This is the second Insight in a series addressing how photographers can exploit and protect their rights. Read the first post here.
We have previously discussed several recent high-profile copyright disputes that are important for photographers to follow, particularly those which highlight the blurred line between transformative and derivative works. Here, we will discuss best practices for photographers to better protect their works against possible infringement as well as the options that exist if infringement does occur.
Embedding Metadata and the Inclusion of Rights Information
Including or adding certain data to photographs provides rights information to third parties interested in using a photo. The simplest way to do this is by including the photographer’s name and a copyright symbol beside the photo, which, although not required by law, does provide notice to interested parties that the work is protected. Identifiable information in close proximity to the photograph can also support claims under the under the Digital Millennium Copyright Act (DMCA).
The inclusion of metadata can enhance the level of protection for a photograph appearing online. There are two categories of metadata: Exchangeable Image Format data (EXIF), which is unrelated to copyright protections, and International Press Telecommunications Council data (IPTC), which can provide rights information similar to a caption by embedding it into the photograph itself. EXIF is typically included automatically by the camera or phone used to take the photograph and could include information such as the make and model of the camera or lens, shutter speed, aperture and exposure setting, as well as location and the time and date the photograph was taken, which can be used for copyright registrations. EXIF data is often used to organize photographs and make storage and retrieval easier.
More relevant for copyright purposes, however, is IPTC data, which is a standardized set of information fields that allows photographers to document ownership of an image. This information can be added to a photograph afterwards through programs like Adobe Photoshop and Lightroom, with certain applications also allowing the information to be saved as a pre-set to apply automatically to all photographs when importing from a camera to the computer. Administrative IPTC data includes the photographer’s name and contact information, so an interested party can easily reach out to the creator to license or purchase the image. Descriptive IPTC data may include a title or certain keywords to allow the photographer to organize and enable searching of their images, similar to EXIF data.
Finally, IPTC rights data should detail any other relevant information, including model releases if the photograph contains an identifiable person or property releases if the image is taken on private property, to help avoid potential liabilities. Such releases will also make selling photographs to a news or stock agency easier since these agencies will likely require both releases and rights information. An IPTC standardized form and additional information on how to fill out the form can be found on the IPTC website.
U.S. Copyright Office Registration
The inclusion of IPTC data is a best practice for photographers, but embedding copyright information is different from registering an image with the U.S. Copyright Office. Registration is critical for anyone seeking to protect their work, and it is recommended that photographers do both. To register a photograph, a completed application form and copy of the work in question, plus the accompanying fee, should be submitted to the U.S. Copyright Office. This process can be done online. Registration fees are modest, ranging from $45 for one work by a single author to $500 for updates or revisions to a database of non-photographic works. Filings can be for a single image or up to 750 photos on a single application. Lutzker & Lutzker can provide assistance with the registration process if desired.
The issue of calculating damages for registrations with large numbers of photos is set to be litigated in an upcoming case, VHT, Inc. v. Zillow Group, Inc., et al. In 2019, Zillow was found guilty of infringing photos owned by photography company VHT, and on appeal is arguing that it should only be forced to pay damages once for the whole set of photos, rather than 2,700 times for the 2,700 individual violations. Multiple photography organizations have filed amicus briefs to support VHT, arguing that the studio deserved to be paid separate damages for each photo. Lutzker & Lutzker will be following this case closely, but registering multiple images in a series on the same form is still recommended. The copyright application form also provides a convenient way for a photographer to track these images in a series for other purposes.
Issuing a DMCA Takedown or Subpoena
For those whose photographs are uploaded without permission, the DMCA provides a mechanism for copyright owners to request that these images be taken down. If the infringer is known, the first step would be to reach out to them and then the owner of the host site. Next steps may involve filing a proper takedown notice through the service provider. Many sites will have an online form or an option to contact the web host directly, but, if not, content-hosting sites are required to have a DMCA agent on record with the U.S. Copyright Office. Statutory damages, ranging between $750 and $30,000 per work, are multiplied by each violation.
We’ve previously discussed the options that exist to identify anonymous infringers, namely section 512(h) DMCA subpoenas, which can be used to identify these infringers so that copyrighted works, including photographs, that were posted without permission will be taken down. To initiate this process, the copyright owner should file a formal request with the applicable District Court providing a proposed subpoena, a copy of the DMCA takedown notice directed at the infringing content and a sworn declaration stating that the identifying information will only be used to protect the rights of the copyright holder. Although this subpoena process may not eliminate the possibility of litigation, an infringer may more willingly take down the content once their identity is no longer masked.
Additionally, if an infringer intentionally removes copyright management information—such as metadata—they may be in violation of Section 1202(b) of the DMCA, which would entitle the copyright owner to damages under 1202(c), ranging between $2,500 and $25,000. This is another reason why the inclusion of identifying information, especially by photographers, has long-term benefits.
If you receive a DMCA takedown notice and believe you have permission to license or display the content or that the claim is not in good faith, it is possible to submit a DMCA section 512(f) counter-notice. At this stage, it is recommended that you engage counsel, as this process involves providing consent to the jurisdiction of the proper federal court and consent to accept service of process from the person or company who submitted the takedown notice. Lutzker & Lutzker is experienced with DMCA takedown notices and subpoena requests and can help make the process less daunting.
Copyright Claims Board: Alternative to Federal Court
We have also previously discussed the new Copyright Claims Board (CCB), which is an alternative forum to federal court, designed for small claims or disputes with a maximum of $30,000 in damages. This could be a useful option for photographers who wish to avoid the expense and delay of federal court proceedings while gaining the benefit of proceedings handled electronically and remotely. The work does not need to be registered prior to filing the claim, but the copyright owner does need to have applied to register the work before (or at the same time as) filing the claim. However, as discussed above, registration is strongly recommended, and would be a prerequisite for filing in federal court. Moving to federal court could happen if the other party does not agree to proceed in this forum, if either party desires a jury trial or injunction, or if the amount in question exceeds $30,000. In cases, however, where both parties prefer to avoid federal court and if the damages are relatively low, the CCB is a viable option. Because the CCB is so new, it will be some time before its effectiveness can be assessed. We encourage photographers to take these steps to protect their work and understand their options for recourse if infringement occurs. Lutzker & Lutzker is available to help photographers and other creators with these processes and best practices to protect their copyrighted works.