Last Friday I went to an attorney to form an LLC and we got into an interesting discussion concerning copyright issues.
This firm has represented several photographers in the unauthorized use of their photos.
In a nutshell unless you submitted your images for copyright you odds are close to zero for ever collecting money. In the latest case he handled, the client had posted several images on Flikr, the images were not copyrighted.
A university used the images in brochures and the photographer was unable to collect any money. The best they were able to do was force the university to stop using the images.
I have seen quite a few images post on these forums and others that say "copyrighted by so and so", but according to this attorney, from a legal standpoint they are not copyrighted unless you submit the images to http://www.copyright.gov/
So it led me to wonder...just how many photographers actually copyright their images?
I have no clue about US law since I'm not american but I find it hard to believe. I mean...so if I take a thousand pictures today, another 1000 tomorrow...am I supposed to submit all of them?
First, you need to get a new attorney that understands copyright law, this attorney doesn't have a clue. Here's a quote from PPA's website on copyright. "Copyright is a property right. Under the Federal Copyright Act of 1976 (effective January 1, 1978 and amended when the USA joined the Berne Convention in 1989), photographs are protected by copyright from the moment of creation."
Every photograph is copyrighted when you take the photograph. That doesn't mean people can't steal your photographs and get away with it. All copyright cases are violations of Federal Law and have to go through Federal Court for you to win a copyright law suit against someone that stole your photograph. It is estimated it costs a minimum of $10,000 to take some one to Federal court on a copyright violation. Even if you win this court case, the amount of damages you can collect are limited unless you have "Registered" your images with the US Copyright office. This is what the attorney was referring to, registering your images gives you much greater protection of your photographs and entitles you to much larger damages and recovery of legal fees. You don't have to register each individual image but you can register them as a collection. I do a lot of concert photography and instead of registering each concert I can register all of the images under a collection called "Concert Photography 2000-2006". etc.
You don't have to sue someone in Federal Court to recover damages from people that steal your photographs. I had the largest radio station in Denver steal one of my images of Eric Clapton off my web page and use it on their web page to promote his concert in Denver. When I found out I sent them a certified "Cease and Desist" letter demanding they stop using my image and telling them they would be getting a bill for the unauthorized usage. I received a telephone call from the Vice President of the radio station a day after they got my letter. They settled with me within 3 days of receiving my letter. I am a member of ASMP and PPA and I contacted the general counsel office of ASMP before I sent the letter and they gave me great free advice. This is one of the advantages of being a member of such great organizations. PPA has an entire department of specialists and attorneys that are available to help photographers with copyright problems, free of charge.
As a photographer dealing with the internet today you need to educate yourself on the copyright laws and what your options are when someone steals your images.
The first step I would take is go to PPA's web page and download their free pdf on copyright law. Than go to the official webpage of the US Copyright Office and learn about how to "register " your images.
Now that the copyright office has an electronic submission program it makes it even easier; it's even cheaper if you do it online.
Once the image has been posted, or published, it complicates the registration process. It's in your best interest to register each shoot or collection of images before posting them here, on your own site or anywhere else.
Mark, your lawyer was correct from a practical and economic standpoint. Although you possess the copyright whether you register it or not, your lawyer can only tell you what the law and case history has so far demonstrated: If it's not registered, there is no good chance for you to get significant compensation for an abuse of your copyright.
Anecdotes of lucrative out-of-court settlements of unregistered copyrights are a matter of chance or divine blessing--most companies large enough to have lawyers of their own (ie, those capable of significant compensation) will dig in their heels and dare you to take them to court over compensation, although a stern letter will likely cause them to "cease and desist."
I'm a member of PPA and have had several conversations with PPA's current president on copyright issues. His best and strongest advice: Register everything or you're likely to lose.
It's easy enough to do these days, and as mentioned, you can register unpublished images as a collection of nearly any number. "Collection" merely means you have a title to catalog them under, such as "All my work of 2007," and you can register at one time as many small JPEGs as you can squeeze onto a DVD (I haven't checked out the electronic registration rules yet).
You can't register published images (including images published on a publically accessible website) in the same collection as unpublished images, though, and there is a limit to how many published images you can include in a collection. But we're talking hundreds of images.
The simplest thing to do, given the various US copyright rules, is to register quarterly collections every 90 days. Even if an image gets published sometime in that 90 days before it actually gets registered, you still get significant protection, and the chances of that happening and a copyright violation occuring with that image aren't great.
I do register my images with the copyright office now, but I didn't in the past.
I did win a settlement from a company who used one of my images without permission, and the photo was not registered. I got a pretty substantial amount (considering the use of the photo) because I was persistent and firm with them, but I probably could have gotten more if I had registered the photo before hand.
You own the copyright to any photo you've taken, regardless of whether it has been registered or not. The difference in my case, is that my attorney would have taken on the case on a contingency basis if I had registered ahead of time, and I would have been able to sue for attorney fees and other expenses.
Your entitlement to damages is nearly as good if you register within 6 months of the unlicensed use. And in any event, if you have a picture stolen that is not registered, register it as soon as you find you about the use.
Even unregistered, you are entitled to licensing fees. What you lose is damages which are usually the biggest part of an award.
The best bet is still to register soon after you take the shot, but you have to give some consideration to the cost. You can hold them and batch register, but there is some risk to that. You might decide to not register an image that appears to have little or no commercial value.
Yes my attorney told me about that link and I filled out the beta request form that Friday.
Badbulldog,
Staas & Halsey is a very well respected IP firm so I wont be getting a new attorney. Everything you just wrote is very similar to what he said with a few minor differences..
I did another electronic upload the other day for unpublished images. I size them about 500 pixels on the longest end, give or take a few. I uploaded over 1100 images, mostly from my trip to Central America last month.
I used the Image Processor in Photoshop CS2 to size them (in titled folders) then made about a dozen zips (also titled). The upload only took a couple of minutes with a cable connection. The process is cheap, simple and tax deductible.
Archiving is just as important, especially when you copyright thousands of images several times a year. What I do is title/date one folder, for example: "Copyright uploaded 020108" and included the image folders, a folder containing the zips that I uploaded, and a read me document with notes on what exactly I submitted.
