Failure to Register Copyright Cost Photographer $201,550.


gavel on top of laptop

Not to beat a dead horse but…my post on copyright didn’t get many reads. As I said, I know it’s not a sexy topic. But who couldn’t use an extra 2-hundred grand? And that’s just part of what one photographer could have won in his copyright lawsuit.

I’ll link to the article at the end; be warned, it’s got some legal speak. Here’s the breakdown: A painter works from photographs to make his paintings. Another artists allegedly takes one of those photographs without permission and makes a painting from it; in essence, a copy. That artist dies but his wife puts the painting for sale on a web site. The first artist (the one who took the picture) sues and wins $201,550 in “actual damages”. Because he did not register the copyright in a timely manner, he had to prove “actual damages” and was not eligible for “statutory damages” which could have been much more. In the end, a court found he had not proven “actual damages”, which is hard to prove, and threw out the award.

Here’s the article:

http://copyrightlitigation.blogspot.com/2010/03/4th-circuit-fine-art-paintings-from.html

Hi, I’m An Artist. Please Don’t Look At My Work.


My last blog post was about copyright. I was planning to next write about “creative commons” license and why sometimes you might actually want to have your picture “stolen”. I’m still planning on writing about that, but something happened yesterday that kind of goes along with that concept.   

The Baldwin Park Arts Festival took place Saturday, March 13. As a photographer for Baldwin Park Living Magazine, I have an understanding with the editor to document as many events as I can for the publication and the community Web site photo gallery.   

The Arts Fest features local artists selling their work on an entire block in the heart of Baldwin Park. So I get there and I’m just not feeling it. I walked up the length of one side of the street and started down the other without having taken a single picture. Maybe these arts and crafts shows just aren’t my thing. Then I get to a lady painting and I think “great, an action shot”. A shot of someone doing something. So I take a picture. I walk a little farther and there’s another artist painting. I snap another picture…   

Artist Painting at Baldwin Park Arts Fest

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He turns around and says, “Thanks for the exposure.” I take a second to figure out if he’s making a photography pun. I decide he’s not and tell him I’m with Baldwin Park Magazine. He says thanks again.   

Ok, so now I’m warming up. I’ve taken a few pictures at this point when I see a girl with some money in her hand. This would be a great opportunity to get a shot of a sale. I spent almost a decade in broadcast news and I know that photojournalism is about telling a story; and isn’t the whole idea of this thing for artists to sell their work? I mean, it’s not a gallery exhibition. Let’s face it, if no one buys anything today, the event is a failure. This is literally “the money shot”.  

So I take a picture…   

woman buying jewelry at Baldwin Park Arts Fest

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I realize I didn’t compose properly; cutting off the girl’s head and getting an arm in the shot. So I recompose and I’m waiting for the right moment when the lady whose arm is in the shot turns around and says “no pictures please”. I tell her I’m with Baldwin Park Magazine and she says the artists don’t want pictures taken. I explain to her that this is a public area and that I have the right to take pictures. We go back and forth for a few minutes and I walk away.   

First of all, I wasn’t taking pictures of the art work; some kind of jewelry I suppose. I was taking a picture of the transaction. Secondly, the picture is for editorial, not commercial use. Third, as a former journalist I know all about expectation of privacy and fair use. Lastly, if you don’t want your work seen, then stay home, don’t display your work in public or on the web and pray to god that someone finds your art. Is the fear that I’m going to go home, study the picture and copy the creation? 

Hey, I get it. I’m a photographer. Everytime I post a picture online, be it my web siteFlickr or Facebook, there’s a chance someone will “steal” it. But there’s also a chance that someone who’s never heard of me will see my work. To protect myself, I take steps to guard my copyright. But I don’t take pictures so I can stuff them in a lock box. Isn’t that the proverbial ostrich with its head in the ground?   

