Monday, August 20, 2012
In Part I of my copyright series, “I'm not a "Pro." Why should I worry about copyrighting my photos?” I discussed why both professional and amateur photographers, and even weekend vacationers should seriously consider taking measures to raise the level of their copyright and other protection for their photographs.
In Part II of the series, “What do photographers need to do to protect and document their copyright?” I discussed practical suggestions to protect your photos and establish your copyright firmly.
In this last article of the series, I discuss copyright registration in the US, how and when you can, and why you should, register your photographs, and if your copyright is violated, what remedies registration extends to you, that you otherwise wouldn't have.
You can submit your photographs to the US Copyright Office, part of the US Library of Congress, via postal mail, or online. If you register your photographs by postal mail you don't have to print each image, but can submit them on CD. You can register your photographs whether already published, or still unpublished. Your photographs are eligible to have their copyrights registered the moment you make them.
All of your images created on or after January 1, 1978, are automatically protected from the moment of their creation through the end of your life plus an additional 70 years. For images you make “for hire,” their copyright will last 95 years from the date of their first publication, or 120 years from their creation, whichever is shorter.
The “World Wide Web” didn't get its name by accident. When an image is posted somewhere on the “Web” it can be viewed across the globe.
Photographers posting images “online” should understand there is no such thing as an “international copyright,” one which will automatically protect images throughout the world.
Protection against copyright infringement in any particular country depends on the national laws of each country. Most countries offer some protection to foreign works under specific conditions. In many cases, these conditions are spelled out by international copyright treaties and conventions. If you have a specific concern, in the US, you should refer to Circular 38a, International Copyright Relations of the United States.
When should your register your copyright? My rule of thumb is as you publish your work, in print, or online, register your image copyrights, if you think it's worth it. I do.
Online copyright registration is inexpensive only costing $35/registration. Registrations can cover multiple images in groups within copyright registration rules. You can register up to 750 published photographs in a single application. So, the cost of copyrighting shouldn't preclude you from registering your photographs.
If you register your images with the US Copyright Office prior to any infringement of your copyright, or within three months of their first publication, you may recover more than just your “actual damages” for the infringement. You can recover statutory damages for the infringement.
Unfortunately, actual damages usually don’t amount to much, unless you're a major professional photographer, compared to potential statutory damages. Statutory damages can be as much as $150,000 for willful infringement.
If someone removes your copyright Management Information from your images, the fines awarded can be between $2,500 to $25,000. Please note, you don't have to register your photographs in advance to recover these damages.
If you find someone is using one of your images without permission, or has otherwise infringed on your copyright, there are several things you can do.
Perhaps the easiest thing to do, if you're not looking for compensation from the infringer, and desire the publicity, is to write the infringer, and offer to give them the right to use the image. Designate what rights of use you're conferring to them, and make it a condition that they give you proper credit, with a copyright notice on or adjacent to the image. You might even require the copyright notice would link back to your gallery.
If you're not interest in allowing the copyright infringer to continue to use your photograph, as per the Digital Millennium Copyright Act (DMCA) you can send the website owner a “Take-Down Notice.” The notice must be in writing, and clearly identify the copyrighted work(s). There are other requirements too, but it's not hard to fulfill them.
You can send a “Cease and Desist Demand Letter” to the infringer. In it, you explain that their use isn't authorized, and that they need to either pay you for the photograph (Include an invoice with the letter.) and require them to give you credit and fulfill any further requirements you have, or cease use of the image. This letter should be in writing. Don't do this by email.
You could have an attorney send the letter, but that escalates the process, and you should consider attorney's fees.
If these actions don't produce your desired result, or you desire damages, you'll need legal representation.
You have the option to sue the infringer, but you need a lawyer for that. Hopefully you registered the image before the infringement so you're entitled to statutory damages, which will help you obtain representation, possibly on a contingency basis, due to the level of damages you could win.
As far as I'm concerned personally, unless I don't intend to recover damages, I consult with an “intellectual property” attorney before taking action myself, concerning a violation of my copyrights.
The information in this article is for educational purposes only and does not constitute legal advice.