March 3, 2020 By SnapSentry

When photo theft is only a right-click away, how do you protect your work? Here are the answers to the most important questions about safeguarding your photography in our guide to copyright law.

For photographers, the law says copyright is about owning property. Because you own it, you have certain exclusive rights to the property. Your photographic copyright ownership rights include:

  1. reproduction of the photograph
  2. preparation of derivative works based on the photograph
  3. distribution of copies of the photograph to the public by sale, rental, lease, lending, or other transfer of ownership
  4. display of the photograph publicly

You can read more details on the US Copyright Act here.

Creative Commons is a form of licensing. Licensing lets you grant others some rights you own to the photograph. For example, you may allow a website to reproduce your photo in their online magazine. The copyright is still yours, but you let someone else access to it.

Creative Commons offer different licensing packages that don’t require pay. The packages allow flexibility, such as whether you require attribution such as your website or name with use and whether you allow commercial use.

What Is Fair Use?

Fair use allows one to use copyrighted material without the owner’s permission. This exception is only for limited and reasonable purposes such as criticism, news, research, and teaching.

What Is the Public Domain?

Works that are no longer protected by copyright law are now in the public domain. Government photos are examples of works in the public domain.

What Is a Derivative Work?

A derivative work is a work based on one or more existing works. An example derivate work would be someone turning your photo into an illustration or sculpture.

What Are the Criminal Infringement Penalties?

Photographers can pursue criminal charges against copyright violators for illegal use of their works. Copyright infringement criminal proceedings do not give restitution to the victim.

But photographers can be reimbursed for legal fees and infringers can be required to pay up to $250,000 in court fines. And there is also the potential of five years in prison or up to ten years with repeat offenders.

What Is Work-for-Hire?

When your finger presses the shutter button down, you own the copyright. The exception to the rule is a work-for-hire relationship. It exists in two circumstances:

  1. A photographer is an employee hired to take photographs for an employer. A classic example would be a photojournalist at a newspaper, but not a portrait or wedding photographer hired for an event.

  2. A photographer is hired to provide collective works, compilations, or photographs and sign a specific written agreement saying that the work is made for hire. As a freelance photographer, you would only be subject to this status when you agreed upon it contractually beforehand.

Are You Required to Add the © Symbol to Protect Your Work?

The copyright symbol with your date and name is no longer mandatory for copyright protection. But there’s no harm in doing it, and it can often be an easy way to deter theft.

Remember, you own the copyright as soon you press the button down. You don’t have to register your work with the US Copyright Office (USCO) to use the symbol.

Proper usage includes three parts:

  1. The ©, the word “Copyright,” or the abbreviation “Copr.”
  2. The photo’s year of creation
  3. The name of the photographer or the copyright owner

When done it should look like this © 2020 Your First and Last Name

It may also be a good idea to add the phrase “All Rights Reserved” after the copyright notice to add protection in the international market.

Is Registration Mandatory?

You do not have to register your copyright. You own the copyright immediately upon creating the photo. But registration is an asset if you ever must pursue legal action for copyright infringement.

If you fail to register your photograph with the USCO before and infringement, then you can only recover “actual damages.” You’ll forfeit the right to “statutory damages,” meaning you’re only able to recover “fair market value” instead of up to $150,000 award and legal fees.

You should register your photos within three months of first publication. Maybe you don’t register all your pictures but only pick the best or most vulnerable pieces in your portfolio. Otherwise, the courts will calculate your actual damages based on your standard licensing fees plus any profits gained from the infringement.

If you want true legal protection, then you must register your works with the USCO. A “poor man’s copyright” is the act of mailing printed photos to yourself and using the date stamp from the post office as evidence of original creation will not stand up in court. Also, publishing online does not substitute for the need to register photos with the USCO.

You can watch the USCO video tutorial here.

What is the DMCA, and How Does It Help You?

The Digital Millennium Copyright Act (DMCA) is a worldwide law that protects photographers. The DMCA allows you to contact the Internet service provider (ISP) and have your works removed for copyright infringement when someone uses one of your photos without permission on a website.

