If you follow me on Facebook, you may have seen a few instances from 2011 where my photos were used on blogs, fliers, and elsewhere online and in print without permission. No credit was given. Watermark removed from the photo. Photolaw.net wrote the article below for MCP Actions readers to help photographers and bloggers alike.
Photographers, learn how to protect your photos from theft and learn what you can do if your rights are violated. You will learn why using a tool like the free MCP Facebook Fix Photoshop action set – watermarking actions protects you, even if it is easy to remove.
Please post questions you have in the comment section below. Hopefully I can have them write a follow up article answering some of them.
DID SOMEONE REMOVE THE COPYRIGHT NOTICE FROM YOUR PHOTOGRAPH?
© 2011 Andrew D. Epstein, Esq. and Beth Wolfson, Esq., Barker Epstein & Loscocco, 10 Winthrop Square, Boston, MA 02110; (617) 482-4900; www.Photolaw.net.
What if you publish a photograph on a calendar, on your website or in a magazine, and you carefully include a copyright notice, and someone takes the photograph, copies it and removes the copyright information? Well, as the result of a fairly new law called the Digital Millennium Copyright Act (or DMCA), you have a remedy.
If someone copies your work, whether a photograph, a painting, or an article, without your permission, it is copyright infringement. However, most people do not know that it is also a violation of copyright law for someone to remove a copyright notice from the work. Removing or altering a copyright notice from an image or stripping metadata from the picture file is a violation of the DMCA. A person can be liable for between $2,500 and $25,000 plus attorney’s fees for removing from a work what the DMCA calls “copyright management information” from a work.
To win a case under the DMCA, the name of the author, or copyright owner, or the copyright notice must have been removed from the work or altered. The DMCA refers to this as “copyright management information.”
In a New Jersey case (Murphy v. Millenium Radio Group LLC), a photographer photographed two DJs. The picture was published in a magazine with a credit to the photographer along the edge of the page. A radio station employee scanned the photo and posted it on the radio station’s website, and asked fans to alter the picture in a contest. The court determined that even a photo credit printed in the gutter of a magazine qualifies as copyright management information under the DMCA, and the photographer was awarded damages.
In another case (McClatchey v. Associated Press), the Associated Press (AP) took a picture of one of the plaintiff’s photographs from her portfolio without the photographer’s permission. The original photograph depicted the mushroom cloud caused by the crash of Flight 93 into a Pennsylvania field on 9/11. The AP then redistributed the plaintiff’s photograph but replaced the plaintiff’s copyright information with its own. The photographer was entitled to damages.
There are protections built into the DMCA, that protect certain internet businesses from liability for the acts of their users. Internet Access Providers (“IAPs”, also known as Internet Service Providers, “ISPs”) such as AOL, Comcast, AT&T, and Verizon, and Online Service Providers (“OSPs”), such as Google, Yahoo, eBay, Amazon, Expedia, Craigslist, web hosting services and social media websites like Facebook, Youtube, Twitter, and Flickr, can avoid liability under the DMCA if other copyrighted works are uploaded to these sites by their users, with the copyright management information removed. The IAPs and OSPs can only avoid liability if they are pre-registered with the U.S. Copyright Office. Most of the big internet businesses are pre-registered.
If you detect that an individual user has removed your copyright management information and posted your work onto an IAP or OSP, you must send a letter to the IAP or OSP requesting the removal of the copyrighted material. Almost all of the larger IAPs and OSPs have a form on their websites where you can send a “Takedown Notice.” This can be done electronically. If the user believes they did not post infringing content and their content was removed by the IAP or OSP, the user can file a counter-notice to get their content restored to the website.
We recommend always attaching a watermark or other copyright management information to all works that you distribute. Although you do not need to have a copyright registration to recover under the DMCA, we always recommend registering your photographs with the Copyright Office to be able to qualify for maximum awards for copyright infringement ($750 to $150,000 per infringement, plus costs and attorney’s fees).