Given the number of GEP workshop attendees who ask how you register a copyright, it might come as a surprise that, according to one estimate, the number of photographers who actually register is under 5%. Registration does involve filling out a federal form and paying a fee, two activities that are not included in anyone’s “favorite things to do” list, but in my opinion the benefits of registering outweigh the negatives. Following are answers to some of the most common copyright questions we get at GEP.
Do I need to copyright my photos?
OK. Hold it right there. “Copyright” should not be used as a verb, but as a noun. A photographer acquires a copyright (noun) the moment he or she clicks the shutter. You do not copyright (verb) anything. Instead, you register (verb) a copyright (noun). So the question being asked here is do I need to register my photos?
There is no legal requirement that you register your photographs with the US copyright office. After taking a photograph, you have the right to license and otherwise exploit your image as you see fit. However, if you image is infringed upon, you will have very little recourse to pursue damages unless you have previously registered that image. In fact, some lawyers compare an unregistered image to a gun without bullets. Registering an image gives the photographer additional rights to protect their work. A list of these rights follows.
The ability to file a lawsuit
Photographers cannot file a lawsuit for copyright infringement unless they have registered their copyright first. This right in itself is a great asset to have in negotiations for copyright infringement.
This is the amount of the actual compensation for your work, or what you would have made had the image been licensed legally. For example, if an image used in a cover of a magazine would have otherwise netted you $500, you would be entitled to this amount as compensatory damages.
As the name implies, statutory damages are damages established by statute. They can be awarded by a judge or jury to a copyright owner in a copyright infringement lawsuit. Statutory damages can range between $750 and $30,000 per image, as determined by the court. The amount can go up to $150,000 per image if the infringement is found to be intentional (what lawyers call “willful”).
Luckily, in a federal lawsuit, photographers have the option to choose between compensatory and statutory damages. Because of the relatively small amounts editorial images command, most photographers would choose statutory damages in order to maximize their damages.
If a photographer is successful in a copyright infringement lawsuit, he or she will be entitled to reasonable attorney fees. This is huge as attorney fees and related expenses in a fully prosecuted federal case can reach six figures.
This is an order from the court directing that the infringed-upon image cannot be used in a particular way or at all. The threat of injunctive relief can be an important factor in settling the case since, for example, a court may order an advertiser currently using an image for marketing purposes to stop using said image.
How much does it cost to register a photo?
It costs $55 to register a group of up to 750 unpublished photographs. I usually wait until I have 750 images to register so that I get the most out of my fee.
Keep in mind that registering publishedphotographs is more expensive, cumbersome, and complicated than registering unpublished photographs, so I strongly encourage photographers to register their images before they are published. Incidentally, submitting your images to a stock agency or posting them online constitutes publication.
For a complete list of registration fees, visit the U.S. Copyright Office’s fees page here.
For a 15-minute video tutorial on how to register a group of unpublished photographs, visit the U.S. Copyright Office’s Registration Tutorials page here.
Can you register photographs for free?
There is a lot of misinformation floating around the web regarding this topic, from mailing your pictures to yourself to watermarking your images in a certain way. There are no provisions in the copyright law for this type of “registration” (free or otherwise). The only way to get legal protection for your images is by registering them with the U.S. Copyright Office.
How can I protect my photographs from getting copied?
While registering your copyright will provide valuable rights if your image is used without permission, preventing unauthorized use in the first place is even better. Unfortunately most preventive measures will not deter a determined thief, but there are some steps you can take to protect your work from being copied.
Use a copyright notice
Although not a legal requirement, placing a copyright notice next to (or on) your images will help to identify your work as yours. You do not have to register your copyright to use a copyright notice, though if you register and a lawsuit ensues, the notice can be used as evidence that the infringer knew the image was protected. A copyright notice can be displayed a number of ways, next to or even inside the image itself. The notice can be as simple as ©, or a fuller one like “© Joe Photographer, All Rights Reserved.” I prefer the latter.
Note that many publications, but by no means all, will include your copyright notice next to your work. Every photographer’s preference is that the notice (or credit) accompany their images, but in my experience publications that do not include a credit will not change their protocols for one photographer.
Apply a watermark to your images
Like other preventive measures, watermarks can be removed. However, they increase the likelihood that a thief will select another image to steal. I have also seen some of my images stolen, then published elsewhere, watermark and all!
Some photographers prefer not to use watermarks because they look ugly. I solve this problem by applying pretty watermarks.
Disable right click
By now most computer users know that if you right click on an image and select “Save picture as,” you can download an image to your computer. To prevent this, you can disable the right-click feature. Again, this will only deter the casual user, but something is better than nothing.
Similar to disabling right click, blocking screenshots is another vulnerable way to prevent the theft of your images. You will, however, need an app for that. A popular app is the descriptively (and unimaginatively) called Screenshot Blocker.
Check where you share your pictures
Stock photography sites, social media platforms and other photo sharing sites all have different terms of service when it comes to copyrights, and they are all bad for photographers. For example, Facebook’s terms of service state in part:
“…when you share, post, or upload content that is covered by intellectual property rights on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). This means, for example, that if you share a photo on Facebook, you give us permission to store, copy, and share it with others (again, consistent with your settings) such as service providers that support our service or other Facebook Products you use. This license will end when your content is deleted from our systems.” (Italics mine).
This is what lawyers call a “rights grab,” though at least the rights you grant Facebook are non-exclusive.
Some photographers do not have a problem with this language, rationalizing that they are marketing their work to the world and enjoy sharing their pictures for free. I disagree with this view since giving away your work depresses the value of images for everyone. Regardless of your position, what’s important is that you make a conscious decision instead of being unpleasantly surprised later.
What are the best tools to watermark my photos?
Unfortunately, when it comes to safeguarding your work most watermarking tools are the same, meaning that they are no match for a determined thief. The difference between these tools lies in their features, usability and cost. I prefer simple watermarks and use either Photoshop or the tools provided by my website host (SquareSpace) to apply them.
Other popular tools with lots of features (variety of fonts, sizes, and colors; batch watermarking; high speed, and so on), include uMark and iWatermark. Both of these apps are free.
How can I prove I own the copyright of a photo I took?
Proving something is a matter of evidence. Evidence comes in a variety of forms, but the types most commonly relevant to proving who owns the copyright to a photograph are documentary and testimonial. The most direct way of proving that you own the copyright to a photo you took is to testify to that effect. During your testimony, you would also bring up documentary evidence to back up your assertions, such as your certificate of copyright registration and documents showing the image in question appears under your name in a stock agency, publication or social media, for example.
Legal Disclaimer (you knew this was coming!)
The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this article are for general informational purposes only. Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter.