Copyrighting Your Photography – It’s So Important

 

The other day, I was in my Flickr site looking through my Contacts’ photos.  One of my contacts Aaron Reed listed a link in his commentary to one Tom Schwabel, another Flickr member whose photographs are stunning.  Tom had written a very detailed commentary on the importance of copyrighting one’s photos and why photographers should register their images with the U.S. Copyright Agency.  Unfortunately, Flickr ultimately requested Tom to remove his commentary because of reports of abuse.  I read his commentary and saw no abuse whatsoever.  As Tom put it: “Apparently the picture nabbers don’t like it when information is posted that may hinder their picture nabbing habits.”

I have no illusions to the fact that my photos have been nabbed by somebody somewhere. Due to my own stupidity for not registering my images in a timely manner, or for uploading a photo that might have a higher resolution than I should have uploaded, I’m sure my images are probably on some cheap computer screensaver or in some magazine near or far.  It seems to be the nature of the business and I have to determine whether or not I want to go after these yahoos – is it worth it to me and can I afford it.  Questions for me to think about that I always pushed aside.  There are people out there who – rather than take the initiative to be creative themselves, or to pay for the use of a photograph – have no problems whatsoever stealing someone else’s photographic work and claiming it as their own work for their own purpose.

About a week ago, some guy from Europe wrote to ask me to please remove my copyright mark and send him (for free) a higher-resolution version of one of my Ireland photos so he could print it out and give it to his girlfriend for a birthday present.  After I had a conniption fit, I sat down to my laptop and wrote back to him, explaining why I would NOT do what he wanted and why it would be better for him (morally and ethically, if for no other reason) to purchase that photo from my website.  He’d be getting a better-resolution image and it would certainly look nicer than what he would have gotten from that one jpg to which he was referring.  I’m sure he probably went ahead and either cloned out or cropped out my copyright mark and printed that low-res shot for his gal.

I received another request a month or so ago from an Eastern European travel magazine who wanted me to send them – for free – my entire Ireland photo collection so they could print the photos in their magazine; they couldn’t pay me because they were on a tight budget…..I told them no.

I generally don’t re-blog stuff, eschewing that in favor of my own writing (ok, a little hubris here).  However, I personally thought Tom’s piece important enough to post here and I hope the photographers who read this post will think about all of this.  I certainly thought about this and am now in the process of registering all of my precious images.  I should have done this eons ago.

Please note, this is a very long post – also, as Tom notes below, he is not an attorney – this post is taken from his own experiences.  He wrote this because he wants fellow photographers to be aware of what can (and does) happen to images.  Thanks, Tom, for letting me re-print this on my blog.

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” It is inevitable that, if you are fairly active here, someone will eventually profit from your work without your permission. No, I’m not talking about bloggers. I’m talking about a person or business that should have paid for your work. Maybe they’ll sell your photo on greeting cards. Or maybe use some software to upsize your photo and sell it on large canvas for hundreds of dollars. Or use it to advertise a multi-thousand dollar photo safari. Or license it to others as low-resolution religious microstock. I’ve even heard of someone who found out from contacts that one of his Flickr photos had won a large prize in a major photo contest. Only he hadn’t entered any contests. Someone else had borrowed his photo, entered it as their own, and claimed the prize. Flickr is the wild-wild-west of the internet: the de-facto free stock photography library. No, you didn’t hear that everything here is public domain?

The consequences of someone “borrowing” your work can be larger than you think, beyond the license money you might have missed out on because of the borrowing itself. Suppose someone approaches you to exclusively license your work for a big ad campaign, a deal which could be worth thousands to you. Well, we can all dream, right? As part of clearing the deal, a lawyer plugs your image into Google or TinEye (more on that later) and sees it on 100’s of other sites, even other people’s photostreams right here on Flickr, credited to other people. They walk away from the deal because they can’t be sure you own the work thanks to all of those copies credited to other people. They don’t want to risk being sued for infringement because they were sold a license to use the image by someone who wasn’t authorized to do so. Sure, one innocent blogger adding your picture to their blog won’t hurt. But there are billions of people on this planet. So the collective group of innocent borrowing bloggers doesn’t look so innocent anymore. Think it can’t happen? Trust me, it can and has. Though copyright law isn’t quite like trademark law, failing to protect your copyright NOW can make it harder to obtain fair compensation for your work down the road. For example, a judge isn’t likely to award you very much should you end up in an infringement suit if he sees that you have ignored tons of infringements you were aware of in the past.

