Copyright infringement is one of those problems that never seems to go away. It doesn’t seem to matter how well we educate our clients or the general public. Unfortunately, there will always be people–photographers included— who just don’t seem to get it. Clients think that purchasing a photo grants them eternal, all-encompassing rights to whatever they choose to do with our work, wherever they choose to do it. People have it in their heads that just because a photo shows up in a Google Images search, that this somehow makes it open season for use on their websites, newsletters, blogs, and Facebook posts
As photographers, we know that we need to protect our work from all of these varying degrees of infringement. Unfortunately, too many photographers don’t take the relatively easy steps to adequately protect themselves from the unauthorized use of their hard work.
The Most Important Thing You Need to Know
Copyright protection takes effect the moment you push the button. Period.
According to the U.S. Federal Copyright Act of 1976, the copyright is created the moment the shutter is released– the moment of creation. While this article is about the importance of officially registering the copyright, it is just as important to know that copyright protection does kick in the moment the camera clicks, and that the copyright generally belongs to the person who pressed the button. I say “generally” because there are two scenarios in which the photographer taking the picture does not own the copyright.
The first exception is for employees who have been specifically hired to take photographs on behalf of an employer, as opposed to a private client. A staff photographer for a newspaper, for example, will not be the copyright holder, but a freelance photographer will. This is not the same as an event photographer hired by a private client to shoot a wedding, where the contract clearly states that the photographer holds the copyright.
The other exception to the rule is for “works made for hire.” In cases where the photographer has been hired to provide photographs for collective or collaborative works, it is that final collection or collaboration that falls under copyright protection.
So, I Have a Copyright. What Is It?
Copyright is a property right held by the owner of an image, in which they are granted the exclusive right to reproduce and display the image, as well as the right to control the making of copies. It almost goes without saying that,as professionals, we are financially dependent on these rights. At the same time, though, it is important to not confuse copyright with licensing rights. In a licensing scenario, I retain my copyright, but I temporarily grant a small piece of it to the licensing party under a limited set of conditions and circumstances.
Why It’s Important to Register
As noted, the copyright takes effect the moment the image is created. That being the case, you might be wondering why it’s still important to actually register the copyright. For starters, it makes proving your case easier if you’ve exhausted all of your other options and find yourself needing to file a lawsuit. As a matter of fact, registration is a requirement for filing a lawsuit– even if it is done after the infringement. Hopefully, though, a certificate issued by the U.S. Copyright Office will be all the ammunition you need to force an offending party to cease and desist.
Another reason for making sure you register your copyright is to make sure you are entitled to all of the monetary compensation the law allows. When a photo has not been registered prior to the infringement– or within 90 days of the first publication– the photographer is only entitled to what is called “actual damages.” (17 U.S.C. Section 504(b)). Actual damages are calculated by taking the photographer’s normal licensing fee and adding the profit derived from the infringement. It’s important to note here that the profit cannot be overly speculative. FotoQuote is a great software package for helping with licensing fee calculations.
If, on the other hand, a work has been registered prior to the infringement, it may be eligible for “statutory damages” of up to $150,000 (USD) per willful infringing use of each photo (17 U.S.C. Section 504 (b) and (c)). The infringing party may also be responsible for the photographer’s legal fees in these situations (17 U.S.C. Section 505). Needless to say, lawsuits can be VERY expensive– particularly in cases like these which involve the federal courts.
The U.S. Copyright Office actually does a pretty good job of explaining the registration process and walking you through it. Click here for the photography section of their website.
You Keep Talking About U.S. Copyright, But I Don’t Live There.
While it is important to check the copyright laws in your country, photographers of other nationalities are, in fact, able to benefit from U.S. copyright protection.
In the United States, all unpublished photos are protected under copyright law, regardless of nationality, meaning that works of foreign origin can be registered with the U.S. Copyright Office. Additionally, if photos are first published either in the United States or a country with which the U.S. has a copyright treaty, those images are also protected by U.S. copyright law and may be registered with the U.S. Copyright Office. There are currently almost 200 countries participating in various international copyright treaties. Click here for a list.
Can’t I Just Put a © Symbol on the Photo?
Placing a copyright notice directly on the work is no longer required, but it could act as a deterrent to potential infringers. Unfortunately, editing software has made it easier than ever before to remove watermarks and copyright notices. If you are going to use a copyright notice, however, make sure that it has all three of its necessary components– the symbol, the year of first publication, and your name. The notice alone, however, will not afford you the same protection as registration.
What About the DMCA?
The Digital Millennium Copyright Act of 1998 implemented treaties signed at the 1996 conference of the World Intellectual Property Organization (WIPO). The DMCA states that while an internet service provider (ISP) is not liable for the transmission of potentially infringing material, it must remove material from users’ websites that appear to constitute infringement. While this sounds like good news for photographers– and it is, to a degree– you may have noticed that I didn’t mention anything about monetary damages. The DMCA is a great stopgap for having your content removed from an infringing party’s site, but it does nothing to compensate you for damages. In order to seek monetary compensation, you still need to pursue the legal remedies provided by copyright law.
And that means registration.
A Short Note on Not Getting Your Hopes Up
There may be a small part of you hoping that someone out there commits a willful infringement of one or more of your photos. After all, $150,000 per image per offense would be quite the windfall. Trust me when I tell you that verdicts like that are extremely few and far between. Cases settle. Cases get thrown out on technicalities. The statutes that create these stiff punishments do so not just to compensate the wronged party, but to hopefully deter the offender from infringing in the first place. Additionally, the Fair Use Doctrine (a subject for a future post all its own) will often prevent a full recovery of statutory damages.
In a world where a photo can journey from the camera in one country to a computer halfway around the world in the blink of an eye, protecting our work has never been more important. Thankfully, registering our images for copyright protection is a fairly easy process, requiring only basic paperwork and registation fees.
For additional reading on copyright and other legal issues facing photographers, check out “Photographer’s Legal Guide” by attorney and photographer Carolyn E. Wright.