I see the same scenario all the time. A photographer posts some of their best pictures on their website, facebook, or Flickr. Several months later, they open a magazine and see their photo used in an ad, find their photo for sale as a poster on a website, or find their photo elsewhere on the internet.
The first reaction is usually shock. “What the… is that really my photo?!?” The next reaction is typically anger. “How dare they just STEAL my photo and use it like this!” Followed by a thirst for revenge. Hence, where your photographers’ rights attorney comes into play.
As upsetting as it is to have one of your photographs stolen, many times it is far more lucrative to be a victim of image theft than it is to license your image with permission. But not every case of copyright infringement is treated equal. How your case is assessed will depend largely on what preparations you made in advance.
In some situations, lawyers will be willing to take your copyright infringement case on a contingency basis (i.e., you won’t have to pay your lawyer any money. He or she will recoup attorney’s fees from the defendant, or will take a percentage of the money recovered as his or her fee). In other situations, lawyers won’t help you unless you pay them, big time.
What can you do to protect yourself against copyright infringement? How can you ensure that you won’t have to pay thousands to get a lawyer to help you if your images are stolen? Follow these two simple steps:
- REGISTER your photos!
Register your photos with the United States Copyright Office every three months. It only costs $35 per collection to register, and you can upload your photos and finish your application within 10 minutes on line.
“But I thought my copyright exists in my photos as soon as I click the shutter. Why should I also pay to register my photos?”
Yes, you still hold the copyright to your image even if you don’t register (meaning, you still hold basic rights such as the right to reproduce your photo, prepare derivative works, distribute copies, transfer your copyright, etc.). However, registration ensures that you will be eligible to recover statutory damages and attorney’s fees against the person or company who misappropriated your photo. Meaning, you can go after them for big money.
Practically speaking, what this means is this:
– If you properly and timely registered your photos, and your photos are stolen, a lawyer will most likely help you go after the person or company who misappropriated your photo at no upfront cost to you.
– If you failed to timely register your photos, a lawyer will most likely want money up front before helping you.
Why does registration make such a big difference to the courts and to lawyers? It’s simple. Courts require you to register your photo before you can initiate a copyright infringement lawsuit, as registration entitles a presumption that you are the copyright owner. As for lawyers, they like money. By properly registering your photo, you ensure that you are eligible for large statutory damages and attorney’s fees.
“If my registered photo is stolen,
how much money can I get?”
If your photos are properly registered when stolen, you are entitled to statutory damages ranging from $750 to $30,000 for “innocent infringement” (meaning, the person or company mistakenly believed they had permission to use your photo), or up to $150,000 for “purposeful infringement” (meaning, they stole your photo, and they knew they were stealing it when they did it). In addition to statutory damages, you may also be entitled to recoup attorney’s fees from your infringer if you are properly registered. And as you can imagine, attorney’s fees in a Federal Court civil action will be no small change.
“I’ve never registered before. Can I register all of the photos I’ve ever taken in one batch, no matter how old the photos are?”
Well, it depends. You can register all of your unpublished photos, at any time, as long as they have not already been infringed. What exactly “publication” means is still a fluctuating issue of interpretation by the Courts, but you will be safest to assume that posting your photos on a highly visited public website such as Flickr or your own highly trafficked personal website constitutes publication. If your photos have been “published”, or posted on a highly visible place on the internet, you must register those photos within three months of “publication”, or within three months of posting them on the internet. If it’s been more than three months since “publication”, register them anyway, and let your copyright lawyer sort out the details if and when infringement occurs.
If you fail to register your photos prior to infringement, or within three months of publication, you may only be eligible to recover actual damages (typically your ordinary licensing fee) and profits, if not too speculatory (i.e. no statutory damages or attorney’s fees). If you discover that one of your photos has been infringed, and you failed to timely register, your best bet is to register all of your photos as soon as possible, and to contact a copyright attorney or a photographers’ rights attorney to see if there’s something that can be done.
The bottom line is, you should get into the habit of registering your photos every three months. You can register all of your photos from the past 3 months as a single collection, and it will only cost you $55 and 10 minutes of your time. Trust me, one day it will more than pay for itself.
2. Watermark your Photos
Most photographers hate adding a watermark to their photos, as they feel it distracts from the artistic integrity of the image. However, there are several benefits to adding a subtle watermark. The obvious one being theft protection. It’s like lojack for your photos. Someone is less likely to steal your photo if they have to clone out a watermark, and hence, you’re less likely to become a victim of copyright infringement.
But another reason for adding copyright information or a watermark is to prove purposeful misappropriation when someone steals your photo and clones your watermark out. This type of purposeful misappropriation entitles you to financial recovery, even if your photos aren’t properly registered.
Under the Digital Millenium Copyright Act (“DMCA”), you are entitled to damages when someone misappropriates your photo on the internet and removes your watermark or copyright notice to hide the infringement.
– You do not have to register your photos with the U.S. Copyright Office to take advantage of the protections that the DMCA offers.
– If the infringer removes your copyright notice, watermark, or other “copyright management information” from your photo, you may be entitled to an award ranging from $2,500 to $25,000 for each violation. This is in addition to the statutory damages (up to $150,000) available to you if you properly registered your photo.
So the bottom line is this: If you take two important steps to protect your photos, you can recover up to $175,000 plus attorney’s fees every time you are a victim of copyright infringement. If you fail to take these steps, you can recover a couple of hundred dollars at best (and you will have to pay a lawyer several thousand dollars to even get that far).