Rather than fuming when someone grabs your stuff, be prepared to do something about it. But before I talk about what to do once you’ve been infringed, let’s talk about what to do before you get infringed. Hopefully to prevent the infringement, but at least to be prepared to make the strongest possible response to an infringement case.

The material that follows isn’t legal advice and I am not a lawyer. If you think you need actual legal advice, seek a lawyer. This is just a summary of my experience in these matters. It might make your head hurt. Your mileage may vary considerably. But hopefully, it will help you understand a bit more about the complicated matters surrounding protecting the work so many of us are passionate about creating. You are free to link to this, reproduce excerpts from this text, or reproduce the text (but not my photo!) in entirety on the sole condition that you provide credit and a link back to my photostream. If you have anything to add or suggestions on changes, please contact me. This is a living document.

Registration

It is true that you own a copyright to any work you create from the moment you press you camera’s shutter button. This means there is actually very little content out there that is not copyrighted. The oft-used, “I didn’t know it was copyrighted excuse” is a load of steaming hot crap. In most countries you need not do anything special to defend your copyright.

In the USA, things are a little different. You can’t take a case to court without a registration. Without a timely registration, you are limited to actual damages (infringers’ profits attributed to the infringement and/or lost license fees) and cannot recover legal fees from an infringer. Most of the time actual damages won’t be terribly large so you’d need a pretty big fish to make back your costs lacking a registration (even for a basic cease and desist notice you’d be looking at a few hundred USD in costs). While you can register anytime, a timely copyright registration provides for a vastly enhanced statutory damage award of up to USD $150,000 plus reimbursement for legal fees and costs should you end up in court. No need to prove actual damages. This can make it very much worthwhile to pursue infringements, however small. It is amazing how the threat of a $150,000 lawsuit over a registered copyright brings compliance. Not only that, but you’ll find many attorneys willing to take your case on contingency if you have a timely registration (assuming that the infringer looks to have some money they can part with). By timely, I mean that you must register your copyright with the US Copyright Office within 3 months of first publication or prior to the start of the infringement in question (but not the start of ANY infringement, fortunately). In other words, if you register your images within 3 months, you are fully protected. If you register after 3 months, you’ll be protected but only for those infringements that start after the effective date of registration.

Thanks to the electronic registration process (eCO), registering your copyrights isn’t as tedious as it used to be. Gone are the days of long paper forms. Read the information below carefully. Your registration application must be as accurate as possible should it ever be challenged in a dispute. The first thing a defense lawyer will attempt to do is invalidate your copyright registration to eliminate the statutory damage award. That said, it seems many courts are relatively forgiving of mistakes in registration so long as they are innocent.

http://www.copyright.gov/eco/

Currently, eCO does not allow for group registration of published photos. However, there is a pilot program to enable this on eCO for which you can register to participate. With the help of some perl scripting, I registered my entire photostream using the pilot. See additional information on the Pilot program for Group Registration of Published Photos:

http://www.copyright.gov/circs/sl39.pdf

A group registration of published images can be done for $35 and can include any number of images, just so long as they are published in the same year. You’ll need separate applications for each year. There is some debate as to what published means in the context of the internet. According to the US Copyright Office, publication is defined as such:

Publication has a technical meaning in copyright law. According to the statute, “Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.” Generally, publication occurs on the date on which copies of the work are first made available to the public.

Simply showing prints or a slideshow to others does not constitute publication. Posting images to a private website might not be considered publication either. However, I would consider posting publically viewable images to Flickr as publication. If in doubt about whether a photo is already published, it is always safer to register as published and later change to unpublished. The reverse (unpublished to published) is problematic. See http://www.photoattorney.com/?p=48.

