Photographer Max Dubler struck a nerve with the post documenting the thieving of one of the downhill skateboarding pictures. After locating a skateboard brand with one of his photographs without consent, he did as he always does — he contacted the offending party and asked that a payment of $25 to get societal networking use.
()Dubler’s simple, non-confrontational approach has been employed previously, but not that time. The offending brand reacted:-LRB-***)
“Seriously? Instagram stocks aren’t paid for by us and credit is consistently given by uswho pays for Instagram stocks lol. I shall take it off in case you want Max”
Dubler spent significant effort building a line-by-line reply, which divides photographer outrage. Nevertheless, the issue remains. Dubler writes, “They have not paid me. I doubt they ever will, but in the 48 hours since those posts went up, half a dozen businesses have contacted me to pay for for skate photos I didn’t even know they’d used. I’m calling it a win.”
Dubler scored more than a moral victory given that the piece resulted in newfound revenue. But the outrage that it provoked and his frustration did nothing for the long-term benefit of photographers because of one thing.
When I emailed Dubler about copyright registration, he responded “I didn’t, mostly because copyright exists from the moment of creation and I rarely ever have disputes about it.”
In the united states, a photographer does own the copyright the moment he/she presses the shutter. But damages for infringement are capped at the market value. Presumably $25 in Dubler’s case since that’s the precedent he set. However, while you register your image with the US Copyright Office, you can be awarded up to $150,000 per image for a willful infringement plus legal expenses.
And according to The Copyright Zone authors Jack Reznicki and lawyer Edward Greenberg, you are still able to register a photo even after it’s been infringed. “And we advise to register it even then. You lose some rights which you would have collecting your lawyer fees and if registered before the infringement, that is the right to damages. In some instances that might be a deal breaker for some instances, but then there’s the Alan Paul Leonard case where the photographer was awarded $1.6 million plus $400,000 in interest for a registration done after the actuality.”
The public doesn’t understand copyright
But taking posted content and republishing it in someone’s own account is equivalent to making a copy, and that’s illegal. That Dubler’s image appeared in Instagram doesn’t signify another account can “share” it by uploading it to their account.
The threat of fines are a defense against infringement
Insect photographer Alex Wild noted in Ars Technica, “Most copyright holders are individuals; most infringers are businesses. Things are broken.” Copyright gives some protections that are substantial to them, although creators don’t wield the power of a corporation.
Reznicki and Greenberg said, “One of the facts about suing and collecting through settlement or trial a massive amount, is that it greatly discourages future infringements.” Suing is, for worse or better, a check-and-balance on exploitation.
Whether $25 is the “right” amount somewhat misses the point. The marketplace will bear what it will bear, and $25 may very well be the value of a license for use on an Instagram account with a limited following. The issue is that a lack of enforcement with damages means that brands will continue to deprive photographers of a way.
Still Reznicki and Greenberg caution against sending an invoice from the blue, in part because indicating an amount in an invoice reduces your leverage in court. If you’re trying to solve an infringement amicably and without a Attorney, they suggest, “send an email (not invoice) which states that ‘Rather than consult with my attorney I will accept actual receipt of the sum of $X not later than [date]. If I don’t physically receive that money by that date my offer shall be deemed withdrawn, null and void. I’ll then turn over this . ”’
Register your damn images
Photographers can be their worst enemies. The US Copyright Office provides an internet mechanism that’s inexpensive and straightforward. Despite knowing that infringements occur all of the time most photographers do register their copyright.
At the urging of some readers, Dubler has set up a Patreon account. But soliciting donations that are small is an way.
“I’m considering registering some of my more frequently stolen photos, though.”
The information contained in this guide shouldn’t be construed as legal advice. Always consult with a attorney.