© Copyright 2011Leon Bass www.TideEyePhoto.com.  All Rights Reserved.

Did You Know?

IT IS A VIOLATION OF COPYRIGHT LAW TO COPY A PHOTOGRAPH FROM THE INTERNET.

    Its true.  Unless you have permission from the owner, you cannot copy a photograph from the internet.  If you use it on your website, you are committing a second copyright violation.  If you alter the image, you are likely committing a third infringement.  This is because the owner of a photograph has certain "exclusive rights" granted by the US Copyright Act.  These rights can ONLY be exercised with permission of the copyright owner, which is generally the photographer until the photographer gives away these rights. 

   The exclusive rights in a photograph include the right to copy the image, the right to display the image publically, and the right to change the image (i.e. the right to create a derivative work).

   Somewhat mirroring the recent efforts of the recording industry and the film industry to crack down on those that engaged in illegal file sharing, it is becoming more common for photographers to make legal claims against those that wrongfully use their images.  These days, the internet makes it as simple as a "right click" to copy an image, and therefore we have seen a rise in the number of infringement claims.

    Many people that use images think they won't get caught; however, it is becoming quite easy to catch people, in part because of web-based services that are able to sniff out images being used on websites and in part because of the efforts of third party IP collectives that enforce IP rights.  A common protocol, like those used by the record and film industries, is for the infringer to receive a demand from the photographer's lawyer asking to pay for the use and infringement.  Many of these demands start at $3000-$5000.  In the event that the infringer elects not to pay, the photographer's attorney files a lawsuit alleging copyright infringement.  At the point, the settlement demands will increase, often substantially due to the costs of bringing such a lawsuit.

The Million Dollar Photograph:

  If the photograph was registered with the US Copyright Office prior to the infringement and within three months of its first publication, then the infringer could be forced to pay an amount that is up to the court, which by law, must be between $750 and $150,000 per work if the use was "willful" or up to $30,000 if it was not.  In addition, the infringer may be forced to pay the photographer's attorney's fees, which can easily exceed $100,000 or even $500,000 in copyright cases filed in federal court. Thus in a case involving multiple photographs, it is possible for a photographer to sue for over a million dollars.

  If you are a photographer and interested in learning how we can help you protect and enforce your rights, schedule a meeting or conference call today!  Please Click here to do so or call 614-431-BASS (2277) >

Photographers' Best Practices:

  We have learned that, unfortunately, photographers often ignore simple things that are no-brainers in the operation of their business. 

Copyright Registration:

   First, we find that often either photographers register their photographers incorrectly, or they completely fail to register them at all. While registration is not required to get a copyright, there are several benefits to doing so and one should always register works that they wish to protect.  Registration creates a public record showing that the author is indeed the author.  If the occasion should arise where the photographer discovers that one of their exclusive rights has been infringed, the photographer must register the work before he may file an infringement lawsuit.  Also, if registered before or quickly after publication, the photographer’s lawsuit will stand to prosper better in both showing that the copyright holder is the author of the work and in receiving more money by way of larger damages and recovering attorney’s fees (up to $150,000 per work).  In fact, unless the work was timely registered, it is often cost-prohibitive to file a lawsuit.  Moreover, if it was properly and timely registered, a photographer might be able to find an attorney that will take the case on a contingent fee (e.g. "they don't get paid until you get paid"  -  contact us to learn more about how this works).

Contracts:

   Another big mistake we see isthe failure to include proper contractual language in an engagement agreement and the invoices used by photographers.  Again, this is CRUCIAL. While there are good forms available in books or through the photography trade organizations, it is best to consult with an attorney because each photographer's needs and arrangements are unique. We have encountered too many situations where the contract used by a photographer did not reflect the business arrangement that actually took place.  It is extremely important for the photographer to use a proper agreement if the photographer wishes to protect his or her rights and be able to sue under the copyright act.  In addition, photographers should make it a point to use model release forms as well as location releases if shooting on private property.

  An example of copyright notice is at the top of this page, just below the two photographs taken by Leon Bass. Providing a notice of copyright, the well-known symbol ©, is no longer required by law, but, nonetheless, is still a wise practice.  The symbol notifies a would-be infringer (thief) that the work is protected and gives other useful information such as the copyright holder’s name and the year the work was published.  It also gives you better rights when trying to sue an infringer (thief). To use the “©” symbol properly, follow it by the year of fixation and the author’s name.  You may also want to add “All Rights Reserved”. This phrase has no legal meaning in the United States, but it does in other countries.  Many photographers include this in the metadata, but we also recommend including it on the photograph itself and/or near the photograph on a website or print. 

PHOTOGRAPHY LAWSUIT? We are your go-to firm.
     If you have been sued for copyright infringement of a photograph, someone is threatening a suit, or someone is using your photograph (or something similar), we are your firm.  Although we firmly subscribe to the philosophy that litigation is a last resort, we also know there are times where lawsuits must move forward.  We realize that lawsuits rarely have a winner and are almost never beneficial to either side in the end; However, the undeniable truth is that sometimes lawsuits are unavoidable, whether you are being sued or doing the suing.

     We have significant experience with photography and copyright litigation having litigated IP cases big and small in Federal Courts ranging from California, to Texas to Ohio. We can assist you defending your rights. If you feel that you may have an issue, please contact us as early as possible. The earlier we speak with you, the better we can protect your rights, so do not hesitate to contact us as soon as you know that there is even a small potential for a problem.

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EXPERT WITNESS/LITIGATION SUPPORT
   As a photographer and copyright attorney, Leon Bass makes an excellent expert witness in photography related lawsuits.   If you are involved in, considering suing someone, or have had a lawsuit threatened, or you are an attorney representing a party in a copyright lawsuit, we can assist as an expert witness or by providing consulting with respect to IP law or your case. We have experience as a trademark expert witness and copyright expert witness as well as are vast experience as litigators on intellectual property cases.

COPYRIGHT AGREEMENTS
     You own it—now what? How do you protect it and how do you exploit your photographs?  Let us counsel you on the different types of agreements that you might encounter; for example, license agreements, assignment, sales and transfer of rights agreements, and publishing agreements, etc.

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