So, it pays to promptly register your copyrights. In fact, the method recommended by the ASMP is to register your photos as unpublished before you ever even share them. You would not need to re-register them when you publish them. But if you’re like me and too excited to share some fabulous new image you got over the weekend, waiting to register before you show off your image could be a problem. If you are impatient like me, registering your published images every three or so months will keep you covered for the most part. If nothing else, REGISTER YOUR COPYRIGHTS immediately if you ever get your work published to a widespread audience. It could be the best $35 to $65 you ever spend on your photography. That said, remember that the US Copyright Registration will only help you for infringements in the USA, but finding even one could pay for all of your registration fees.

So now you’ve registered your images. What else can you do to be prepared?

 Watermarking

The best cure for copyright issues is to prevent them from occurring in the first place. Many ask why I post unsharpened, low quality JPEGs on Flickr, complete with ugly watermarks. Watermarks…we all hate them. They are ugly. The requirement that copyrighted work must bear a copyright notice hasn’t existed for decades (yet, it is still a common misconception or excuse that it must), either in the USA or elsewhere. Everyone just crops or clones out watermarks anyway. So why watermark? For one, I’ve discovered most folks just aren’t interested in ripping off your stuff if it has your advertising (watermark) in it, not theirs. They’re lazy. That’s why they are ripping off stuff without asking in the first place. They’ll move on and find another image that doesn’t need to be cropped or cloned. If they rip it off anyway, at least it might still have your name on it. I’ve also included “flickr” in the watermark to indicate where they stole it from, in the astronomically small chance that someone did want to contact me for legitimately using the image.

Supposing an infringer was to crop out your watermark, their ability to successfully claim innocent infringement will be substantially reduced. In the U.S., the statutory damage award could be reduced to a mere $200 plus legal fees if the defense successfully proves innocent infringement. Similar principles may be found in the laws of other countries. For example, in Italy, copyright damages are only awarded by courts in the case of dated, named photos mentioning the author, essentially what would be covered with a watermark. If the exemplars do not contain such indications, it is mandatory to prove the bad faith of user. While it may be possible to prove bad faith of the average Flickr photo-nabber who nabbed an un-watermarked image, I’d rather not chance it.

But there is yet another very important reason to watermark in the U.S. The Digital Millennium Copyright Act (17 U.S.C. §§1202, Integrity of copyright management information) calls for minimum statutory damages of USD $2,500.00 (and up to $25,000) per work for alteration of copyright management information. Thus, if an infringer in the U.S. clones out your watermark, you could be awarded an additional $25,000 ON TOP OF any damages for copyright infringement itself. This is the one case in the U.S. where you can collect statutory damages without a prior copyright registration. A healthy digital workflow also adds EXIF information to image files. Not only is this important from a copyright perspective (even more copyright management information), many agencies will require this information to be populated anyway.

Hopefully, people who might want to use your work will see past the watermark to know if your image is a good one. That said, you can’t make your watermark so ugly or your image quality so low that you drive people away. The key here is to make it tasteful but functional. That’s NOT something I’ve personally mastered yet. I wish I could show my honest contacts and friends the best versions of my work. I am punished on pretty badly on 500px, where people can be brutally honest, for showing those small, blurry, watermarked shots. So it can hurt your exposure. Showing my work at its best makes it attractive to thieves, and I’m just not into having my work dragged around the internet. You need to strike your own balance between exposure and protecting your work. Lately I’ve given up with tasteful watermarks because so many people still crop it, and many of them are out of reach of the US DMCA. Surely, though, my stuff is crap. Nobody is going to steal it. I think you’d be surprised. I’ve had photos ripped off that I honestly thought were turds. So how do you find them?

