Intellectual property

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.