Copyright: To Register or Not To Register?
Photographers create intellectual property on a daily basis. For some it is done purely for enjoyment and for others it is the means by which we feed our families. Wherever you fall on the creative spectrum, you are the owner of the images you create and you have the exclusive right to decide how those images are used and where they can be displayed and who can display them. That is the basis of copyright law in the United States. This is the same whether we create our images with an iPhone, point-and-shoot, or digital SLR camera.
Although our images are protected by copyright the moment they are created, that may not be enough to protect us if we come across unauthorized uses of our images. If we find one of our images being used without our permission and we did not register the image with the Copyright Office then we would be only entitled to actual damages which may equate to the normal fee we would charge to license that image under the same circumstances. If our image was registered in a timely manner, then we would be entitled to a maximum of $150,000 per use if the use was willful and a court could award court fees and legal costs as well.
The act of registering our images puts a lot of weight on our side when an image is infringed. Without registration a lawyer would most likely not take the case and a court would not allow an infringement case to he heard. Very often the first question an attorney for the infringer asks is whether or not the image is registered and based on the answer, they will decide how they should proceed.
As the creator of an infringed image we need to assess the unauthorized use as well as our feelings about how to proceed. Some photographers would be flattered to see that someone liked their image enough to put it in a magazine or use it on a website, and rather than be bothered by the use, they would buy multiple copies of the magazine to hand out to friends and families or point people to the website. Others may be satisfied with payment of their normal licensing fees while still others may push harder and seek damages for the unauthorized use.
I take a hard stand when it comes to copyright violation. I don’t feel a normal licensing fee is adequate enough to make a point and move towards decreasing future infringing. Imagine if the punishment for shoplifting was only to pay the store owner for what was stolen. The incentive for thieves to give it a try would be too high since there would be no downside for them if they got caught. Shoplifting would run rampant.
Normal theft is more easily understood by people when compared to intellectual property theft. If someone steals my car, I no longer have a car. If someone infringes one of my images I still have the image and it is easily but wrongly misunderstood to be a victimless act. What is not understood is the effect the unauthorized use has on licensing of that image.
Although most people are probably aware that stealing music or movies is wrong, it seems that many people feel that images on the internet are free for the taking. It is so easy to right-click and copy an image. How can something so easy be so wrong? Very often I read or hear people reasoning that if you don’t want your images stolen then don’t post them on the internet. That argument makes as much sense as telling someone that if they don’t want their car stolen don’t park it on a public street. The internet is how most photographers showcase their work and get exposure, and without the ability to post our images we would have a difficult time making a living.
Registering your images can be a painless but somewhat quirky process. Setting up a workflow and a schedule is the best way to assure your are protected. You can register many unpublished images at one time for a $35 fee. Published images are treated differently where groups of published images can only be registered together if they were created in the same year by the same photographer. There is a three month window after publication of an image where you can register the image and have it considered registered as of the date of publication. Because of this I set up my schedule so I register all of my unpublished and published images taken in the prior three months assuring that all my images are properly protected.
Considering the time, cost and effort we put into making our images it is our right to be adequately compensated for those images. An unauthorized use of our images cuts into our ability to be properly compensated. Some of the most lucrative licensing situations are exclusive and first-use licenses and our ability to license our images as such may be compromised after they are infringed.
Images that are timely registered before an infringement occurs allow the photographer the opportunity to file for statutory damages and attorney fees. Without a valid registration the photographer would have to prove actual damages which can not only be difficult, but it is usually not enough money to make the cost of retaining an attorney and filing a case in federal court worthwhile. Many infringers realize this and they won’t give you the time of day without a registration certificate in your hand.
If an infringed image is properly registered it is up to the copyright owner to decide if they want to pursue actual or statutory damages. For a willful infringement the maximum the court can award is $150,000 per use as well as court costs and attorney fees. If the use was not found to be willful, the high end of statutory damages is $30,000 per use. Willful does not necessarily mean intentional. As an example: if your image has your identifying copyright information on the image, any unauthorized use would be considered willful. An image taken from a website with copyright notices placed on each page would also be considered a willful act.
