In the early years of this blog, I would end each entry with the words: “Take my advice; get professional help.” That’s because there’s a lot of misinformation on the Internet about the law for photographers, including copyright law. With lots of great resources available for free from attorneys who practice in this area, you don’t have to rely on non-attorneys to get guidance. Here are a few:
- Volunteer Lawyers for the Arts
Unfortunately, a recent article, written by someone who admits he’s not an attorney, makes incorrect or incomplete assertions. I haven’t identified the article or author here as the point is to correct the information. Here are some examples:
Assertion: If you are employed by someone to take images, then the employer owns the copyright.
Clarification: In the United States, if photos are taken by an employee (a w2 employee) within the scope of employment, then the photos are a “Work Made For Hire” (WMFH”) and the employer is both the “author” and owner of the copyrights. If the photographer is an independent contractor (who has provided w9 and receives a 1099), the photographer owns the copyrights unless the photographer first agreed in writing and the work falls into one of 9 statutory categories. Learn more from Circular 9 from the U. S. Copyright Office. See also 17 USC 101.
Assertion: Whether you register or not, you can still legally go after someone who steals your work. But your settlement will be limited to actual damages.
Clarification: You don’t have to register your copyright with the U.S. Copyright Office to demand damages for an infringement, but you first must register your copyright (hopefully before but at least after the infringement) with the U.S. Copyright Office to be able to file a lawsuit. (If you created the photo in another country that is a signatory to the Berne Convention, you do not have to register to file an infringement lawsuit in the U.S.).
When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), not statutory damages. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. You also may recover the profits the infringer made from the infringement if they aren’t too speculative. For example, if someone uses your photo on a t-shirt, then you likely would be able to get the profits made from t-shirt sales.
Assertion: If you do register your image, you can go after statutory damages, which could be considerable.
Clarification: You photo must be timely registered for an infringement to be eligible for statutory damages of up to $150,000 per willful infringing use for each photograph. See 17 USC Section 504(b) and (c). Legal fees and costs also may be recovered from the infringer. See 17 USC Section 505. Timely registration is that which is done prior to the infringement or within three months of the first publication of the photo (not 90 days). See 17 USC Section 412.
Because the statute does not allow for statutory damages when “any infringement of copyright in an unpublished work commenced before the effective date of its registration,” then you don’t have the 3 month window to register your photograph after an infringement if your work was unpublished at the time of the infringement.
Assertion: Unless you are a famous photographer and your stolen image ends up on the cover of a magazine, it’s not going to be worth the trouble to sue.
Clarification: My law firm helped photographers for 15 years with their infringement claims on a contingency fee basis, making non-suit demands and filing many lawsuits when necessary. I am now retired but some of my colleagues are continuing the good work.
Even if you haven’t registered your infringed photo, sometimes the actual damages are significant and/or you may be entitled to DMCA damages in addition to the infringement claims. DMCA claims arise when the infringer removes your copyright management information (“CMI”), such as a watermark, or provides false CMI to hide the infringement. More information is available in my blog entry here.
And take my advice; get professional help.