Copyright and intellectual property law are the foundations of the photography industry and all other creative business.
However, it is shocking how misunderstood (and strangely controversial) copyright and intellectual property law are among photographers and other creative professionals.
What is even worse is the amount of misinformation there is online when it comes to copyright and your intellectual property rights as a creative professional and content creator.
In this article, DIYP sits down for a Q&A session with Pixsy (a global leader in pursuing monetary compensation for copyright infringement on behalf of creative professionals) to answer 20 things photographers must know about copyright and intellectual property law.
Before we jump into our Q&A session with Pixsy – full disclosure: I have been a Pixsy member since the beta phase and have relied on their expertise to settle many copyright infringement claims (further reading: I Just Made $2500 From A Single Copyright Infringement – And You Can Too).
However, this is not a paid advertisement and the information in this article should be helpful to all photographers and creative professionals whether they use Pixsy or not.
Please let us know what you think and leave a comment below!
Q&A: 20 Things Photographers Need To Know About Intellectual Property Law
DIYP: What is copyright and when does copyright come into effect for creative works?
Pixsy: Copyright is an exclusive right that is automatically assigned to the creator at the moment the work is created. It is defined as “a person’s exclusive right to reproduce, publish, or sell his or her original work of authorship”.
As a photographer, this means that the moment you capture an image, the copyright to that image belongs to you. The only exception to this is when you have a specific legal arrangement to take the photographs for somebody else (under a work for hire arrangement for example), but this must exist in advance or else a legally binding document must be created that transfers the copyright from the photographer, once they have captured the images.
DIYP: What happens to copyright when an image is published on social media, a website or print?
Pixsy: When you’re using Social Media, it is very important to read the terms and conditions. Most people are surprised to learn that posting to a Social Media site such as Facebook, Instagram, or Twitter grants those platforms some license to use the image.
However, these terms of service might give the host site a certain set of permissions, but images on social media hold the same copyright as other images – and these permissions do not extend to third parties.
To give an example, a company can’t take an image from someone’s Facebook account, and claim that in posting to Facebook, the photographer issued a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use the content.
In all instances, unless a license has been provided or obtained for the use of the image by the copyright holder, publishing on social media, a website or print could constitute a copyright infringement.
DIYP: What is copyright infringement?
Pixsy: A copyright infringement occurs when an image is used without permission or license from the person who created it. It also occurs when the terms of the license for use are not properly adhered to.
DIYP: Why is it important for photographers to protect their copyright?
Pixsy: If we worked together to tackle the problem of image theft at large, it would be hugely beneficial to the creative industries.
If you are not protecting your work, you devalue it and miss out on licensing fees. If someone can help themselves to your work, free from any consequences, then why would they pay for it?
DIYP: What information is required for a photographer to prove that they are the legitimate copyright holder?
Pixsy: As much information as a photographer can provide to prove they are the person who captured the image is vital.
Being able to provide the original file as well as the date the image was captured and published is usually sufficient evidence of copyright ownership.
We would also recommend that photographers get into the practice of adding copyright information to their EXIF metadata. This process not only makes it very easy for potential clients to contact you, but also adds the security of knowing that if there are unauthorized copies of your work being distributed online, in many cases it will be possible to trace these back to you as the original copyright holder.
DIYP: Is it necessary to register photographs with the US Copyright office?
Pixsy: Registering your images with the US Copyright office is not necessary to secure your copyright, but can offer additional protections, especially if you should end up in litigation.
Holding a timely copyright registration can entitle you to statutory damages between $750USD and $320,000USD per instance of unauthorized use, including the recovery of legal fees in the event that your case goes to court. In a case where you are able to establish wilful infringement, you could be entitled to up to $150,000USD per work.
Official copyright registration processes vary from country to country but many different countries rely on US Copyright Registrations for proof of ownership. If an image isn’t registered it doesn’t mean you in any way forfeit your copyright, but it does make it easier to take action when an infringement occurs.
DIYP: What steps should photographers take before publishing their work?
Pixsy: There are many techniques photographers can use to protect their work before they publish it online, but it is the case that none of these methods are guaranteed to protect your work against theft.
Applying a combination of image protection techniques can, however, greatly reduce the risk of improper use. Common practices include using watermarks, embedding copyright metadata into your EXIF file, displaying clear copyright notices around your work, and using digital signatures or hidden foreground layers.