Not long ago I found one of my images on a Facebook page. The image was posted about a year prior to when I found it but in that time the image had gained almost 700,000 likes and 37,000 shares. I could not in good conscience license that image, or any image in a similar situation, as an exclusive or first time license. The people who had used that image without my permission had stripped me of my ability to license my image in a way that I chose. I have no idea where that image might show up and if someone paid for an exclusive license I am pretty sure they would not be happy if they found it before I did.
Most of my infringement experiences come from people who find one of my images online and either right-click and save or do a screenshot of the image and use it on their website or Facebook/Pinterest page. At any given time I can find thousands of uses of my images. While it is annoying, there is a little I can do unless I want to devote most of my waking hours to send letters to the offenders and take-down notices to internet service providers. Where I draw the line is when my image is used on a commercial site or used in some way that I find objectionable.
I have been told by portrait photographers that they don’t feel the need to register their images since they feel their images would be unlikely targets. If you have heard about the photographer who populated his wedding photography website with images from other much better wedding photographers to make him look much better than he actually was, then you can see how just about any image could be infringed. And don’t be fooled into thinking that your website protects your image from being copied. I haven’t seen a site yet that can prevent all forms of copying.
What about that client that you enter into a licensing agreement with who ends up using the image in a manner outside the confines of your agreements with them? Usually it is a misunderstanding and is easily cleared up. But what if they care less about your objections and continue using it despite your continued demands to stop? If the image wasn’t registered you wouldn’t have a lot of power on your side. Luckily, that is something that doesn’t happen often, but it is a situation where a little bit of time and effort to protect yourself for the “what if’s” becomes valuable.
In one instance I was at the end of keywording 700 of my Hawaii images when I came across an image of the Duke Kahanamoku statue in Waikiki. I realized that I forgot how to spell his name so I did a quick Google search and the very first listing that came up … on another person’s website … was the actual image I was trying to keyword!
Something as simple as Googling your own name can bring up instance of images that are used without your permission. At a moment where I had a few spare minutes, I Googled my name to find only one of my images that had some text added to it. I thought the image looked pretty good with the additions, but it was still my image and it was used to promote a museum in Hawaii. You can see in this example that they credited me as the photographer, but that does not change the fact that this is copyright infringement. As I looked further I found that they had used a total of eight images from my Flickr page over a period of several months. Since these images were properly registered, the maximum amount a court could award was $1.2 million plus court costs and my attorney fees. If that isn’t enough incentive for them to come to the table and talk about settling I don’t know what is.
I am sure most people have seen those emails that show the best bridges, animal images, vacation spots, etc. One of my images showed up on the best infinity pools list and I found it used in hundreds of places around the internet. Islands Magazine, with a circulation of about a half million customers, put the best infinity pool images on their website. An email outlining the infringement was sent to them and soon I received a call from the editor telling me how much he liked my work and that he would like to use me as a freelancer for their magazine. While that may be a nice sentiment and it may or may not lead to good things in the future, I don’t feel it was the way to settle the infringement of my intellectual property. With no further negotiation a check was sent to me a couple days later.
Many years ago I made an image of a dog on a beach in Hawaii. A couple years later I ran across the same dog and his owner on another beach. I had a copy of the image on my phone so I offered to email it to the guy. At the time I figured there was no harm. Fast forward two more years and I am getting frantic messages and emails from the guy. He had entered my image into a contest and it made it to the finals. He needed a high res image by that night to send to the magazine. This was one of those rights-grabs contests from a major dog magazine where by entering you AGREE that the image is yours and you actually give up the copyright of the image to the magazine. Needless to say I was less than happy, but it was a good thing I able to stop the mess before the image got printed in the magazine.
In the end it is the photographer that has to choose how to treat their images once they are infringed. In the age of fast moving information on the internet it is better to assume that our images will be infringed at some point rather than hope they won’t be. There is no way to tell which of our images may interest someone and how they may come to find our images. It is better to protect them today so that we can decide later how to react once they are infringed whether that is next month or in ten years rather than wish we had.