You do not have to register with the USCO to use the DMCA. And if the copyright violator removes your watermark, name, copyright notice, or contact information, you may qualify for a statutory award from $2500-$25,000 for each violation.

You still keep the same copyright protections. It will not be a part of the public domain unless you make it that way.

Social media platforms such as Facebook, Instagram, and Twitter have terms and conditions that give them limited licenses to use your images. But these limited rights stop at the platform and its users are not licensed to take your work without permission or payment.

What Should You Do If Someone Uses Your Photography Without Your Permission?

Sometimes you must do damage to recover damages. Here are your six options just remember the acronym DAMAGE:

1. D-Drop It

Is it worth your time and effort? Often the answer is no. If the infringer is in a foreign country where photo theft is rampant, then it might be almost impossible to enforce your copyright. Also, think about the exposure or traffic. Many times, pursuing small websites is a colossal waste of resources.

2. A-Ask for a Photo Credit

Maybe the use was by mistake, or the usage aligns with your brand. You can request that the infringer give you proper credit. It may be a prominent source for marketing or a means to attract new clients.

If the offender is a reputable company, they could even be a future client. Don’t forget the link back to your website. Also, make sure you’re clear about the parameters of usage. It’s best to get that in writing.

3. M-Make a DCMA Take-Down Notice Claim

You can do this in 4 steps:

  1. Screenshot your photo on the infringer’s site.
  2. Determine the website’s host. Who Is Hosting This can help. Type in the domain name, then look under the hosting provider or the Whois Record for the web host.
  3. Find the Copyright Agent, that’s the person you send the document to. Google search web host’s “Legal” or “Terms of Use.” Or you can search the USCO Directory of Copyright Agents.
  4. Write your takedown notice. Some website hosts have a form letter. Here are Facebook, Google, Pinterest, and WordPress. Your take down notice must include: * A physical or electronic signature from you the copyright holder or your representative * Sufficient identification of the infringed material (e.g., your screenshot) * Location of the infringed material (i.e., the website that has it) * Your contact information, including your address, telephone number, and email. * A good faith statement that the infringer may not use your works. * A statement that the information you provide is accurate under penalty of perjury.

If you’ve followed the four steps, the web host should take down the images.

4. A-Assemble a Cease and Desist Letter

Perhaps, the infringer is innocent or potential new client. You may reach out with a letter and explain the uses unauthorized. You can then request payment of a licensing fee, a photo credit with a link to your website, or that the infringer takes down the image. Send your letter in snail mail does a better job than email.

It’s common for photographers to ask for three times their regular licensing fee to resolve the situation. Just remember you’re not limited to this amount. Your copyrighted photos registered with the USCO are eligible for both actual and statutory damages.

There is some risk to this option because the infringer may preempt you, or your request for payment could be hinder what you could recover if it goes to the courts. You may want to consider the next option.

5. G-Get a Lawyer to Send the Letter

You’re one step short of the nuclear option. So only do this when there is significant profit loss or reputational harm. An attorney’s cease and desist letter will often carry more weight with the infringing party.

You may find a lawyer who charges a flat fee to send a letter. Other lawyers will want a contingency or percentage of whatever they recover. Or the lawyer fee could combine both.

6. E-Enter the Courts

This is your last resort when the previous five options won’t cut it. You want to focus on an attorney with intellectual property and copyright expertise. Associations like the professional Photographers of America might point you in the right direction for a local attorney.

Many attorneys will not take your case unless you register your photo with the USCO. You must register before the infringement or within three months of first publication. You have three years from the date of the violation to pursue a lawsuit.

You got the copyright rules and all the legal drama without even watching an episode of Law and Order.

Here’s a final important lesson. Removal of watermarks or metadata is one way to show “willfulness,” meaning the infringer had knowledge of the copyright but acted with reckless disregard. Willfulness qualifies you for enhanced statutory damages (i.e., more money).

You can protect your photos today with our free watermark software SnapSentry.

Frequently Asked Questions

  1. What is a watermark?
    A watermark is a superimposed, transparent message on a picture or image (usually a signature, stamp, or logo).

  2. How much is the copyright registration fee?
    It costs $35 or $55 to register up to 750 photos at once depending on the selections you make with the USCO.

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