We received some great questions from the participants who attended our March 23 webinar, “Avoid the Confusion! Learn When and How to Safely Use Online Images in Your Design Work.” In fact, there were many questions about image copyright that we didn’t have time to address.
That’s why we asked John Grant (right), copyright attorney at Imua Legal Advisors, to come back and guest post on our blog to address some of the questions that we didn’t get to. For the sake of those who weren’t in attendance, we also included the questions that John answered on the webinar.
We hope that this Q&A with John will be a useful reference to you in your own creative work!
(This is Part 1 of 2; we are splitting up the Q&A and will run the second half next Tuesday, April 12)
Q: If I put a copyright symbol on my own photograph that is shown on my website or other online account, does that provide me with all the protection of a copyright?
A: There are two levels of copyright protection. The first is automatic. Ever since 1989, you don’t even have to put a copyright symbol on your image for it to be protected. Anything that’s been created since 1989 automatically gets a copyright to the extent that it is copyrightable, so someone who uses that work without permission can be subject to damages.
The second kind of protection is much stronger and comes when you actually register a copyright. Having a registered copyright does a few things. First, you can’t sue anybody without it. If you start to rattle your saber and say to an infringer, “I think you should pay me money,” but you don’t have a registered copyright, the other party might say, “You can’t even walk into court until you have a copyright certificate, so I’m going to ignore you right now.” More important, having a copyright certificate can allow you to seek statutory damages and attorneys’ fees if you do sue. Statutory damages are a minimum of $750 per infringement up to $30,000 per infringement, and can even be as high as $150,000 in the case of a willful infringement. And attorney’s fees are also important, because it puts the infringer on notice and says, “If I have to go to court over this you’re not only going to have to pay for your own attorney, you’re going to have to pay for mine too.” This double threat of statutory damages and attorney’s fees are usually enough to get an infringer to pay you at least some money without having to file a lawsuit.
The bottom line is: registering your copyrights is an important step for any content owner. Even if you’re doing work on behalf of a client, I’d encourage you to register copyrights for your final product. We’ve all seen situations where people sometimes rip off things they see from ad campaigns, and a registered copyright puts you and your client in the best position to do something about it.
Q: If some agencies didn’t strip metadata it would make tracking images a great deal easier. Do you see a change in keeping this information constantly attached to all images?
A: If you’re a content creator, you should absolutely use metadata. Aside from the practical reasons of making it easy for a user to find you to get a license, one of the main reasons for including metadata is that there’s actually a separate cause of action for either removal of copyright management information or falsification of copyright management information. If you use metadata and someone strips it out before they use it as part of an infringement, it could actually strengthen your legal claim. If you’re a user of content, I’d recommend that you check the metadata. There are lots of ways to strip metadata, and it’s relatively easy to do—even accidentally. I wish that metadata were more persistent and that more people were aware of it and check it, because they could get into some even deeper trouble if they don’t.
Q: Errors and omissions insurance seems to be missing from many photographers’ business models. Do you find that this is an area that many photographers are unaware of?
A: I usually recommend that anyone who’s acting as a professional maintain some level of E&O insurance, though admittedly it can be difficult to find sometimes. The great thing about insurance is that it can seem expensive at the time, but when you need it you really need it. And whether you’re a photographer or a creative, if you’re working in a professional manner, you really owe it to yourself and your clients to have it. It can also be a great marketing advantage for you to be able to say, “If you work with me, you’re protected.” Trade associations or groups can be very helpful in tracking down the right insurance coverage, so if you’re having a hard time finding an agent I would start there.
Q: Can a photographer that has already released his/her images without a copyright into the market still go back and copyright those images? Is there a time limit from when an image was taken to when it can be copyrighted?
A: As I said earlier, a content creator has a copyright the moment he or she creates the work. Nobody has to do anything to “get” a copyright. Technically, the term “to copyright” shouldn’t be used as a verb because there is no affirmative act needed to copyright anything anymore (although there used to be). When you say “going back and copyrighting” a work, I assume you mean registering the copyright in the work with the U.S. Copyright Office. In that case, the answer is that there is no time limit to when a content creator can go register the copyright, although there are certain advantages to registering copyrights quickly, ideally within 3 months of first publication.
Q: What about these “free stock exchange platforms?” How do I know that the pictures I get there are okay to use?
A: It all depends on how much you trust the site. Do they really own the content they claim to own? Just because an image is on their site and it says “free” doesn’t mean that the website has the right to give it away. I would do some due diligence on the company and website. Look and see where they’re based. Always be skeptical, especially if they’re not in North America or Western Europe because we see a lot of infringements based in locations outside those areas. If the site seems at all “fishy” (and I think anyone purporting to give something away for free should seem fishy at first), dig a little deeper or just go use different image. The risks associated with copyright infringement are so great: you could end up paying statutory damages and attorneys’ fees, and that can get very expensive very quickly.
Q: On sites like stock.xchng (http://sxc.hu) where the photographer states that it’s free to use except for commercial use, what do they consider “commercial”?
A: I’m not familiar with the specific terms for that site, but in general there is no strict definition of “commercial.” To some it is anything that is not personal or editorial, while others consider editorial use to be at least a quasi-commercial use. As with any situation where the license is unclear or subject to interpretation, I think it is best to clarify with the licensor that your specific use of an image is allowed.
Q: What if the artist/photographer writes publicly that their images can be used? Is this enough for me to use their work?
A: While that may be enough to defeat a copyright infringement lawsuit if someone were to bring one against you, keep in mind that avoiding the lawsuit altogether is the smarter option. I would advise trying to get permission from the artist or photographer specific to you. Even if a photographer posts a bunch of images online and says, “Hey, I don’t care about copyright, I want the world to use my stuff,” I still recommend sending that person an email saying, “Hey, I’m going to use your picture in a national ad campaign for ACME, Inc., and it’s going to show up in USA Today and the New York Times and other places. Is that okay with you?” If you get a response back that says, “yes,” that’s a license, and you need to keep track of it. It could be that once the photographer sees broad use of his images he might start to see some dollar signs and change his mind. There’s really no official way to commit something to the public domain, so I think the best business practice is to double and triple check. The other thing to keep in mind is that it may not be their image. Somebody might say, “Here’s an image and it’s free to use,” but it might not be their image in the first place.
Note: The information we are providing is accurate to the best of our knowledge; however, no warranties or representations are made to the accuracy of the statements made in this post. You should seek out legal counsel input for your specific situation.