Myth: Copyright Only Applies to Registered Photos

If there is one copyright myth I hear most often, it's that copyright laws only protect photos registered with the U.S. Copyright Office and you have to add a copyright notice to the photograph physically.

Myth: Copyright Only Applies to Registered Photos
Wildlife photographs that have clean backgrounds and negative space either left or right of the subject give publishers options for dropping text into the photo. This negative space means that an image is going to have a higher sellability than one that is tighter on the subject. Photo by: Jared Lloyd. 

If there is one copyright myth I hear most often, it's that copyright laws only protect photos registered with the U.S. Copyright Office and you have to add a copyright notice to the photograph physically.

Let’s clear this one up right now.

While registering your photography does come with additional protections, your photograph is protected by copyright when you press the shutter on your camera.

It wasn't always that way, though. Strangely, thanks to the author Victor Hugo, our work is protected from the moment of its creation.

The first federal copyright was enacted under the new United States Constitution on May 31, 1790, but this primarily related only to written work. Then, in 1865, just six weeks before he was assassinated, President Abraham Lincoln signed an amendment to the Copyright Act that extended protection to photographs and their negatives.

Almost twenty years later, in a landmark case, the Supreme Court cemented copyright protection for photography by ruling that while photos aren’t a “written” work like a book or a poem, they are a “writing” and are copyright protected by the U.S. Constitution, as well.

Fast forward to 1909, and we arrive at where all the copyright confusion begins.

The Copyright Act of 1909, signed into law by President Theodore Roosevelt, granted federal copyright protection when a work (in our case, a photo) is published, but ONLY with proper notice affixed to any copies. Photographs had to appear with the copyright symbol or notice, along with a monogram, mark, or symbol of the creator, AND the photographer's full name had to be printed in the margin or on the back of the photo.

While this law established federal protection for published photos (e.g., photographs that appeared in a newspaper), it still deferred to individual states to establish copyright law for anything unpublished.

As you can imagine, this created a lot of confusion. Which laws applied? Where were they applicable? What happens if a photo was protected in Connecticut but infringed upon in California?

Photographers dealt with the confusion by simply adding their names and copyright notice to everything they produced, hoping this would provide a blanket of protection for their creative work.

The Copyright Act of 1976 brought everything relating to copyright law under federal jurisdiction, abolishing the need for state involvement and clearing up some of the legal confusion. But, it wasn't until 1989, a mere 32 years ago, that we earned protection for our work at the moment of creation.

Victor Hugo, in 1878, founded the Association Littéraire et Artistique Internationale, specifically to advocate for the rights of authors and other artists. Inspired mainly by French "right of the author" laws, Hugo and his collaborators established a legal framework called the Berne Convention. This international copyright law is respected by any country which chooses to join the Convention.

When the United States finally joined the Convention in 1989, it abolished the requirement to affix a copyright notice, symbol, or creator's mark to anything created from that year forward. Additionally, one of the imperatives of the Berne Convention was that creative work is copyright-protected at the moment of its creation.

MYTH: A photograph isn't protected by copyright laws unless the copyright holder puts a © and their name on the photo.

TRUTH: While the Copyright Act of 1909 required a name and copyright notice, that requirement was eliminated when the United States adopted the Berne Convention in 1989.

Though the Berne Convention establishes that we own our copyright from the moment of creation, the United States included an exception for what relief that we, as photographers and artists, can seek should our copyright be infringed.

By simply creating a photograph, you are allowed to seek actual damages if your copyright of that photograph is infringed. So what does that mean?

Let's pretend that one of your photos was used in a calendar without your permission. The company making the calendar is now producing and profiting from the sales of that calendar. You, as the photographer, never registered the work with the U.S. Copyright Office.

As the owner of the copyright, you decide to sue the company. If you win, you would be entitled to actual damages from their infringement. In this case, it could be lost licensing revenue, lost sales, or any other type of provable financial loss to you due to their theft.

The second part of the damages award relates to the profits earned by the infringer. In our example, damages are awarded only if the profits of the calendar company exceed the amount of money you lost as a result of their infringement.

While this example is over-simplified, you see that you have some legal recourse even without registering your photography with the U.S. Copyright Office (USCO). Actual damages and lost revenue can be exceedingly difficult to prove, however. And, since copyright law issues are handled in federal court, the legal expenses of going after image theft often exceed the money a photographer might recuperate in court.

However, if you choose to register your work with the USCO, you have another option to consider. If you register the photo with the USCO before the infringement (or within three months of publication), you are eligible to sue for statutory damages instead.

Many photographers misunderstand this part of the process. It's a common misconception that you can sue for BOTH the actual damages AND the statutory damages by registering your work. But the law (17 U.S. Code § 504) is actually that the copyright holder is entitled to choose one or the other.

Going back to our calendar example, let's say that you registered the photo with the USCO before the company stole it. You decide to sue. Because you registered your work, you can choose to go after the actual damages to you because of their infringement. Or, at any time before the final judgment is rendered, pursue statutory damages instead.

Again, this example is an oversimplification of the law, but having this option can mean considerably more leverage and payout. Depending on the court’s decisions, you could win as little as $200 or as much as $150,000 for every instance where the calendar company used your photos.

In the case of our calendar company, if they willfully infringed upon your copyright with the photo you registered with the USCO, you could potentially receive as much as $150,000 for that one instance of copyright infringement.

Suppose they willfully infringed upon your copyright and used two of your registered photos in their calendar. In that case, you can potentially be awarded up to $150,000 for EACH photo they used.

Using an even more extreme example, let's say they willfully used two of your registered images in the calendar. They also used those same photos five times each on Facebook as part of their marketing campaign. In this case, a judge could potentially award you:

  • $150,000 for Photo One in the calendar
  • $150,000 for Photo Two in the calendar
  • $750,000 for the use of Photo One five times on Facebook ($150,000 x five infringements)
  • $750,000 for the use of Photo Two five times on Facebook ($150,000 x five infringements)

That's $1.8 million in statutory damages, which is a heck of a lot more than settling for lost revenue.

Is that realistic? Not really. But it illustrates well just how costly copyright infringement can become for a company/individual when the protections of photographers and other artists are ignored.