Does MLS Really Own my Photos? (Pt. 4)

In the last part of this 4-part series, we look at some ways that you can protect your work and provide a sample licensing agreement for you to use which you can find here.

Digital Watermarking and Metadata

Metadata is a secondary, hidden, layer of descriptive information embedded into a digital file.  EXIF is the format for metadata in photographs embedded into digital files by your camera or post-processing software. EXIF data contains information on camera hardware and settings like aperture, ISO, shutter speed, and even GPS location. You can even add logos, contact information, licensing restrictions and copyright registration information to metadata.

We advise photographers to add as much information as possible to their EXIF files.  Complete EXIF information is helpful because it identifies you as the photographer who created the photo and provides information about who to contact to license the work.  Metadata also functions as a digital copyright notice that, if removed, triggers a violation of the DMCA.

All popular photo processing software titles have tools to edit metadata in a single photo or in batch mode. Free and open source software is also available.

Should I Register my Photographs with the Copyright Office?

While it is true that you own the copyright to a photograph as soon as you depress the shutter, registering your photographs with the U.S. Copyright Office offers significant advantages.  These advantages, combined with new regulations that allow you to register up to 750 photos at once, provides incentive for photographers to register entire portfolios every three months.

The reason registration is important is that you cannot recover statutory damages for infringement unless you have registered prior to the infringement or within three months of first publication.  Statutory damages are important because proving actual damages for infringement can be difficult.  If you register your photographs before the infringement starts, or within three months of when they are first displayed, the infringer may be liable for statutory damages of up to $30,000 per photograph, or up to $150,000 if the infringement is willful.  Plus, the infringer can be liable for your attorneys’ fees and costs of suit.  Cases like that are ones we routinely take on contingency.

If you don’t register your photos before they are infringed or within three months of the date they are first shown you cannot sue for your attorneys’ fees and you can only recover actual damages.  Ask any intellectual property attorney and he or she will tell you that proving actual damages for copyright infringement can be very hard.  And, when you pay that IP attorneys’ bill, you will realize quickly that lawyers don’t come cheap.  Better the infringer pays your lawyer fees than you.

Photographers have the distinct advantage of being entitled to register up to 750 photos at once with the Register of Copyrights.  A single $35 application fee covers you if all the photographs are by the same photographer, were all published in the same calendar year, and all have the same owner.  Important tip: use the electronic registration system at the Copyright Office website to register.  Snail mail adds significant delay to the process.

Patrol the Internet

Licensing agreements, copyright notices, and metadata can help deter infringers, but they won’t stop them all.  Google Images has made stealing photographs fast and easy.  Too many people believe that if they find a photo on the internet that means it’s free.

So, why not use Google Images to your advantage for a change?  All you need is a free, open source “bookmarklet” tool called src-img.  You can find it here.  Drag src-img to the toolbar on your web browser of choice.  Then, go to a page on the web where your photos are posted.  Make sure the pictures you want to check are on the page as image files since images embedded in Adobe Flash won’t work.  Then, click on your src-img bookmarklet.  If you did it right all the photos on the web page turn into question marks.  Click on any question marked image and a new page will open showing you in Google Images where else on the internet your photos can be found.  Pretty cool, right?

Armed with a list of sites courtesy of Google Images you can check other sites to be sure they have permission to show your photographs.  If they don’t then what you do next is up to you.  If the site is a service provider that allows third parties to post photos (like Flickr, Shutterfly, etc.) then they must comply with the DMCA and take down your photos upon notice.  Check the site’s terms and conditions for further instructions.  If the site is not a service provider, but appears to be profiting from your photos without compensating you, a call to your friendly copyright attorney may be in order.

Conclusion

Copyright infringement is easier than ever before.  But so is protecting yourself.  Require agents to sign written license agreements.  Use metadata.  File copyright registrations regularly.  Patrol the internet. A few simple steps is all it takes.  And if that still doesn’t work, call us.

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About 

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on intellectual property contact him through his website at SchlackmanIPlaw.com. His photography can be seen online at at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on intellectual property contact him through his website at SchlackmanIPlaw.com. His photography can be seen online at at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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