Monte Isom Shares How Copyrighting Your Photos Can Make You Thousands of Dollars Per Infringement

One of the most frustrating things a photographer has to deal with in today's market is having their work stolen or used for free. If you post images online, the chances of your work being used without your permission isn't just likely, but inevitable. How then can you as a photographer protect your images while at the same time publishing your work so you can promote your brand? In this free excerpt from our Making Real Money tutorial, Monte Isom shares the exact steps you need to take to both protect your work and recover damages caused by illegal infringements.

The idea of copyright is a highly talked about and debated topic among photographers. Most photographers know that copyright is obtained the second an image is taken or created, and that the owner of the copyright is the person who clicked the button. That seems like a simple enough concept (until a monkey takes their own portrait). The real problem most photographers have with copyright is proving the value of their work when it becomes stolen and infringed upon by someone else. 

Monte states this problem very well in the opening section of this video when he says, "What I think a lot of photographers would be shocked to know is that even though you own the copyright because you are the image creator, that does not afford you the legal benefits of statutory damages and legal fees from someone you try to go after if they stole your image."

What Are Statutory Damages?

Statutory damages are predetermined damages that a court has determined based on the type of infringement occurred. Two types of infringements are innocent infringements and willful infringements. Basically innocent infringements are those where the copyright infringer either did not maliciously intend to steal your work or if there was a reasonable reason to not know that an image was free to use in the public domain or was fair use. Willful infringements mean that the infringe clearly knew that an image was copyrighted and they purposefully and maliciously stripped copyright information, watermarks, metadata, or other markers from an image or video in order to use it commercially. The statutory damages often award for either of these types of infringements can range depending on your country's laws and how they uphold copyright laws from other countries but it is not uncommon for courts to rule up to $30,000 for a single innocent infringement and $150,000 per malicious infringements.

What Happens If You Can't Claim Statutory Damages?

Statutory damages are only awarded to content that has been registered with the US Copyright Office which I will talk about in a minute. If your work is not registered, but you still want to seek damages, you need to explicitly determine the dollar amount of money that was taken from you due to the infringement. You might ask, what determines that dollar amount? Three common ways to determine the dollar amount are how much money did the infringer steal from you by not licensing the image, how much money did your image make the person or company who infringed upon your work, and how much money has the infringer cost you in future sales of that work because of devaluing the work itself. As you can imagine, placing a dollar amount on any one of these three questions can be extremely difficult if not outright impossible.

Let's tackle the first question, "How much money did you lose by the image being stolen?" If you are a professional photographer who licenses their work all the time, it might be fairly easy to pull up a handful of invoices you have issued to publications and companies and come up with a fair market value for your licensing. Monte talks about licensing in detail in this full tutorial but generally, a photographer can expect anywhere from $200 - $5,000 per image or use per year. Those are common numbers for a single image but that is a huge range. If you have never licensed an image before, you can't simply claim that your photography is worth $5,000 if you have actually never sold an image for that amount. If you claim that your work is worth $400 then it's probably best to just settle out of court anyway because your lawyers' fees are going to be at least $400 per hour. So as you can see, this is not a very great way to put a dollar amount on your infringement even if you are experienced at licensing your work.

Now let's look at the second question, "How much money did the infringer make off my stolen image?" This question is probably even more difficult to place a dollar amount on than the first question. If the company that stole your work is a website or blog, you might be able to figure out the pageviews on that article but as a seasoned blog owner myself, I can tell you that any single article on a website probably only makes between $20 - $1000 max. Just because a website has Google Ads or other advertising on it doesn't mean that single article is bringing in tons of money. It's also hard to definitely say that the entire article is making money because of your image and not because of some other content. Imagine now that your work isn't on a blog but rather it's the 3rd image on a hotel's marketing page or a wedding venue's website. How are you going to prove that 5% of all bookings to the hotel or venue are caused directly because of your image? The truth is you can't make that correlation. Unless your image becomes the flagship image used for some major commercial advertising plan, it's going to be extremely difficult to figure out how much money someone has made directly because of your infringed upon work.

Finally, the last question we could look at is "How much money have you lost in sales because of someone devaluing your work?" This might sound like a strange question but it is very common in today's world of memes and viral media. Monte explains in the above video how a company devalued one of his images by using it in a derogatory way that will always be associated with the negative usage. You might have an image that is twisted, manipulated, or just given a negative spin that will forever make that image worthless to other companies who might have paid good money to use that image. If you have licensed the particular image in question, you might be able to come up with a real monetary value for this situation but if it's just a pretty picture of a flower or sunset it is going to be much more difficult proving the value of that photo versus something like the viral image of Beyonce at the Superbowl. 