So I walk around a bit more and take another picture…   

Art at the Baldwin Park Arts Fest

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Again, the artist comes up to me and says “no pictures”. I tell him who I am and he says it’s ok. I asked him why I wouldn’t be allowed and he says, “with a camera like that, people can make good copies”. Ok, so I guess the thinking is that I’m going to sell a picture of his work? And would it be ok if I took a picture with, say, an 8 megapixel point-and-shoot? Couldn’t I make a good copy with that? What if I wanted to take a picture of someone with the art in the background? Would that be offensive?   

This reminded me of a similar event I attended last year. A photographer had a booth set up and his pictures featured black and white images of statues. I thought, wow, that’s interesting. He didn’t sculpt the statue, he just took a picture of it and is selling it.   

That issue is actually at the center of a lawsuit. You can read more about it at the Photo Attorney Blog. That case is a little different because I am there strictly for editorial reasons. Taking a picture of your art does not violate your copyright. What I do with that picture may or may not.   

Bottom line: That first guy got it. He thanked me for the exposure. He took a look at my DSLR and assumed I was with some media organization before I even told him who I was. The pictures I take will be featured on a magazine spread that goes out to tens of thousands of Baldwin Park residents. What’s that you say? You don’t want free advertisement?   

So now I want to hear from you. What do you think?

Ironclad Protection For Your Images At Rock Bottom Prices!


The Copyright

The moment you take a picture, it’s yours. You created it. You own the copyright. Copyright means just that: you have the right to copy it. So how do you protect your rights?

You can watermark your images (more on that later). You can post a disclaimer on your Facebook page. You can have a verbal agreement (this is about as good as a nod and a wink). But if someone really wants to use a picture you took, in a manner or for a purpose that you did not consent to, there’s not much stopping them.

The only way to protect your images in a court of law is to register the copyright.

Hey wait, come back! Yeah, I know; it’s not sexy. It’s not even fun. I mean I get it. As photographers we want to spend our time…uh…taking pictures! Who wants to edit? Learn about taxes and limited liability corporations? Booooring.

What’s really at stake here is money. You took the picture. If someone wants to use it for advertising or promotion, they should pay you for it. This is called “licensing” (more on that later too).

To quote the American Society of Media Photographers (ASMP): “You do not have to register your work with the Copyright Office to acquire your copyright. However, the legal protections available to you are limited if the photographs are not registered. Those limitations can translate into lost income.”

Worth More Than A Thousand Words

Let me cut to the chase and then I’ll circle around again. It costs $35.

Hey wait, come back!

I know, I know. We’re saving every penny for that fast super-zoom lens! But first, you should know it’s not $35 per image. It’s $35 for a batch. As many as you can register during a one-hour session. Now think about it; how many pieces of photographic gear do you own that costs less than $35? I can think of two and one does nothing but blow air.

Now those 35-dollars can mean hundreds, thousands, maybe hundreds of thousands of dollars for you if someone infringes on your copyright. And it’s good for 70 years after you die!

So let’s say you copyright an image today. You die at age 100. Sixty-nine years later your great-great-great grandson discovers a picture you took being used in a Nike ad. Because you left your estate to your heirs…CHA CHING! Your great-great-great-great grandson can now go to college!

This scenario may seemed a little far-fetched. But only a little….

I first opened my eyes to the process of copyrighting through kelbytraining.com. I highly recommend the subscription, but you can watch the first three lessons of each course for free. Over there, Jack Reznicki and Ed Greenberg have a course on the topic and they walk you through the process of registering your work online. They tell the story of the late Stuart Gross who, in 1987, took a routine picture of 6-year old Lisa Steinberg . The little girl died 9 days later at the hands of her mother’s boyfriend. The story made national headlines. The picture became evidence in court and was licensed to specific media outlets under specific conditions.

Greenberg says 22 years later the picture is still being infringed and he’s brought more than a dozen claims against some of the top media outlets  in the country, including CBS News.

The photographer is dead. The picture lives on. And so does his copyright.

