Posted by Marc Dilley on March 20, 2008 at 10:29 AM
I have a patent attorney buddy who claims that I should be copyrighting my shots. I'm curious: does anyone here or photographer you know of do so? I wonder how important this actually is as a deterrent against intellectual property theft, or whatever it is termed.
Posted by Geoff Shapiro on March 20, 2008 at 11:06 AM
You should be copyrighting them. I should be too. IMO it's not a great deterrent but may really help should you decide to go after someone for copyright violation (damages you may recover is greatly influenced by whether or not you've copyrighted the images).
Posted by Marc Dilley on March 20, 2008 at 11:29 AM
Sounds good, Geoff. Here, BTW, is what attorney Bob Shaver told me:
Copyright law is one of those areas where knowing a little about it can hurt you. Some people who know a little about copyright law believe that you don't have to file a formal copyright application in order to own a copyright in their creation. They are right, but that's not the entire story.
Under current copyright law, if you just create something, you own a copyright in that thing, whether it is a statue, a book, a poem, a photograph, a piece of furniture, or a painting. To keep someone from copying you, you just have to file for a copyright and sue them for copyright infringement, assuming a cease and desist letter doesn't work. If you can prove you created it first, and they copied it, you can get an injunction and make them stop copying it. That is a bit of a hollow victory after spending tens of thousands on a lawsuit, and it means that you will only enforce your copyright if it is a very important creation, like your company's flagship product.
However, if you had filed for copyright within 90 days of publication of your creation, or before it was copied, you could stand to win an injunction, attorney fees, and the damages specified in the statute, which is so many dollars per copy that has been made. What that possible outcome adds up to is a huge hammer held over the head of the copier. If he loses he will lose big time, and you will be made whole. He will go to his copyright attorney and learn that he will lose big time if he gets sued, and he will come crawling to you with hat in hand and offer some kind of reasonable settlement, including not copying your creation. That filing has given you tremendous leverage, and you can enforce your copyright without the lawsuit.
Copyright is so easy to file that you can do it yourself easily for the $30 filing fee. The enforcement potential is huge, if you have taken the precaution of filing for copyright before you were infringed. So file for copyright on any original creation, such as web sites, greeting cards, books, articles, drawings, photos, furniture designs, software, clothing styles, videos, animations, and anything that is an original creation. Go to the U.S. Copyright Office for the forms to fill out for filing, and call me when your copyright gets infringed. "Oh yeah, baby!" as Austin Powers would say.
He has more on his Patent Pending Blog, http://patentpending.blogs.com/
Posted by Geoff Shapiro on March 20, 2008 at 11:42 AM
Your attorney is spot on, Marc.
The problem is that much of the infringement is by violators living in other countries where you don't possibly have any realistic chance to bring them to court. The best recourse is to complain to their internet provider - this has yielded good results for many people, myself included.
Posted by Robert Shaver on March 20, 2008 at 12:08 PM
Copyright is a country by country law. A U.S. copyright is only good to prevent infringement in the U.S. If you could show sales off the internet in the U.S. you probably have jurisdiction to sue them in the U.S. However, you would have to find out who they are, and what their address is. If you won a judgment in a U.S. court, you would still have to get it enforced in the foreign country, and that would depend on the country if it was enforceable. Geoff is right, the best place to hit would be the internet provider.
The US Copyright office is conducting beta testing of an online system for registering copyrights for things such as photographs. I am using it and it makes life very easy to do it this way.
Posted by AJ Montgomery on March 20, 2008 at 9:15 PM
By default all images are copyrighted to he/she who makes the image. Proving that you made the image is the effort. Here is a link to some good reading that you may seek an interest in: Copyright info
Posted by Geoff Shapiro on March 20, 2008 at 9:47 PM
Douglas, I am interested in that online system for copyright registration. Is that an open beta? Can I get the link to the online registration page?
Posted by Robert Shaver on March 21, 2008 at 11:56 AM
AJ, that understanding of copyright law is what everyone believes, but that is not the whole story. The link you provide is an excellent discussion of copyright law by laymen who don't know anything about the topic. Usually you have to go to a homeless shelter to get analysis like that. Here is the law that that link discusses:
if you create a unique work of art of any kind you own a copyright in that thing, which you could call an "automatic copyright."
you don't have to mark it with the copyright symbol, but its not a bad idea
if someone copies your work, you have to file a copyright before you sue them
if you have not registered the work before it was infringed all you can get is an injunction (aka "a handslap"); no punitives, no attorney fees, no damages. To get the injunction you will have to spend $20,000 to $50,000. No attorney will do that work for free, so really, you are not going to sue anyone, so really, your "automatic copyright" was worthless.
if you have registered it before it was infringed, you can get attorney fees, statutory damages, and an injunction. Attorney fees are huge, and might tempt an attorney to litigate on a percentage basis. Statutory damages are X $ per infringement, based on the value of the work, and each page download on the internet is an infringement.
