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.
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.