Go watch the course (at least the first 3 lessons) HERE.

gavel on top of laptop

THE eCO SYSTEM

No, not the eco-system. The eCO system. That’s the electronic copyright office. I’m going to cop-out here because I really cannot walk you through the process better than Carolyn Wright over at the Photo Attorney blog.

The entire article with step-by-step instructions is here:

http://www.naturescapes.net/docs/index.php/articles/341

If you prefer the video tutorial see the kelbytraining.com link above.

OTHER STEPS

Chances are if someone is using your image, it isn’t malicious. They probably didn’t “steal” it. They’re probably just a little ignorant. If you find someone who infringed your copyright, don’t go calling the attorney just yet.  In fact, a lawsuit is probably the last step. There are ways to deal with it. But try walking into an attorney’s office with your story and the first thing he or she will ask you is “Did you copyright it?”.  If you didn’t, they probably won’t even take your case.

The first thing you should do is have a contract. Always. If you put someone in front of your lens, hand them a contract before you press the shutter. Shooting your best friend’s wedding? Shooting your neighbors newborn baby?  Get a contract! What if that picture ended up in a bridal magazine ad or the cutest baby in the world billboard with NO compensation or credit to you? Get a contract and specify the use and terms. When Stuart Gross took that picture of the little girl, he never imagined it would become such a huge story, or that the image would be used 22 years later, even after his death.

Next, add your contact and copyright info to your metadata. If it’s in the metadata, someone can’t later say that they had no way of contacting you.

Disable “right-click” on your website so no one can right-click and “save” the image.

None of these options is fail-safe. Like I said if someone really wants your image, they’re gonna get it. But a combination of these methods will help protect you.

LICENSING

Let’s clear something up here. When someone pays you for a picture you are not selling the picture. You are not selling your copyright. You are selling a license for that person to use your picture in a specific way.  Unless, it’s specified in a contract, or you are a work-for-hire photographer (that’s another blog for another day), you retain the copyright.  Now a photographer can sell their copyright; but that will net him much more money than a license.

WATERMARKING

I use watermarks sparingly. I think they distract from the image. But something David Hobby wrote in 2007 has always stuck with me:

“The first thing I would do would be to lose the arty signatures embedded within the photos. Very “Buck’s County Arts and Crafts Show,” IMO. You want to be aiming higher than that. If you feel you must stick your name into the image area, make it very small, in a bottom corner, with a “©” symbol (created with an option “g”).”

Actually, the copyright symbol doesn’t even have to appear on your image to be protected. (source: ASMP Copyright Primer; link below)

‘Nuff said.

I know this has been a long blog post. But it’s important. I’m not an attorney, so take this advice as a starting point only. And please check out the helpful links below. Those links have links within them that you should follow.

Look, you spent thousands of dollars on gear and all your free time taking and editing pictures. Why not protect them?

HELPFUL STUFF

LINKS

Copyright.gov FAQs

The eCO System

ASMP Copyright Primer

Pro Imaging

BLOGS

The Copyright Zone (Reznicki and Greenberg)

Photo Attorney (Carolyn Wright)

ARTICLES

Help, I’ve Been Infringed!

I’m Gonna Sue!

The Blue in the Face List Pt.1

The Blue in the Face List Pt.2

Life After Death

BOOKS

Business and Legal Forms for Photographers

Best Business Practices for Photographers

Most Viewed Photo on Harry Lim Photography’s Flickr Page


So I’m a little obsessed. On an almost daily basis I check the stats and analytics on my Web site, Flickr page and blog. You know, just seeing if anyone’s out there. 

And sometimes, I’ll even google myself to see how high my site is ranking…or if it ranks at all! (it does, by the way. First page. Right behind a cardiologist and jazz musician by the same name). 

Actually, that’s a good segue ’cause the most popular picture on my Flickr Pro Page is of a saxophone. Well, not just any saxophone; a “Julius Keilwerth Tenor, aka the SR90 Shadow”.  

