Suwanee waves

So Just what is a Copyright?

Copyright is a form of protection provided by the laws of the United States(title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.§

Copyright is actually included as a right in the US Constitution: Article I, Section 8, Clause 8

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The owner of a copyright is the only one who can legally:

• Reproduce the work
• Make Derivative Works
• Sell or otherwise distribute copies
• Display the work publicly

Who can obtain a Copyright to a particular work?

Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.§

That means the instant you press that shutter button the Copyright instantly becomes your property unless a few special circumstances are in effect. This has been true for any work created after March of 1989. The exemptions mainly involve working for someone else where your primary job is to take photographs or if you sign a contract before the images are created that gives someone else the right to them. You can license your rights to some of your work either in full or for certain limited usage. A Copyright lasts for the length of the authors life plus 70 years at this time.

I noted the reasons why this right is essentially unenforceable for the average person in the first post on this subject. You can get much greater protection by registering your copyright with the US Copyright Office. Doing this gives you:

• A public record of the copyright
• It is required before you can sue someone for infringement
• If you register within 90 days after publication of the work, you may recover legal fees and the higher damage levels mentioned in the DMCA post are in effect

The downside is that you have to do this every 90 days and it will cost you $45 every time you do it. $180/year, and again this means to me that it makes little sense unless you are making or expect to be making money from your work sometime in the future. You can do the registration either via mail or using the new planned online system. That may be slightly cheaper. The US Copyright Office has a lot of very readable information on this process and has answers for just about any question that you could think about asking. It is a very well done site and you should read some of their material for a better understanding of the process.

As we all have seen from some recent high profile shenanigans copyright law can get very complicated and this is one area where you seriously need a specialized attorney if you get involved in the legal system. They call themselves IP or Intellectual Property attorneys. For more info on that see the PhotoAttorney blog in the sidebar.

Fair Use

So just what is Fair Use? It is not a right, it is a legal defense that someone being sued for infringement may make to the judge. It basically allows people to use a portion of someones work for eductional or editorial use. But it cannot cause the owner of the copyright to lose an opportunity to generate income from his work. There are various legal tests that the judge will apply, but basically it is anything that a judge says it is.  Wikipedia has a very long article on this issue that you may want to read.

Next up is the Orphan Works act that at the time of this writing has not been passed yet. But it is something that we need to prepare for in advance since there are very powerful interests pushing for its passage.

This series started with this post

§ From the Copyright Office’s publications

Suwanee Dawn

The DMCA

The Digital Millennium Copyright Act (DMCA) has certainly received a well deserved bad reputation. This comes from the ham handed use of it by Hollywood and the Recording Companies to persecute people for fairly minor transgressions. But certain aspects of it can help the photographer.

Photographers can use the DMCA in two ways to protect our images:

• First we should mark our work with a copyright notice either as a watermark, or as I do down in the frame of the image. That frame in my case is part of the image when it is posted on the web. For other reasons you should always mark the image with a way to contact you beside the copyright statement. I use one of my email addresses. This should be an email address that you are sure will be around for a long time since it would be difficult to go back and change hundreds of email addresses embedded in photos online.

• The second important use is the DMCA take-down notice which is what you would send to a website administrator when you find your work on their site without your permission. Site owners are mostly immune to copyright infringement suits if the work was placed on their site by one of their users without the owners direct knowledge. If, that is, they promptly respond to DCMA take-down notices. That is the reason why they act when they receive a notice without asking the user to explain or defend their use of the image. They do not want to endanger that immunity defense if it comes to that.

Carol Wright the author of the PhotoAttorney Blog has some details on the legal end of these issues:

Watermarks can be music

Take Down notices

If you use a blog reader I would certainly add the PhotoAttorney blog to your reading list.

Practicalities

Now the important thing to notice about that first link, is that the problem I mentioned in the first article on this subject, the limited amount of money you can recover from infringements, is dealt with of by the DMCA. If you mark your images with a explicit copyright notice, and someone removes that notice, then they can be liable to pay attorney fees (makes those lawyer happy and willing to work for you) and from $2500 to $25000 per violation, no matter what your damages may be. This will be up to a judge.