As you can see, proving the value of your images from any one of these three perspectives can be extremely difficult and many times outright impossible. Luckily these questions only have to be answered if your work is not registered with the Copyright Office and you are not able to take advantage of the statutory damages that come with registering your work.

How To Take Advantage of Statutory Damages

The only way to take advantage of the court's copyright damages statute is to register your work with the US Copyright office. This not only gives you the ability to seek damages based on statutory damages but it also gives you the leverage to seek reparations for any court and lawyer fees need to take the infringer to court. Without having your work formally registered, you are not guaranteed a settlement amount and you are not afforded the right to ask for your court fees to be paid. If an infringer knows this bit of information (and many companies with a legal department do), many times they will simply play hard ball with you and drag their feet because they know the likelihood of you fronting a bunch of money to go to court is rare. However, if you have your work copyrighted and registered, anyone who infringes on your work in a massive way will almost always prefer to settle out of court because they know how damaging a copyright claim can be if it goes through the courts.

The best way to copyright your work is to batch upload a ton of images all at once through the US Copyright Office. Luckily you can zip up a ton of files and send them all in one simple upload. Also, works of art simply need to be recognizable so you do not have to upload the highest resolutions possible. Instead, batch export all of your images or videos as thumbnails and upload those during your application. There is no limit on the number of images you can upload at once as long as the file is below the maximum allowed size listed on the website. Each upload is between $35 - $55 per registration which will pay for itself time and time again if one single image is infringed upon. My suggestion is to batch upload all of your latest work every single month so that your copyright registration is a simple part of your workflow. It also helps to start the registration process before you publicly publish your work, and as Monte explains in the tutorial, you can actually copyright your work before sending it to your clients which protects you in the event someone does not pay you your final invoice. In many cases, you can actually seek copyright damages that are much higher in value than the actual remaining final payment they owe you from your invoice. If you can't tell by now, copyright is a very powerful legal tool to have associated with your work.

Putting Your Copyright To Work For You

Now that you are copyrighting your work, it's time to use this legal benefit to your advantage. The first step is finding out who is using your work without permission. You can simply use a free service like Reverse Google Image Search or TinEye, or if you want a more professional and automated process you can hire a company like Image Rights or PhotoClaim (used by Mike Kelley and Elia Locardi). Monte uses Digimarc to search for his images online. Once you have found an infringement of your work, you need to determine if it is worth pursuing legal action. Mike Kelley and I talk a lot about this process with our own work in the video What To Do When Your Photos and Videos Go Viral below. If the infringer is a small website, blog, or Instagram account, it might not make sense to pursue legal action if little money has been generated from the content itself.

Usually individuals have much less money than huge companies and for me personally, I have limited my infringement cases only to those who are either reselling my work for profit or big companies that are using my work commercially. A blog post by someone large like CNN is still very small compared to an advertising campaign by Adidas. With someone like CNN, it might be worth simply asking for a quick $400 while Adidas might be worth exploring a full-blown infringement settlement or court hearing. Another thing to consider is if your infringed work is being used to promote you and your brand. If so, sometimes a simple link back to your website can actually be worth more in the long term than a simple quick payout. In many cases, I will simply ask them to remove the image in question or to add a permanent link that helps my website's organic Google listing. With my viral Taser Photoshoot series, it was important to get a lot of free publicity and links initially which then snowballed into a movement that allowed me to commercially license the images to larger companies like CNN, Comedy Central, Citroen, and ABC. It's still nice when people reach out before using your images but sometimes when your work goes viral or websites use your work to help launch the initial buzz, it's not worth seeking infringements at all.

If you do decide to pursue an infringement case, the best option is always to try to settle outside of court. Settling out of court is clean, quick, and doesn't cause many of the headaches we have all associated with "going to court." Fstoppers is currently suing someone in the Netherlands over a copyright infringement case involving the videos we produce, and while it's an interesting learning experience, at the end of the day it is a stressful process that is always lingering in the back of my mind. Unfortunately, this individual was not willing to settle out of court and therefore we have had to move to a formal court proceeding. If the infringement is large enough, many advertising agencies and companies with very well known brands will quickly settle out of court because they know how big the infringement cases can become. If you add any sort of negative publicity into the mix, it's often way easier to just right a five or six-figure check and be done with it rather than risk a much longer and expensive process.

Conclusion

The big take away from this entire article and video is that you need to copyright your work. It is perhaps the most important thing you can do as a photographer. Copyrighting your work does not mean you have to go out and seek infringement damages every time you see your work being used without your permission, but it does give you a firm legal rock to stand on in the event that something very big happens to one of your images. In the full Making Real Money tutorial, Monte shares a story on how he made a cool $101,000 after seeing one of his images in a Superbowl commercial that lasted only one second. He literally made more money for that one single infringement than most people make working a full-time job all year... and he didn't even have to go to court. 

