Do Photographers Stand a Chance Against Parents Using Photo Editing Tools to Remove Protections?

I’m a pro-am pho­tog­ra­ph­er, I enjoy the art, espe­cial­ly in the world of sports pho­tog­ra­phy as I find it chal­leng­ing, reward­ing, and even some­times frus­trat­ing, as my skills improve over the years. 

One major con­cern pho­tog­ra­phers of all sorts have is what to do about peo­ple who “steal” images. For pho­tog­ra­phers like me, it has­n’t been a focus (cheesy pun, I know) of my work as I most­ly vol­un­teer my effort and work as a means to give back to what­ev­er team a son (I have three sons) is in at the time.

How­ev­er, most pho­tog­ra­phers at my lev­el are work­ing hard and spend­ing a great deal of mon­ey to pro­vide won­der­ful mem­o­ry keep­sakes for kids and par­ents as part of mak­ing a liv­ing.

For a pho­tog­ra­ph­er, whose income is depen­dant on pho­tog­ra­phy, the theft of images is no dif­fer­ent than for a store that has some­one walk­ing out the door with prod­uct they did­n’t pay for. Any theft reduces income, and when enough theft hap­pens, the busi­ness own­er (regard­less if the busi­ness is a store or pho­tog­ra­phy ser­vices) throws up their arms and gives up. No one wants to work for free, espe­cial­ly as a result of need­less and inten­tion­al theft.

As a result of my pho­tog­ra­phy inter­est, I also belong to many pho­tog­ra­phy relat­ed groups, espe­cial­ly sports relat­ed groups. The sub­ject of what to do when par­ents “steal” images arise often.

In a recent thread, a par­tic­u­lar­ly egre­gious and won­ton exam­ple of theft was dis­cussed in which the offend­er was not only bla­tant about her dis­re­gard of the intel­lec­tu­al prop­er­ty theft, when oth­ers point­ed out what she was doing was wrong, she replied in fur­ther FB com­ments along the lines of she did­n’t give a f**k and go ahead and call the police.

She also appeared to offer the removal of image pro­tec­tion and water­marks for peo­ple for a fee.

That’s not all, there’s also irony in this sto­ry because it appears based on my review of the per­son that she actu­al­ly makes a liv­ing from pho­tog­ra­phy and video work. In oth­er words, a per­son depen­dant on cre­ative art, as well as intel­lec­tu­al prop­er­ty rights, is also seem­ing­ly of the opin­ion it’s ok to steal oth­er cre­ator’s works.

You just can’t make this up, it’s too far out there, espe­cial­ly con­sid­er­ing she’s more or less mar­ket­ing and adver­tis­ing these “ser­vices.” It gets bet­ter though, it appears she’s also local to the peo­ple she’s steal­ing from.

In the com­ment thread, I men­tioned that reg­is­ter­ing the images is rel­a­tive­ly cheap for many (each is dif­fer­ent), and that statu­to­ry dam­ages become avail­able, mak­ing the pro­tec­tion of image works of art much more avail­able than many may real­ize. A non attor­ney respond­ed back (in a nut­shell) that it was too dif­fi­cult and expen­sive to do any­thing about.

I start­ed writ­ing a reply and real­ized it was too much, and decid­ed to cre­ate a bet­ter answer in a place that allows for sep­a­ra­tion of para­graphs and thoughts. The fol­low­ing describes one option poten­tial­ly avail­able to pho­tog­ra­phers to pro­tect their work labor using the US Copy­right laws. It’s not by any means exhaus­tive and com­plete, and only meant to cre­ate a start­ing point of thought.

To put it in con­text, here is a sum­ma­ry of the state­ment I’m respond­ing to:

There is no law enforce­ment track­ing down copy­right vio­la­tors

Copy­right­ing isn’t expen­sive, albeit legal action is expen­sive

See­ing a copy­right num­ber only keeps hon­est peo­ple hon­est

Your com­ment put into the very best light is only par­tial­ly cor­rect.

It’s very true that gen­er­al­ly speak­ing, low-lev­el IP theft isn’t giv­en atten­tion by law enforce­ment, larg­er com­mer­cial theft is crim­i­nal­ly pros­e­cut­ed.