One way to prove it is your image is to register it, and register a version that has a tiny symbol or initial at the pixel level that no one can see but someone who knows it is there. The artist's initials for instance, in an off shade that is only visible under high magnification. There is no way the infringer can win against that kind of evidence.
There is no "intent" requirement for copyright infringement. You get no more if the copier "meant" to do it, and knew what he was doing. He is not off the hook if he did it unintentionally, or by accident, or if he didn't make any money off the deal. There is no "triple damages", no punitive damages, no pain and suffering. There is only attorney fees, statutory damages, and injunction. However if he has to pay your attorney fees, he is going to be "punitated" and experience pain and suffering at the same time.
By having the work registered before it is copied, your leverage is so huge that you don't have to sue to get him to stop the copying, and probably pay a few thou in damages.
Posted by Geoff Shapiro on March 21, 2008 at 2:25 PM
Doug - thanks!
Robert - your participation here is very enlightening and useful! Thanks!!
Posted by Robert Shaver on March 21, 2008 at 3:44 PM
The patent office set up a beta program for electronic filing of patents. At first it didn't work, and patent applications would just disappear, with no record of having been filed. The PTO would not make any effort to give you a filing date, even if you could prove that you submitted an application to their electronic filing system. Many inventors were just screwed, with no recourse. So beware of any beta program for electronic filing. If it is an important filing, I would file by hard copy. Let them practice on somebody else.
Discussion
11 repliesYou can read quite a bit about this stuff here:
http://www.photoattorney.com/
Copyright law is one of those areas where knowing a little about it can hurt you. Some people who know a little about copyright law believe that you don't have to file a formal copyright application in order to own a copyright in their creation. They are right, but that's not the entire story.
Under current copyright law, if you just create something, you own a copyright in that thing, whether it is a statue, a book, a poem, a photograph, a piece of furniture, or a painting. To keep someone from copying you, you just have to file for a copyright and sue them for copyright infringement, assuming a cease and desist letter doesn't work. If you can prove you created it first, and they copied it, you can get an injunction and make them stop copying it. That is a bit of a hollow victory after spending tens of thousands on a lawsuit, and it means that you will only enforce your copyright if it is a very important creation, like your company's flagship product.
However, if you had filed for copyright within 90 days of publication of your creation, or before it was copied, you could stand to win an injunction, attorney fees, and the damages specified in the statute, which is so many dollars per copy that has been made. What that possible outcome adds up to is a huge hammer held over the head of the copier. If he loses he will lose big time, and you will be made whole. He will go to his copyright attorney and learn that he will lose big time if he gets sued, and he will come crawling to you with hat in hand and offer some kind of reasonable settlement, including not copying your creation. That filing has given you tremendous leverage, and you can enforce your copyright without the lawsuit.
Copyright is so easy to file that you can do it yourself easily for the $30 filing fee. The enforcement potential is huge, if you have taken the precaution of filing for copyright before you were infringed. So file for copyright on any original creation, such as web sites, greeting cards, books, articles, drawings, photos, furniture designs, software, clothing styles, videos, animations, and anything that is an original creation. Go to the U.S. Copyright Office for the forms to fill out for filing, and call me when your copyright gets infringed. "Oh yeah, baby!" as Austin Powers would say.
He has more on his Patent Pending Blog, http://patentpending.blogs.com/
The problem is that much of the infringement is by violators living in other countries where you don't possibly have any realistic chance to bring them to court. The best recourse is to complain to their internet provider - this has yielded good results for many people, myself included.
http://www.copyright.gov/eco/beta-announce.html
if you create a unique work of art of any kind you own a copyright in that thing, which you could call an "automatic copyright."
you don't have to mark it with the copyright symbol, but its not a bad idea
if someone copies your work, you have to file a copyright before you sue them
if you have not registered the work before it was infringed all you can get is an injunction (aka "a handslap"); no punitives, no attorney fees, no damages. To get the injunction you will have to spend $20,000 to $50,000. No attorney will do that work for free, so really, you are not going to sue anyone, so really, your "automatic copyright" was worthless.
if you have registered it before it was infringed, you can get attorney fees, statutory damages, and an injunction. Attorney fees are huge, and might tempt an attorney to litigate on a percentage basis. Statutory damages are X $ per infringement, based on the value of the work, and each page download on the internet is an infringement.
One way to prove it is your image is to register it, and register a version that has a tiny symbol or initial at the pixel level that no one can see but someone who knows it is there. The artist's initials for instance, in an off shade that is only visible under high magnification. There is no way the infringer can win against that kind of evidence.
There is no "intent" requirement for copyright infringement. You get no more if the copier "meant" to do it, and knew what he was doing. He is not off the hook if he did it unintentionally, or by accident, or if he didn't make any money off the deal. There is no "triple damages", no punitive damages, no pain and suffering. There is only attorney fees, statutory damages, and injunction. However if he has to pay your attorney fees, he is going to be "punitated" and experience pain and suffering at the same time.
By having the work registered before it is copied, your leverage is so huge that you don't have to sue to get him to stop the copying, and probably pay a few thou in damages.
Robert - your participation here is very enlightening and useful! Thanks!!