Lilly Pad Room at Onondaga Cave, Missouri

Some of you may be aware that I am a paralegal during the week, and am an avid photographer when I’m not slaving away on personal injury files. I sell fine art prints of my work, maintain a web site and a blog, and have been published in Kansas! Magazine. I also belong to on-line photography forums where I post some of my images and receive constructive criticism and commentary. Little did I suspect that by participating in these activities, I would become the victim of copyright infringement.

In 2010, I Googled my name as I did on occasion just to make sure my web site and blog are being picked up by search engines, and I scanned the first couple of pages of results and found one labeled “Show Me State” and clicked on it. A PDF document called “The Show Me State of Mind” which appeared to be a travel and tourism supplement to a newspaper in Columbia, Missouri opened. As I scrolled through the pages, trying to figure out why this document appeared when I searched my name, I was stunned and shocked to see my photograph of the Lilly Pad Room at Onondaga Cave (located in Missouri) gracing the pages of this supplement. I looked twice, then again. Was that really my photo? I had never been contacted by anyone asking permission to use the photo, and I certainly hadn’t received any payment for its use (I would have remembered that!) As I looked again and again, I was certain it was my photo because it contained unique characteristics, and I noticed they had included a credit line underneath with my name (which is how Google picked it up). From what I could see, the supplement had been included with the printed newspaper, and they also posted it on their web site with a link to access the supplement. To make this matter even more outrageous, I discovered the newspaper was owned and operated by the University of Missouri School of Journalism. “Surely the professors there understood copyright laws and taught them to the journalism students,” I said to myself numerous times.  Although my images did not contain a copyright mark directly on them, my web site and blog both clearly state all images are copyrighted and may not be used without my knowledge or permission.

I felt cheated and violated. Someone stole my picture and although they gave me a credit line under the photo, they hadn’t asked my permission to use it and certainly didn’t pay me for this use. Although I consider myself a generous person, I certainly wouldn’t have agreed to let someone use this photo without some sort of compensation because I do have costs associated with my photography (equipment, software upgrades, mileage, gas, etc.) that I need to recoup.

I instantly posted a cry for help on my photography forum and asked my boss at the time if he knew anything about copyright law. He referred me to another attorney in our firm whose specialty was copyright law, and between these two sources, I received lots of great advice on how to handle the infringement. Later in this article, I’ll tell you what I did and what result I obtained.

Because of this situation, I had a lot of questions. What is a copyright? What is protected by copyright, and when someone violates it, what remedies can be sought for the infringement? Copyright law is located in Title 17 of the United States Code. Copyright protection is given to original works of authorship including literary, dramatic, musical, artistic and other certain intellectual works (but you cannot copyright an idea). Examples include (but are not solely limited to) poetry, books, movies, songs, computer software, photographs, paintings, sculptures, choreographic works and even architecture. Photographs are specifically included as “pictorial, graphic and sculptural works.” 17 U.S.C. § 101. In contrast, trademarks protect words, phrases, symbols or designs identifying the source of the goods or services of one party and distinguishing them from others (think of the golden arches that McDonald’s uses), and patents protect inventions or discoveries. Generally, copyrights (for works created on or after January 1, 1978) endure for the lifetime of the creator’s life plus an additional 70 years after his/her death. 17 U.S.C. § 302.

When is a work (such as a photograph) protected by copyright? Is registration necessary to claim copyright and recover damages in case of an infringement? A work is protected the moment it is created and fixed in a tangible form, and no registration is required, although registration does afford the owner advantages in case of an infringement. Copyright is owned by the creator of the work, and mere possession of the work does not give the possessor copyright. In the case of my photograph, the moment I clicked the shutter button, the image was protected by copyright laws. Under the 1976 Copyright Act, the use of a copyright notice on works was required. However, this requirement was eliminated when the U.S. adopted the Berne Convention in 1989 (use of notice may still be required for works created before 1976). From my involvement on the photography forums, I learned it is important to include a copyright notice on photos I post to the internet (although at that time I rarely did because I honestly didn’t think anyone would steal my images), but it is not required in order to establish copyright. It does put parties on notice the work is copyrighted, even though the work might not necessarily be registered with the U.S. Copyright Office. The lack of a copyright notice is not a defense to an infringement action. Registration does have benefits in case of an infringement in the form of allowance of attorney’s fees, costs and election for statutory damages. Pursuant to 17 U.S.C. § 412, unless the work is registered within three months after first publication, no statutory damages or attorney’s fees may be awarded.

