The Sad Truth About Filing a Copyright Lawsuit Against Stolen Photographs

Almost every photographer has found one of their images reproduced online without their permission. The first question you might ask yourself is "how much money can I get for this infringement?" However, copyright law can be extremely difficult to understand and there are many common or case law rulings that factor in on how an image can be used fairly or commercially. In this fascinating video, the guys at RGG EDU sit down with Joe Naylor with Image Rights and fine art photographer Peter Coulson to discuss how photographers can protect their art.

This round table discussion is incredibly fascinating, and many parts of it might make your blood boil. Did you know that without registering your images with the U.S. Copyright Office, you are effectively throwing away your ability to be awarded money for statutory damages? Even though you technically own the copyright on any image you create the second you push the shutter, it is much more difficult to win a settlement if your images have not been registered within three months from the time they were first published. In a court of law it is nearly impossible to prove how much monetary damage you have lost by someone stealing your images, but if your images are registered with the copyright office, you can claim statutory damage which has a set price per violation. Furthermore, registered images also open the door for you to recoup your legal fees which might not otherwise be negotiable.

One of the most talked about copyright infringements in recent times involves appropriation artist Richard Prince who has coined the term "rephotography." Late last year, Prince made headlines by screen capturing images off Instagram and selling them for over 3 million dollars in a N.Y.C. photo gallery. Most of the images stolen were from Suicide Girls but another unlucky photographer affected by Prince's copyright experiment was Peter Coulson. As Coulson discusses in the video above, his image was sold for $90,000 which makes it a lot easier to quantify the damages caused by Prince's infringement. Unfortunately Coulson's images were not registered within the U.S. Copyright Office and it looks like his battle in court might not be worth the agony of fighting someone as educated as Prince. At the time of writing this, Prince has not been found liable in a court of law for his latest Instragram project.

This interview hosted by Rob Grimm and Gary Martin is pretty interesting, and Naylor has some interesting perspectives on the do's and don'ts as related to photographer's copyright protection. After listening to the full discussion, what are your thoughts on protecting your art and securing your infringement claims?

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13 Comments

michael andrew's picture

deleted

Patrick Hall's picture

This is the most confusing comment every Michael. If everything you just said is wrong then just pull this comment altogether. All the edits are hard to keep up with.

michael andrew's picture

Great post by the way!

michael andrew's picture

Here is the rule in the book:

EDIT!

Found the whole thing here:

https://www.law.cornell.edu/uscode/text/17/412

In any action under this title, other than an action brought for a violation of the rights of the author under section 106A (a), an action for infringement of the copyright of a work that has been preregistered under section 408 (f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411 (c), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for—

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or

(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

Eric Mazzone's picture

Here's an easy and novel way to make Prince's infringement hurt, even if it won't be directly monetarily. Find him and beat the living snot out of him. His hospital bills should cost him the amount he made on the image stolen.

Chris Adval's picture

I'm not sure if photographer Daniel Morel registered with his country's copyright office, but he did win his court case against Getty but still owed legal costs. Just thought it would be interesting to share the article from SLR Lounge on this case. - http://www.slrlounge.com/photographer-wins-1-2-million-lawsuit-agence-fr...

and this article by PDN regarding the legal fees - http://www.pdnonline.com/news/Court-Rejects-Daniel-Morel-s-2-5-Million-C...

And very interesting statement by the when he tried to get his legal fees reimbursed - "Morel fought a fair fight and won. The fact that this was a close case on the merits, involving novel legal issues, persuades the Court that the purposes of the Copyright Act are not furthered by awarding fees and costs," Judge Alison J. Nathan of the US District Court in New York City wrote in her decision rejecting Morel's request.

Additionally she added, "district courts are disinclined to award fees in cases that are close calls or which present novel legal issues or theories."

Rob Mynard's picture

Does any country other than America require you to register your copyright? I've never heard of such a thing here in Australia... It seem s insane to pay to register for copyright you already own...

UK doesn't, it's yours automatically but you also lose the damages multiplication factor as well. So they're only ever pay the cost of the image, that's from my understanding when data was leaked from a RIAA troll on their analysis of UK Law and something they really didn't want in the public domain.

Of course you can claim loss of earnings and other factors, but it's a long laborious procedure and is judged on a case by case merit.

