on an Instagram account with a limited following. The larger issue is that a lack of enforcement with punitive damages means that brands will continue to deprive photographers of a way to make a living.

Photo by Allen Murabayashi

Still Reznicki and Greenberg caution against sending an invoice out of the blue, in part because indicating an amount in an invoice reduces your leverage in court. If you’re trying to solve an infringement amicably and without a lawyer, they suggest, “send an email (not invoice) which states that ‘Rather than consult with my attorney I will accept actual receipt of the sum of $X not later than [date].  If I do not physically receive that money by that date my offer to resolve this matter shall be deemed withdrawn, null and void. I will then turn this over to my lawyer.’”

Register your damn images

Photographers can be their worst enemies. The US Copyright Office provides an online mechanism that is simple and relatively inexpensive. Yet, most photographers don’t regularly register their copyright despite knowing that infringements occur all the time.

At the urging of some readers, Dubler has set up a Patreon account. But soliciting small donations from strangers is an unsustainable way to make a living.

“I’m thinking of registering some of my more frequently stolen photos, though.”

The information contained within this article should not be construed as legal advice. Always consult a lawyer.

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Allen Murabayashi is the Chairman and co-founder of PhotoShelter.

There are 20 comments for this article
  1. Howard Cihak at 12:22 pm

    Mr. Murabayashi, you obviously haven’t realized that a copyright is worthless unless the photographer can afford to hire a lawyer and pay the court costs to sue the infringers. Even then, there are actual examples of courts awarding less than what the plaintiff spent pursuing the case, to say nothing of an award for loss of income.

    As a non-lawyer, I’d surmise that a judge might easily reason that anyone who puts their work product in the public domain must not have valued it all that much in the first place.

    • Allen Murabayashi Author at 10:58 pm

      This is just not good advice. Some lawyers will work on contingency. And while there is a spectrum of awards, copyright is *the* mechanism that offers photographers significant protection/compensation for infringement.

      Also, if you’re implying that publishing through Instagram is putting the image in the public domain, this is factually incorrect.

  2. peter harrap at 1:59 pm

    Excuse me, my pics are my copyright WITHOUT registration. Copyright is the intellectual property of a creation per se: it does NOT require registration!

    • Allen Murabayashi Author at 10:53 pm

      That is indicated in the article. But without registration, you are not available to collect statutory damages ($150,000 per image) + legal fees.

        • Allen Murabayashi Author at 1:55 pm

          Non-Americans can register their images with the U.S. Copyright Office. The Berne Convention provides for some international protection through treaties, but consult a lawyer in the other country!

          • Beth Herzhaft at 5:33 am

            That’s not what Mr. Pienaar asked. He asked what if the guilty party / infringer resides in another country?
            That actually is a really interesting question and I am also curious what the answer might be.
            Although it might be a moot point : That really seems like it would be close to impossible for a mere mortal to afford to sue…

    • Ken Okawa at 1:06 pm

      Yep, copyright occurs without registration. Registration, however, generally ensures the creator of the work is compensated without cost to collect payment, damages – if any – and legal fees incurred during the process. Many photographers do successfully receive payment via the whole send an invoice and demand method. The infringer in those cases are usually even more ignorant of copyright law than the artist; did not intentionally mean to infringe upon the creator’s right and pays to continue usage; or does so to preserve the public’s perception of being social/moral conscious entity.

  3. Richard at 9:50 pm

    Do we really need hundreds of photogs clogging the courts with this stuff? They need a different way of adjudicating this. As a tax-payer, I have no wish to PAY for these cases to be heard.

    • Bill Moree at 10:55 pm

      Richard, by saying that you don’t want to see “hundreds of photographers clogging the courts” I think that you do not see these photographers as the victims of a crime of theft. You wouldn’t say the same thing to hundreds of mugging victims, or hundreds of shop owners who’s stores were robbed. But that is what this is. Photographers sell photographs. It’s not a meaningless hobby. It is how we pay our mortgage and our children’s health insurance and our for food and 401Ks. When you take something that belongs to us without paying, it is stealing. There are laws against this. It is that simple.

  4. polaroid at 4:49 am

    And outside the USA? The internet ‘thing’ is borderless. Something has to be done to protect the photographers against exploitation.

  5. Frank at 3:55 pm

    FWIW, if you have a © notice on the image, & they remove it, you can get paid even if the image is not registered. This means “© 2017 YourName”.

    http://www.photoattorney.com/2007/07/watermarks-can-be-music-to-your-ears.html
    From Carolyn E Wright’s blog: Section 1202 of the U.S. Copyright Act makes it illegal for someone to remove the watermark from your photo so that it can disguise the infringement when used. The fines start at $2500 and go to $25,000[I] in addition to attorneys’ fees and any damages for the infringement.
    The pertinent part of the statute is included the link.

  6. Jerry Gunsberg at 5:13 am

    The long standing obstacle for photographers has been the cost burden to sue large corporations for infringement in the federal courts. In an effort to remedy this disparity, there has been a long term effort by multiple organizations including ASMP, NANPA and others to get legislation through Congress creating a mechanism for photographers to seek compensation in Small Claims Court. This would largely remove the cost burden and level the playing field.

  7. Bill at 5:48 pm

    Very good article.
    This shows the importance of protecting yourself and your images. It is your work and often your livelihood and if it is stolen is a crime. I agree often it is quite by accident but it should be addressed and brought to the forefront, if for nothing else but to raise the awareness of this offense.

    Bill

  8. John Wilson at 5:48 pm

    Interesting story. I wonder what Fox would do if we all started using Fox material for our own use on websites etc. Such as using audio grabs, vision grabs and title grabs from stories.

  9. Pingback: He Said No, Fox News Used His Images Anyway - DIY Photography

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