The Internet and social media are unparalleled platforms to promote your work and to showcase your business but can also make it easy for people to steal your images, creative works and intellectual property. The first thing to know is that the second you take a photo or create any visual work you own all rights, including the copyright rights to it, unless you were specifically shooting the photo for your employer or per an assignment contract in which you explicitly assigned the copyright rights to your client.
The truth is that although there are copyright laws, they have not been an effective deterrent to the widespread theft or misappropriation of works online. In fact, there are many businesses, if not industries, for which infringement is strictly a cost of doing business. Put frankly, some businesses will make the decision of whether or not they will profit enough from the illegal use of the copyrighted photos or creative works to more than offset the potential settlement payments they may have to make if they get caught.
Understanding the importance of copyright law and what to do if you fall victim to infringement (someone uses your work without permission) is something every business, especially for small businesses and startups, should understand.
So, what should you do to put your business in the best position you can to protect your copyrights?
Register Your Work with the United States Copyright Office
The US is unique in that encourages registration of all creative works with the Library of Congress by providing creators the option to pursue enhanced damages should their registered work ever be infringed.
Key points to know about registration include:
- To qualify for enhanced damages, the work must be registered with the USCO within three months of initial publication or prior to the start date of the infringement for a given claim. Enhanced damages include statutory damages of up to $150,000 per infringed work plus recovery of the costs of your attorney’s fees.
- You do not need to register your work to pursue an infringement claim directly, but US citizens must register their work with the USCO before they can file a copyright infringement complaint in federal court.
How Does USCO Registration Impact Your Options to Purse a Claim
Presenting your USCO certificate for the infringed work can help you overcome a lot of obstacles when trying to negotiate a settlement, namely that it is proof that you are indeed the copyright owner and it sends the message that you are able to file a complaint with the court should it come to that. The difference in settlement is contingent on whether or not the image or creative work was registered timely.
- If the image or work is registered but not registered timely, then the copyright holder can file a complaint and pursue actual damages and disgorgement of profits generated by the infringing use. However, these damages amounts can be all but impossible to quantify when you are dealing with online infringement, as opposed to, for example, a product that a company sold millions of units of with your photo on it.
- With registered timely claims, your leverage in the settlement negotiation is much stronger, as you can then pursue statutory damages and attorney’s fees, which is key to finding a good copyright attorney to take on your claim. Attorneys are much less likely to take on a claim if there are only minimal actual damages available to pursue and they have no mechanism for recovering their fees from the other side.
If Your Creative Works Were Stolen…
If you find your work being infringed and you want to pursue some type of compensation for that unauthorized use, you should NOT do the following as these actions are likely to undermine you if you ultimately need to seek legal representation.
- Send an invoice or issue a demand via email or over the phone.
- Call them out on social media.
Instead you should:
- Capture as much evidence of the infringing use as you can, including screen shots of websites, social media posts and wherever you see the infringement.
- Then present what you have collected to either a copyright attorney or one of a growing number of copyright enforcement services like ImageRights, which may be able to take the claim on directly for you or through a copyright attorney with whom they have partnered. Either way, they should be able to fairly quickly assess your claim and present your options.
Knowing your rights and taking the proper steps to protect your work is important so that if you are ever infringed upon you can pursue the claim to the full extent of the law if you wish to do so.