Patrick Hall's picture

A friend of mine was saying that in China (one of the countries Joe said was impossible to win lawsuits) they actually honor copyright and patent applications to those who file first. In the case of our Flash Disc which has already been ripped off by at least 3 companies in China, we might not even own the copyright in China even though we have a patent awarded to us in the US dating back to 2012.

Rob Mynard's picture

From what I understand this was the way the American copyright office started out in order to allow American companies to "steal" other countries patents. It was done to boost the American economy and lower the amount of importing while the country was still growing.

Daniel Morel registered his Haitian earthquake photographs (including the eight that were infringed by the media, including Getty & AFP) with the US Copyright Office via a published copyright registration application (VA0001701374; February 24, 2010; Title: “Haiti Earthquake - First Day January 12, 2010, Daniel Morel Photos.”)

Even though Getty & AFP were found to have willfully infringed Morel’s eight photographs, the court, unfortunately, chose not to award Morel his attorney fees and legal costs (I think that alone came to about $2.5 million)

Rob Mynard's picture

I don't think its cheap at all. From what I understand (and I'm from Australia so I only have anecdotal knowledge of the US copyright procedure) it costs US$35 per image, which doesn't sound like a lot initially but if I shoot 30 weddings a year and supply 800 images per wedding then I'm up for US$840,000 per year to copyright my images... i would need to charge US$28000 per wedding just to cover copyright costs... or do people just pick and choose which images they want to retain copyright on and leave the rest unprotected? I imagine there must be a bulk discount but even if thats the case, thats still a lot of images to supply the copyright office with...

Rob Mynard: Australians, along with US-based and other international photographers, can currently (2017) register an UN-limited number of UN-published images with the US Copyright Office: Use the eCO (the on-line registration process) at US$55 “Standard Application”: https://www.copyright.gov/registration/ (If you only need to register a single photograph where there’s only one author/photographer and that’s not part of a WFH agreement, it’s US$35; otherwise, and also with two or more images, you’ll have to use the US$55 Standard Application.)

“UN-published” means BEFORE the images are distributed, licensed, sold, shared, etc. to clients and others. I just recently “registered” (don’t say “copyrighting”; it’s incorrect!) 1804 UN-published photographs for US$55.

You can NOT mix published and UN-published images in the same registration! You can also register groups of published images (that’s a topic beyond the scope of this discussion).

It’s also possible to only register your best images; but, undoubtedly, the couple/client will choose images that you thought were marginal. That’s why I register ALL my assignment/stock (wedding/portrait) images.

It’s advisable to include a title (aka “content title”) for each image you’re uploading with your Standard Application. So, if you’re registering 859 UN-published wedding images, include 859 titles (titles can include file names; most of the titles could be duplicates: Smith Wedding-Cairns-001; Smith Wedding-Cairns-002; Smith Wedding-Cairns-cutting cake-001; Smith Wedding-Cairns-cutting cake-002; Smith Wedding-Cairns-couple portrait-001; etc.). You can use shorter titles or just the file name if you’re rushed to complete your eCO registration.

Ideally, you want to have a robust registration that contains lots of key wording (information) about your registered images so third-parties can locate you when your name is missing from your image and an Internet reverse-image search is not finding you (re: orphan works).

This link helps explain why Berne Convention international photographers (Australian, Japanese, UK, Germans, etc.) should “timely” register their photographs with the US Copyright Office; “timely” means” before the infringement occurs or within three-months of first-publication: http://donahue.com/resources/publications/copyrights-registered-u-s/

US and International photographers who choose NOT to timely register their photographs with the US Copyright Office, at the very least, should affix watermarks and include metadata (your website and social media handle) and other identifying copyright & licensing information to their posted images (aka “Copyright Management Information”/CMI per the US Copyright statute). If an US-based infringer removes or changes any CMI to hide a copyright infringement, photographers are eligible to pursue statutory damages from US$2,500 to US$25,000. Good News: Whether you’re located in the US, UK, etc., it’s not necessary to timely register your images to pursue CMI legal actions! I’m seeing more and more attorneys using this strategy to pursue US infringers: http://www.photoattorney.com/options-recovering-infringement-damages/ (If you’ve also timely registered your images, you’ll have additional leverage against the infringer to pursue enhanced money damages.)