Photos Copyright Protection

“Recent experience shows that digital photographs can be changed to produce false images. … ‘No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification. … [H]ackers can adulterate the content of any web-site from any location at any time.’ ” Quoting from the decision in St. Clair v. Johnny’s Oyster & Shrimp, Inc. (76 F. Supp. 2d 773 (S.D. Tex. 1999)),California Court of Appeal Judge Arthur M. Lew finds that the prosecution’s failure to verify a photo and “gang roster” from the Internet should have prevented the evidence from being admitted at trial in People v. Beckley (185 Cal. App. 4th 509 (2010)).

Protection of the Owner photos

• Register the owner copyrights to the owner photos. When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. (1)(2)
• Put the owner copyright notice on or adjacent to each of the owner images. The official copyright notice has three parts: the first part is the © (the letter “c” in a circle), the word “Copyright,” or its abbreviation, “Copr.” The second part notes the year when the work was first published. The third required part of a copyright notice is the name of the copyright owner. (3) (4)
• Put the owner copyright management information in, on and/or adjacent to each of the owner images. See below.(5)
• Make it more difficult for others to use the copyright owner photos without the owner permission. First, the copyright owner should disable “right-click” so that novices cannot easily copy and save the owner images. Second, the copyright owner should read the terms and conditions of any website where he or she may post his or her images or contest, to make sure that the owner is not giving up rights to which you’re not aware.
• Prosecute unauthorized uses of the owner images. Many people think that they have a right to use the copyright owner photos or they won’t be caught if they do. Fortunately, there are many tools to battle copyright infringement.

One easy option is to prepare a DMCA Take-Down Notice. Thanks to the U.S. Digital Millennium Copyright Act (“DMCA” ) enacted in 1998, the Internet Service Provider (“ISP” ) that hosts a website is not liable for transmitting information that infringes a copyright only if the ISP removes the infringing materials from a user’s website after receiving proper notice of the violation. The notice must: be in writing, be signed by the copyright owner or the copyright owner’s agent, identify the copyrighted work claimed to be infringed (or list of infringements from the same site) and identify the material that is infringing the work. Additionally, the notice must include the complaining party’s contact information, a statement that the complaint is made in “good faith,” and a statement, under penalty of perjury, that the information contained in the notification is accurate and that the complainer has the right to proceed (because he is the copyright owner or agent).

Another option is to prepare a “cease and desist/demand letter” . When the copyright owner does not want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer), the owner may want to contact the infringer to explain that the use is not authorized and either request payment of an appropriate license fee, a photo credit with a link to the copyright owner website, or that the infringer cease use of the image. It’s best to do this in writing – a letter by surface mail seems to have more clout than email correspondence. There are some risks in sending the letter oneself. First, the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may involve the copyright owner in a legal action for which the copyright owner may need legal counsel in a jurisdiction (court location) where the owner may does not want to litigate. Second, the copyright owner demand for payment may be admissible against himif an infringement case is filed. If the owner demands too little, then it may limit the owner ultimate recovery. To avoid this possibility, include in the copyright owner demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”

The copyright owner most aggressive option is to pursue the owner legal remedies by filing suit. Unless the copyright owner has a breach of contract or some other state claim, he or she must file the owner infringement claim in a federal district court. To file suit, it is best to hire an lawyer to help, because the legal procedures are complicated. Note that the copyright owner has three years from the date of infringement to sue for copyright infringement.

In relation to the owner copyright management information in, on and/or adjacent to each of the owner images, Copyright management information (“CMI” ) “means any of the following information conveyed in connection with copies of a work or displays of a work, including in digital form (such as in the metadata of the copyright owner photo file):

• The title and other information identifying the work, including the information set forth on a notice of copyright.
• The name of, and other identifying information about, the author of a work, or
• The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.

Resources

Notes

1. Courts usually calculate actual damages based on the owner normal license fees and/or industry standard licensing fees. The owner of the rights also may recover the profits the infringer made from the infringement if they aren’t too speculative. Unfortunately, actual damages usually don’t amount to much so that lawyers will not take the copyright owner infringement case on a contingency basis.
2. If the copyright owner of the photo is timely registered for an infringement, he or she will be eligible for statutory damages of up to $150,000 for a willful infringing use. See 17 USC §504(b) and (c). Legal fees and costs also may be recovered from the infringer. See 17 USC §505. Additionally, the copyright owner needs to have received the owner registration certificate to file a complaint for a copyright infringement lawsuit in most jurisdictions.
3. The final form looks like this: © 2017 John Doe. The copyright owner may use the copyright notice without registering the copyright owner images with the U.S. Copyright Office. Including a copyright no¬tice is no longer required for copyright protection, but it is a good idea to use it.
4. When the copyright owner use the copyright notice it may stop someone from stealing the owner photographs, either because it serves as a reminder that the work is protected or because the notice interferes with the use of the work when it is part of the photo. When the copyright owner post a copyright notice along with the owner registered images, then the infringer cannot claim that the infringement was innocent (reducing the damages to as low as $200 per work) and the court is more likely to find that the infringement was willful, supporting the maximum in infringement damages.
5. Section 1202 of the U.S. Copyright Act makes it illegal for someone to remove the copyright owner CMI from the owner photo to hide the infringement. The fines start at $2,500 and go to $25,000 in addition to lawyers’ fees and any damages for the infringement. The copyright owner doesn’t have to register the owner photo in advance to recover under this statute. So, if possible, the copyright owner should put his or her CMI as a watermark on the owner photo and in the metadata of the owner digital file (be careful that the owner CMI is not removed when using the “save for web” function).