Copyright part 3, Protect thyself

Anyone who’s been in this business long enough has a story about being ripped off. Whether it’s about unpaid invoices, clients who make unreasonable demands, or outright fraud, my experience has been there are two types of professional photographers. Those who have been cheated, and those who will. We’ll talk about invoicing, unreasonable clients and fraud later. Right now – stolen images.

I watch my webstats pretty regularly. A couple of years ago I noticed a big spike in visits to my site. This spike didn’t coordinate with any new marketing or PR campaign, so I though it was a bit odd. It continued for a few months and I started to dig. I found that some random person, who’s nickname was “strawberry,” had found one of my food (a bowl of strawberries) images and remotely linked it to her myspace page. It happens that strawberry was an, um, exotic dancer, so her myspace page got a lot of hits. I sent her a very nice email asking that she remove the image from her page, quoting appropriate legal language, and thanked her for thinking enough of my art to include it on her site. Two days later the image was no longer on her page.

All of which brings us to my first point. When you find an unauthorized use of your image, ask nicely for it to stop. Most people simply aren’t aware of copyright laws and how they work. Once someone comes along and educates them, they’ll usually do the right thing.

Had she not removed the image, I’d have gone to level two. Cease and Desist. I have a stock letter that basically says, hey, what you’re doing is illegal and if you don’t quit, it’s going to get expensive. My attorney sends that out on their letterhead. Nothing wakes people up like a letter from a law firm. (I have a nice trade deal with my law firm, I do headshots, they do cease and desist letters and other minor legal review.)

The cease and desist letter is very effective because it quotes the registration of copyright with the U.S. Library of Congress. If the image is old enough, it even quotes the registration number. This brings us to our third point…

Register your work.
Although you do not need to register your work to receive copyright protection, it does make things a whole lot easier if infringement occurs. For the most part, you’ll not be able to get your attorney to take the case unless the work was registered before the infringement occurred. The law says that if the work was not registered before infringement, you can only collect actual damages. In the case of the myspace page, what, maybe $100? If the work was registered prior to infringement you can collect actual damages, attorney’s fees and often statutory damages as well. Also, willful infringement is a criminal offense as well which means they can get into trouble with the FBI and the US attorney’s office.

The process of registering your work is relatively simple. Go to the copyright page of the US Library of Congress (www.copyright.gov) and fill out the appropriate forms. We use form VA and group register our work every 60 days. If you register your work within 90 day of first publication, it’s considered covered from the first date of publication. For copyright purposes, publication basically means putting the work out there for people to see. Maybe in a magazine, maybe on your blog, or even on a hidden proof page for the client. The copyright office is working on a system for digital submission of works but I’m not real happy with it right now, and using the paper form VA seems to work fine for me right now. John Harrington has an excellent walkthrough of the process on his blog here.

Technology is beginning to make it easier to find unauthorized use of photos online. The site tineye.com will search the web for images that appear to match your works and let you know if there are any copies out there in the ether. It’s still in beta, and they’ve only crawled a tiny percentage of the web, but it looks like it could be a great tool in tracking your work.

In conclusion…

1. Know your rights under the law and the Constitution regarding copyright.

2. Understand how your rights affect your relationship with your client.

3. Protect yourself, your work and your rights by using the tools provided.

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