 Finding Infringements

There are a growing number of great resources for locating copies of your work online. They are based on image “fingerprinting” technology, which allows you to search for an image using an image. At a high level, I think these work by downsizing your image to a very small image (say 32×32 pixels) with a very limited number of colors to create the fingerprint. The fingerprint is then compared to a database of fingerprints from images crawled around the web; obviously far easier said than done. They’re able to find matches, even if the image has been resized, cropped, has had watermarks added or removed, borders added or removed, etc. It can and sometimes does find false positives and you should watch for that. One common false positive I get is the autumn maple tree in the Portland Japanese Garden, of which many people have similar shots under similar conditions. Anyway, I’ve listed two below:

 TinEye:

Go to http://www.tineye.com. Either upload or provide a link to a jpeg file. Their search database is rather small, but they were the first or one of the first to make this technology available. They seem to be able to correctly match images that have been modified quite a bit from the original.

Google:

Go to images.google.com. Click on the image of the camera to the right of the search box. Enter the URL of one of your images (you need the actual URL of the jpeg file, not the spaceball.gif that Flickr overlays on your image pages to prevent right-click downloading) and click search. Their search database is HUGE. The drawback is that their matching technology doesn’t seem quite as good as TinEye’s.

For Mozilla users, searching for matches on these and a few other search engines is combined into one handy add-on: https://addons.mozilla.org/en-US/firefox/addon/who-stole-my-pictures/

There is also this handy little tool to make searches easier to do, which uses Google and can be made into a bookmark. Go to the page with the original image, click on the bookmark, and then click on the image you wish to search. I know it works with IE but can’t vouch for any other browsers: http://jarred.github.com/src-img/

You may be surprised by what you find. Probably over 90% of the uses of my images are unauthorized. Due to the viral nature of the internet, once an image gets out into the wild, it goes EVERYWHERE. FAST. Often infringers will add their own watermarks to your images. Through this I can literally trace the progression of some of my images around the internet as watermarks are added and deleted along the way. Yes, infringers infringe from other infringers. Here’s an idea – if you find a contact’s picture somewhere unexpected, be nice and ask them if they know about it. Bet they probably didn’t. If we all police each other’s images, we’ll be sending the message that it isn’t open season on Flickr images.

So now you’ve found some things that don’t belong. What next?

Found an Infringement?

 Before you do ANYTHING:

1. Take screenshots of any infringement you might end up pursuing.

2. Check the internet archive (aka Wayback Machine) to see if you can find out how long the infringement has been there. http://www.archive.org/web/web.php I’ve used information gathered from this archive to successfully shoot down infringer excuses before, often leading to payment of my demand shortly thereafter. I don’t provide the information I find here to infringers in the initial communications. When they say it has been there only a week and I then show them it has been there 6 months, I’ve just demonstrated bad faith on their part.

3. Save any and all correspondence you might have with the infringing party.

You will need all of this as evidence. Once you have secured screenshots and supporting information, you have several options to deal with infringements, in increasing levels of escalation:

1. Do nothing. 2. Ask for credit if there is none. 3. Ask for the image to be removed. 4. File a DMCA notice with the hosting provider to remove the image. 5. Send a cease and desist and settlement demand yourself. 6. Have a lawyer in the infringer’s country send a cease and desist and settlement demand. 7. File a lawsuit in the infringer’s country.

When deciding what to do about a copyright infringement, one needs to consider the potential upsides and downsides of taking different courses of action. For me the choice between less extreme and more extreme options depends on whether the infringement is personal or commercial in nature. In the latter, there is a clear financial loss. There are a few caveats I’ll get to later. Be sure to look at those before doing anything.

The Low Key Approaches: Doing Nothing or Asking for a Photo Credit

In many cases, such as personal blogs which receive considerable amounts of traffic (beware that many “personal” blogs derive substantial advertising income using the posted content to drive traffic, these I cannot consider “personal”), it could be best to try turning a negative into a positive. If you can get the blog owner to add a link to your photo page along with a credit, maybe the extra traffic and free advertising is worth something. If nothing else, the link backs improve the chances that someone finds your legitimate stuff in a search engine. Maybe you’ll even politely show someone the error of their ways – the “everything on the internet is free” attitude is too prevalent these days. Chances are a blogger would never have paid to license your image anyway, so you haven’t really lost much from that infringement. If everything is already properly linked, credited, and not used in a commercial context, the best option is probably to leave it alone. But be sure to level set your expectations from a photo credit. I’ll have a rant on that later.

