This is my personal viewpoint. This is my opinion based on my personal experiences. Other people have different experiences and therefore, their viewpoint may be different than mine.
Understanding What You’re Up Against
I will boldly repeat something that I stated in my previous article because I believe it is worth repeating: “If you’re not going to defend or enforce your copyrights, don’t waste your time or money registering.”
Make no mistake about it; when you enforce your copyrights, you are going to get into a fight. Your opponent has already proven that they are not bound by moral behavior or legal and civil rules. So why do you think this fight is going to be fair? If a person was willing to steal from you, do you honestly think they are going to tell the truth in depositions?
A liar can be very convincing, but what a liar can’t change or overcome are facts that are backed up with evidence.
Understanding the First Wave of Attack
The first attack by defense attorneys is their attempt to void the copyright registration. If they are successful, you will be forced to re-register the images. But by then you will be outside the three month grace period from first publication and no longer eligible for statutory damages or attorney fees.
The copyright registration system that I’ve developed was done with numerous direct conversations with William Briganti, Assistant Chief, Visual Arts and Recordation Division, U.S. Copyright Office. Then I participated in a beta program, where a precisely detailed procedure was given to me and I was supervised through numerous registrations to get the procedure down perfectly. The procedure requires a tremendous amount of prep work on exactly how the image deposits are to be treated and prepared for the registration process.
The Second Wave
Once a defense attorney determines that the registration is rock solid, they are going to move on to attacking the creation of the images and looking for technical reasons to void the deposit. For example, did your assistant photograph any of the images and if so, were those images also copyright registered on this application? If the answer to these questions is ‘yes’, the registration is void.
The Chain of Evidence for Custody
You have to build an archive system that supports copyright registration. This is the chain of evidence custody (the facts) that all the spin in the world can’t negate, deny, or set aside. As important as copyright registration is, the chain of evidence for custody is crucial to a successful outcome. It starts with photographing in RAW, then archiving the RAW images in a D.A.M. (data asset management) system. You need to program the metadata in your camera to record your formal copyright notice as part of the creation of the image.
a) The Importance of RAW Files to the Chain of Evidence
RAW formats are one directional. You can create any format from a RAW file, such as a JPEG, DNG or TIFF but you can’t create a RAW format from an existing image. One photographer told me that after he creates his JPEG’s and delivers to his clients, for the sake of storage, he deletes his RAW images. A defense attorney is going to challenge whether or not you actually created the image versus copying it. Without the original RAW file, you can’t prove that you created the image.
In the discovery process, I’ve had defense attorneys demand that I show them the original RAW images with metadata proving embedded copyright notice, then show them the images that were delivered to the client, and lastly a detailed comparison to the actual infringed image. This is a chain of evidence and I’ve been asked for this chain numerous times. Finally, they want to see the chain of sequence by which the copyright registration deposits were created.
It’s a lot easier to produce the demanded evidence when it’s all properly organized in a D.A.M. system that was pre-designed to produce this chain.
b) The “Worthiness” of Your Photos
One of the other favorite attack tactics is the challenge of whether or not the image is worthy of being copyrighted. In other words, how much creativity and individual choice did the photographer put into the creation of the image? If you’re using lighting, this is a very easy argument to win. If you’re using only HDR it’s still winnable but may require a few extra words of explanation why your image is unique as compared to someone else coming into the room and setting up in the exact same spot and shooting the same image.]
To date, I believe every single real estate image has been challenged as to the copyright worthiness or whether or not my images qualify creatively to be copyrightable. As insane as this sounds, defense attorneys will throw everything at you, no matter how ridiculous it may seem to you, just to see if anything sticks.
I’ll Say It Again
There is no way to overstate this point: It’s a fight, and you’re going to be challenged. Nobody is going to roll over and willingly admit that they stole your work and then write you a six-figure check. I once heard it said that a poor man will walk a mile to save a dollar and a rich man will walk five miles. In copyright litigation, you’re likely up against a financially successful business that has demonstrated that they are not bound by moralistic thinking or the rule of law. To what extent are they willing to go?
In my mind, the choice is simple. You can be a photographer that takes no professional responsibility, that allows anyone to steal from you and thanks them for the privilege of stealing your work. Or, you can run a business that recognizes the value of your product. You can conduct yourself in an upfront, ethical manner and be professionally responsible to the entire industry of photographers.
If your business model is to transfer dual ownership or complete ownership of your images to your client, then be ethically upfront about it. I’m not going to criticize anyone for choosing this business model--it’s your choice to make. What I will criticize is someone who rights manages their work but then refuses to defend their copyrights. This is professionally irresponsible, diminishes the professionalism of the entire industry of photography; and is extremely damaging.
Do a Google search for D.A.M. system for photography. One of the best was designed by an APA commercial photographer. You need to build an archive system for your RAW images, for the images that were delivered to the client, and the images that were deposited per application with the Copyright Office. Are you archiving all your emails? You should, as it’s evidence. You need to archive and save in a D.A.M. system all your emails. As such, don’t put anything in emails that you don’t want the defense attorneys to read. In the demand process, they will probably ask for all of them. This has happened to me twice.
This article would be way too long if I were to detail out the procedures for your archive system, and it probably wouldn’t be effective because each of us have our own way of doing things. But being properly organized in a manner that we can explain and defend is critical in a copyright fight.
Additional Resources for You
A Final Consideration
I cannot say this forcefully enough--your work needs to be registered as published images. Even if you’re a photographer outside of the US, you can copyright register your images in the US Copyright Office for the same fees as a US citizen. This allows you the same protections and eligibility for statutory damages and attorney fees as US citizens for all infringements in the US. This is substantially different than international law which only allows you to be paid actual damages.
My goal has been to give you a realistic glimpse of the process of defending your profession. For me, when my work is stolen, it is like someone just punched me in the kidney. I just want to throw up. I physically get sick to my stomach. Make no mistake; in my opinion, it is highly probable that your work is currently being infringed.
The choice whether or not you defend your profession is yours to make.