How copyright can earn photographers extra profit when some steals a pic
Updated: Feb 1
I'm sure you've heard around the interwebs that copyright protection is automatic for your photos once you take them. That all it takes is you pressing the shutter button and you have put your artwork into a tangible form that is now protected by U.S. intellectual property law.
That's true, technically.
But having the copyright does not automatically mean your work is protected. And there are 478 pages of US Copyright Law to tell you how to get protected.
So, if someone steals one of your images and posts it on social media or their website, there's not much you can do about it without taking legal action. The good news is: copyright applications are inexpensive ways to protect your creations!
If you are creating new images or content regularly, you should probably be applying for copyright protection, which means batch copyright applications are key. Missing this step could have big consequences. Stolen images could hurt your business and even cost you money!
Bailey just got back to Joint Base Langley-Eustis after a long tour in Kuwait and wants to get family photos taken before they head off on another tour in a couple of months. Figuring time is short, Bailey books TWO portrait sessions at Yorktown beach and downtown Norfolk, each with a different amazingly talented local photographer.
Bailey meets up with Alex at Yorktown beach and a week later with Peyton in Norfolk with extended family in tow. Both sessions go smoothly. Everyone showed up on time, first payments went through without a problem. And the extended family didn't show up in matching t-shirts.
Both Peyton and Alex think this will be easy money and set up the image reveal sessions for Bailey. Turns out Bailey's cousin wants to come to both sessions and Peyton and Alex both agree.
Little did we know that Bailey's cousin is only going so she can screenshot some of the images to post on social media for a new business the cousin is starting. Two weeks later, multiple cropped images of the cousin go viral.
Peyton and Alex both know they didn't sell those images to Bailey, or their cousin. Both photographers contact Bailey and tell Bailey that Bailey (or Bailey's cousin) will have to buy the images they are already using. Bailey hands over their cousin's information.
A few weeks later, Alex has a few hundred dollars in their pocket and Peyton is still telling the story of how someone stole from a small business to anyone who will listen.
What was the difference?
Alex's lawyer sends batch registrations for all their photography images each quarter after Alex simply sends a file with all the final edited images created in the last 90 days.
Peyton just winged it.
Basically, registering your works BEFORE someone steals them allows you to get a set amount of money per each item stolen without your permission, PLUS the cost of court fees and the lawyer that helps you get that money.
The point is that if you want protection in the courts against copyright theft then you have got to get copyrights registered with the US Copyright Office. And that's what this post is all about - making sure photographers realize how much easier it is.
Read on to learn more about why...
Why real copyright protection requires registration
Well, first things first are that §411 of the law requires that any image, book, poem, blog post, website content, course content, etc be registered with the US Copyright Office before you can sue someone for copying you without permission. So let's say someone steals your image and you send them a message telling them to take it down or else.
If your infringer is a smart thief and knows that you have to register before being able to actually sue them, they will likely ignore any request to
take down your work,
pay you for using your work, or
whatever else you may be asking.
But like all things legal, it's never that simple. Because the courts disagreed over what registration meant, well until fairly recently.
The courts that decide what happens on the west coast (aka Hollywood) thought you were registered once you sent your application to the US Copyright Office.
On the other side of the country in the courts that decide what happens New York, Vermont and some other states thought you were only registered when the Copyright Office gave you an official registration back.
You see the NYC vs Hollywood fight here? Well, the Supreme Court stepped in to decide who was right on March 4, 2019.
The Supreme Court said that you need to register for copyright before you file a lawsuit. You aren't registered until you actually get the registration from the Copyright Office.
Why registrations are the best!
So what does registration allow you to do, other than sue someone in federal court for stealing your photos?
The moment you snap a photo under U.S. copyright law, it becomes protectable. However, submitting your pictures to the US Copyright Office provides two significant advantages:
Winning in federal court can get you statutory damages (meaning automatic calculated amounts) of up to $150,000 per theft/infringement instead of you having to prove you financially lost out and the thief won. BTW, that's super hard unless you are a commercial photographer or someone sold your images after stealing them.
