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Author: Kerry Bern
Over the past few years, I’ve had personal experience in having my images used without my permission. So, I thought it might be helpful to offer a Q&A summary of what I’ve learned navigating this difficult subject. Disclaimer: Like you, I am a photographer; I am writing about my personal experiences and opinions. I am not an attorney therefore, this is not legal advice.
Q: What are the main reasons that companies or individuals are infringing our images?
A: The top reason is that the chances of them getting caught is slim to none. Why?
I know some of you will say “They’re just real estate photos. I got paid, they can do what they want with them.” I’ve seen this statement many times before on this blog and other places but why pass up the opportunity of receiving additional income from the re-licensing potential of your images?
Q: It’s true that we own the copyright to the images that we create as soon as it is written to our memory card so why spend money to register your images?
A: The main reason is because in the US, copyright infringement cases can only be filed in federal court. In order to file an infringement case in federal court, the images must have been registered with the USCO. Registration also makes you eligible for statutory damages, attorneys’ fees, and costs. Without registration, you are pretty much limited to sending a "DMCA Takedown Notice" to the ISP (i.e.: GoDaddy) to remove the images from the infringer’s website but you will not be able to recover any damages that may have occurred due to the infringement. Nor will you be able to receive any compensation for the use either.
Q: I don’t live in the US so why should I register my images with the USCO?
A: You do not need to be a US citizen to register your images. However, if you find some of your images used by US companies/individuals, to initiate legal action against US based infringers, you must comply with current US Copyright Laws.
Q: I’m so busy. How can I find the time to address this?
A: To be honest, like you, I don’t have the time to spend hours on the internet looking for infringements. However, there are many services available that you should consider looking into. Some will allow you to upload a certain number of images for free and then you pay a fee to upload more. You have a choice whether to use their legal services or use your own. There are others where you can upload as many images as you want but if they find any infringements, you must go through them for legal services. Here is a link to an article that lists 13 such services.
Q: Can’t I wait until I find an infringement before I go through the hassle and expense of registering my images?
A: You can but you will not have full legal protection for that infringement unless the infringement is within 3 months of the first publication. According to the current copyright law, you only have full protection if your images are registered within 3 months of first publication or before an infringement occurs. Therefore, if today you find an image of yours that you published last year that you did not register, you are not entitled to file a lawsuit for that infringement. If you now register those images from last year then you are fully covered for any future infringements that you discover.
Q: Is the internet the only place where I should focus my attention?
A: No. I’d also suggest looking at locally printed material. Atlanta-based photographer, Iran Watson (2012 PFRE Photographer of the Year), stopped in a convenient store one day and noticed an image of his was on the cover of an Atlanta Street Atlas. A few years back, I was looking through a local magazine and saw one of my images being used in an ad for a company that manufactures and installs stone veneers on homes.
Q: Okay, you’ve convinced me; what are the key steps that I should take now?
A: There are two important steps you should be doing to protect your images. The first is to present to your client and have them agree to a license agreement that informs them of what they can and cannot do with the images you create for them. IMO, this should be done before you ever schedule a shoot with them. This can minimize a lot of the infringements and misunderstandings down the road.
Q: How much does it cost to register images with the USCO?
A: The fee can be as little as $0.08 per image! This is not much of an expense. Personally, I consider it an inexpensive type of insurance.
Many have said, and I agree: It’s not a matter of if, nor is it a matter of when your images will be infringed; it’s just that you haven’t looked. I totally understand that registering one’s images can be a confusing and daunting task if you have never done it before. However, in my experience, once you go through the registration process once or twice, it becomes easy and painless.
Within the next few weeks, I plan on publishing a two-part tutorial on my workflow for registering images that I hope you will find helpful. So stay tuned!