Copyright notice should contain the three following elements:

“1. The symbol © (the letter C in a circle), or the word “Copyright,” or the abbreviation “Copr.”; and

2. The year of first publication of the work…and;

3. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.”

(17 U.S.C. § 401(b))

An example of a copyright notice would be: © 2010 Angela Classen

One major exception to the exclusive right of the copyright owner is contained in 17 U.S.C. § 107, which defines “fair use.” If the use is for the purpose of criticism, comment, news reporting, teaching, scholarship or research, it is not an infringement. Four factors are used to determine whether the use is fair use:

“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

(17 U.S.C. § 107)

Unfortunately, the distinction between fair use and infringement is unclear and not easily defined. There’s no specific number of words, lines or notes that can be safely used without permission. Acknowledgment of the source is no substitute for obtaining permission.

What does a copyright owner do once it is discovered an infringement has occurred, and what remedies are available? 17 U.S.C. § 504 provides remedies for copyright infringements, which can include actual and statutory damages, injunctions, impoundment of infringed articles, and costs and attorney’s fees. In certain instances, criminal charges can also be filed. 17 U.S.C. § 506. If the court finds the infringer willfully violated the copyright, statutory damages could be awarded in the amount of $750 to $30,000, with the discretion to increase the damages up to $150,000. Again, statutory damages and attorney’s fees may only be awarded if the copyright has been properly registered.

Because my photo was also posted on the internet, provisions of the DMCA (Digital Millennium Copyright Act) were also applicable. The DMCA was signed into law in 1998 and amended Title 17 to broaden copyright, while limiting liability of on-line service providers (ISP) for copyright infringement by their users. The DMCA provides that the copyright owner must serve written notice upon the ISP that an infringement has occurred, specifically identify the copyrighted work, and certify that the use is unauthorized. Upon receipt of a DMCA “take down” notice, the ISP is obligated to remove the material and if it doesn’t, may subject itself to monetary liability. 17 U.S.C. §§ 512(c)(3), 512(g)(1).

When I discovered the newspaper had used my image without my permission, I wrote a letter to the editor of the newspaper advising of the infringement and requesting an exorbitant amount of money (knowing the amount would eventually be negotiated). At this point, I did not issue a formal DMCA takedown notice. Within three days, the manager of the paper called. He was unsure how the image had been used without my permission, but ensured me he was checking into it and would immediately take down the image from the web site (which he did). The next day he called again, stating the infringement had been completely unintentional on their part, and over the next week or so, we eventually negotiated an amount to settle the matter which ended up being much more than the amount they would have paid me had they contacted me prior to publishing the photo. How is this experience relevant to your everyday life? Do you prepare PowerPoint presentations for work in which you use images? Have you surfed the web in search of a particular image, to post on your Facebook page, use as wallpaper on your computer, or for whatever use? Do not assume that because an image is found on the web, it is free to use or “public domain.” The same is true for music. Have you put together “slide shows” of photos, used your favorite song in the background, and shared it with friends on the web? Or video taped your kids with music playing in the background? Unauthorized use of images or music could subject you to civil awards and fines, even if your use was completely innocent and unintentional. However, many courts have ruled such uses are considered “fair use” and have found no infringement occurred. See Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (2008). In this case, Stephanie Lenz posted on YouTube a video of her kids dancing to Prince’s song, “Let’s Go Crazy.” Universal (the copyright owner of the song) sent YouTube a DMCA takedown notice claiming the video violated copyright. Lenz claimed fair use of the material and sued Universal for misrepresentation of a DMCA claim. The court ruled in Lenz’s favor, holding that a copyright owner must consider fair use before issuing takedown notices for content on the internet. Be cautious in what you do, or you could find yourself defending a copyright action.

What did I learn from this experience? Images posted to the internet will be stolen, no matter what I do, but by placing a copyright image on them, it might be less likely to occur. These days, when posting to Facebook, I always include my copyright on the photo.  I also learned it certainly never hurts to Google yourself once in a while just to see what pops up! For those who are curious, here is the page spread from the newspaper with my stolen image:

If you have had an experience with copyright infringement of your photos or other copyrighted material, please feel free to share your thoughts.  I would love to hear how others have handled infringements and what results they got.