Image Copyright Protection

Something that a lot of photographers are failing to do here in the US, is register their images with the Copyright Office. They think because their images are automatically copyrighted as soon as the image is created, that they are protected. I found out the hard way a couple of years ago that this isn’t totally true. Yes, our images are copyrighted and fall under the U.S. Federal copyright laws. But, as I found out, being protected AND being able to use that protection isn’t always possible.

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I found out just how little the copyright protected me when I had one of my images taken off my web site and used without my permission for commercial and financial gain. I could have taken her to court and though both IP (Intellectual Property) lawyers I talked to said my case looked pretty clear cut, the cost of doing this might run up to $50k if she wanted to be stubborn. I found out that she was worth several million dollars, which was why she probably did decide to be stubborn and see if I would sue her over it. Even if it never went to court, just the cost of starting the proceedings was going to run several thousand out of my pocket. Several thousand that I didn’t really have to throw away if I didn’t get at least my costs back. I did get her to pull the picture from the 12 month ad she had taken out in a national magazine with it, but that was about all. Even the magazine would not pull the ad out of it unless I got a court order, which I would have paid for had the woman not cancelled her ad.

Even though it was a bitter pill to swallow that I really couldn’t do anything, this did turn out to be a learning experience and a wake up call. During this time I was taking 10’s of thousands of pictures a year, with most of those being on my web site and viewed by a lot of people. I thought I was covered by my copyright. What I learned from this was though I was protected, to really be able to take advantage of that protection you need to have your images registered. To register your images you have to fill out a form, put your images on a CD and send them into the Copyright Office along with $30. While it can be a little daunting the first time, it really is as easy as it sounds.

There are some caveats though. You have to have registered your images BEFORE an image is infringed upon to be able to get the special protection this gives you. If you publish your images (which is basically selling, renting, leasing, etc. - it doesn’t mean showing them to the public, having them on your web site or even having them published in a publication as long as you weren’t paid for it) you have 90 days after they were published to register. After 90 days you can still register (and you should) but you don’t get the special protection. If they have never been published, you can register them anytime after creating them. If you do get infringed on and don’t have your image registered, but want to sue anyway, you have to register it before you can sue - you just won’t get the special benefit.

So what is the special benefit? It’s worth all the trouble and effort it takes to register. If your images are not registered and you sue, you pay your legal fees and court costs. As I said above, this expense can go pretty high in Federal Court. The IP lawyers (Intellectual Property) don’t come cheap and there is no small claim’s in Federal Court. Even if you win, there are no assurances that you will get a judgment that will cover your costs. You might win and get no judgment at all. So your pride will be satisfied, but your pockets will be very empty… unless you have deep pockets.

Now if the same thing happens and you have that image registered? The benefit is that if you sue and win, regardless of if you get a judgment or not, the infringing party gets to pay ALL court costs and legal fees for both of you. And this is paid to the court, which have their own way of making sure they get the money owed them. If someone infringes on your copyright and they find out the image is registered, the chances are that they will agree to pay you what you want, just to keep it out of court. I know this works too, because the 2nd time I was infringed on for commercial use, that image was registered. I charged her 3 times the commercial rate of the image if it had been used legally (this is one of the recommendations of an IP lawyer). I told her to check with an IP lawyer on what the consequences were if I took her to court. I gave her information on where she could pull up my copyright info on the Copyright Office website database and gave her a deadline. Within the deadline I got paid the $975 that I stipulated, plus the deletion of the image from her web site.

I don’t lose any sleep over the occasional use of my images by teenagers and grandmothers and people that just think the images are cute and want to use them for a screen saver or a background on their computer. Or maybe an image on their e-mail. This kind of usage will never stop, although I do try to educate them if I find out people are doing this, even if it’s not one of my images. But when someone takes one of my images and uses it for profit or for other commercial uses, then I go after them with everything I can. I found the biggest bullet I can have for this battle is having my images registered. Any images that see the light of day on your web site or in forums like this should be registered. You might never have a need to use the protection you get from being registered, but the first time you do, you will be very glad you did. I know I’ve made more from registering my images than I have playing the lottery.

Here is some information on registering your images.

The web site to go to is: http://www.copyright.gov/

The areas you want to look at are “About Copyright” and “How to Register Your Work” in the “Visual Arts” section. Photos and digital images fall under Visual Arts.

Under “Publications” and “Forms” you will find the VA form that you need to fill out. If all of your images are the same category, either all published images or all un-published images, you can use the VA Short form. That is a single page. You can print it out from the “Forms” area and fill it out in about 10 minutes. I have a full version of Acrobat so I can type my information into the form on my computer first and then print it out. This makes it easier for me. But it doesn’t take long to fill out with a pen either.

There are several good references in the “Circulars and Brochures” under “Publications” also.

Basically, what you want to do is put all of the images you want to register on a CD. Put them as jpegs that are at least 800 pixels or so on the long side and about 35k or so in size. If you only have a few images, you can make them bigger if you want. The key is to have them big enough that if you have to compare them with the image in question, there is no doubt that they are the same. A LOT of images will fit on a CD.

Put a label on the CD with your name and address and the same title you gave the collection of images on the VA Form.

You can put them in folders on the CD if you want. I do this if I have several different categories, like Scenic, Dog Show, Indoors, etc. If your images are published, send two CDs. If they are not published, you only have to send one CD.

Fill out the form. Write a $30 check. Send it all to the Copyright Office. Use Delivery Confirmation. With Delivery Confirmation you can look up on the USPS web site and see when your package was delivered. When the info is posted that it was delivered, I print the screen off and put it in my files with a copy of the form and one CD. The day they are shown as delivered is the day your registration takes affect. In about 3 months you will get a certificate of registration. A couple of months or so after that, you can find your registration in the Copyright Office website database.

That’s about all there is to it.

As a final note, I want to say, I’m not a lawyer. I’ve done a lot of reading and talked to a couple of IP lawyers about this. But I might have something wrong, or it could have changed or I might have missed something. If you have really important images, or want to make real sure it’s all done right, there are lots of IP lawyers that do this as a service. I’m sure they will be glad to help you.