We would recommend that photographers keep detailed records showing how they have taken steps to protect their work and where and when it was published, so that this can be provided as evidence if an infringement occurs.
DIYP: What steps should photographers take after publishing their work?
Pixsy: Monitoring your work using an active protection service (such as the one offered by Pixsy) means that your work is being regularly checked for use. When images are found on the public internet, photographers are notified and they can they decide how or if they would like to proceed.
DIYP: What should a photographer do if they find an unauthorized use of their work?
Pixsy: If you discover that someone is using your image without your permission, it’s best to take action as quickly as possible.
It’s important to remain calm and to try to keep your emotions out of the way (easier said than done!).
You should begin by gathering evidence. Take screenshots clearly demonstrating the unauthorized use of the photo, including the URL bar. Save the URL into a Wayback Machine online cache to save time-stamped evidence. You can also save the page as a PDF.
Understand your desired outcome before you start a dialogue. Who has used the image? Is it a business or personal use? Do you want the work removed or do you want remuneration for it? Have a goal in mind. Consider what is your best-case scenario? What is the value? This means that if a negotiation ensues, you have a clear set of terms.
It’s our experience that photographers frequently undervalue the worth of their work.
Keep in mind that if you offer to resolve the matter for a set fee, you are effectively setting the value of your work. What this means is that in the event that your invoice is not paid and you decide that you want to proceed with further action through a resolution agent or an attorney, it will be very difficult to claim a higher level of compensation.
If you wish to bypass the stage of contacting the person or business behind the breach personally, you can elect to issue a takedown notice.
You can send a takedown notice directly to the host of the site, or to the person managing the site. In many countries the ISP or host is legally required to action your takedown request.
You should consider getting a resolution service, like Pixsy, or a lawyer involved.
Having an advocate experienced in copyright law can really help you to achieve your desired result, and also has the benefit of leaving you to what you do best – creating.
If you decide to approach the issue yourself, do so with the understanding that this may do more harm than good, and create difficulty should you need to enlist the help of an expert at a later date.
DIYP: What makes an infringement case viable to pursue for monetary compensation?
Pixsy: The following are generally the most important criteria in determining the commercial viability of a case: the website is a commercial business, major publication, organization, institution or government agency; the website is fully operational and regularly updated; the image user is located in one of our supported countries; and there are no open questions about past licensing, or conflicts with stock agencies.
DIYP: Is it necessary to issue a DMCA takedown request?
Pixsy: It’s important to decide on what your desired outcome is before issuing a takedown notice. If your main motivation is to be paid fairly for your work, a DMCA Takedown notice should not be your first move.
Using the expertise of Pixsy or a lawyer instead of issuing a DMCA takedown notice may result in fair compensation for the use.
If however your motivation is simply to have the work taken offline, a takedown notice is a good move. A DMCA Takedown Notice is an official notice that informs the other party (person, business or host) that you, the owner of the work, formally request your work to be removed from their webpage.
Under the Digital Millennium Copyright Act, hosts and Internet Service Providers (ISPs) are granted ‘safe harbour’ from prosecution for hosting illegal content, as long as they remove it as soon as they are notified. Accordingly, hosts and ISPs take DMCA takedown notices very seriously. As do the courts: DMCA claims proven to be false carry severe penalties.
DIYP: What compensation is reasonable for copyright infringement?
Pixsy: It’s our experience that many photographers greatly undervalue their work.
Every time a photographer allows someone to use their image, free of charge, it sends the message that it has no monetary value which is simply not the case and may do a disservice to other photographers.
You created a work that is unique using a skill set that you’ve acquired and developed throughout your life. Your work has an inherent value and needs to be treated as such. Compensation for copyright infringement varies greatly and depends on a variety of factors, and it’s important to highlight that you don’t need to be an established commercial photographer to obtain fair compensation for use of your work.
DIYP: How can a photographer calculate the value of the infringement?
Pixsy: Calculations of the value of an infringement are affected by many different factors, including:
Scope of the infringement: How many images were infringed, or in how many different ways was an infringed image used? Was the use limited to a subpage of a company website, or was it on the homepage and distributed through a variety of social media accounts?
Market reach: Was the infringing use committed by a local barber shop, or by an international firm with 100 offices?
Size of use: Is the image used as a thumbnail or is it prominently featured on a webpage?
