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.

 

Page from Columbia Missourian "Show Me State of Mind" supplement

My photo of the Lilly Pad Room at Onondaga Cave near Leasburg, Missouri was published in a special tourism supplement to the Columbia Missourian newspaper in May.  The supplement focuses on travel ideas in the state of Missouri, and various caves throughout the state are mentioned in the article.  The Onondaga Cave is fascinating, beautiful, and is very accessible and easy to tour, so if you’re in the area, I highly recommend making a stop.  More information about Onondaga Cave can be found here.

This photo also won a Weekly Pick Award on Nature Photographer’s Network in early November.

We traveled to southeastern Missouri the weekend before Halloween and were “treated” to great foliage. Our first stop was Hermann, Missouri.  We ate lunch and checked out the Gasconade Co. Courthouse, which sits high on the banks of the Missouri River, the only courthouse I’ve ever seen perched next to a river. 

Gasconade Co. Courthouse, Hermann, Missouri

We then toured the Stone Hill Winery and, of course, tasted a “few” samples of their award-winning wines. The tour was very interesting and informative. I had no idea that this winery was the second largest in the nation before Prohibition.  After Prohibition — well, they had to start growing mushrooms to make a living.  The cellars are apparently the perfect place to propogate ‘shrooms.  Today, however, the cellars are again filled with barrels of wine aging to perfection.  The smell (and as we discovered later – the taste) was delicious!  We had never visited a winery and really enjoyed the tour.

We then traveled to Bass’ River Resort located near Steelville to check into our cabin. Upon our arrival, we discovered the Courtois Creek had swelled out of its banks and was practically up to our doorstep.  Well, we were pretty high up, but the water was just below us. 

The next morning started off foggy, a great opportunity to get some photos. I have to thank my husband for telling me it was foggy out – I hadn’t even looked outside! I experimented with different exposures and tried not to overexpose because of the sun shining through the bright fog.  Using my histogram was definitely the ticket to help me find the correct exposure in these conditions. I tried to capture a sunburst but even at F22 I just couldn’t get it pinched down enough to work successfully.

The flooded creek was also cause for some excitement when the tour riders for the Berryman Epic started out.  Because the creek was so far out of its banks and so deep, the riders couldn’t safely get across on their bikes, so they brought in flat-bed trailers to haul them across. 

There they go! It took two flatbed trailers to get them across the flooded creek.

It was quite a sight!  My husband said in all his years of mountain biking, he had never seen anything like it.  Fortunately, by the next morning when he raced, the water had gone down considerably and they placed a trailer across the deepest part of the creek to use as a bridge and had no need for the “ferry service.”

Back to Saturday… After the tour riders were ferried across the swollen creek, we took off on a back road to get to the Onondaga Cave near Leasburg. We got about 5 miles down the road and ran smack dab into a flooded creek crossing that had been barricaded. So much for the scenic back route! We re-traced our steps and took the main highway to the cave.

Suffice it to say, the Onondaga Cave was awesome! Our group consisted of probably around 30 people, ranging in age from about 10 up to around 90. The cave was cold – around 57 degrees – so we had to bundle up a little bit. The first thing we saw were tiny, delicate formations called soda straws that looked like – well, soda straws! Eventually soda straws turn into stalactites.  Some other formation types represented in the cave were flowstone, draperies, canopies, stalactites, stalagmites and columns.

The Twins

King's Canopy

 Some of the other named formations we saw were the Twins, King’s Canopy, Queen’s Canopy, and the Devil’s Shower.  There was a river running through the cave which is named “The Lost River” because apparently the experts cannot figure out where all the water sources come from.  The river was a blue-green color and didn’t appear to have much of a current, but once in a while you could see particles drifting along on the surface that contradicted that.

The best formation was saved for last. It was called the Lilly Pad Room, which was divided into two chambers.

Lilly Pad Room

Lilly Pad Room

It’s called the Lilly Pad Room because some of the formations look like lilly pads.  The water in one chamber was especially cool – very vibrantly colored.  The other chamber looked almost alien like with white “drip cups” abounding. I almost wondered if some being was going to pop out at us.  It was really amazing what Nature has created in this cave.

After the cave tour, we ate lunch and took a 3 mile hike on one of the trails at the park. The part that followed the Meramac River bluffs was very scenic; the sun was shining bright and the foliage was brilliant.  It was a great day to be outdoors and enjoying Nature at her finest.  The day wrapped up with a barbecue at the Resort for the bikers, complete with a roaring bonfire.

My husband took off for his race around 8:30 on Sunday, and I met him late in the morning at the Berryman Trail trailhead to give him more water and snacks.  After he left, I had plenty of time to kill. The overcast sky actually was favorable for shooting foliage as it really saturated the colors, so I played with different exposures and compositions. 

Vibrant foliage on the Berryman Trail

Zoom zoom!

 Unfortunately, it then started to sprinkle on and off. I did stay out for quite awhile and took some foliage shots near the trailhead, and even experimented with catching the riders with different shutter speeds as they zoomed by.

I finally went back to the Resort and the finish line, and just a few hundred yards away, found this wonderful little creek scene with foliage in the background and fallen leaves in the foreground. 

