Your photos may not be protected if copyright application is still in progress

Italy-based photojournalist Matilde Gattoni recently got the result of her lawsuit against clothing retailer Tibi. Now that the judge has made the decision, it may be of interest for all photographers.

While copyright registration of Gattoni’s photo in the US was still in progress, Tibi changed her photo and posted it on their Instagram page. After she sued for copyright infringement and violation of Digital Millennium Copyright Act (DMCA), the court dismissed the charges of copyright infringement.

As Lexicology writes, the photographer captured a colorful building in Essaouira, Morocco, with a woman in a long dress walking down the street. In August 2016, she posted the photo on her Instagram page with a copyright notice. A month later, Tibi cropped the photo to remove the woman and posted the altered version on their Instagram page without the photographer’s permission. They removed the copyright notice, but linked Gattoni’s Instagram profile.

As I mentioned, Gattoni sued for copyright infringement and violation of the DMCA. The lawsuit requested statutory damages of up to $150,000 for copyright infringement, and $2,500 to $25,000 for the DMCA violation. Tibi moved to dismiss the suit, and the judge issued a mixed opinion on the defendant’s motion – the DMCA violation charge moves forward, but he didn’t find Tibi guilty of copyright infringement.

There are four requirements to claim for copyright infringement: the subject was an original work, the photographer owns the copyright in that work, the copyright was registered in accordance with the statute, and the defendant acted to infringe the copyright. Gattoni meets three requirements, expect for the registration. She filed for it, but when Tibi used her photo without permission, the application was still pending. Hence the judge’s decision that Tibi isn’t guilty of copyright infringement.

According to Lexicology, courts are split when it comes to pending copyright registration. The Judge on Gattoni vs. Tibi case, Robert W. Sweet, explains: “Some courts have taken an ‘application approach,’ under which a pending copyright registration application is sufficient to satisfy Section 411(a), while others have taken a ‘registration approach,’ under which a certificate of registration issued by the Copyright Office is a prerequisite to suit.” According to him, in Gattoni’s case, the court went for the “registration approach.” This means it was necessary for the photographer to submit either a valid copyright registration, or evidence that she filed for registration, but it was refused.

As for the DMCA claim, the court noted that the copyright registration doesn’t affect the decision in this case. She fulfilled the requirements to file against Tibi: “she demonstrated the existence of the copyright management information on her photograph, the removal and/or alteration of that information, and that the removal and/or alteration was done intentionally.”

Although the court has denied in part and granted in part the defendant’s motion, they granted Gattoni 60 days to show the evidence of copyright registration. She will have time to either show a valid copyright registration of the photo in question, or the rejection of her copyright registration application.

This case is important for all photographers who filed for the copyright registration of their work. If it’s still pending, you can sue for DMCA violation and most likely win. But if the court goes with the “registration approach,” it means your photos aren’t protected against copyright infringement until the registration is either complete or rejected.

[Gattoni v. Tibi, LLC. via Lexology]