Type of use: Was the usage localized to a single print newspaper, or does it appear online to an international audience?
Duration of use: Was the image used for a month or years.
Category of use: Was the usage commercial or editorial in nature?
One of the most useful pieces of information in determining value is any licensing history the photographer already has for a related type of usage (for example, editorial or commercial licenses for related infringements). If the photographer has previous invoices it provides a comparative value.
DIYP: Is the value of stock photography relative to the value of the infringement?
Pixsy: It is absolutely relative – not only to the value of the infringement, but to the value of a photographer’s work as a whole.
In publishing your work on a stock image site online, you have effectively set the actual value of your work – typically at a nominal figure. It becomes very difficult to make an argument that your work is worth more than this. In infringement cases, there are a variety of factors that can be used to increase the value of the work (having established licensing history at higher figures helps), but it is the case that most legal partners we work with will not accept a case for a work that is available for stock licensing online.
It’s a difficult topic because current models of licensing have many photographers publishing and generating a substantial portion of their revenue through stock sites. It’s important that photographers understand how publishing on these sites can devalue their work.
DIYP: What process does Pixsy use to contact infringers and negotiate a settlement?
Pixsy: At Pixsy, our dedicated team of Case Managers tend to approach the matter with the understanding or expectation that the image user did not mean to breach the photographer’s copyright.
Often image users simply do not understand copyright or copyright infringement.
This of course doesn’t excuse the infringement, and we go to significant lengths to explain the situation while emphasizing how its detrimental to our photographers’ work and why a license fee for the use is due. We encourage the photographer not to contact the image user themselves or enter into their own negotiations once they have submitted a case to our resolution services, as this can significantly complicate the process.
DIYP: When is a lawsuit necessary versus a negotiated settlement?
Pixsy: A lawsuit may be necessary when an image user fails to respond or address attempts to resolve the infringement.
The first step is always to engage the image user in a pre-lawsuit settlement negotiation – it’s in everyone’s best interest to negotiate a settlement out of court as this can be costly and time consuming, and typically results in costs for the image user that are substantially higher than if they had engaged in productive settlement negotiations in the first place.
Pixsy is however committed to ensuring that our photographers are compensated for unauthorized use of their work, and is always prepared to recommend a case for a lawsuit if an image user isn’t willing to engage in a settlement discussion.
DIYP: How are infringement disputes handled differently between global jurisdictions.
Pixsy: This is a very complex topic and the reason why the Pixsy service was created!
DIYP: How successful is Pixsy in getting photographers paid?
Pixsy: We have successfully resolved over 36,000 copyright infringement claims from around the globe, helping more than 25,000 creatives in the process.
DIYP: What are your top tips for photographers to protect their copyright?
Pixsy: We fight for the rights of photographers but it’s also important that they understand what those rights are.
Your copyright is your asset, and there are steps you should take to protect it. Although image theft is an alarmingly common problem, the fight against it is an important one and one you should be a part of.
When it comes to image protection, photographers have to be be proactive.
Using an active protection service, such as Pixsy, monitors your work, and provides the help you may need, should you choose to pursue fees or damages. Being aware of where your work is being used online is a great start.
You should be prepared to take action against unlawful use of your images, with the understanding that it is not a hopeless cause as the law is on your side. Keep records, keep track of your licenses and your images, and don’t be afraid to ask for help.
(DIYP: for further reading, you might want to check out our previous article Best Practices To Protect Your Photography Copyright and Pursue Infringement.)
DIYP: What are your top tips for photographers to get paid for infringement?
Pixsy: It’s important to determine what your desired outcome is before making a claim.
It’s also important to be realistic in your expectations of the amount that will be paid.
In our experience photographers care more about their copyright being properly respected than they do about compensation. Using a service like Pixsy, or a lawyer, is a great way to make sure the case is thoroughly investigated, and handled professionally. This usually leads to the best possible outcome for all involved.
What Do You Think About Copyright?
Do you think that the concept of copyright and intellectual property is misunderstood? Why?
Do you think photographers and creative professionals should be more aggressive in pursuing payment for infringement? Why?
Have you ever tried to go after payment for the unapproved use of your work? Were you successful?
Is copyright a controversial subject?
Why do you think so many photographers and creative professionals are willing to settle for exposure or credit when an infringement has occurred?
Please leave a comment below and let us know what you think!
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