Julius Keilwerth Tenor Saxophone SX 90 R “Shadow”

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I took a picture of it last June when I did a photo shoot for my friend and jazz musician Derek Hudson. That picture has been viewed 150 times. That’s 3 times more than any other I have posted. [UPDATE 10/29/10: The count is now up to 324]

I even found a link to it on a search engine. I’ve tried to find the link again, but I can’t. I do remember that I was given credit for it. 

So I keep asking myself: why that picture? Of all the ones I have posted, what is it about that one that makes it the most popular? Let me know what you think. Take a look at my Flickr Pro Page and let me know there or here or on Facebook which one is your favorite.

Tango in Toronto


You know the expression “it’s a small world”. And we all know how the World Wide Web makes it even smaller. Well a funny thing happened not too long ago. But the story starts in 2007. That’s when I took a trip to NYC, Toronto and Niagara Falls. Step by step…inch by inch…sorry, obscure reference for some. 

Aaannnyway…While in Toronto I spotted a couple dancing the tango in an open air market called St. Lawrence Market. I snapped a few pics with my point and shoot Canon 800IS. 

A couple dancing the tango

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Almost two years later, I uploaded the photo to Flickr and about a month after that I get an email: 

Hello Harry,  

I came across your picture during a search, and it was a VERY nice surprise. It nicely captured the essence of Argentine Tango – living in the moment; a dialogue without words. 

That’s my back facing your camera in this pic. 🙂 

No other dancer showed up that day, so I had all afternoon to dance with that girl and got to know her better. She was in Toronto for some studies and has since gone home. 

I am wondering if you can send me a hi-res version of the picture just for my personal use.
Thank you in advance.
Peter” 

I was blown away! The picture was captured in a brief moment, in passing, two years prior…in another country! And the guy in the picture finds it and contacts me! 

I exchanged a couple of emails with him just to make sure he was who he said he was and gladly sent him the images. 

I took this experience to reinforce something I had just learned and I would like to pass it along to my photographer friends using Flickr. The possibility exists that a publisher or editor is looking for a particular image. They could search through stock agencies, but some also search Flickr. Your image stands a better chance of being found if it is properly titled and filled in with a description. Afterall, who searches for “IMG_1003” or “DSC_009”? Because I titled and labeled my picture, it was found. No, it didn’t lead to a client or a financial payoff….yet!

Harry Lim Photography’s Top Blogs to Follow


Alltop Logo

So I first heard of Alltop on Scott Kelby’s blog last year.  I didn’t think much of it. Dismissed it somewhat. At the time I was subscribed via email to David Hobby’s Strobist.com and Joe McNally’s Blog. On my customized Google page, I already had widgets to take feeds from a few other blogs including David Ziser’s Digital Pro Talk, Photoshop User TV, and Planet Photoshop. Then that list started growing. It now includes Virtual Photography Studio, Scott Bourne’s Photofocus and Photo Attorney. That doesn’t even include the photography sites I’ve bookmarked. I realized I needed a better solution to keep track of all the blogs I follow. I tried Google reader, but then I remembered Alltop.

Let me take a moment here to talk about the education of a photographer. I suppose you could take the traditional route and go to school to learn photography. Me? I’ve learned from blogs and websites and personal experience. I have a lot of peers who are relatively new to photography and love to schedule so many photoshoots that they hardly have time to edit the images afterwards. I agree that the best education is practical experience. Every shoot, every press of the shutter should be a lesson. But you also need time to “hit the books”.  Some of the world’s best photographers are sharing their knowledge for free! Why not take advantage? Set aside some time each day or each week to read a little…and learn a lot!

Ok, I’m off my soapbox. Now, go to www.alltop.com and create an account. Now you can customize your page and select your favorite blogs. The topics are not limited to photography but search for that topic and you’ll get a ton of photography related blogs. Just add your favorites and voila! You can even set the order of how they appear.

Here’s my alltop page: http://my.alltop.com/harrylimphotography.

I hope you’ll find some useful resources!