by Daniel H. Bailey
 

    In this country, our economy is largely driven by the creative talents of photographers through advertising and marketing. Our government recognizes the value of this creativity and has written the U.S. Copyright Law to ensure the protection of intellectual property rights. Few people actually read the law, which unfortunately results in a number of misconceptions about the protection that it offers. With the internet allowing mass exposure of imagery, these misinformation is perpetuated to an even greater audience, which results in an increasing number of copyright infringements. Often, those who steal images don't realize the serious nature of their actions, but as with any other law, ignorance is no excuse and the penalties for stealing copyrighted material can often be quite high.

    To clarify the law, copyright means that when you create an original work in any tangible medium, you instantly become the copyright holder of that work. You own the work, and are the only one legally allowed to use, reproduce or distribute the work. In essence, you are the only one with the right to copy the work, unless you specify otherwise.

    How does this apply to photos on the web? It means that the common practice for individuals to download images from the web for "personal use," is technically illegal. While it seems harmless, downloading a photo for your computer desktop is the same as going into a photographer's archive, and "borrowing" a negative to make print for your home without telling him. Although you are not actually stealing anything tangible, or commercially distributing the picture, reproducing and displaying copyrighted work without permission is copyright infringement.

    Another common misconception is that any image on the web is in the public domain. An image becomes public domain only when 50 years have passed after the death of the creator, and only a very small percentage of the images found on the internet fall into this category. Even if the image lacks a © symbol, it doesn't imply public domain. In fact, the © symbol is not necessary to prove ownership and it's the user's responsibility to obtain permission before using any copyrighted image.

    The term "All rights reserved" that often accompanies the © symbol means that each use must be licensed by the photographer, and this is often overlooked. For example, if you purchase the rights to use an image on the cover of a magazine, it does not mean that you can freely use it on the web version of the magazine unless your contract with the photographer specifies as such. Assume nothing and follow the rule that you must negotiate every use. Photographers make their living from the exposure of their images and, very simply, the greater the exposure, the higher the cost to the end user.

    Probably the most misused term when it comes to copyrighted work is "Fair use." Whether it applies to music (i.e. Napster) or photographs, "fair use" only allows for the free use of copyrighted work in the context of non profit education, news reporting, criticism, review and parody. Personal use, in any form, is not deemed fair use and all such uses without permission constitute infringement. Even for such fair uses, it's always safer to contact the photographer before using any copyrighted images and always provide proper credit.

    In the graphic design industry, it's a common practice to use copyrighted images in pre-production layouts. Since most professional photographers have web sites, it's logical that at some point, their photos would be used for such uses. While technically illegal, it obviously works to their benefit, especially if it increases the chance that their work gets used in the final projects. For that reason, many photographers, including myself, encourage this practice, but in the end, they have the final say over licensing rights and, again, they must be contacted prior to any final usage.

    How serious in copyright infringement? If a case goes to court, statutory damages can be as high as $150,000 per copyrighted work if the infringement has been shown to be blatant and willful. In one of the first precedent setting cases involving copyright infringement on the web, Atlantis New Media lost a case against the Florida agency SuperStock and was ordered to pay $10,500 in damages. Atlantis illegally scanned three images from one of SuperStock's stock photography catalogs for use on its corporate web site. Said James Ong, Co-President of SuperStock, "people think that they are safe in the black hole of the Internet. We trust that this case is evidence that they will be caught, and they will be punished."

    Although individual photographers may not have the same resources as a large agency, the law states that those found guilty of copyright infringement are required to cover the plaintiff's attorney's fees, which gives individuals nearly the same power to protect their work. The "New Mellinnium Copyright Act of 1999" requires that any web site found to be illegally using copyrighted images be taken offline by it's internet hosting company. Failure to remove the offending site could make the internet company financially liable if they have been properly notified of the infringement. Furthermore, the law specifies federal punishment and possible jail time for infringers who remove any copyright notice or symbol in the course of illegal usage, as it constitues willful criminal intent.

    What are the chances that you will be caught? Some photographers utilize traceable digital watermarks in their images that allow them to be located anywhere on the web. With technology like this expanding, it's becoming more dangerous to assume that your infringement won't be discovered. At the very least, you'll receive a notice demanding that you remove the images from your site. Most professional photographers are serious about protecting their work and you'll likely receive an invoice for three to ten times the normal amount for that usage. If you refuse to pay, you may end up with a lawsuit on your hands. Just remember this, it's always easier to ask for permission than for forgiveness, especially when "I'm sorry" won't get you very far in court.

Note to graphic designers: I DO allow the use of my images in pre production layouts, please feel free to include them in your comps and contact me with any questions or if you'd like information about licensing rights.

Note to students: As education falls within the lines of 'fair use', you may use any of my images in your school and research projects, as long as they do not appear any way in the context of marketing or self promotion. I do ask that you please include a proper photo credit with the image.
 
 

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