The DMCA Notice

Much of the time you’ll find infringements on blogs or media sharing sites where a photo credit or link isn’t really practical or possible. Occasionally you’ll find commercial uses where it is unlikely you’ll actually be able to get to the infringer (perhaps the contact information seems bogus or it is someone in a country with weak IP protection). Often contacting the infringer directly is impractical or requires you to register with some site. And contacting infringers directly and dealing with their multitude of excuses is a pain. If the site is hosted in the USA, the powerful DMCA comes into play. Fortunately, a majority of sites out there are hosted in the USA. Service providers are legally required to block or remove content “expeditiously” when they receive one of these, and you don’t need a lawyer to write or send one of these. Usually you’ll find instructions on how to send a DMCA on the service provider’s abuse or terms of service page somewhere. The basic requirements are standard across the board (they’re specified in the Digital Millennium Copyright Act, aka DMCA) so I have my own template I use for every notice. The requirements are as follows:

‘‘(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. ‘‘(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. ‘‘(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. ‘‘(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. ‘‘(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. ‘‘(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

The last two components are particularly important; without them the ISP will not act on your notice. While not necessary, I add extra verbiage to point out that my work is registered and what the potential penalties can be. Most providers are very prompt and remove the illegal version of your picture within 72 hours. If they fail to comply with the notice, you can sue them for the infringement as opposed to the infringer. Sometimes providers in other countries will also honor a DMCA notice (in my experience this works about 40% of the time). Not only does it get your images removed, but some sites have multiple infringement policies that get users kicked off for receiving repeated infringement complaints. And a nasty note from an ISP to an infringer carries more weight than a personal note from you.

So how do you locate the hosting ISP? I use http://www.dnsstuff.com. Run a trace route and then look up the IP address using the WHOIS lookup. Of course this is one of a million sites that allow you to determine the hosting provider of an IP address. Do whatever works for you.

One note though. There seems to be a number of sites that claim to host “user generated content” but in fact use their own “DMCA policy” in an attempt to avoid liability for their own misdeeds. If they are not registered as an ISP with the Copyright Office, have actual knowledge of infringements on their site, obtain financial benefit directly attributable to infringement on their site, or do not have contact information or policies conforming to the requirements, they may not actually have any safe harbor status. http://www.copyright.gov/onlinesp/

According to the DMCA, Section 512 (c) (2), safe harbor requires, among other things:

(2) Designated agent. — The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information: …

I sometimes challenge such sites if they appear to be abusing the DMCA. I have yet to attempt collection of damages from such sites, but the thought has crossed my mind often. Sometimes you’ll come across some site in a foreign country where the ISP either fails to respond or requires you to obtain a lawyer and follow the legal process of their country for removal. For non-commercial infringements obviously this isn’t practical. For this you have another option: you can file a DMCA with Google and/or Bing to have the infringing image removed from their search catalog. Though they are not actually hosting the content, they will act to limit their exposure to contributory liability for providing links to the infringement(s). Not as good as eliminating the infringement itself, obviously, but at least it will be harder for others to find it.

http://www.google.com/support/bin/request.py?contact_type=lr_dmca&dmca=image&product=imagesearch

Elevating Tensions: The Demand Letter

A business using or selling your photo is making money from your stuff. They should have paid for the use of your image. And you’re not getting anything. That’s THEFT. Hurry up and prepare to make a strong response to the infringement. If you can get their true identity and contact information, sending a letter claiming copyright infringement and asking for money is usually the first step in escalating an infringement case. However, before sending that letter yourself, DO YOUR HOMEWORK. I made the mistake with a few early cases of asking for too little, just to guarantee a settlement. After gaining experience with a few cases where escalation with a lawyer was required, the eye-watering settlement amounts in the lawyer’s demand letters made me realize this. The amount the lawyer demanded was 5-10x what I would have requested in the beginning. If you stop to think about it, however, asking for an amount that is equivalent to what you would have legally licensed the image for sends a message that it is worth it to infringe your images. At worst, the infringer gets caught and has to pay the usual license fee. At best, they pay nothing. Where is the incentive to license your image? So, unless you have done your homework and know exactly what you are doing, contacting them first could severely damage your case and limit what you might get. Don’t undermine yourself. For your first case or two, it may be best to have a lawyer make first contact so you gain an understanding of the process. If you do send a letter, make sure any demand for money includes something to the effect of “for settlement purposes only” to make it clear that amount you are demanding is only applicable to a settlement.

