Copyright for Photographers - the short version

Copyright law is complex and runs to hundreds of pages. If you need the whole story the best place to read just about everything there is to know about copyrights is the website of the United States Copyright Office at http://www.copyright.gov/. There's enough material there to keep you busy for days!

However if we just restrict things to US copyright law affecting the average photographer, things get a good deal more simple (or at least a good deal shorter). First, the author of a work (in this case the photographer) automatically gets copyright protection the moment the work is created. If you are shooting for yourself, you instantly have copyright on every shot you take.

You don't need to worry about copyright expiration either. Currently (and for for works made after 1978) the copyright in most cases (including unpublished and unregistered works) extends for at least 70 years after the author's death.

Copyright Notices

Currently your work is copyrighted whether or not you place any copyright notice on it. For work published before March 1, 1989, the copyright notice was required or copyright protection could be lost, but that is no longer the case. However a copyright notice does no harm and it does discourage "accidental" copyright infringement. The form should be the Copyright symbol © (alt 0169), followed by the year of first publication and the copyright holders name. The phrase "All Rights Reserved" is not required, but does further indicate to potential users that they shouldn't use the image without permission.

Two Types of Copyright - Registration

There are two types or levels of copyright. First is the copyright you have automatically on creation of your work. You have that by default and you don't have to take any action to get it. The second type of copyright is registered copyright which gives you additional rights. To register your copyright you have to send a copy of your work to the US copyright office along with a fee. The fee is currently $35 if you do things electronically and $50 if you fill out paper forms (though like any government agency there are all sorts of other fees for special cases and services!). The fee is per filing, not per image. You can file a book containing many images, or a CD of images, or a folder full of prints.

The benefit of registering copyright is that if the work is registered you can bring a case for infringement before a US federal court and you can be awarded statutory damages up to $30,000 per violation ($150,000 if the violation was willful). If the copyright is unregistered to can't sue in a federal court and your claim is limited to actual monetary loss (i.e. what you should have been paid for use of the image).

You can read more about copyright registration here http://www.copyright.gov/circs/circ1.pdf

Fair Use

Copyright basically says that nobody can use your work without obtaining your permission except for in the case of "Fair Use". There are 4 factors which are taken into account in determining if unauthorized use of your images are "Fair Use".

• The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
• The nature of the copyrighted work
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole
• The effect of the use upon the potential market for, or value of, the copyrighted work

There's really no precise definition of fair use, but, for example, if you published a book of images and a teacher copied one image for use in a lesson, that would probably be fair use. If IBM copied an image and used it for a nationwide advertising campaign, it would not be fair use. The following have been determined to be examples of Fair Use by the Copyright Office:

• quotation of excerpts in a review or criticism for purposes of illustration or comment
• quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations
• use in a parody of some of the content of the work parodied
• summary of an address or article, with brief quotations, in a news report
• reproduction by a library of a portion of a work to replace part of a damaged copy
• reproduction by a teacher or student of a small part of a work to illustrate a lesson
• reproduction of a work in legislative or judicial proceedings or reports
• incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported

If someone has a website that's perhaps a directory of photographers or an image search engine and posts a thumbnail copy of one of your images which links back to the original large image, it's probably fair use. The Google image search engine in fact does exactly that. However if someone posts a large copy of your image on their webpage to make the page look attractive and increase their traffic, then it's almost certainly not fair use, even if they credit you as the photographer.

Infringement of Copyright

If someone uses your images in a way that is not fair use, then it constitutes an infringement of copyright and you can take legal action. As mentioned above, if you have registered your copyright the case can be heard by a US Federal Court and damages as high as $150,000 for willful infringement of copyright can be awarded. If the copyright is not registered it makes suing more difficult and the most you can recover is your actual damages, i.e. what the infringer would have had to pay for licensed use of your image, plus possibly some of any profit the infringer made from your work. That could be anything from maybe $25 to maybe $2000, depending if you can show that you have previously sold other work for similar purposes at that fee or what a reasonable "industry average" would be for the use in question. The purpose of the court is to make the parties involved "whole", i.e. there is no punishment involved. The user pays what they should have paid in the first place. In order for the user to be financially "punished" you have to have registered the copyright and sue for statutory damages.

