WestLord & Associates

Questions and Answers: How to Address Copyright Infringement for Photographers

In a recent webinar held by “Photoshop Resource Center” earlier this month, Mr. Sam Mugraby from Boxist.com Stock Photography shared insights. Mugraby, a photographer, 3D artist, calligrapher, and an expert in intellectual property law, discussed copyright infringement and its implications for photographers. Below are some of the key questions and responses from the webinar:

What’s the best method to identify potential copyright infringements?

There are several ways to search for unauthorized use of your images online. Google Images (reverse image search) and Tin Eye are available options. As technology progresses, more companies might offer services that automatically scan the web for image matches. However, manually searching for each image is time-consuming and challenging, especially for large portfolios. Hopefully, in the future, an automated service will be available to simplify this process.

Is it necessary for photographers to register their images?

Registration is highly recommended. Registering a group of up to 750 photos costs $55 at the US Copyright Office. While the process may seem intricate and navigating the US office’s procedures might not be straightforward, numerous online tutorials can guide you through it.

Registering your images with the US Copyright Office holds significant benefits for photographers, enhancing your ability to protect and enforce your intellectual property rights. While copyright protection is granted automatically when you create a work, registering your images provides you with additional legal advantages. Here’s why registration is crucial:

  • a. Legal Proof of Ownership: Registration serves as concrete evidence of your ownership of the copyrighted work. In the event of a dispute or infringement case, having an officially registered copyright provides a stronger foundation for your claim.
  • b. Statutory Damages and Legal Fees: Registering your images allows you to seek statutory damages and attorney’s fees in case of infringement. Statutory damages provide a predefined compensation amount, making it easier to calculate damages and assert your rights. Without registration, you can only claim actual damages, which can be more challenging to quantify and may not cover the costs of legal proceedings.
  • c. Prerequisite for Lawsuits: If you plan to file a lawsuit against an infringing party, your images must be registered before the infringement occurs or within three months of publication. Registering early ensures that you have the legal right to take legal action and seek statutory damages.
  • d. Protection against Innocent Infringement Claims: Registering your images may also serve as a deterrent to unintentional infringement. In some cases, infringers might claim they were unaware of the copyright status of an image. Registering helps establish your proactive effort to protect your rights.
  • e. Global Protection: While the registration process is specific to the US Copyright Office, international treaties like the Berne Convention recognize and protect works across member countries. This means that registering with the US Copyright Office can offer some level of protection internationally as well.

The process of registering your images involves submitting an application to the US Copyright Office, which includes providing details about the work and the authorship. While the application process may seem daunting, there are numerous online resources and tutorials that can guide you step by step. Once registered, your images are listed in the Copyright Office’s database, providing a public record of your ownership.

In essence, registering your images enhances your ability to enforce your rights, claim damages, and protect your creative work. While the initial effort might seem complex, the long-term benefits far outweigh the investment, especially considering the potential legal complexities and financial implications of copyright infringement cases. Whether you’re a professional photographer or an amateur, registering your images is a proactive step toward safeguarding your intellectual property.

What if a foreign company infringes on US-registered images?

Pursuing foreign entities for infringements can be complex. It’s particularly difficult to take legal action against infringers in countries without robust copyright enforcement or laws (such as China, Russia, or Iran). Also, different countries have their own copyright laws and regulations regarding damages. While the US has statutory damages, other countries offer distinct means of awarding damages. Filing a lawsuit is relatively straightforward in many European countries, Canada, Australia, New Zealand, and others, with some law firms operating on contingency fee agreements, which can aid photographers with limited resources.

In summary, while copyright protection has international implications, enforcing your rights across borders can be intricate. Consider the following steps when dealing with copyright infringements involving foreign entities:

  • Consult Legal Experts: Seek advice from attorneys experienced in international copyright law to understand your options and potential challenges.
  • Research Jurisdictional Laws: Familiarize yourself with the copyright laws and enforcement mechanisms of the infringing entity’s country.
  • Explore Diplomatic Channels: If the infringement involves a country with strong diplomatic ties to yours, diplomatic channels might assist in resolving the issue.
  • Alternative Dispute Resolution: In some cases, pursuing mediation or alternative dispute resolution methods might offer a faster and more efficient resolution.
  • Evaluate Feasibility: Weigh the potential costs, time, and resources required to pursue legal action against the potential benefits.