For more information about the full length tutorial Making Real Money with Monte Isom, check out the tutorial page here and you can watch the full promo below.

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29 Comments

Gabrielle Colton's picture

Yesssss I have hundreds of my copyrighted images being infringed right now... So frustrating but I hope it works out like this in the end

Gabrielle Colton's picture

I need a new infringement lawyer though, any suggestions on finding the best?

Patrick Hall's picture

Have you tried contacting the infringers directly and offering a settlement without having a lawyer involved? I've had a lot of success with that method and it doesn't add any extra lawyer's fees. If someone doesn't respond or doesn't work with me, I then ask Monte or anyone in the Making Real Money facebook group and find a lawyer that can help add the pressure.

Gabrielle Colton's picture

I have a restraining order against this individual, so I can't have any direct contact with them lol. I'll have to check out the group and see

Patrick Hall's picture

haha what in the world! Well you should have someone contact him on your behalf about a settlement

Gabrielle Colton's picture

Haha you don't wanna know. Jk you do, it's a thrilling story. Awesome I definitely will!

Jeff McCollough's picture

My problem is that my images get infringed by people in other countries.

Stephanie Macfarlane's picture

Hey Jeff, check out Lapixa.com. We find all instances of your images online and have a global network of lawyers that can help you with infringements overseas.
Feel free to send me a private message for more info

Axel Nouailhat's picture

Hi, I live in Spain. Can I copyright my work ni the US? I understood that if copyrighted in the US give you protection Internationaly but do you have to reside/work in the US in order to do it?

Stephanie Macfarlane's picture

Hi Axel,

You don't need to be a US Citizen to register your works at the US Copyright office. You can do this online and register up to 750 images (published in the same year) for, I believe $55.
Copyright registration at the USCO only entitles you statutory damages in the US, but is well worth it if your images are being stolen in the there.

If you'd like more information please feel free to private message me.

michael andrew's picture

“I don’t necessarily agree with that as a career”? Really so essentially you are saying you DONT agree with your own lawyers’ career? Because that is all he does too. What is wrong with that, cops bust people for running red lights, not people who stop at them. They don’t put red lights in controversial areas, just like people who make a living off of copy right infringement don’t put their images any where other than where they may be stolen. If they have value, and theives see that value, there you have it. I’m not sure why you disagree with this type of career...

Patrick Hall's picture

I have met photographers who take amazing landscape and stock type images and upload them high res and get them ranked on the top of google images. Their whole business plan is suing people who wind up using their images. Their career becomes issuing infringement settlements to dozens of people a week and its more like entrapment than making a living doing photography and suing a few companies here and there. That's what I meant by making it a career...is it legal? Yes. Is it a little slimey? Yes. I don't have a problem with lawyers who argue the law for a living.

michael andrew's picture

“...it’s more like entrapment...” to be fair it’s absolutey nothing like entrapment. In fact the only thing that separates them from other photographers is that they actively pursue this chaotic time we live in. “Slimey”... again if they did any percentage of other paid work
They would be EXACTLY like you, so you are criticizing people for figuring out a better way to make money. I don’t get it, I don’t get the criticism. There is a guy around my town in a wheel chair that goes around to different restaurants, finds out which ones don’t have handicap seating and has his lawyer write them a settlement letter for 2-5,000$ because of course court fees are 10-25,000$ so they always settle. By law you are supposed to have handicap specific seating. Now let’s all get mad at the guy in the wheel
Chair because he is slimey right? No, put in a damn wheel chair accessible seating and follow the rules.

Photo Kaz's picture

"In criminal law, entrapment is a practice whereby a law enforcement agent induces a person to commit a criminal offence that the person would have otherwise been unlikely or unwilling to commit."

Really, how is sharing your work online entrapment? The only ones slimy are the asshats sealing and profiting from the work of others.

Patrick Hall's picture

I agree it's not entrapment but the end goal is still to get people to steal the photo. It's one thing when you have a 2 megapixel image uploaded online vs you've put the entire 200 megapixel gigapan image online. I've met quite a few people who do this.

Kirk Darling's picture

No. If a business uses my image, they have gotten value from my work. Bottom line: They GOT value from my work.

If a photographer puts images online and a company uses their image, the first point to understand is that they got value from the work.

They could have contacted the photographer and asked for terms--but they didn't. Now the photographer wants to be paid. That is not in any way sleazy. Sleazy would be getting something from nothing. But the company did, in fact, get value from the work.

And those same companies then continue to operate in the same manner, so clearly they're happy with the arrangement.

