PHOTOGRAPHY & THE LAW: Copyright Issues
Posted by Mickey H. Osterreicher — 19 Feb 2012
After writing about "terms and conditions" for use of photos in my previous blog it became obvious that a discussion of copyright was also needed. Copyright is a vast area of law, even when limited to just questions about photography. The issue came up this past week when a certain type of meme (a concept that is disseminated via the Internet) started appearing on Facebook, many coming from Mashable. One such meme dealt with photojournalists.
This appears to be a format where the copy remains relatively the same (except for the subject) with the photos inserted from those found on the Internet and used for the most part without permission, credit or compensation to the photographer. Everyone thinks that they are cute and innocently passes them along but unfortunately they are prime examples of copyright infringement. Some have been taken down, but for the most part they have gone viral with some discussions on Facebook and other sites. The NPPA president even wrote a blog about the phenomena.
All of this leads to a timely discussion about copyright. The U.S. Copyright Office maintains a very extensive website and answers to almost all questions may be found there. In the interest of brevity I will provide a brief overview to current copyright law as it pertains to photography. Copyright is part of federal law. Published and unpublished photographs may be protected and registered. It is unlawful for anyone to violate (infringe upon) the rights of a copyright owner. A case of copyright infringement may only be heard by a federal court.
Occasionally, what appears to be an infringement is actually permitted under an "exception" to copyright law known as "fair use." As a general rule copyright attaches and belongs to the person creating the image once an idea has been reduced to tangible form, such as in a fixed medium (i.e. film, videotape digital file). One of the exceptions to this rule is if the photograph was created a s a "work made for hire" (i.e. you take a picture as an employee of a newspaper - where your employer owns the copyright). Usually when you allow someone to use one of your images you are giving them a license which defines and limits the terms of that use (see my previous blog discussing terms and conditions).
Some photographers rely solely on the concept that they own the copyright when the image is created but then fail to register it with the Copyright Office. When an image is not registered the photographer has just limited the amount she/he can recover for any infringement and may also not be able to recover attorney fees.
photographer by Warih J Hanggoro
Under 17 USC Section 504 titled "Remedies for infringement: Damages and profits" an infringer of copyright is liable for either the copyright owner's actual damages and any additional profits of the infringer; or statutory damages. The same section sets forth "Actual Damages and Profits." It states that "the copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.
In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work."
But if the image is properly registered as set forth in §504 under "Statutory Damages" "the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.
For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work." It also goes on to state that "in a case where the copyright owner sustains the burden of proving, and the court finds that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200." The court in its discretion may allow the recovery of full costs and attorney's fees by or against any party other than the United States or an officer thereof.
DR. MARTIN LUTHER KING, JR. FEDERAL BUILDING AND U.S. COURTHOUSE by Mr. Kim Huff
Photographers should keep in mind that because any legal action for copyright infringement must be brought in federal court, it is usually very costly as most copyright lawyers will require a substantial retainer. Without a registered copyright the likelihood of recovery will be limited to actual damages and "any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages." Also without a registered copyright, recovery of attorney's fees is limited. Conversely, should a photographer lose a copyright case they may be liable to pay the attorney fees of the infringer which could be substantial.
As a general rule all photographers should register their work in a timely manner pursuant to the guidelines issued by the US Copyright Office. When registered within ninety (90) days from the date of creation of the image, photographers may still be entitled to claim statutory damages and attorney's fees should an infringement occur. When a photographer becomes aware of an infringement of their work, they should contact the infringer in writing. This may be done directly or through an attorney.
The photographer or her/his attorney should identify the work; state how it is that the photographer owns the copyright to the work; that the work was used without the photographer's permission; and that the infringer must cease using the image. These statements may usually be found in a cease and desist or takedown letter. A photographer may also send an invoice for a reasonable amount they believe would compensate them for the infringement. If the infringer does not respond or comply, the photographer should consult with a lawyer (if they have not already done so) to determine whether legal action is warranted and/or economically feasible.
Another federal statute that is helpful, especially for copyright infringement on the Internet, is the Digital Millennium Copyright Act (DMCA). Under this law, although an Internet Service Provider (ISP) may not be liable themselves for infringing material posted on their sites, they are obligated to remove (takedown) that material once they have received notice from a copyright holder in the proper form (DMCA Takedown notice). Under this statute a photograph does not have to be registered with the U.S. Copyright Office in order to issue the notice.
Directions for using the provisions of the Act and a sample DMCA Takedown Notice may be found at http://nppa.org/member_services/advocacy/copyright_protection.html. Also see Cariou v. Prince for discussion of a recent case involving infringement, fair use and a very large damage award.
N.B. The information provided above is general in nature and does not answer or address all situations. As with any legal matter it is always best to consult directly with an attorney before taking any action.
• NPPA recently submitted comments to the U.S. Copyright Office on Copyright Small Claims for those situations where bringing a large federal civil action may be cost prohibitive.
• NPPA was also instrumental in helping a photographer who had been prevented by the U.S. Bureau of Land Management (BLM) from photographing wild horse round-ups in the Western United States.
• NPPA sent a letter to the Baltimore Police citing a violation of policy concerning recording of police activity