August 8th, 2011

Outdoor Photo Expo: Understanding Copyright Protection

At the seminar “Copyright: Know It or Blow It” conducted at the Outdoor Photo Expo, held August 4-5 in Salt Lake City, agent Debra Weiss and photographer and former stock agent Patrick Donehue offered advice on how photographers can protect the copyright on their images – and also how to avoid being held liable for infringing on another artist’s work.

“What’s going on the internet is like the wild, wild west,” Weiss said during the seminar, which was sponsored by APA National. She quoted a statistic that as many as 85 percent of images on Web sites and blogs may be infringed.  She noted, “There’s so much theft with images today and it’s important to realize their value. Having one of your images stolen is just as damaging as getting your car stolen.”  To back up her point about the proliferation of image infringement, she cited a variety of recent examples and court cases. These included the “appropriation” of images by artists such as Richard Prince, whose famous “Cowboy” series directly copied ads for Marlboro shot by photographers like Sam Abell and Jim Krantz. She also discussed infringement in the commercial realm, including examples of advertising clients hiring photographers to copy other photographers’ work. She also cited the recent suit filed by photographer David LaChapelle against pop singer Rihanna, alleging she viewed his images, then used them as the model for images recreated in her recent video S&M. (See “LaChapelle Wins Pre-trial Motion Against Rihanna.” )

When it comes to protecting your work against bloggers or other online infringements, the panelists noted that one solution is to simply cover the image with a watermark. The best legal remedy, however, is to register the copyright on your images. Though it can be daunting to copy and register each image you shoot, Donehue said every photographer should establish a system to register thousand of images in sizable chunks as part of their workflow.  Though your copyright begins with the moment you create a photo, you have to register your copyright with the US Copyright office (at copyright.gov) before the work is infringed in order to sue an infringer for statutory damages and attorneys’ fees. If your image has been infringed, but you have not registered the copyright,   you are only entitled to receive the value of your infringed work –which, in the case of online infringement, may be a small fee.

Donehue noted that a $35 registration fee and filing a copyright registration form can cover thousands of images. Donehue also said it’s possible to register several bodies of work at the same time, titling the groups of images separately under titles such as Personal Work Volume I 2011, Personal Work Volume 2  2011, etc. and receive a certificate of registration.

(For information on how to register visual works, published or unpublished, visit  www.copyright.gov/fls/fl107.html).

Weiss noted that it’s important to distinguish between “inspiration” and “plagiarism.” The subject matter or an idea behind a photo cannot be copyrighted, only the expression of an idea.  She also advised photographers not to become infringers themselves.  “It is up to you as a creator of intellectual property to never copy another photographer’s style,” even if directed to do so by a client.  She added that if you infringe another photographer’s work, “You could end up getting sued, [and paying] ten thousand dollars of fees.”

So what action do you take if see your work is infringed?  Weiss and Donehue had suggestions:
- Contact a lawyer right away. Volunteer Lawyers for the Arts will give you a certain amount of free time.
- The Web sites of organizations like ASMP, Editorialphoto.com and APAnational.com provide forums on copyright; many offer recommendations of intellectual property attorneys.
- Remember that taking legal action should always be a business decision. There’s a lot of time and energy invested in dealing with these cases.

–Amber Terranova