Some time ago I began registering all my photographs with the US Copyright Office. Like all photographers I’ve witnessed a massive increase of theft of my work in recent years. And like others I’ve found it difficult, if not impossible, to get reasonable compensation for these infringements, especially if the infringer is in a foreign country.
But one country, the US, provides very hefty penalties for copyright theft – so long as the work has been registered prior to the infringement in question. So what would happen if I, a foreigner, registered my work and subsequently found it used without permission in the US? Would US copyright law really provide me with the same protection that it does the country’s own citizens? Last week I got my answer.
In January this year I found one of my photos on a website owned by a major US media company. In February I engaged attorney Barbara Hoffman of the Hoffman Law Firm to handle the matter. Last week the infringer paid a substantial settlement. As is normal in such settlements no party admitted liability. But media organisations don’t usually write five figure cheques without good reason: draw your own conclusions.
However only a tiny percentage of US photographers bother to register their images; virtually no foreign photographers do so. Two reasons are usually given: that the registration process is too complex, and that the cost is too high. Neither of these is true. Since the US Copyright Office began accepting online registrations the process has become both simpler and cheaper. While the system appears intimidating at first, that’s simply because it allows for the registration of so many different kinds of creative works. Concentrate only what applies to photographers, and the process becomes much clearer; and the registration process has pop-up guide notes at each stage. For the truly challenged, both Photoshelter and the Photo Attorney have detailed guides with blow-by-blow screenshots of actual registrations. How hard can it be?
As for cost, online registration is $35 a time, you can register an unlimited number of images in a batch for that fee, and you have 90 days from the moment of exposure to register new work. So simply register your photographs in batches 5 times a year. Cost per annum for complete US copyright protection, $175. That doesn’t sound expensive to me: how much did you say you spent on that new lens?
Foreign photographers like to give a third reason for not registering copyright in the US: why should they have to pay for protection they supposedly already have under the Berne Copyright Convention when the US is a signatory to that convention? As an argument of principle this has some validity, but in practical terms it’s nonsense. You don’t have to register your images: but you’ll be the loser if you don’t.
Based on my experience I can’t think of any good reason why photographers, US or otherwise, should not register their work with the US Copyright Office. Every case is different, and there’s no such thing as 100% protection. But follow these ten rules and you will almost certainly be able to collect substantial damages from any US website or publisher who infringes your copyright.
1. Register your images at the US Copyright Office. The country may be a Berne signatory, but in practice the USA has a dual copyright system: major protection and zero protection. Unregistered images get the latter: lacking the option for punitive damages and legal expenses it’s financially impractical to chase infringers, and they know it. Registered images carry the potential for $150,000 compensation per infringement plus legal costs: so what’s to think about? And make sure you register every frame. As photographers it’s tempting to think that only the “best” images get stolen. But while some images are more likely to be stolen than others the truth is that you have no idea what might catch a thief’s eye. The image in my case was a simple shot of a crowded beach: there are millions like it on the web. But mine came high in a Google search, fitted what the searcher was looking for, so he took it. If an image is good enough for you to keep then it’s good enough for someone, somewhere, to want to steal: so register it.
2. Make your copyright information visible. It’s unnecessary to actually watermark images: a strong watermark wrecks an image, a weak one is easily removed, and neither provides greater legal protection than copyright information immediately adjacent to the image. Your infringer, like mine, will almost certainly try to claim to be unaware of the copyright status of a stolen image. But the placement of my copyright information immediately below my image meant I was easily able to prove that it was impossible for my infringer to have downloaded the image without having first seen that information – even though the image was lifted from Google, not my website.
3. Google Alerts is your friend. Ever hear the one about the burglar who left his driver’s license at the scene of the crime? Incredible as it may seem, my infringing site ran my byline with the stolen image. Perhaps they felt they were doing me favour. Oddly enough, they were: since I have a Google Alert set up for my name Google delivered the culprit handcuffed to my inbox the morning following the infringement.
4. Grab all the evidence. Make screen grabs of the infringing site obviously; but there is a lot more you can do. Download the actual page so you have the source code. Make grabs of your own site displaying the copyright information, and any other site where the image may be viewed: Google search results for example. Check the image metadata on the infringing site: if metadata has been removed – and it will have been – that’s a further offence. Remember: every piece of information is ammunition for the lawyer you’re about to hire.
5. Don’t contact the infringer directly. Did they contact you before heisting your property? So why would you call to warn them you’re on their trail? Contact them and the best they’re likely to offer is to take your image down, as if they’re doing you a favour: don’t expect an offer of serious compensation. Even if you convince them to pay, the sum is unlikely to be much more than a valid license would have cost: in which case you’ve just taught them that infringement is worth the risk, since the punishment is no more than the cost of being honest. You need to get their attention and you need to get them to take this seriously. You need to…
6. Hire a lawyer. There are plenty of good intellectual property attorneys in the US, and they’re eager for your business. Better yet, many will take a solid case on a contingency agreement for a percentage of any settlement; so long as you’ve registered the image correctly you can often take your pick. I chose to work with Barbara Hoffman, who I rather obviously recommend, but there are plenty of other options.
7. There’s no such thing as a small infringement. My infringed image was used 468 pixels wide on a site I’d never heard of before. It would be easy to be dismissive, but fortunately the law feels different and so should you. The substantial penalties for infringement under US copyright law are meant as a deterrent. When somebody ignores that deterrent and proceeds to steal anyway, he’s essentially telling the law he doesn’t GAF: the law doesn’t like being talked to like that. So what looks like a small infringement to you may seem a much bigger offence to the law: your infringement may not have many pixels, but it could be worth a lot of dollars.
8. Your small-time infringer may be a bigger player than you think. At a casual glance my infringer was a cuddly-looking blog: indeed its sister site was once caught heisting an image from flickr, and when the owner complained people told him “lighten up, it’s just a blog”. But a few seconds research revealed that both sites are owned by one of the world’s largest media companies, which bought my infringer’s site a few years ago. The price? Ten million dollars. And that for a site so cheap that I caught it swiping images from iStock rather than pay the $1 asking price.
9. Be forensic. Most infringing sites are serial offenders, but your infringer will naturally try to claim that your infringement is an isolated case: your job is to prove the opposite. My Google Alerts experience shows infringers to be none too bright, and fortunately they’re also lazy: once they find an easy infringement method they repeat it over and over. That in turn produces a pattern that makes it easy to find further infringements on their site. Identifying repeated infringements demolishes any “isolated case” defence and shows the site infringes as a matter of custom and practice: should your case go to court the defence will have a hard time explaining this. Once I’d identified my infringer’s work pattern it only took a few hours to find 50 verifiable infringements on their site, at which point I got bored: game over for the defence.
10. If you have an agent don’t expect them to protect your copyright. My infringer’s site was awash with what appeared to me clear-cut and easily verifiable infringements. The surprise was that the vast majority of the images were either owned or represented by the biggest picture agencies on the planet. So either they were unable to find the infringements or unwilling or unable to pursue the infringer. Either way, if you sleep soundly at night in the belief that your big agent’s lawyers are watching out for infringements of your work, I have some very bad news for you.
There are also some rules for the other players in all this. For Old Media: do your due diligence on that hot new media property you’re about to shell out millions for. Do they have the same understanding and respect for the value of intellectual property that you do? If not you could be buying a copyright infringement time bomb.
And New Media: despite what the pied pipers of Freetardia may have led you to believe, all our internet is not free for you to help yourself as you think fit. The law applies to you just as much as anyone else. And the technology that has made it easy for you to leech off the creativity of others is developing to make it easier to catch you. Steal and you will be caught. Get caught and it will cost you.