How to Add Six-Figures worth of Teeth To Your Photo’s Copyright Protections.

I recently read a post from photographer Max Dubler, who just wanted $25 for the unauthorized use of one of his photos and was basically told to pound sand. (Like a lot of other people, I found the article through Reddit.)

I get that copyright law can be a confusing. However, I just recently started answering trademark/copyright questions on Reddit (at /r/Blogging) and here on my new website and, by far, copyright questions are the most common. Thus, I believe that most people who use the web as part of their business have at least wondered whether they can use certain photos. To me, that’s enough knowledge to hold people accountable for their decision to actually post the image. If they don’t want to invest time or money into learning the answer on the front end, they can invest the time and money on the back end when answering for their choices. That’s just my opinion.

In this article, I’m going to share the basics of copyright law, the consequences of infringement, and show you one trick that can really add teeth to your copyright protections.

Copyright Protections

What is a Copyright?

Copyright law protects “original works of authorship fixed in a tangible medium of expression.” 17 U.S.C. 102. This basically means that if you create something that can be seen or heard, that creation is protected by copyright.

Copyright Protections and Rights

The protection extended by the copyright law is the right to the “exclusive use” of the work. This means the copyright owner has the exclusive right to reproduce, distribute, sell, transfer, rent, lease, lend, display, or transmit the work. 17 U.S.C. 106.

In plain terms, this means that if you take a photograph of something, you have the exclusive right to use it. No one else can use it without your permission.

Claiming a Copyright

There is actually nothing you need to do to obtain a copyright other than take the picture. In the past, providing a copyright notice was required but that is no longer the case.

HOWEVER, for reasons I will describe below, you should still provide a copyright notice. You will be given the best legal protection for your photos if you provide a copyright notice on the actual photo itself. If that will cramp your style, you should provide a copyright notice in a conspicuous place next to the photo wherever you publish it. If you are allow others to publish, ask them to include the copyright notice.

The notice should include all of these:

  1. the © Symbol or the word “Copyright” or “Copr.”;
  2. The year of creation; and
  3. The name of the copyright owner.

Example: © 2017 Owner

The Fair Use Exception

In some ways, copyright protections butt up against freedom of speech issues. For example, I might see your photo and want to comment on it in a public forum. When doing so, I want to be able to show it to people so they can understand my commentary. The Copyright law essentially says this is a “fair use” of the copyrighted work.

Specifically, the law states that using a work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” 17 U.S.C. 107. This can be a grey area, and the law provides four factors to consider when evaluating fair use.

I’m not going to get into a detailed review of fair use for the purposes of this article. The important thing for you to know at this point is that if you see your photo being used without your permission, you should consider whether it is a fair use of the photo.

Copyright Infringement

What is Infringement?

“Anyone who violates any of the exclusive rights of the copyright owner [which I described above] … is an infringer of the copyright or right of the author.” 17 U.S.C. 501.

Based on this definition, if you have a copyright to a photo, and someone else displays the photo to advertise their website or product, or whatever the case may be, that person is an infringer under the copyright law.

Damages for Infringement

There are several types of consequences for infringing, all of which are available through the federal courts. These include:

  1. Injunction. A court will order the infringer to stop infringing.
  2. Impound or dispose. A court will impound or destroy the infringing articles. (You would tell the court what you want to happen).
  3. Money Damages. This can be either actual Damages and Profits or statutory damages.
  4. Statutory Damages. If you don’t want to prove actual damages or profits, you can go for statutory damages of not less that $750 or more than $30,000. However, if the infringement was willful, that statutory damage may be up to $150,000.
  5. Attorney’s Fees and Costs. A court may order the infringer to pay attorney’s fees and costs incurred in enforcing the copyright.

See 17 U.S.C. 502-505.

Giving Your Photos Teeth

Remember when I said to add the copyright notice to your image even though it is not required? That’s because if a person posts your image, or particularly if they remove the copyright notice when doing so, it will provide strong evidence of willful infringement under the statutory damages provision of the law. This means adding that little notice can make your photo worth up to $150,000, which is the maximum statutory damage for willful infringement (plus attorney’s fees and costs).

If you don’t want to add a copyright notice, which is fine, you should ensure that anywhere you post the photo has a copyright notice placed conspicuously nearby. This includes posts on social media. If I were posting an image to Instagram, for example, and I wanted to strongly protect my copyright in the image, I might add “Copyright 2017 Leland Faux” in the image description.

Caveat: In order to have access to statutory claims, you need to register your work with the Copyright office. You have to do so within certain timeframes–basically within 3 months of creating the image. So if this strategy is something that interests you, keep that in mind.

Last, don’t take this to mean that you should or will get $150,000 for any particular infringement. It’s probably unlikely. It would be up to the court and there are a variety of factors that would be considered in determining the amount to be awarded. But that’s beyond the scope of my article today. The point is that US Copyright law takes your copyright ownership seriously and others should too.

TLDR: If you add a copyright notice to your image (ex: © 2017 Jane Doe), and someone uses the photo without permission, that is strong evidence of willful infringement which carries a statutory damage of up to $150,000. That’s some serious teeth.

Shameless Plug

If you have questions about copyright or trademark issues for your business (especially online business), hit me up! I think I’m very reasonable (for an attorney).

Let’s Get in Touch

If you would like to ask a question about trademarks, copyrights, or online business, shoot me an email (thelawofthebrand@gmail.com) or a text (702-291-1799) or schedule a meeting.

Schedule a FREE Consultation

Leland Faux
Attorney Leland Faux blogs about trademark, copyright, and online business issues at Law of the Brand. You can submit a question by email to thelawofthebrand@gmail.com.

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