All Rights Reserved: Copyright Infringement - for Photographers
The advent of the internet has started an open season on copyright infringement of photographs. Website owners and developers find it all too easy to take photos online and put them on their websites.
Hence, professional photographers must understand the legal ramifications of copyright law in the photography industry.
Don't let your work be plagiarized without a fight!
After all, you have busted your behind trying to perfect your craft. So, before you capture your next photo or use an image you find on Google, make sure you are aware of how privacy and copyright laws work.
What exactly is copyright?
Copyright protects the legal rights of the intellectual property or work of art owner. In Layman's terms, copyright is the right to copy. For photographers, this means that only they're the original creators of their images, and anyone they give permission and authorization to, are the only ones with the exclusive right to post, publish, or otherwise reproduce their images.
Your photo = your copyright
The moment you snap photos on your camera, you own the copyright to your images. Regardless of your skill level, your pictures and other content are protected by law.
Bear in mind that copyright laws vary from state to state and country to country, so the information in this article is general.
More education required
The lack of education or knowledge about copyright has caused a lot of issues in the photography industry. A lot of emerging photographers are not informing their clients on copyright and usage, so clients expect that they own their images and can publish or reproduce them without authorization from the photographer.
To add to this problem, lawyers often advise their clients to obtain copyright from the photographer, but in many cases, this is completely unnecessary, unless the client wants to sell the photos and make a profit from those images.
Copyright law for photographers
While it is not really necessary for photographers to submit any paperwork for their photos to be copyrighted, it may not be a bad idea to do so. Having your work copyrighted could get you punitive and compensatory damages in case of an infringement.
How to copyright photographs
In the United States, copyrights can be registered with the U.S. Copyright Office. Forms can be downloaded on their website, which explains further how to copyright photographs.
The registration will be based upon whether or not your photos have been already published; unpublished work is granted the strongest protection and could easily be filed, published work, however, requires a longer process and will be determined by the date of publication.
Should you register your copyright if you are publishing photography online?
The same copyright laws protect your photos when you publish online, and your work will never become public domain unless you change its settings.
Some platforms have settings when you upload your images that allow for commercial use of your work without paying for it. You can still, however, report copyright infringement. Although when in doubt, just watermark each photo with a © symbol.
What if an image is made using your work and then used commercially?
Yes, that situation can be considered as copyright infringement if it is regarded to be a derivative work and that the illustrator has plagiarized the copyrightable elements of your work.
A derivative work must still contain some substantial originality. The threshold for originality from this work is assessed much higher than that required for the original work.
Who owns what?
An important point to note here is that whoever created the derivative work owns the copyright to the revision of the photograph only, but the original copyright is still owned by the creator of the original work the derivative work was based on.
Is there a simpler approach? Yes.
Since photography, copyright laws may seem daunting and overwhelming, and copyright notices are not really necessary for your photos to be copyrighted, it is a great idea to place some sort of notice on your pictures in order to, to some degree, deter theft and plagiarism.
Watermark photos for added protection
Watermarking your photos, for example, is important in a way that it allows people to know that the photographs are not to be used unless authorization or license is granted by the owner personally.
Unlike professional publishers who know they should not use another photographer's work and are willing to pay for it, a lot of times, people simply are just not aware that they are infringing on copyright and end up placing your work on their websites.
Promote the rightful owner
A watermarked photo will not only let potential unauthorized users know that it is prohibited but in the event that they do, their readers or audience will know who the rightful owner is, of the photos.
Part of being a professional photographer is managing a business. A lot of photographers admit that the photography part of their business only represents a percentage of all that is involved, a lot of the time and effort is spent on other facets of running the business such as the sales, administrative, and management aspects. It is beneficial if part of that time is used to know and understand how to protect your work.
What can you do if your photography is used without permission?
Hopefully, you have added a © copyright notice on your work, but even if you haven't, you will still be protected by your country's copyright laws. There are several different ways to handle this situation.
Option 1: Request a photo credit
If the infringer is already offering a decent marketing outlet for your photographs on their own website, you may want some credit - where credit is due. Send him or her an email or D.M. them on social media to request a credit on your photography and likewise, set the parameters for the right to use your work.