Patrick Hall's picture

I think the slightly sleazy angle to this is the statutory payment. If you copyright your work, and Joe Shmoe uses your image for his little coffee shop website, in normal situations most photographers would license that image for $200 - $600. However, it's very easy to now simply sue that business owner for $20,000 because of the statutory damages given because of copyright.

I'm not saying you shouldn't ask for payment. I'm not saying I don't LOVE that we have statutory damage rights. I'm just saying that there are a lot of people taking advantage of small mom and pop type companies because they know the rights of the law. It's kind of like police that setup speed traps where the speed limit changes from 55 to 35 and they nail out of town people who clock in at 50 mph. They are still breaking the law, and the law is meant to be upheld, but that cop is clearly playing the system a little bit and issuing tickets to people who weren't necessarily trying to speed. Then they get the reckless driving ticket which is $400 instead of a warning or even a $150 normal ticket. I think this is a fairly reasonable analogy to what I'm trying to say.

Photo Kaz's picture

The copyright notice is posted in most places that photos are shown.

As for the speed analogy, it is fitting in a way but at the same time the speed limits are there for a reason. If you are going 50 in a 35 it's probably because it's a congested area and speeding is likely to put lives at risk. Cops enforce the speed to keep the rest of us safe. Ya, it sucks if you get a ticket but it sucks a lot more when some out of towner isn't paying attention to road signs (the speed is clearly posted, it's not a 'trap') smashes into a family.

Photo Kaz's picture

Just because someone shares full res photos online doesn't mean their goal is to have them stolen. Trey Ratcliff shares his photos in full resolution online, though his business is FAR from suing people who steal his images.

I'm the same, I'll share high resolution (usually not the full resolution files because they are just too slow). If someone wants to print it and hang it in their house, I don't care and don't need the few bucks for them to buy it. I just don't want a company to profit from my photo.

Rui Bandeira's picture

Hi Monte, as a Portuguese photographer im sorry to know that someone is using your image without paying you.
Here almost everybody thinks that as image thet is on the web it belongs to everyone
Its sad :-(

did this in 2010, made 60k euro in total. other party had to pay 130.000 euro in cost and damages. my case can be found online and is still used in other cases. as i was the first one doing this battling counterfeit products coming from china it was stressful. they used images i owned the copyright on to sell chinees counterfeit products. and yes i got paid,

Brandon Vogts's picture

I'm confused as to Monte's statement that there is "no limit" on the number of images that can be registered in a group/batch. This is true for unpublished images, but to my understanding, published images still max out at 750 per registration.

Kirk Darling's picture

The copyright online application does not limit the number of files that can be uploaded.. Yes, there is a limit of 750 published images per application. But 750 images that were worth publishing is quite a lot, even in three months.

Patrick Hall's picture

I agree, I'm sure there are some things Monte said that are technically a little off if you read the details but generally it is all true. How many people are submitting more than 750 previously published images at one time? And if you are submitting previously published images, just pay the extra $55 a few times and cover your ass.

Daniel Schenkelberg's picture

one of the best posts in awhile about the legal side of our business. thank you Monte

Kirk Darling's picture

My major take-away from this is that a lot of companies have made stealing images their normal way of doing business. They're stealing so much without penalty that even after paying off the small number of photographers that might snag them, they're still coming out ahead.

Patrick Hall's picture

I don't think most of them are doing it maliciously like you are suggesting (to save money). I think a lot of the times an intern or someone in the chain like an assistant art director at the ad agency makes a mistake or doesn't clear something and it gets published. I think Monte's story about the Lebron image could go either way but they obviously emailed him about it. Maybe they wanted to scrap the image but it was already comped in and next thing you know the agency thought the image had been licensed.

Same with websites like Buzzfeed and others where they have writers who just grab an image for their article before they head out to the bar and grab dinner...it's not a malicious thing but it happens. Fstoppers has a policy of always contacting any photographer whose image we want to use but sometimes we catch slip ups too. It's not our policy but it still sometimes happens.

The infringements Monte is talking about are usually big fuck ups by companies that are running ads and commercial usage around the world in HUGE publications, so even when someone messes up, there is a LOT of money involved and litigation makes sense.

Kirk Darling's picture

That's like saying those same writers just grab an apple from a street vendor's basket as they head off to dinner. It's that "just grab" thing. It's not hard to learn that everything belongs to someone unless they explicitly say differently.

A writer ought to know that basic thing about copyright--sorry, I don't give any creative person a pass on intellectual property theft. Any person in the business who steals another's work needs to be smacked hard, him and the company he rode in on.

Ben D's picture

The US Copyright site has "Year of Completion (Year of Creation):" as one field to fill in. Multiple years are not accepted. I'm uploading 5 years' worth of edited, published images. Any suggestions as far as this field goes?