Fur­ther­more, it’s not nec­es­sar­i­ly expen­sive, in fact, enforce­ment action could lit­er­al­ly be more prof­itable than tak­ing the pic­tures itself. And I’m not try­ing to be rude here (and only fac­tu­al and help­ful), albeit this is why you don’t want to take legal advice from some­one who isn’t an attor­ney.

Any­way, back on point, I’ll use an exam­ple as often it will be illus­trate a con­cept.

Now, quick dis­claimer, my com­ments are gen­er­al in nature, don’t con­sti­tute legal advice, and does not cre­ate an attor­ney-client rela­tion­ship with any par­ty read­ing this. Also, my exam­ple here takes some assump­tions that may or may not be true in any giv­en sit­u­a­tion, and are only illus­tra­tive in nature, and some things are me sim­ply think­ing out loud.

Ok, Let’s say for exam­ple Pho­to Fred takes 700 images of Super High School kids.

Pho­to Fred has Attor­ney Bob reg­is­ter the pho­tos with the copy­right office and that costs $90.

After reg­is­ter­ing, The­ma Thief shows off her amaz­ing imag­ing edit­ing skills on face­book or some oth­er online plat­form, cir­cum­vent­ing the image pro­tec­tion. Because the imag­ine was pre­vi­ous­ly reg­is­tered, Pho­to Fred is enti­tled to up to $150,000 in statu­to­ry (ie does­n’t have to show loss of income etc…, it’s cod­ed in the law) dam­ages (side note, just pub­lish­ing the pho­to even with­out remov­ing the image pro­tec­tion is a vio­la­tion).

Pho­to Fred emails Attor­ney Bob, writing,Thema Thief is vio­lat­ing my copy­right, and she’s even will­ing to offer to do the same for oth­ers, what can I do? Attor­ney Bob says, “She’s poten­tial­ly liable for up to $150,000, albeit you can’t get water from a rock, so let’s look into see­ing how much she has for assets.”

A rel­a­tive­ly sim­ple search and finan­cial analy­sis of the vio­la­tor is ini­tial­ly per­formed, we see she owns a home, has a job/business and appears to have the abil­i­ty to pay $X.”

Attor­ney Bob sends a let­ter to The­ma Thief, with a demand and set­tle­ment offer let­ter ask­ing for $150,000 in dam­ages. Then, one of two things hap­pen.

Either she fig­ures out she has a real prob­lem, and nego­ti­ates a set­tle­ment for maybe $8,000 (from a prag­mat­ic point of view, an abil­i­ty to pay is an impor­tant cri­te­ria in decid­ing what, if any legal action is tak­en in just about all civ­il cas­es) quick­ly, or a suit is filed, and then she fig­ures it out very quick­ly.

An action does­n’t have to be expen­sive to under­take. Hav­ing an attor­ney work on con­tin­gency (receiv­ing pay­ment from a dam­age award actu­al­ly received) is one way to know and min­i­mize what your costs going into lit­i­ga­tion will be. If Pho­to Fred does­n’t have to pay much (maybe fil­ing and relat­ed fees) to start, the propo­si­tion of lit­i­ga­tion becomes much more obtain­able for most pro­fes­sion­al pho­tog­ra­phers.

Inter­est­ing­ly enough, the defen­dant will like­ly have to not only pay for their legal defense, albeit almost all attor­neys will require a sig­nif­i­cant retain­er to take on the mat­ter. Also, this is a civ­il mat­ter, so the idea of receiv­ing a free attor­ney is gen­er­al­ly off the table.

Know­ing that the lit­i­ga­tion costs alone will be sub­stan­tial, is prob­a­bly going to be the sin­gle largest mate­r­i­al fac­tor for a defen­dant fac­ing an almost cer­tain defeat in court.

Once the mat­ter is in lit­i­ga­tion, if the act was deemed not inten­tion­al, dam­ages are like­ly to be much small­er than $150,000, how­ev­er, at least $750 and like­ly less than $30,000 per violation/image, depend­ing on the juris­dic­tion, and if deemed inten­tion­al (like remov­ing image pro­tec­tion and a water­mark may sug­gest), the per­son faces up to $150,000 (the dif­fer­ence will­ful and unin­ten­tion­al vio­la­tion is fact spe­cif­ic and beyond this dis­cus­sion).

The next obvi­ous ques­tion is regard­less of the type of vio­la­tion, includ­ing will­ful and inten­tion­al vio­la­tions, how much can be actu­al­ly received? Are most will­ful vio­la­tors going to pay up $150,000, no, it’s not real­is­tic to assume many, if any, in fact would because of finan­cial resources and abil­i­ty to pay.