Some talking points for your letter might include:

1. Point out the copyright laws in the infringer’s jurisdiction. Be specific. Instead of writing “according to copyright law in your country”, write “according to Italian Law No. 633 of April 22, 1941, for the Protection of Copyright & Neighboring Rights, as amended (Legge 22 aprile 1941, n. 633, Legge a protezione del diritto d’autore e di altri diritti connessi al suo esercizio).” If their jurisdiction allows for a large statutory damage award, mention it. If you have a registration, mention it, even if it is not applicable to the infringer’s jurisdiction. If the infringer is in the USA and violated the DMCA by cropping your watermark, mention it. Make it clear to the infringer that you have done your homework and know exactly what your options are. If you don’t have a registration (yet), you don’t have to mention that fact, but of course don’t lie about it.

2. If you sell prints or license your work anywhere, perhaps through Getty or some other agency, mention this fact so it is clear that you are suffering an income loss. Provide a link to your highest priced portfolio so they can verify how much you typically license your work for.

3. Provide a price quote using Getty or an online stock photo price calculator for a similar rights-managed (RM) usage to the infringing usage.

4. Point out that you would rather not involve a lawyer and thus will offer to settle for a more reasonable amount than the legal maximums. Make it clear that you will pursue further action if they don’t comply.

Sometimes this approach works. I’ve collected settlements both inside and outside the US using settlement demand letters sent myself. Obviously, the letters are more effective when you and the infringer are both in the same country. But I am always prepared with a backup plan, because often this does not work and further escalation is necessary. Keep any settlement demand letter professional and stick to the facts – make it very clear you know your options and are prepared to use them. As suggested in my talking points, research the laws and legal system in the infringer’s country and attempt to locate some local law firms that could help you. Approach settlement demand letters with every intention of following through with whatever amount of escalation is required. Most importantly, don’t threaten. No, “if you don’t pay, I’ll sue you” as that could be construed as coercion.

Some folks would argue to go softer on infringers in hopes of turning them into future buyers of your images. Perhaps even negotiate a license for the infringer to continue using the image(s) they swiped. While this is completely up to you, I haven’t found any cases where I believe an infringer would ever provide me with future business.

Enter the Lawyer

If either your self-sent demand letter fails or you decide to move straight to this step, you’ll need to find a lawyer in the country where the infringement is taking place. Generally speaking, if it isn’t in the U.S., don’t bother getting a U.S. lawyer. A U.S. court can’t enforce a decision overseas. Some countries have no meaningful IP protection. We all know which countries those are. Don’t bother with them. Sheila has been kind enough to start maintaining a list of lawyers in different countries. I have used a few on this list; many work on contingency:

http://sheilasmartphotography.blogspot.com/2011/11/list-of-intellectual-property-lawyers.html

The lawyer will need to evaluate whether taking action is worth it, hopefully before you start running up a bill. In most countries outside the USA, damages are limited to actual damages, meaning the actual license fees you lost out on or the profits made by the infringer using your image. In Germany (and I suspect many other EU countries), the damages also include legal fees and are doubled if the infringer didn’t have the courtesy to credit you when infringing your image. Unfortunately, few countries outside the USA allow for contingency arrangements. This means you’ll need to risk losing a few hundred bucks (typically USD $400 to $800 for a demand letter). Some lawyers will require this up front; some will deduct this from the settlement amount or court award if the action is successful. If it isn’t successful, you’re out some change. Thus, pick your targets VERY carefully. The object is to come out ahead, not in the hole. Make it a business decision, not a personal crusade to stick it to the infringer. As I mentioned in the section on registration, the USA is quite different. You’ll generally need that copyright registration certificate to make pushing forward worthwhile. Having that certificate in hand will lower your risk since you may be able to find a lawyer willing to take your case on contingency, lured by the potential of large statutory damages.

