Tuesday, June 11, 2019

Your Images Stolen? Learn to Copyright Them!

My Most Stolen Image!
Learn how I did this to a normal portrait.
Like many of us, I have had my images stolen, copied, or used without my permission. It makes us all angry, and we might feel helpless, but I have learned how to protect myself from such thieves, and I am going to teach you what I know so you can help yourself as well as get paid for such infractions.

I am not a lawyer!

First of all, a disclaimer, let me be perfectly clear that I am hardly a lawyer and what I am going to talk about is based on my experiences and things I have learned over the years. Please keep that in mind as you read this, and of course, consult with someone in a sharp suit if you need further clarification and lots of dry lingo to toss around at parties and impress your friends. That being said, I do have quite a bit of experience in this area and would like to share some tips and tricks to get the most out of the few laws that actually try to help protect us from image theft and how I use them as part of my workflow.

People Steal Photos All The Time

You might have heard stories a few weeks ago about a colossal settlement where a gym owner had used a photograph he found on the internet and ended up getting sued by the photographer for a gigantic pile of cash. Similarly, I remember a story about a yearbook image of a young man who just got engaged to Britney Spears, and it was being used by many news outlets without permission. That photographer also ended up with some additional zeros being tacked onto his annual profit. Getting a bounty like this for our stolen work seems like a pipe-dream when most of us can't seem to get a takedown notice to stick. In both of these cases, it wasn't the fame, having a best friend that's a lawyer, or huge cash reserved for legal battles, it was the fact they both had taken steps to help protect their images adequately.

I Already Own The Copyright, Don't I?

To start, let's define a few terms to clear up any muddy water that might be created as we stir this pot. First of all, the photographer owns the copyright to any photo taken the moment the shutter clicks. Most of us know that already, but if you didn't, now you do. This is something that can only be taken away with an explicit sale of the copyright or the passage of time after the death of the creator.

When a client purchases a digital file or print, they are not buying the copyright, and often I have heard clients and even some photographers misusing this term. "Does your CD come with the copyrights to the photos?" This is wrong and should never be the words you use on your negotiations, website, or in your client contracts. You should offer "rights to print and reproduce," but the copyright is potentially quite valuable and gives the owner the ability to do literally anything they want. This includes selling that image to 3rd parties and collecting future usage fees, or even selling it as a stock photo and making money from your work. In short, don't sell the copyright or use terms that lead one to believe that what they are buying is the copyright to your work unless you really mean it. If you do sell the copyright, be sure you are charging the maximum total potential value of that image over its lifetime. In general, works published after 1977 will not fall into the public domain until 70 years after the death of the author, or, for corporate, anonymous, or works for hire, 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.

What If I Added A Watermark?

The second thing you need to be clear about is that adding a copyright mark to the image isn't mandatory for copyright protection. It does add potential and sizable cash bonus for you if it is removed from the photo, but otherwise, it isn't needed. To repeat, because this is an urban legend that needs to die... from a legal standpoint, you do not need to add a copyright mark to the image to have it protected by copyright law.

How Do I Protect Myself From Image Theft?

Okay, so what is this missing step that these two examples did that you might not be doing? It is merely that you need to file your images with the US Copyright office to be protected under the full extent of the law. Now, most of you are probably hearing about this for the first time, and thankfully, it isn't hard to do. Quite simply, you use the Library of Congress website (https://eco.copyright.gov) and upload images that you would like to have protected by copyright law. There is a filing fee of around $55, and you can upload a pile of photos (up to 750) compressed into a zip file. This allows you to protect quite a few images for the cost of your monthly (or weekly) Starbuck's budget.

Once you file images with the copyright office, a few new doors open up for you.

They will send you a lovely certificate which contains your case number and other information. Keep these safe, as I have had to produce mine on a few occasions, and they are legal documents, so protect them.

Sue For Fair Market Use

You can now successfully sue in federal court to collect the "fair market value" of the work from the thief. Currently, usage fees are not a ton of money but consider what larger stock companies like Getty would charge for a typical "rights managed image," and you would be in the ballpark. Fees are typically applied based on the duration or the use of the image. Its location on a website, number of items in print, location in a publication, etc., are all taken into consideration for the proper rate. It is often advised you have a page on your website explaining your "fees for use" and put that URL into the metadata of all of your images. There are places built explicitly for these options in the IPTC areas of the metadata you can access from Lightroom, Capture One, or Adobe Bridge, to name a few.
  • There is an additional penalty if the thief removes your brand or watermark, and that penalty gets much larger if replaced with their own copyright mark.
  • This entire process is compounded if the site bears copyright language, which is typically in the footer of the website. Doing so makes your legal team chitter with excitement.
  • Most of the time, you can also get legal fees included in the penalty, and there are even services that will handle the complications for a percentage of the settlement.