As well as a link
Add the stipulation that the infringer must also publish a copyright notice and a link to your own online portfolio, too. The good thing you can get from this is that you may even get some new customers because of all the additional exposure. Free marketing!
Option 2: Prepare a DCMA take-down notice
This take-down notice must be in writing and signed by the copyright owner, recognizing the copyrighted photo that was infringed.
As the photographer, you must also include a statement that the info contained in the notice is accurate and that you have the right to proceed because you're the owner of the copyright.
Even if you don't live in the U.S., you may still use this tool to stop an infringer in the United States from using your work.
Option 3: Prepare a Cease and Desist Notice
If the infringer could be a potential client and you'd rather not cause a fuss, personally reach out to them and inform them that their use of your work is not duly authorized. Either request payment for an appropriate license fee to use your image, a photo credit with the link to your digital portfolio or website, or if that does not work, ask them to cease the use of your image.
The compensation you can receive from a copyright infringement can often-times amount to over thrice your normal license fee if you register your works in a timely manner.
Keep in mind that there are some risks in sending the demand letter yourself. You may have to be up for a struggle because if the infringer says that they were duly authorized to use your photography by filing a request for declaratory judgment to deter a lawsuit.
This may also involve taking legal action for which you may need the help of a lawyer in a court that may not be in your area. Not fun, especially if you are out of your jurisdiction.
To avoid these from happening, include in your letter an "offer to settle in an attempt to settle this dispute." Consider speaking to your legal counsel first.
Option 4: Get a lawyer to send a demand letter
Although this can lead to rising tensions, the weight of your demand letter is drastically increased if it comes from a lawyer.
Some lawyers charge a flat fee to send a letter, but others may charge a "contingency fee" depending on the percentage of the recovery—or both.
Make sure to find a lawyer who specializes in copyright issues.
Option 5: File a copyright infringement lawsuit
This is your most assertive option and will involve pursuing legal actions by filing a suit.
It is ideal to hire a lawyer to help you file suit because legal procedures could be complicated. Even if your photography is not registered with the U.S. Copyright Office during the time of the infringement, you could still file a suit. Nevertheless, you may want to register your works for possible future infringements to be eligible for legal damages.
Keep in mind that you will have three years from the date of infringement to file for legal actions for copyright infringement. But in most jurisdictions, you will need to have received your registration certificate to file a complaint in a Federal district court.
Tips on Copyrights
Don't forget the metadata
Whether IPTC or EXIF, don't forget to ensure that every photo you post online has this data attached to it. This should, at least, include copyright and author information, more than enough to verify that you are the owner of the photos if needed and make it easy for someone interested in purchasing licenses for the photo to track it back to you.
License and license well
Keep it simple
Make the terms plain and simple and in a place where anyone who just stumbled across the image will notice it. The odds of the license being followed go up considerably when it is clear and visible. Likewise, make sure to avoid both legal and industry jargon as they only serve to confuse further.
Search for your works regularly
You are most likely to know what you're most popular works are, and it makes sense to see where they are being posted. For quick searches, you could use an image search engine such as Google Images and Tineye.
Meanwhile, if you want a more complete solution but you are on a tight budget you can opt for ImageRights or SignMyImage. For a more advanced and thorough system, considering either Digimarc or Picscout.
The main point though is to use those software and tools first and foremost to get a grip of how your images are being used and then decide about ‘if’ and ‘how’ to respond.
Focus on bad actors
Use common sense when contacting those who are using your images and respond accordingly. Understand that a lot of people are not exactly aware of how copyright works on the internet and, as a copyright holder, you have a chance to educate them.
Register your works
It goes without saying, but consistently and regularly register your content with the U.S. Copyright Office, particularly if you are in the United States or are dealing with copyright infringement in the United States. Failure to register, especially for a professional photographer can be a very expensive mistake.
Keep putting out high-quality content
The best way to protect your works against piracy is to be ahead of it. If you are putting out high-quality work regularly, the infringers will always be several works behind. Keep honing and improving your craft and putting out fresher, better works, and you will likely find that the impact that infringement has is much less.
Copyright is something that many people don't understand – even your clients. It is important to educate yourself and others you work with on the ins-and-outs of copyright. Laws differ from country to country, but you can find more information - online.