You’ll also need to weigh the financial solvency of the infringer and the probability that you’ll be able to settle out of court. You really don’t want to end up in court if you can avoid it. Your infringer probably doesn’t either because it runs up a pretty big bill fast. It is USD $300 just to file in a Federal District Court (you MUST file copyright cases in Federal Court, not small claims court – probably for this reason many image licensing agreements include a 5 to 10x charge for improper use that can be pursued under contract law as opposed to copyright law), and that doesn’t include the bundle your lawyer is going to charge. A trial in Germany is actually a bargain at EUR 2400. In South Africa, a trial will cost between USD $3,200 and USD $16,000. And we all know how expensive litigation is here in the USA. You must also consider the case where your infringer is bankrupt: you could receive no compensation and be stuck paying your own legal bills, leaving you substantially in the hole. Again, a contingency arrangement makes cases in the USA a no-brainer.

Keep in mind these matters often take several months to resolve. Even without a lawyer a settlement usually takes about a month. With a lawyer expect it to take 3-6 months. While lawyer-facilitated resolutions have taken a long time and I haven’t received much more after accounting expenses than I would have going it myself, those that have ignored my self-sent demand letters have often paid dearly for doing so. Hopefully they have learned a valuable and hard lesson.

Additional Note: Prior to engaging a lawyer, you may want to consider the tax consequences of a lawyer-facilitated settlement or court judgment, particularly if photography is only a hobby and not a business. You may end up paying taxes on the full settlement amount, not the amount you actually received. Something to consider particularly if the lawyer’s contingency percentage is high as you could pay more in taxes than you actually receive!

 The Gotchas

The point of the following is to illustrate that copyright law is complicated, especially here in the United States. Make sure you have a clear case before proceeding. Otherwise you could find yourself being sued!

Derivative Works?

The case that prompted the original version of this post was interesting due to the fact that the infringer claimed to be selling my photograph as an original oil painting. The infringer couldn’t have had the full-size original image. Either it was a print from an upsized image or an actual painting. We’ll never really know. The website selling the paintings was using my actual photograph. And it really doesn’t matter if they were paintings or not. No substantial creativity was added to the original work. The original copyright still applies. It does raise an interesting dilemma for us photographers though. Just as making a piece of art from a photograph may encounter copyright issues, taking a picture of a piece of art can cause trouble. Everyone knows the sculpture of the bull on Wall Street, right? A couple of years ago, the sculptor slapped copyright infringement suits on a bunch of folks that were selling photographs of his bull. I believe he won. Even if he didn’t, the targets of his actions spent quite a bit defending themselves from his claims. Something to keep in mind if you begin selling your photography and it substantially includes anything that might be construed as someone else’s work. Note that an exception is made for architecture in the USA (but not necessarily other countries). So we’re really only concerned with sculptures and artwork here.

Fair Use?

You may get bloggers who attempt to use “Fair Use” as a defense for using your image without permission (or attribution). Fair use is mostly a concept in US Copyright Law. One of the four points for evaluating fair use requires that the original work is not substantially duplicated. Unless they are displaying only a thumbnail of your picture or a very small crop, it is unlikely that the courts would find in favor of the fair use defense (US Courts did rule that fair use applies in the case of thumbnails in an image search engine). I am much more sympathetic to this argument if my work is properly linked to the source, credited, and not used in any sort of commercial context.

I once got a really amusing excuse when someone tried to claim a little known copyright exemption for religious worship:

§ 110. Limitations on exclusive rights: Exemption of certain performances and displays

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

…

(3) performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly; I had to look that one up. No, it does not apply to the sale of my image in religiously-themed Powerpoint presentations for use by religious organizations. They eventually ended up paying up.