Once the Copyright Claims Board opens between by June 2022, that small claims type system can award up to 30K in damages for folks who don't want to deal with the federal court and prefer to fight it out online.
Federal court is expensive! This is gonna be a game-changer.
The court also has the power to order the defendant to pay reasonable attorney fees, so you don't have to stress over how much a lawyer will charge to drag this to a courtroom.
If you register any unpublished work, and then subsequently publish it, it'll be covered by copyright registration. If you don't know the difference, between the 2, registering anything before putting it out to the public will be the safest bet.
Hot Tip: If your work is regularly winding up in magazines (online or physical), it's more likely to be stolen. Be sure to register AT LEAST these images before the magazine is released.
Social Media fun
Here are some other big benefits on the social media platforms.
Fight the social media networks if someone reports YOUR work as copyright infringement (cuz haters gonna hate sometimes) and get your posts back up ASAP
Add your key images to the Facebooks Brand Rights Protection tool (after you get a trademark too) so you can be super proactive about guarding your intellectual property
Now that you're convinced of the fun of registration, do you have to register EVERY SINGLE IMAGE ONE BY ONE? Fortunately, no. There's batch registration for copyright applications.
What's a batch registration?
Photographers, content creators, artists of all kinds CREATE.
And they create a lot.
On any given month a typical family photographer could be showing clients upwards of 2000 images. Fortunately, you don't have to file for every single image.
A batch registration lets you submit a bunch of images from the same owner at one time. It saves everyone a lot of time and money.
Why quarterly batch registrations are the way to go
Again, it's because of the law.
Images must be registered within 90 days of their 'publication' for the owner of the image to be able to sue for any infringement that happened at any point after the publication. But if you wait 91 days, you can only sue for someone stealing your work AFTER you got the registration papers back.
So if someone steals your photos right after you publish them and you don't register for 4 months, you lose the chance to go after them for those automatic fines that are typically much higher than what you could claim otherwise.
You might want to increase monthly registrations depending on the volume of images your clients have access to. Batch registrations can include up to 750 images, so if you are giving digital galleries of 300 images for each of your 20 clients a month, the math says you need more registrations.
Even if you have an assistant or second shooter, it's a good idea to have them sign something that says everything they shoot works for hire automatically owned by your company. This way, it's very easy to file registrations for images. From both you and another photographer that was taken under your company's wings. Recent changes have made this possible to do in a single application.
What if someone stole my image and I didn't register?
Your best bet might be to register ASAP. And take your case to the Copyright Claims Board once it opens in the next 6 months or so. Thanks Copyright Alternative in Small-Claims Enforcement Act of 2020 (the CASE Act)!
But can ONLY get what lawyers call 'actual damages' from someone stealing your work because it wasn't registered, which means only financial harm you can prove with receipts like you were claiming a refund at Target.
A portrait client screenshotting an image they didn't pay for and throwing it up on Insta probably isn't going to get you much to even be worth your time. But if you want to prove a point and have the time, this is a MUCH more affordable option than federal court.
Photographers know that they need to protect their work from being stolen, but many don’t realize the importance of registering a copyright. Registering your image may be just as important as protecting it in other ways because although you can still get actual damages for using an unregistered photo at the CCB or in a federal courtroom, it may not be worth your time to get such low sums of money. Batch registration is available so photographers can register every month or quarterly and not wait until someone steals their work before taking this step.
If any of this makes you say 'hmmmm' and you want to talk about your specific situation, book a Ask a Lawyer call with InLine now.
**Disclaimer: This is only general information, not legal advice specific to your situation, and does not create a client-attorney relationship between you and Samantha Bradshaw, a Virginia licensed small business lawyer, or InLine Legal, a 100% virtual law firm. If you need legal advice, please contact a lawyer in your area.