Recently, a member of the SLRL community wrote to me and brought to my attention some trouble she was having with license/copyright infringement of her images. In a nutshell, she had, for the first time, come to realize some of her images were being used for commercial purposes without her knowledge, much less her consent. What should she do, she asked, to which I responded in the absolute most disconcerting way, “It depends, but don’t get your hopes up.”
Of course, I expanded, but this is the current state of affairs when it comes to copyright and fair use – the misuse is rampant, and the system to tackle it is not, at this time, structured in a way that really favors the producer/owner, at least not in photography. The internet created a scenario where the factors of production allows for such an ease of distribution, and of discovery, but it’s also tremendously easy for photographic work to be lifted for improper use.
The propagation of material on such a scale sort of inherently lends itself to the proliferation of what is often classified as ‘theft’, and it’s just so hard to handle. In fact, it’s probably safe to assume that if you’re a photographer of some notoriety, your work will be used somewhere without your permission, and if it hasn’t happened yet it will soon, or it already has, and you just aren’t privy to that knowledge yet. So again, what does one do? If you think a request to will do the trick, don’t kid yourself.
Well, you could copyright your work, and if you shoot for a living, I highly recommend you do so. Some would come out and argue that you shouldn’t have to go through that process with the cost attached because you own the image if you took it. To that, I would say you’re possibly confusing knowledge and wisdom. Knowledge will dictate that you are, in fact, correct, that you own the copyright when you take the image, in a sense, but that’s certainly different than registering copyright with the United States Copyright Office (USCO), or your country’s equivalent; Wisdom suggests that knowing something and proving it legally are two very different things.
Without copyright registered, the task of legally pursuing an infringement case is more difficult, less financially rewarding, and generally carries less weight behind it. It also will be more costly to pursue from the beginning because if you’re not registered, at least here in the US last time I checked, you won’t have recourse to statutory damages nor recourse to legal fees incurred.
This alone makes the case for copyright that much stronger because legal fees amount to tens of thousands very quickly, and lawyers are often apprehensive or entirely dismissive of your case if what you seek is small, and if they aren’t more certain their fees can be paid. If you’ve got some shark in a suit on retainer, great, but that isn’t the case for most. Seeking an attorney will be more fruitful if your work is actually copyrighted, and if you want a good service to do it with, I highly suggest spending some time looking into ImageRights, and you can see our review of their service offerings here.
The trouble is, depending on the scenario, even with copyright registered, you could still be in ‘Barney’. The dear reader with the dilemma had sadly not registered copyright for her work, but honestly, it didn’t matter in her case because the source of the infringement was in China and having had this issue myself with a camera company in Hong Kong, I knew she was fighting an uphill battle from the start.
Once the infringement occurs over the border of another country, especially if it’s not a large or established business, it’s often extremely difficult for a resolution to come your way if they resist an initial request to take down the work. The legal lines become that much more blurred and to focus them costs. Of course, should this be an entity worth taking on having copyright registered will again help, so I again suggest this is something you look into. The other thing I suggest is, to educate yourself and the people around you on copyright and fair use. This is the long shot but still one worth firing.
When you have a company like Google issue a statement that they received some 76 million copyright takedown requests in February this year, doubling up from the year prior, you know the system is not working for those that produce the material. However, that’s such an astronomical number that it suggests something else may be going on also, that some violators don’t really know they are doing it, or what it means to those who create the content. In fact, I know photographers who infringe upon fair use and copyright without knowing, and a broader base of education would likely go a long way to help, and possibly push policy. So I recommend you educate yourself and others around you, including clients.
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You can refer back to commonsensemedia.org and Phil Goerner, an adjunct professor with the University of Colorado at Denver in the School Library and Instructional Leadership program, who recently wrote a post tackling education of this sort of subject, and even included a link to a slideshow he uses for students. It’s to the point, and even a quick run through is worth it. You can find the slideshow here and Goerner’s post here.
Also, check out the video below and look into ImageRights as an aid in your copyright solution.
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