Punitive Damages!

Last, but not least, you can then collect "punitive damages" for the use of the photo without permission. This is where those huge dollar judgments with lots of zeros come into play. If you didn't file your images with the copyright office, then you don't get to enter the bonus round to collect this benefit. When you register your image with the US Copyright Office, you can be awarded up to $150,000 per image for willful infringement, plus legal costs!

There is one minor complication... you need to file your images within 90 days of them being published. Moreover, the overly complicated legal mumbo-jumbo has been updated to include posting on social media to count as "publishing." If you don't file during that window, this becomes quite painful.  So, what I do is just upload all of my images every 90 days, even if I have not posted them publically.  That way, I am covered in the event they are posted somewhere in the future.

What if I find someone has stolen my photos?

Someone used my image as a book cover. :-(
Now if you do discover a violation on an unfiled image, you have a fixed number of days to file the image and create a claim. Typically late filing like this will cost you a lot of the rewards you get from registering before the violation such as the statutory damages and legal fees. However, this is actually what the photographer of Britney Spears fiance had to do once he found the image was being used without permission. He ended up walking the document into the Copyright office in person to be sure it was filed on time. There is also the case of Paul Alan Leonard that sued a health supplement company that was using 92 of his images and ended up with an award of $1,600,000 plus $400,000 in interest. These might be extreme examples of filing after the violation was discovered, and I have no experience with this type of situation outside of what I have read. I advise you to file your images within the grace period; it isn't hard to do!

My Copyright Workflow

Here is my Copyright Filing Workflow in detail: 

  1. Every 90 days I create a zip file of my recent work and file all of those photos compressed in a ZIP file for the $55 case filing fee to https://eco.copyright.gov.  There are specific file naming conventions, so please check the site to be sure you follow those.  As of the writing of this article, the filename starts with the date you "published" it, and then the rest of the file name.  (e.g. 12.06.19-Jennifer In Ballgown_SD34234.jpg)  More on that process here.
  2. In Lightroom, Capture One, or Bridge, all of my completed images are color-coded purple, so a simple filter shows the photos that need to be submitted. I keep an expanded copy of the ZIP file on my hard drive with a folder renamed to be the same as the case number. This is so I can easily access all of the images the case if Lightroom isn't available.
  3. Once the case number is created, I also add that as a keyword to those images for ease of reference. I have a master Lightroom keyword of "Copyright Filings," and children of that keyword are the actual case numbers (e.g., "Copyright Filings > 1-5616570000"). This keeps things clean and simple from an organization standpoint as I know all purple images with that keyword are filed.
As a side note, those submitted images don't need to be full resolution, in fact, I would advise against that. Export them large enough to be able to clearly be identified if presented in federal court and compared to the potential violation. I usually run with something around 1,800 pixels on the long edge, but I leave that decision up to you. Additionally, I use the basic watermarking in Lightroom or Capture One to add text along the bottom of the photo; "Copyright 2017 - Scott E. Detweiler - All Rights Reserved". I include the text because images that are filed with the Library of Congress are also potentially available in the public domain, and therefore accessible under certain circumstances.

Keeping yourself organized by filing every 90 days is the simplest way to handle things, and pretty easy to do online at https://eco.copyright.gov. Be sure the site you are using is the official government site and not one that claims to do the filings for a higher fee.

My steps for the TL/DR types

To summarize, here are some things to keep in mind:
  • File all new images every 90 days or when you reach 750 images
  • Keep the certificate in a safe place, you might need it later
  • Keyword images with their filed case number
  • Don't upload full-resolution images to the copyright office
  • Add your copyright line to the bottom of your images
  • Have a page on your site explaining usage fees
  • Keep the zip file and rename it to the case filing number. Back these up!

The Future Of Copyright For Photographers

Groups like the PPA are looking to make it much easier to pursue claims, but until they are successful, this is your best bet. Again, this has been my experience, and you should always talk to your favorite lawyer friend before acting. As a side note, all of your legal battles need to happen in federal court, as copyright is a national law. Several services will do the fighting for you for a portion of the proceeds.

So, now you know how to file and protect yourself. Now go and create that repeating calendar item to register those images!

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