Small creek on grounds of Bass' River Resort near Steelville, Missouri

I started to walk up the trail to check it out, but then the skies finally opened up and the rain was too heavy to continue so had to pack away the camera.  My husband finished the 56 mile race in a little over 6 hours. He would have finished sooner but his chain broke a few miles from the finish line and repairing it cost him about 15 minutes.

All in all, we had an “epic” adventure in Missouri!

I’m very excited to announce that my photo of the Lilly Pad Room at Onondaga Cave in Missouri was selected as the Editor’s Pick for the Earth Sea Sky gallery on Nature Photographer’s Network for last week!  This is my first “EP” and I feel very honored to receive this pick.  The ESS gallery is the highest-traffic gallery on NPN and consistently contains hundreds of awe-inspiring images from both amateurs and pros.

Onondaga 2 NPN 

A little background about the cave and the photo:  Onondaga Cave is located near Leasburg, Missouri and is just a few miles south of Interstate 44.  Guided tours are available March through October.  We had around 30 people in our group when we toured.  The cave is very open with only a few spots where the ceiling gets a bit low, so I did not feel claustrophobic at all as I did in a small cave I toured in Arkansas a few years ago.  The walkways and ramps are wide and steep in places, but there are plenty of handrails.  The Onondaga Cave was a private show cave for quite some time.  After a long, difficult history involving property disputes and almost being lost forever due to a planned dam in the area, the cave finally became part of the Missouri state park system in 1981. 

I had to plan ahead for shooting photos at this location since I couldn’t lug all my gear with me.   Because I knew the quarters would be tight, I took my 10-22 mm lens, which is also my fastest lens at F3.5/4.0.  (I also brought my 35-80 mm but never took it out of my jacket pocket.)  I knew I’d have to crank up the ISO and shoot wide open if I hoped to get anything acceptable.  There were lighting fixtures in place around the formations, and the walkways were lit, but after all – it was a cave and very dark!  As soon as the tour started, I turned the ISO to 800 and fired off a couple test shots, and discovered I needed yet more light so cranked it as high as it would go – 1600.  Unfortunately, I don’t have an off-camera flash so had to use the built-in one.  In some of the shots I took, this resulted in a half-circular pattern appearing at the bottom of the frame.  I found it very difficult to focus in the low-light conditions even though I was using auto focus. In some spots, the camera just couldn’t figure out what it was supposed to be doing. 

Compositions in the cave were very limited due to the placement of walkways, handrails and light/electrical fixtures.  Because there was another tour group coming through in about an hour, there was no time to waste.  This also didn’t help with trying to compose a nice shot.  Additionally, tripods were not allowed so I was forced to use the handrails for support.  Sometimes it worked and sometimes it didn’t because people in the group kept bumping into the rails, causing vibrations. 

We saw several awesome formations (the Twins, King’s Canopy, Queen’s Canopy, etc.),  and the Lost River which runs through the cave was a clear, greenish-blue ribbon that contrasted nicely with the orange-hued formations.  One stretch of the river was named “The Grand Canyon” because the reflection of the cave walls on the river resemble that of a view from the Colorado River in the Grand Canyon. 

The highlight for me though was the Lilly Pad Room, which was the very last formation we visited.  It is so named because the formations at the water surface look like lilly pads. The tour guide said it was only about 20 feet below the surface and the most active formation in the cave, which I believe after seeing all the dripping going on in there. There were also formations underwater, one of which I thought looked like an intestine!  I was fortunate enough to capture several concentric drip patterns while exposing this shot. It certainly adds to what could have otherwise been a pretty static image.

After converting the shot from RAW format, I used the noise reduction sliders in Lightroom to reduce much of the noise in this image. I exported it to PS and finished up with some curves adjustments and a little work on the color balance due to the artificial lighting. The final result is what I remember seeing while standing in this amazing little room.

Tech specs:  Canon Rebel XTI, Canon 10-22 mm lens, handheld, built-in flash, ISO 1600, F4 @ 1/50

I’m dreaming of fabulous fall foliage in dark purples, deep reds, vivid scarlets, vibrant oranges, brilliant yellows and bright rusts. Fall is my absolute favorite time of the year! Color explodes from nearly everywhere. I noticed just yesterday that the dying hostas in my garden are even brilliant yellow. Spring is beautiful and is a sign of Nature renewing herself, but to me – fall just can’t be beat. The sky always seems clearer and the air more crisp.

My husband and I are off for a few days to an area in Missouri we’ve never explored. It’s about 90 miles southwest of St. Louis and is in the Mark Twain National Forest. My husband is torturing himself Sunday by riding in the Berryman Epic Missouri Endurance Mountain Bike Race, a 55 mile journey down fire roads and single track. I’m not as insane as he is, so I’ll be looking for less strenous ways to pass my time – with photography of course! We also plan to visit the Onondaga Cave near Leasburg and hopefully get in some hiking on the Ozark trails. I’ve seen photos of the cave on the ‘net and the Lilly Pad Room looks really awesome. Unfortunately, tripods are not allowed so my Rebel XTI will be getting fully tested in higher ISO mode.

Fall colors are really getting good around here now, so I can only hope the hardwood forests of southeastern Missouri will yield some wonderful photographic opportunities. The rocky bluffs and beautiful spring-fed streams will be wonderful backdrops for the foliage.

Check back in a few days for a trip report!