Tuesday, October 14, 2008
Copyright Your Images
An attorney and intellectual property specialist delves into handling instances of copyright infringement
I was contemplating a new project when a colleague entered my office. “Did you see this recent article regarding a copyright infringement action where the photographer seems to have been awarded everything she was seeking and more?”
“Yes, and isn’t it a shame that the photographer will never recover a dime?” I responded. “I wouldn’t be surprised if the photographer actually lost money on the deal.”
My colleague looked puzzled as I explained that the corporate defendant in the infringement case was left without representation at the time the big award was issued. That’s almost always a bad sign. More than likely, the photographer’s lawyer wouldn’t have obtained anything close to what was awarded if the corporate defendant had been represented at the end of the case.
A few days later, I had the opportunity to catch up with a lawyer involved in the case. As I suspected, the lawyers in the case never discussed settlement, and as a result, the corporate defendant—the deep pocket in the case—ended up spending its resources defending the case rather than paying a settlement that might have compensated the photographer for the infringement.
My puzzled colleague’s question, “How should the photographer have proceeded with the case?”, was still in the back of my mind after learning some of the particulars of the case. “Well,” I responded to myself, “here’s what I would have done.”
What To Do After You Discover An Instance Of Infringement
Ensure That The Image Is Registered. Upon finding an instance of infringement, there are a few things that you should do immediately. First, ensure that the copyright for the photograph has been registered with the Copyright Office (one of my mantras provides that a part of every photographer’s workflow should include registering the copyright for images with the Copyright Office). If the photograph isn’t registered, it should be registered immediately; under current U.S. Copyright law, copyright owners may take advantage of a three-month grace period following the first publication of the copyrightable work.
Still, registration is more than just a good idea; it’s actually a prerequisite for bringing an infringement case into court. Since you’ll need to register the copyright anyway, you might as well take advantage of the incentive that Congress put into place to encourage prompt registration: an entitlement to an award of statutory damages and attorney’s fees.
Having determined that the image is registered, the next step is to determine the reasonable compensation for the use of the image as discovered. While there’s no legal requirement to assess the reasonable compensation for the use, doing so serves two important purposes. First, it provides you with information that you’ll likely need to include in a demand letter. Second, and perhaps more importantly, it gives you an idea of what you should reasonably expect to receive from any efforts to enforce your copyrights. If you ultimately recover more than the reasonable compensation, you should consider yourself ahead in the game.
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