Photographer Max Dubler struck a nerve with a 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 requested a payment of $25 for social media usage.

Dubler’s straightforward, non-confrontational strategy has been employed previously, but not this time. The offending brand responded:-LRB-***)

“Seriously? Instagram shares aren’t paid for by us and credit is always given by uswho pays for Instagram shares lol. I will take it off in the event that you wish Max”

Dubler spent considerable effort constructing a line-by-line reply, which drummed up photographer outrage. Nevertheless, the problem remains. Dubler writes, “They still haven’t 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 cover for skate photographs I did not even know they had used. I’m calling it a win.”

()Dubler scored over a moral success given the piece resulted in newfound earnings. 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’s the right to damages. Sometimes 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 truth.”

The public doesn’t understand copyright

As Dubler incident illustrates, the majority of us have a poor comprehension of copyright — an issue that’s exacerbated by social networking sharing. The majority of the significant social networking platforms have an embedding features that usually falls under a “share” link or icon. Embedding is seen because the Terms of Use require the uploader to consent to embedding as a mechanism that doesn’t run afoul of copyright laws.

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 them some protections, 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.

Photo by Allen Murabayashi

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 is an way.

“I’m considering registering some of my more frequently stolen photos, though.”

The information contained in this report shouldn’t be construed as legal advice. Always consult with a attorney.