Heather Elder Represents
Reps Journal

Copyright 101, Part II

This insight was originally published on May 28, 2015

If you are just tuning in, be sure to read Part 1 of Copyright 101.  Below are the rest of the answers to the questions I posed to copyright lawyer Linda Joy Kattwinkel of Owen, Wickersham & Erickson, P.C.,  Thank you Linda Joy Kattwinkel!

1) What are some of the common misconceptions when it comes to copyright and photos?
The most common misconception I encounter is the mistaken belief that your photos are not protected by copyright at all unless they are registered. Similarly, some people think a photo is not protected unless it has a copyright notice imprinted on it. Both are incorrect. Copyright law protects your work the moment it is “fixed” in a tangible form, i.e., the digital file created when you take the shot, or the film once it is developed.

Others think that because an image is already protected by copyright when you create it, there is no need to register the copyright. That is also incorrect. Registration is important for the reasons we discussed in Part 1.

Another common misconception is that photos posted online are free to use. I often hear people (most often those who want to use the photos, not those who take them) say that anything online is in the “public domain.” In copyright law, “public domain” has a specific meaning – it means that a work is not protected by copyright, usually because the copyright term has expired (copyright now lasts the life of the author + 70 years). (Some federal government works are also in the public domain because copyright law says those works should belong to the public. However, this applies only to works created by government employees, so don’t assume that all works posted on federal sites are free to use. Some of them could have been created by independent contractors)

But many lay people use the term “public domain” as if it means “publicly available,” and they are confused by that misunderstanding to think that images posted online are not protected by copyright. So, even though a copyright notice is not required to have a copyright, I always advise photographers to post (and even embed) copyright notices on images they are displaying online – that can alert someone that the images is protected and they are not free to copy it.

2)  What advice do you have for a photographer whose image has been infringed upon?
Two thoughts: first, proactively, try to be as clear about your rights as possible to reduce the likelihood that your work will be infringed. Use copyright notices, watermarking, any technology that makes it difficult to copy the work or at least makes people very aware that they are doing something wrong if they have to remove a copyright notice from your image. Although this is unpopular, I also advise posting only low-res images so they can’t be used for print. Consider using tracking software to find copies of your images online.

With respect to clients, use written contract terms that clearly describe the scope of the license you are giving to them, and make it clear that any further use will require a separate license and fee. Some photographers include a schedule of additional usage fees right in the original contract. I like this because that means as a legal matter, the client has already agreed that it will owe you so much if it uses the photo in a particular new way.

Also proactively, register all of your photos before you post them online or give them to your client.

Second, once an infringement has happened, don’t wait to deal with it. Especially with clients, they often mistakenly believe that they have more rights than were licensed, and the longer they go without hearing to the contrary, the more resistant they will be about settling an infringement claim. For stranger infringers, e.g., online copies, the longer the copies are out there, the more chances there are for the copying to go viral, and the harder it is to reign in. In any event, there is a 3-year statute of limitations for bringing infringement claims. This means that if the infringement started more than three years before you file a claim, your infringement claim may be barred altogether, or you will only be able to collect monetary damages associated with the last three years of infringement.

Send a cease and desist letter to the infringer, or have your attorney do it. Include reference to your registration number. For online infringers, you might also send a DMCA take-down notice to the website host. See http://www.owe.com/resources/legalities/legalities-34-what-can-you-do-when-your-work-is-copied-online/

3)  When is consulting a copyright attorney helpful?
If you don’t feel comfortable confronting an infringer on your own, or if the infringer rebuffs your cease & desist letter. Or if you are not sure if you have a solid infringement claim (e.g., someone has recreated your photo and you are not sure if it copies your copyrighted expression or just your uncopyrightable idea).

4)  If there is an infringement and an image is not registered, is it too late to do so?
No. You can still apply for a registration. Unfortunately, the Copyright Office is a typical government bureaucracy with not enough staff and long delays in processing paperwork. If you need a registration quickly, you can pay an extra $800 for “special handling” to get your application expedited.

5)  There are photographers out there that have registered their images and still have encountered infringements. The process to prosecute or collect damages is long and expensive. What advice do you have for photographers that are jaded by the process?
I understand the frustration. Although most copyright claims are settled without having to file a lawsuit, some infringers will ignore your attempts to settle a claim, and when that happens your only recourse is to sue or give up. Litigation is long and expensive. Even if you have an early registration so you can recoup your attorneys’ fees at the end of the process, that can be years away.

The good news is that the Copyright Office is actively lobbying Congress to set up a new small claims like court for copyright claims. It may take a long time, but eventually we may have a simpler, quicker and less expensive way to prosecute copyright infringers.

Linda Joy Kattwinkel is an artist (painter) and a lawyer for artists with the firm of Owen, Wickersham & Erickson, PC in San Francisco. She was an illustrator and graphic artist before she became an attorney. She helps her clients with licensing and contracts, and has successfully prosecuted and defended many infringement claims on behalf of photographers. Some of her local photographer clients include Jim Marshall’s estate, Jim Erickson, Steven Sommerstein, Charles O’Rear, Max Fallon, Dennis Anderson, Caren Alpert, and Elena Kulikova. Other prominent clients in the visual arts include Craig Frazier, Michael Schwab, Howry Design, and Hello Kitty.

Ms. Kattwinkel is the author of Legalities, an online column on legal issues for artists and designers for AIGA|SF,  http://www.owe.com/resources/legalities/, and various published articles. She can be reached at ljk@owe.com.

For more information about copyright, review this valuable post from pikwizard.com

Thank you Cade Martin for the use of your image.