Every day on Facebook I see photographers complaining about their copyrights being infringed upon by other photographers. Yes, by other photographers.
“Wha????” you might gasp, shocked. “Why would a photographer infringe on another photographer’s copyrights when copyrights are so vital to the success of photographers?” I know, right? You would think that, much like the “guy/girl code” or “best friend’s creed”, there are things that photogs just DON’T do to each other:
- You DON’T date your best friend’s ex.
- You DON’T wear the same dress as your friend to the big party.
- You DON’T use another photographer’s images without permission.
In some cases, the images have been altered and even cropped to remove watermarks. EGADS!
Please know that if you are one of these photographers committing such infringement, you are taking a very serious risk. Do you understand how Copyright laws work?
- Do you believe that anything that is posted on the internet is free to use and therefore comes within the protection of “Fair Use?”
- Maybe you have heard that the copyright owner has to provide you a takedown notice before suing and so long as you take the image down you are safe.
- Or, perhaps you know what you are doing is wrong and that you could be sued but you have read that copyrights are difficult to enforce and damages are difficult to prove or that the cost of litigation is too high to justify someone suing you.
I have actually heard all of this from other photographers. Well, let me assure you that these theories are either just flat out incorrect or riskier than you think. Especially if you hold yourself out as a professional photographer (more on this later).
Here is what you are entitled to if your copyrights have been infringed upon:
17 U.S.C § 504 provides the following remedies for copyright owners who have suffered infringement:
- Actual Damages – the damages that you actually suffer as a result of the infringement. In other words, what did you lose as a result of the infringement? Did you lose a sale? Did you miss out on license fees? Did it cost you other clients? Actual damages can be tough because you may not have any. Just because someone else posted your photo doesn’t mean that you suffered an economic loss, no matter how illegal the use was. Even if you do have some actual damages, proving them can be difficult.
- Profits that the infringer received – did the infringer receive a profit from its use of your image? If so, you may get an award equal to the profit. But, many times the infringer doesn’t receive any profit from its use. Rather, the images are simply posted on a website or uploaded to social media. Proving that the use of your image resulted in profits to the infringer may be very difficult.
- Statutory Damages – damages allowed per the statute. These damages are awesome because they give the owner the right to elect not to have to prove actual damages and profits and instead choose to recover an amount anywhere from $750 to $30,000 for each work infringed.
The great thing about the statutory damages is if the court decides that the infringement was committed willfully, the court may increase the award to up to $150,000.00! WOOT WOOT! Cha-CHING! Don’t go messing with my images, right? Right! BUT, keep in mind that statutory damages are only available to owners who have registered the image with the copyright office (note to self: register EVERYTHING that I post online. And by “self”, I mean YOU).
The weird thing about statutory damages, however, is that there is an “out” for “innocent” infringers. Basically, if the infringer can prove that it had a good faith belief that its use of the image was lawful, the court could reduce the damages to as low as $200.
You are now asking: “But Kirsten, you know everyone is just going to whine: ‘Oh gee whiz Your Honor, I didn’t know. I mean, isn’t the whole point of the internet and social media to share? I was just doing what social media wants me to do.’ So how do I show that it was willful?”
Well, first of all you don’t have to. The burden is on the infringer to prove it was NOT willful. Also, while that argument might (and that’s a big “might”) work for a 13 year old IG hipster whose frontal lobe isn’t yet fully developed or maybe even for the innocent guy using Pinterest who just wanted to share some ideas for decorating his man cave (hey, it could happen), it is not going to work for someone who holds herself out as a photographer. I would argue that as a professional photographer, that person should have known, even had a duty to know, that what she did is wrong.
Further, under the statute, if the image contained a watermark with notice of copyright, the court won’t even allow the infringer to claim that the use of the image was innocent.
So, listen up you infringers: Crop off the watermark, cut off your defense!
How to be sure you get those statutory damages:
- Use a watermark with notice of copyright. Yeah, yeah, your image is just too spectacular to be degraded with a watermark, right? Come on. If your image is really that breathtaking, people will see past the watermark. As a watermark can mean the difference between $200 and $150,000 can you really afford not to use one?
- Register those images. As stated above, registration is a prerequisite to statutory damages and it’s those statutory damages that can make the difference between recovering something and recovering nothing. Registration can be done online at this link: http://www.copyright.gov/eco and it is only $35 to register an unlimited number of images.
For all you “photographer”- infringers out there, do the right thing and remove the infringing material ASAP. Then, educate yourself on your profession, respect your fellow photographers and yourself, and by all means, don’t ever wear the same dress others are wearing to the party. Again.
(I can’t believe this last paragraph even needs to be written).
*NOTICE. The information in this article is for information and educational purposes only and does not constitute legal advice*