Copyright Protection: Part 1 - Before The Fact - Protection

Copyright laws provide legal protection for the author of a copyrighted work, or owner of the copyright. These laws put in writing the rights controlled by the copyright owner, and the penalties that can be imposed when those rights are violated. In order to get the maximum protection available under the law, take these steps before you become the victim of copyright infringement, and be disciplined about them.

• Carefully read the language in every assignment agreement, photo pass release form, license agreement, etc. Never sign a contract that is a Work Made For Hire (WMFH). These contracts transfer all the rights to your photographs immediately to the person who is commissioning you to take them. In the case of photo pass release forms at concerts, they may have language that stipulates that the artist owns the photographs and they are granting you a one-time right to publish them in the publication sponsoring your assignment.
• Register every photograph you take with the US copyright office if you are a US citizen - before it is published if possible. If you are not a US citizen, check to see whether your country has a copyright registration office, and register your images there if your country has one. In order to receive the maximum damages allowed under the law in the United States, your photographs must be registered with the US Copyright Office. Damages relating to copyright infringement of unregistered photographs will be limited to the actual license fees you should have received for the uses documented in your claim. Damages relating to registered photographs can be much higher, and registered photographs can require the offender to pay all of your legal fees.
• Fill in all of the metadata in your original image files as you process them. Photoshop and other image post-processing tools carry this information forward into all derivative generations of the original file. While this information can be stripped out easily by image thieves, demonstrating a disciplined pattern of supplying this information will be to your benefit when the time comes (and it will come). If you do not know what metadata is, get Peter Krogh's book "The DAM Book: Digital Asset Management for Photographers". I recommend you also embed the copyright certificate number in the metadata of all your image files. It makes finding the certificate number for a particular image very easy should you or your attorney need it.
• Include all the metadata in every derivative copy of your image files, including sample JPG's you submit to artists, artist management, publicists, record labels, publications, and anyone else. Photoshop does this automatically. Some tools strip this information out or do not properly handle it. Check your tools to insure they do not destroy or corrupt this information.
• Place a copyright notice on every sample JPG you post on your web site or that leaves your hands. In the United States, the Digital Millennium Copyright Act (DMCA) provides automatic penalties for removal of your copyright notice. The penalty ranges between $2,500 and $25,000 per instance, and is independent of copyright infringement damages. Your copyright notice should have the copyright symbol, the year the image was registered, and your name. I also recommend including the text "All rights reserved." to further clarify your rights. (Example: "© 2007 Walter Rowe. All rights reserved.") Adding your e-mail address or web site URL will insure a copyright infringer has no defense argument for claiming they could not contact you to license the image properly.
• Explicitly state in all inquiry letters and submissions that you are interested in licensing the right to use your photographs, and that the samples you are including are proofs for review purposes only. Keep in mind that you are not selling your photographs - you are licensing the right to copy them in exchange for money. You are granting specific parties the right use them in specific ways for a specific period of time in exchange for a license fee.
• Preserve all correspondence you have with clients - e-mails, phone records, written correspondence, text messages, voice mails, etc. For verbal communications and voicemail, document the specific dates and times and details of the conversations.
• If you are required to have a photo pass to take photographs at a particular performance, save the e-mail exchanges you have with the publicist or record label representative - including the confirmation e-mail - and save the actual photo pass. If you request a pass by telephone, write down the name of the person who granted you the pass, their affiliation with the artist (i.e. publicist, record label representative, artist manager, tour manager, etc), and on what date you spoke with them. All of this information is proof that you were granted permission to take the photographs.
• Document in a written and signed contract the specific terms of any license agreement you negotiate. The contract should stipulate the specifics of the assignment requested, the specifics of the rights granted, and all of the fees and expenses associated with the assignment. The agreement should also explicitly state that all other rights are reserved by the author, and any other uses will require a separate license agreement and separate license fee.

It is imperative that you protect yourself and your work before you become the victim of copyright infringement. Take the time to register all of your photographs with the requisite copyright authority in your country and be disciplined about doing this after every assignment.
© 2007 Walter Rowe. All rights reserved.