While pursuing copyright infringement cases involving foreign entities can be complex, understanding the landscape and seeking professional guidance can help you make informed decisions and protect your creative work effectively.

If I find an image without a copyright notice online, can it be used freely?

The absence of a copyright notice or watermark doesn’t imply that an image is free to use. Copyright protection applies as soon as a work is created, regardless of whether a notice is present. Copyright law covers all creative works, including photographs, regardless of publication, registration, or marking.

The moment you capture an image and it becomes a tangible form of expression (such as a digital file), it is automatically protected by copyright law. No further action is needed to establish your ownership.

Watermarks and copyright notices are methods that creators use to indicate their ownership and control over their work. While these markings can serve as a deterrent to unauthorized use, they are not legal requirements for copyright protection.

Using copyrighted images without proper authorization can lead to copyright infringement claims, legal action, and potential financial penalties. When using images found on the internet, it’s important to assume that they are protected by copyright unless proven otherwise. If you intend to use an image for publishing or any other purpose, seek the necessary permissions or licenses. Proper attribution and respect for intellectual property rights are paramount to avoiding legal complications and demonstrating ethical conduct in the creative community.

What copyright details should be included in image metadata?

The copyright notice, as outlined in 17 USC 401(b), can include the “©” symbol or the word “Copyright.” It should also include the owner’s name, an abbreviation recognizable as the owner’s name, or an alternative designation. Additionally, including your name and contact details in the metadata is recommended. Removing or altering copyright management information is prohibited by law and can result in penalties.

The metadata of an image file is a digital record containing information about the image, including copyright details. Including accurate and complete copyright information is crucial for protecting your intellectual property rights. Here’s what you should consider including:

  • a. Copyright Notice: The copyright notice indicates your ownership of the image. It can be represented by the “©” symbol or the word “Copyright.”
  • b. Author’s Name: Include your full name as the author or creator of the image. If your name is lengthy, you can use an abbreviation or recognizable alternative designation.
  • c. Copyright Owner: Provide information about the copyright owner, which might be you or your company. Include the copyright owner’s name, or if applicable, the company’s name.
  • d. Title and Description: Include the title or a brief description of the image to provide context and further identify the work.
  • e. Copyright Management Information: In accordance with 17 USC §1202, consider including additional information that helps identify the work and the copyright owner. This information can consist of details such as the title, author’s name, and copyright owner’s name.
  • f. Contact Information: Adding your contact information, such as an email address or website, enables interested parties to reach out for permissions, licenses, or inquiries.

By including these details in the metadata of your image files, you establish a clear record of your copyright ownership and provide a means for interested parties to seek permission or license to use the image. Additionally, including this information can discourage potential infringers from using your work without proper authorization.

It’s important to note that under 17 USC §1202(b), intentionally removing or altering copyright management information is prohibited and can result in penalties. By including comprehensive copyright information in the metadata, you strengthen your legal position and deter individuals from tampering with this information.

Can you transform a copyright infringer into a customer? 

While some infringers knowingly disregard copyright, others may be unaware of their infringement. You can approach infringers with an explanation of the unauthorized use and request payment for a proper license. Resolving copyright infringement should prioritize an amicable solution over immediate legal action, aiming to rectify mistakes and foster respect for creative work. Here’s a more comprehensive understanding of this scenario:

  • a. Types of Infringers: Infringers can fall into two main categories. Willful infringers might intentionally ignore copyright and show a lack of respect for intellectual property rights. Innocent infringers, on the other hand, might have made a genuine mistake due to a lack of awareness about copyright regulations.
  • b. Communication Approach: When you identify an infringement, consider contacting the infringing party in a professional and non-confrontational manner. Explain the unauthorized use of your work and provide them with information about obtaining a proper license.
  • c. Educational Approach: For innocent infringers, educating them about copyright laws and licensing can be beneficial. They might be open to rectifying their mistake by paying a licensing fee and obtaining proper permission to use your work.
  • d. Fair Resolution: Approach the situation with a willingness to find an amicable resolution rather than immediately resorting to legal action. Seek to establish a mutually beneficial arrangement that addresses both parties’ needs.
  • e. Protecting Your Rights: While offering an opportunity for resolution, ensure that the infringing party acknowledges their mistake and compensates you appropriately. This approach is not about punishment, but about maintaining the integrity of your creative work and fostering respect for your rights.
  • f. Seek Professional Advice: If the infringing party is unresponsive or uncooperative, consulting legal counsel can guide you on the best course of action. Legal experts can help you navigate negotiations, enforce your rights, and determine whether legal action is necessary.

Remember that each case is unique, and the approach you take will depend on factors such as the severity of the infringement, the infringing party’s response, and your ultimate goals. While transforming infringers into customers is possible, it requires a balanced approach that prioritizes protecting your creative rights while fostering a cooperative resolution.

What factors influence an attorney’s decision to take a copyright infringement case?

Attorneys are often willing to handle copyright infringement claims if the claim is valid and you’re prepared to compensate them for their time. Some attorneys may consider working on a contingency basis if potential damages justify their involvement. Prompt copyright registration and including copyright information in metadata can enhance the damages available for infringements. In navigating copyright infringement issues as a photographer, a balanced approach that prioritizes communication and respect for intellectual property rights can yield the best outcomes.

Engaging an attorney to handle a copyright infringement case involves several considerations, ensuring that the case is viable, worthwhile, and aligns with the attorney’s expertise. Here are the key factors that influence an attorney’s decision:

  • a. Strength of the Claim: Attorneys assess the validity of your copyright claim. A strong claim has clear evidence of ownership, infringement, and damages. Demonstrating a strong case increases the likelihood of an attorney’s involvement.
  • b. Potential Damages: Attorneys often weigh the potential financial outcome. If the potential damages are significant, it may make the case more attractive to attorneys, especially if they work on a contingency basis.
  • c. Copyright Registration: Cases involving registered copyrights have advantages due to the availability of statutory damages and attorney’s fees. Attorneys are more likely to consider cases with registered copyrights.
  • d. Contingency Arrangements: Some attorneys work on a contingency basis, meaning they only get paid if the case is successful. For this reason, attorneys might be more inclined to take on cases with higher potential damages.
  • e. Feasibility of Recovery: Attorneys assess the infringing party’s ability to pay damages if the case is successful. If the infringer lacks sufficient resources, it might influence the attorney’s decision.
  • f. Client’s Financial Ability: Attorneys also consider whether the client can cover legal fees and expenses. If the client cannot afford the legal costs, it might affect the attorney’s willingness to take the case.
  • g. Complexity of the Case: Highly complex cases might require extensive resources and time. Attorneys assess whether they have the capacity to handle the case effectively.
  • h. Alignment with Expertise: Attorneys might focus on specific areas of copyright law or have experience in certain industries. A case that aligns with an attorney’s expertise is more likely to be taken.
  • i. Time Constraints: The timeframe within which the case needs to be resolved can impact an attorney’s decision. Attorneys consider whether they can commit the required time to the case.
  • j. Ethical Considerations: Attorneys must adhere to ethical standards. If a case raises ethical concerns or conflicts of interest, an attorney might decline representation.

In summary, a combination of legal, financial, practical, and ethical factors determines whether an attorney will take on a copyright infringement case. It’s important to consult with attorneys who specialize in intellectual property law, discuss the specifics of your case, and understand their assessment of its viability. Choosing the right attorney is essential for effectively protecting your rights and achieving a favorable outcome.

About the interviewee: Sam Mugraby is a talented photographer with expertise in multiple creative fields. In 2005, Sam launched his main stock photography website, Boxist.com, in collaboration with his company team. The website offers a large collection of premium and exclusive images available for sale and licensing to customers, creative artists, and businesses worldwide.