So adding a copyright notice costs nothing to do, and may end up getting you a nice chunk of change. I dislike watermarks posted on the image but I have to admit that they are probably more effective. Just keep them small and tasteful if you do use them, please. After all we post our work online for people to admire, and a giant watermark ruins that experience. Jim Goldstein has some thoughts about using watermarks.

Take down notices do not have to be elaborate, a simple notice that informs the owner or service provider of the website about a violation is all that is needed. Something like this:

Dear Sir:

I have noticed on (date here) that your site (or insert whatever the publication is) at (insert link/URL) and dated (insert date of publication here) includes a copy of my work: (describe the work or image) that I own the exclusive rights to and infringes my rights under the Digital Millennium Copyright Act and the Copyright Act. This was posted by: (name and other info about the person who posted the material if known). This work originally was published (insert the link/URL to the image). I have not authorized the use of this material.

Please contact me immediately.

Sincerely,

Your name and contact information.

Again let me insert the I am not a lawyer boilerplate. So take this info’s value for what you paid for it.

The next article will be on how to formally register your work with the US Copyright Office. that also adds a lot of protection, but isn’t free nor so simple to do as the above.

Greek Shrine

Protecting your photos online

Is this a distant concern, do your really need to worry about people appropriating your work? Unfortunately the answer is that it happens every day. I hear reports all the time of people finding their work on other people’s websites. Indeed there are whole websites that not only post stolen images but provide tools to make it easier for their users to take images.

There is a tool, in beta at the time of this writing, which will search some of the web, for your images. It is called TinEye .

TinEye will scan for your image across the part of the web that it has so far indexed. The number of indexed sites seems to be limited right now but hopefully it will expand. The service scans for a digital fingerprint of the image not for the image title.

In the US and many other countries your photos are copyrighted the instant that you press the shutter button. And even though they are copyrighted, the images are essentially unprotected since there is no enforcement mechanism in place to protect your rights. Copyright violations are a civil matter in almost all cases. And being a civil matter; that means that it is up to you to protect your own rights by bringing a suit in court.

The problem is this. Most of the time people who steal your images will not be living anywhere near where you are. They will often be in a different state and sometimes will be in a different country. That means a trip down to your local small claims court won’t get you anything in your pocket or force them to stop using your image. And in the state that I live in, it can cost well over a $100 to file in small claims court. So your next step involves getting a lawyer to do the suing for you.

No surprise, but lawyers like to get paid for working. And unless you are going to pay one out of your own pocket, and that can easily amount to thousands of dollars, they want to see some profitable result at the end of the process. That would mean they need to see a big judgment ahead that they will split with you as payment for their efforts.

However with the type of copyright that attaches to your images when you press the shutter button, all you can expect to get from a court is your actual damages. You have to prove that you lost money by someone taking your image. That is fine if you are a well known photographer who gets $10,000 to take photos of some celebrity. But for the other 999 out of a 1000 photographers that means you would only recover a pittance, chicken feed and chump change. You could spend $1000 in legal costs and recover $25. Not so good.

There are a several things you can do to protect yourself. None is perfect but they can improve your chances of stopping theft. Or possibly you could even profit from the theft. I’ll cover those starting in the next post.

Let me post the obligatory I’m not a lawyer notice. I’m not one and you are always better of paying one to advise you. Poorer but better. Unless you hire Huey, Dewie, Cheatum and Howe.

UPDATE:

Someone mentioned in a comment that PicScout is available to search the web for your images. I took a look at their site at:

PicScout

However for photographers it seems to be limited to commercial sites only and costs $15/month for up to 500 photos. Their site makes it quite difficult to figure out exactly what they are offering.

Digimarc has been around for a long time, Photoshop users used to get a free plugin and short subscription to the service:

Digimarc

Digimarc seems to be more powerful than PicScout, but since I’m not quite sure what PicScout offers, that could be wrong. Digimarc embeds a invisible watermark on your images via a Photoshop plugin. They track where your image appears on the web and users can read that info via a utility. Again this is a paid and quite pricey service. Neither of these makes any sense to me, except for people who are making quite a bit of money from the sales of their work online. Probably you would have to be making thousands of dollars to see a return on these services.

Another update: I lost all the comments after upgrading Wordpress so the comment with the suggestion has vanished