Copyright is a largely misunderstood and important area of the law for photographers.
Not only do we have protections in our logos and our own marketing assets, but we’re also selling (licensing or copyright transferring) photographs as our product.
It is time we STAND up for ourselves. IF WE DON’T, WHO WILL?
Do I own my photographs?
In the United States, (generally) when you create the photograph you are the copyright holder.
Keep in mind, although you may own the photographs, you can’t always do what you please. If people are recognizable in the photographs, you’ll need a model release giving permission for use in your marketing.
Do I have to register my photographs?
No, but if you want the strongest protection for your photographs, YOU NEED to. You’ll see the benefits why as you read on! We highly recommend putting it into your cost of doing business – because it’s not IF it is WHEN infringement happens.
When should I register my photographs?
Always! And before infringement (unless within the grace period from publication).
What does registering my photographs do for me?
Oh, what doesn’t it do?
- Prima facie evidence you’re the owner
- Strong threat to infringer that you can file a federal copyright infringement suit at any moment
- Makes it harder for the infringing party to ignore your demands
- Makes DMCA takedowns easier
- Money, money, money
Money, money, money needs a full explanation!
- Unregistered photographs (meaning you haven’t taken the steps to register at Copyright.gov) will have demands limited to actual damages. Actual damages can include = lost profits by you (licensing), disgorgement of profits by infringer. The downfall with relying on actual damages is that these can be very little return and very cost prohibitive to enforce.
- Registered photographs (you have registered the photographs) = statutory damages of up to $150k PER IMAGE PLUS ATTORNEYS’ FEES. This allows you to shift the risk of legal action and the strength of argument onto your infringer.
What if someone infringes and I haven’t registered my photographs?
That’s okay! You can still pursue. You definitely need to talk to a lawyer. Just consider your damages will be “actual damages” (as outlined above) and not statutory. Plus, it’s easier for the infringing party to ignore your demands!
Should I rush to register once I find infringement?
NO – talk to a lawyer to review. We may need to do specific and special registration to ensure full protections. We do this work under our law firm at Eden Law.
Should I watermark my images?
YES – watermarking allows for return marketing benefits but also provides strength *when* your photographs are infringed. Removal of the watermark can demonstrate intention by the infringer and provides an automatic $2500 claim for removal of this CMI on top of the infringement demand you can make for the distribution/reproduction of the photograph.
What do I do if someone infringes?
We have all the available steps outlined here IN THIS ARTICLE.
Does a lawyer have to be the one to send demand letters?
Nope – you can do it yourself! Typically, a lawyer is going to yield better results (more money and preservation of your claim), but you can do it on your own. Check out: DEFENDIT- Our Copyright Infringement Demand Letter kit.
Can I sue infringers in court?
Yes, but it is federal court. It is not small claims. Keep that in mind – and that’s why registering is so important. You have to have it anyways to file, but wouldn’t you want an attorneys’ fees demand threat on that table also?
Should I submit a take down notice?
NOT until you document all evidence and talk to a lawyer!
What if I can’t afford a lawyer?
Well, first, if you’ve done registration, you’ve already set yourself up for an attorneys’ fees demand. But consider seeking out law firms (such as Eden Law) that provide flat fee and/or contingency-based fee arrangements.
If you want to DIY your own demand – we have a copyright infringement kit here.
What if my client had the photographs reprinted without permission?
We don’t typically recommend pursing clients that went outside the bounds of the license, but you can definitely pursue the reproducer!
What if a company shared it on their Facebook or Instagram?
We have all the available steps outlined here IN THIS ARTICLE. Keep in mind, if these companies used the native “share” buttons, then those may not be considered infringement.
What if a party shares my photograph without permission but tags me?
Attribution does not negate infringement. They still infringed if it’s been used without permission (or outside of the given license) in a commercial nature.
How do I register my photographs?
Through copyright.gov. We have a step-by-step tutorial (DIY COPYRIGHT) in our membership here.