Food For Digital Thought: Protecting Your Photographs

Even the biggest of companies try to use your photos without permission.

I’ve been an advertising and corporate photographer for forty-five years, and in that time, I’ve had my share of legal problems over the unauthorized use of my images. For some incredible reason, people think that they can just come and take my photos for their own use and not pay for them. Since I’ve spent the majority of these years in film, it was a constant issue, and one which was very hard to find out about.

I had to see my photo in a magazine, a brochure, on a billboard, or for a second on the television. The only other way was to have someone (usually another photographer) recognize my shot and call me to let me know. I once was sitting at a light and glanced over to a bench next to a bus stop and saw a photo that I knew a friend of mine had taken. I decided to call him and “lo and behold,” he knew nothing about it.

In my online class with the PPSOP, and in my “Stretching Your Frame of Mind” workshops I conduct around the planet, I’m always telling my fellow photographers that putting a copyright stamp with the year on your image does not fully protect it.  People always think it does, but I have some bad news for you…it doesn’t. Your image has to be registered with the Library of Congress to even be able to sue for infringement. Not only does it have to be registered, but also, if it was not registered before the commencement of the infringement, you will be severely limited in how much you can recover from settlement or suit.  Because most infringements of photographs involve an advertising use – and it’s virtually impossible to prove the amount of profits “attributable to the (advertising) infringement” – if the image is not registered prior to the infringement, you can only recover the license fee you could have charged for the use in an “arms-length” transaction.  Compare that recovery with what you can get if registered before infringement; statutory damages of up to $150,000 per work infringed plus attorneys’ fees, expert witness fees, court costs and interest.

I was teaching at the Julia Dean Workshop in Hollywood and made a comment on the size one of my students had embedded her name and copyright mark on her submission for review. It was too large and quite distracting. Another of my students asked me if I had ever heard of a company called Digimarc. I said I hadn’t so he proceeded to fill me in on what is proving to be one of the best pieces of advice ever given to me in my long career.

That being said, Digimarc offers a solution to protect your digital photos by allowing you to embed an imperceptible digital watermark into your image; a very simple and subtle way to help identify infringers of your image. The real beauty about using Digimarc is that they will monitor your images by continuously searching the Internet for your unique digital ids, for any infringement of your copyright.

For this post, I’ve called on my attorney to make a statement about his experience on Copyright issues. Dana LeJune is a Houston based lawyer who is one of the foremost authorities on the current issues involving copyright infringement. Here’s what he had to say:

“Copyright infringement in the areas of music, film, photography, and architecture is at an all-time high.  Home builders are hiring draftsmen (usually,  licensed architects won’t risk it) to redraw house plans, ad agencies are downloading images from Google, or scanning them from magazines, and teens are using file-sharing to pirate popular music every day, in every part of the country.   Because litigating such a case can be very expensive for the copyright holder, the contingent fee arrangement may make prosecution affordable for the “little guy.”  Here’s what you need to understand: if the work was not registered before the infringement began, the potential recovery is often insufficient for the lawyer to pursue using the contingent fee arrangement.  Without the ability to recover statutory damages and attorneys’ fees, and because of the likely inability to prove what profits were attributable to the infringement (in an advertising use), most lawyers will decline to accept the case.

The moral of the story is, REGISTER YOUR WORK REGULARLY.  Photographers have a special prerogative to register their works, en masse, so there’s not a huge financial disincentive.  Just make sure to list the name of each photo in the registration separately, even if on an attached list. This way the single registration for several hundred images will (probably) permit the recovery of multiple statutory damage awards for a single registration.

If you have any questions that are not answered by my web site, www.copyrightsuit.net, I don’t charge for telephone consultations, so don’t hesitate to ask me a question.  You may also email me at dlejune@triallawyers.net.  Good luck and wealth in the New Year!”

In closing, I want it to be clear that neither my attorney nor myself will reap any monetary benefits from Digimarc for writing this post. I have not been paid nor will be. I only care about helping other photographers protect themselves from thieves that obviously have no class.

By putting the Digimarc logo on this blog, people interested can use the promotional code “BARABAN for a discount of 20% for an image subscription. Here’s the link: www.digimarc.com/digimarc-for-images.

Visit my website at: www.joebaraban.com and check out my 2013 workshop schedule at the top of this blog. Come shoot with me sometime.

Don’t forget to send me a photo and question to: AskjoeB@gmail.com.

JoeB