Also, because bank­rupt­cy may be a bet­ter option (the abil­i­ty to dis­charge dam­ages that may or may not include puni­tive dam­ages is very fact spe­cif­ic and beyond this dis­cus­sion), even with a judg­ment, it can be dif­fi­cult to col­lect. Again, this is why it’s impor­tant to know who you are deal­ing with and their finan­cial resources to col­lect from.

Because most in Pho­to Fred’s posi­tion are also con­cerned with the dis­trac­tion and poten­tial rep­u­ta­tion­al impact of actu­al­ly fil­ing suits, actu­al lit­i­ga­tion is poten­tial­ly and like­ly only used as a last resort, and in only the most egre­gious sit­u­a­tions that rea­son­ably war­rant such action.

How­ev­er, there remains the pos­si­bil­i­ty that when pre­sent­ing the pho­tos for par­ents to select from (and pay for), an includ­ed state­ment with pre­vi­ous actions brought against oth­ers, that illus­trates pri­or dam­age awards may stop future theft from hap­pen­ing, which is like­ly what Pho­to Fred desires in the first place, mean­ing there is a strong poten­tial that lit­tle, if any, long-term action is required to main­tain the finan­cial integri­ty of the pho­tog­ra­phy busi­ness

What oth­er steps can you take?

Fed­er­al law under US Code Title 17 Chap­ter 12 §1201 and §1202 dis­cuss­es penal­ties for copy­right infringers who alter the images.

It’s ille­gal under fed­er­al law to cir­cum­vent copy­right pro­tec­tions. This includes things like remov­ing water­marks and oth­er means to pro­tect your pro­tect­ed works. For exam­ple, using soft­ware (or oth­er means) such as pho­to edit­ing tools, AI tech­nol­o­gy and the like to alter the images.

If the pho­tog­ra­ph­er uses copy­right man­age­ment infor­ma­tion with­in the images, it’s ille­gal to remove or alter the infor­ma­tion.

Fed­er­al law has both civ­il and crim­i­nal penal­ties for vio­la­tions.

Depend­ing on the loss, either actu­al or statu­to­ry dam­ages may be award­ed. Often, for a small pho­tog­ra­phy oper­a­tion, the statu­to­ry dam­ages are the route to go.

A suc­cess­ful civ­il action is like­ly to result in at least $200 per act, and if it can be shown that the offend­er also altered or removed the copy­right man­age­ment pro­tec­tion, the min­i­mum statu­to­ry dam­ages is at least $2,500 and may increase to as much as $25,000 per vio­la­tion.

Because images, even those that haven’t been for­mal­ly reg­is­tered with the copy­right office qual­i­fy, this is often a viable avenue to seek com­pen­sa­tion from those that wish to steal your images. The Fed­er­al Code also allows for oth­er types of relief, includ­ing dis­cre­tionary awards for rea­son­able attor­ney’s fees to the pre­vail­ing par­ty, as well as destruc­tion of any device or prod­uct involved in the vio­la­tion.

In oth­er words, Fed­er­al law is on your side, and as a pho­tog­ra­ph­er, you have sev­er­al very viable and pow­er­ful options avail­able to pro­tect your rights.

The key take­aways are that pro­tect­ing your intel­lec­tu­al prop­er­ty rights does­n’t need to be expen­sive, and in fact may cost noth­ing on a net net basis. It’s also inter­est­ing to know that there are com­pa­nies that have a pri­ma­ry busi­ness mod­el of obtain­ing intel­lec­tu­al prop­er­ty rights, and sub­se­quent­ly mak­ing mon­ey through enforc­ing the same rights.

You can Google to learn more about what is often called “patent lit­i­ga­tion mills” to learn more about how some have built a busi­ness out of buy­ing intel­lec­tu­al prop­er­ty, find­ing offend­ers, send­ing let­ters to the offend­ers for pay­ment, and then lit­i­gat­ing those that don’t reach an agree­ment.

We have strong intel­lec­tu­al prop­er­ty right pro­tec­tions in the Unit­ed States, and cor­rect­ly so as it’s increas­ing­ly an impor­tant aspect of our econ­o­my. Any pho­tog­ra­ph­er knows how impor­tant it is to their busi­ness.