 The Worthless Value of a Photo Credit

I promised a rant on photo credits. So here it is. A few years ago, an image of mine appeared as Photo of the Day on a major worldwide photography magazine’s website front page, as a result of my submission to their photography contest. Did the magazine tell me about it? No. Did I get anything for it? No. Safe to say hundreds of thousands of people probably saw my photo and photo credit. Surely, all of that attention must have been good for something, right? WRONG. Did I sell a single print or license a single image as a direct or indirect consequence of my photo credit? NO. Did it open the door for me to publish anything elsewhere? NO. Did anyone other than me really even care about my being “published”? Well not really. Unless you count the hundreds of people that helped themselves to my image from the magazine’s website and dragged it all over the internet with no credit to me. Want to be irritated? Imagine having your photo forwarded to you in an “amazing pictures” chain email that has circulated all over the internet without any credit to you (worse yet, credited to someone else!).

So, for anyone who thinks that getting an image published is the magic ticket to the BIG LEAGUES, I’m here to rain on your parade. Don’t give away an image for a photo credit in hopes of a break. It isn’t worth it. You won’t make it big. Nobody cares who takes a picture. They’re not going to go search out who took a picture. There is only thing they care about: is the picture any good? You won’t develop a following on one or even three images. Photo editors and creative directors have specific needs for specific projects that they need NOW. And it is highly unlikely that your photo credited image is the one they need NOW. So they are NOT going to search you out to see what other images you have nor do they want to see the rest of your portfolio. You’ll develop a following slowly over time by consistently delivering top-quality images and forging meaningful connections with those who like your work. Interact with your followers, give them helpful information, tell them a story about how the image was made, etc. You know what it cost you to make your images – the gas, your camera, the expensive vacation, the sleep you lost to get up for sunrise at 4 AM, the hours spent standing in a freezing cold creek…it wasn’t free. Consider that. Your stuff might be worth more than you thought.

 If you choose to give away an image for a photo credit, give it away simply because you want to give it away.

Always read the fine print before uploading or mailing any of your images anywhere. If there is no fine print, have a contract, however informal, that spells out what someone can and can’t do with your image. Perpetual royalty-free rights to all entries, including those that don’t win anything, are very common with contests, especially the big well known ones. In all likelihood, by entering you will give away your image for a handshake and receive nothing in return. Sure, you retain copyright. But you may have just closed the door on monetizing your image later on. I’d rather go for a small amount of sure money than the off-possibility of big money and some essentially worthless exposure. Worthless exposure does not buy a new lens or the gas to your next shoot. Think about if you are really OK with this. Would you be OK if the sponsors used your image for a major advertising campaign and gave you nothing for it – not even a photo credit? The same advertising campaign where they might have paid some other photographer thousands of dollars for the rights to use an image? If not, consider contacting the sponsors and ask if the rights granted can be narrowed to something more in line with the needs of the contest alone. Or consider a juried competition, in which you typically retain full control over your image. The prizes aren’t as enticing and there may be an entry fee, but you can gain visibility and perhaps add something to your photographic resume without giving up rights that may prevent you from making use of your best works down the road. It is unfortunate that so many people submit their best photos to contests only to have the rights unknowingly tied up down the road.

Conclusion

Do yourself and all of your fellow photographers a favor. Take a stand against all of the borrowers out there. Send the message that isn’t open season on all of your photos. Your photos have NONZERO value. Getting paid for a few infringements will surely prove that to you. Copyright infringement is a headache, but you can make the best of a bad situation and come out ahead.

Some additional information:

PhotoAttorney Blog by Carolyn Wright, a copyright attorney and photographer here in the USA: http://www.photoattorney.com

Stolen Photographs: What to Do? (UK) http://www.epuk.org/Opinion/994/stolen-photographs-what-to-do

Copyright Basics: US Copyright Office http://www.copyright.gov/circs/circ1.pdf

ImageRights.com: Specializes in international copyright damage recovery for small business photographers (have not actually used them though the service sounds intriguing, so don’t take this as an endorsement).”

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