You can register a work at anytime within the life of the copyright, but you can only claim statutory damages if the registration is done before the infringement or within 3 months of publication. "If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner" - US Copyright Office.

The Digital Millennium Copyright Act (DCMA) - Takedown Notice

The DCMA is a section of copyright law which, among other issues, addresses such things as circumventing digital copy protection schemes and the liability of service providers for things posted on websites. It has a provision for a "Takedown notice" which allows a copyright holder to request that a service provider take down material posted on a website in violation of their copyright. Of course the copyright holder has to have reasonable proof of copyright ownership and fill out a few forms, but there is no cost involved and no courts or lawyers. It is often effective since if the service provider complies with the request and removes the offending material they are then exempt from any further action by the copyright holder, so most will comply with a valid takedown notice in order to avoid further problems.

What this means is that if someone posts one of your copyrighted images on their website without your permission, the usage cannot be considered "fair use" and they ignore direct requests to remove the material, then filing a Takedown Notice with their service provider can be a very effective tool to get the images removed.

To find the service provider of a website, first do a WHOIS query on the website domain name. In the information which is returned will be the address of the nameservers. The nameservers provide the identity of the service provider. Then do a whois query on the nameservers. An example is given below:

A WHOIS query on lensplay.com will return a field which contains:

So that means that lensplay.com uses servers owned by TotalHosting.biz. The totalhosting.biz website may have a "contact us" link or a DMCA complaint link, but if it didn't you could then do a WHOIS query on totalhosting.biz and one of the returned fields will contain:

So that would be the person to contact with a DMCA complaint if the hosting company has no website or if it does have a website but there is no contact information there.

Dealing with Offshore Websites

If the website infringing on your copyright is in, say, China or Russia or Iran (to pick a few countries at random) and their servers are also based overseas, your legal options are very limited. However there is one other remedy which can be effective. If the offending site is carrying advertising, especially Google advertising, then contacting the advertisers can put pressure on the site to remove unauthorized images. With Google ads you just click on the "ads by Google" text, then pick the links to report a problem with the website, then pick infringement of your copyright as the problem you want to complain about. You have to then fill out the usual DMCA type forms and show evidence that your copyright is being violated by the site in question, but if it is Google will then exert pressure on the site to remove the images and if they don't the site may be excluded from Google's advertising network. When money is involved, sites listen!

Preventing Theft of your Images

"Theft" of images is actually the wrong term to use. You can't technically "steal" an image by copying it and using it without permission. Under copyright law the offense is "infringement of copyright", not theft. So the basic question for most amateur photographers is how can you stop someone taking an image off your website (or from a Gallery site such as Flickr) and infringing your copyright by using it on their website or in some other publication?

The short answer is that you can't. If someone wants an image badly enough, they can get it. If it's displayed on their screen they can capture it. You can certainly make images harder to copy. Using Flash galleries is one method (though screen captures still work). You can disable the left click button so users can't "click and copy", but that's easy to get around (just turn off Javascript in your browser).

You can watermark images, but it spoils them, or you can add a copyright notice, but it can be cropped out

You can watermark your images with your name, but that spoils the image. You can add a copyright notice, but that can be cropped or cloned out. I've even seen copyright violations where the watermark and copyright notice were simply left in place! You could only post really small images that nobody would want to copy, but again that's not exactly desirable if you want to show off your photographic skills or you are trying to sell your work. Adding a small copyright notice does have one benefit though. If your image is registered and if the copyright violator crops out your copyright notice, it's pretty strong evidence for "willful infringement" which can result in increased statutory damages being awarded in a law suit. If your copyright notice is right there on the image it's pretty hard to argue that you didn't know you needed permission to use it.

There are a couple of schemes that make copying quite difficult, but they require that any viewer has a proprietary browser plug-in and most people won't want to install a special viewer just to see your images.

So basically if you want to display your images on the web you have to accept the chance that someone might copy them and use them without your permission. It's just the way things are, but if you do find your images being used without permission, I hope the information in this article proves useful in stopping the infringement of your copyright.

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