Photography and Copyright Issues

Photography is a huge part of a creatives business whether you sell products or services, or maintain a blog.  We all know a picture is worth a thousand words…and maybe even a thousand dollars.  This recent case is fascinating in that there are several point to take away from this situation. Think about how this might affect your blog, your brand, or your ability to serve your customers.  Here are some of the critical facts of the case.

A photographer started donating her photos to the Library of Congress in 1988.  This means that anyone that wanted to use her photos were welcome to use them.  She requested that the users of her photos credited the Library of Congress photographer’s collection.  Imagine this photographer’s shock and surprise when she received a demand letter from Getty Images stating she owed $120 for using her own photos.  She knew something was definitely wrong!  After she explained that she indeed was the copyright owner, and that she had granted the photos to the Library of Congress to put into the public domain, she was no longer required to pay the $120.  However, the photos still remained on Getty’s website for them to license to others.

The photographer filed a lawsuit in federal court for misappropriation of the gift to the Library of Congress for charging fees to those who were free to use the photos without paying anything. According to the photographer’s lawsuit, it is alleged that Getty violated federal law 18,755 times based on the number of photos it licensing on its website. There are no separate agreements between the photographer and Getty that would grant licenses to sell the photographer’s photos, so Getty essentially has the same rights and responsibilities that all citizens have to use the photographer’s photos.  Because of the outcomes of some other related litigation, the photographer was able to ask for treble statutory damages—translation—the defendant’s potential liability could total well over $1billion.  Interestingly, the photographer is one whose works have been featured in over 50 books and on two US postal stamps.

This is case is both interesting and extreme, but I think in its extreme nature I think it works well to make a few important points for creatives.

1. Register your work.  In this situation the photographer was suing for misappropriation.  If the facts had been a little different and she had been suing for infringement yet had not registered her works with the Copyright office, she would have been out of luck. If your works are not registered with the Copyright Office, you cannot get into federal court until or unless they are.
2. Public domain does not give a user more rights.  In this situation Getty had the same access and rights as all other Americans had to the photographer’s photos.  Not more, not less.  When something is in the public domain, the burden is on the creative to determine how that work may be used.
3. Police your work. No one is going to police your work for you.  If you create something, the burden is yours to make sure that someone is not stealing or misappropriating your creative property.
4. If you are not donating your works to public domain, be aware of licensing agreements. Assuming that you are not donating your works, your intellectual property, then either you will monetize your creative works by selling them or licensing them.  Be aware of how licenses work.  A license is an agreement that outlines how someone can use your creative works and not be liable for infringement.  However, there are lots of little details and moving parts in those agreements, so make sure you understand fully on what you are agreeing to license.
5. If you aren’t sure, seek the advice of an intellectual property attorney. Better to be safe than sorry.  If you aren’t sure about a situation, seek an expert’s advice.  Being proactive may cost some money up front, however it will be less than what it will cost you to be on the defensive.
6. Do not be intimidated by a larger company. In this case a larger company was taking advantage of a single photographer.  That photographer could have been intimidated and decided not to protect her creative works, however she decided to stand up to the larger company, and there are serious potential consequences.

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