When it comes to protecting a Copyright, lots of photographers and photo enthusiasts don’t know much about it. After all, many of them aren’t lawyers. We all wish and hope that our work won’t get stolen, but unfortunately it happens much more often than we’d like. With millions of photos being taken each day, there is also no telling how many thefts are reported or if the artist is even aware that it’s happening.
But in anticipation of the moment that it happens, we’ve talked to a couple of experts on the matter.
Get Your Copyright Registered
A person’s copyright belongs to them rightfully upon the creation of a product or idea. But that idea isn’t actually seen that way in a court of law necessarily unless there is a government-registered copyright. Basically what that means that is that if Buzzfeed or other sites accused of photo theft actually take from someone with a government copyright on the work, then there could be a big legal battle. But if the work isn’t registered, it gets a bit hairy.
“Unless the work is registered BEFORE the infringement (called “timely registration”), a photographer is only entitled to collect actual damages and that is usually the lost licensing fee and, if applicable, the profits directly attributable to the infringement (often it’s hard to prove any profits),” said Leslie Burns at the Law Office of Carolyn E. Wright, LLC–also known as the Photo Attorney. “The photographer must prove the value of that lost license—s/he can’t just claim ‘I would have billed $10,000 for that’ or whatever. If the market rate for that kind of use is $49, that’s what you’ll get (unless you have some really strong proof that you get more regularly for that same license).”
She added that unless there is a timely registration, it usually isn’t financially worth the effort of suing for infringement or even hiring an attorney to try and negotiate a settlement. The legal fees will outstrip the amount the photographer can recover.
The honest problem here is with journalists who aren’t aware of issues like this because the work is for Editorial reasons. However, any site with ads on it can be considered a commercial entity. In fact, it goes even further than that. Because of this, the problem is more common than we’d all think.
Getting the Copyright Registered
So how do you go about registering a copyright? It’s surprisingly simple to do online, but there are technicalities to be observed. Ms. Burns tells us that the biggest error that she sees is registrations not clearly stating whether the work is published or unpublished. But those terms get a bit more complicated. If you provided the work to someone else, like a client, the work was “published” on the date you sent it to that person/entity even if it never sees the light of day after that (and, of course, if the work was actually published in the normal sense of the word, it was very likely published). The US Copyright Office has loads of free information available on its website at including a tutorial for using the eCO.
Photographer Bill Wadman has talked about getting his work stolen many times on his show On Taking Pictures. But even he admits that he’s not on top of it as he should be. “Since it costs money and is a paperwork hassle, generally I do a registration once or twice a year with everything important I’ve shot since the last time.” says Mr. Wadman. “I’m not anal about it, I probably should be more so.”
He’s talked about publications using his images without permission. A major men’s magazine one used his image and he sent them an email with an invoice. “They replied within a couple of hours apologizing and saying they’d get a check out pronto.” Mr. Wadman continued to say that he got the check within a couple of days–which is much faster than if the publication had actually paid him to do the shoot.
“Plenty of other people have used the ‘Oh I didn’t realize it was copyrighted’. Usually those are smaller people who ask for forgiveness instead of permission, which pisses me off to no end.” states Mr. Wadman.
What’s even more jaw dropping is that the police in the US can’t do anything about this even though it’s considered theft. The reason for this is because Copyright infringement is a civil matter, not a criminal one.
So how much can you get if a company or person uses your work without permission? Apparently the $35/$55 fee to register your work is very worth it! If your photos are registered with the US Copyright Office before the infringement, you’re entitled to not only the attorney’s fees, but anywhere from $750-30,000 for statutory damages per infringement if it isn’t willful, but up to $150,000 if willful.
The Scary World of the Internet
Further advice that Ms. Burns offers is to not even post your own work on Social Media if they want to control the use of their work. Instead, she recommends leaving it on your own servers and posting a link to said work on social media. She adds in that photographers should watermark their own and make sure that their metadata has their copyright and contact info. We have a tutorial on how to do this here.
When it comes to photos being stolen online, a step that you may wish to do is a DMCA Takedown A DMCA Takedown notice protects Internet Service Providers (ISPs), and doesn’t really affect the infringer initially. “If a photo appears without permission on Bob’s Widget’s website, which is hosted by GoDaddy, you don’t need to do any sort of takedown to sue Bob’s Widgets—but you can’t sue GoDaddy unless you follow the takedown notice procedure to GoDaddy and it fails to take the work down,” Ms. Burns said. “Make copies/screenshots before sending and DMCA takedown notices in any form. You can still go after the individual infringer who posted your work (person or business) without your permission as they are liable for the infringement.”
If getting through to the infringer doesn’t work, you should go to the host–which is what we do when the work we create here on The Phoblographer gets stolen. It usually never needs to go to the host though when it comes to us. Unfortunately for many sites like Gizmodo and other large sites, infringement happens all the time to the point where most situations are simply just let go.