Intellectual Property 101

 

Lesson Info

Types of Intellectual Property: Copyright

Alright so moving on from trademark, copyright is the one that you guys probably see most often in Facebook groups. you may not fully understand how it works. copyright exists in a fixed tangible medium such as photographs. that's the one that's most important for us but it also can be the design part of your logos as well. it is true. we've heard from in groups. you talk amongst yourself but you do have this intellectual property ownership of copyright at creation and publication of let's just say photographs for this example. you do. however when it comes to enforcement or infringement of your copyright that default copyright is not necessarily the best action for you. unregistered images have the protection. there's no requirement that you will fix copyright notice to it. I can't remember. like 30, 40 years ago they dropped that. there's no requirement of you putting a watermark or your name on it in order to have this default common law right of the copyright protection. the proble...

m is if someone utilizes my image, just infringe, it could be then lifting the image, altering it, and so forth, the only thing that I can pursue them for is going to be actual damages. in fact there's many attorneys that won't even take copyright infringement claims without a registration because it can be a very difficult argument to make. when I say actual damages let's say I photograph a client and all of a sudden a company lifts that image and they're using it in the course of marketing. there's two major things without it being registered that I would have to look for for damages, the monies that they made off said image in the course of marketing. I'm not saying selling the image but maybe it's promoting of the product and also the damage that it could have done to me. the problem with that is what if they didn't make anything or there was no damage to me other than them ticking me off because they're using my image? There's not much recourse there for you in order to be able to use it. and rightfully so because you didn't take the steps to register it and you also didn't take the steps to invest in it. now on the flip side copyright.gov is the website you guys can do the registration. guys it is so cheap. it's like 50 or 60 bucks to batch. so say you're a wedding photographer. you can batch a related set of work for like 50 or 60 bucks. you spend more than that when you go out to Outback for dinner and get that lobster tail on the side but seriously you end up spending more than... I recommend that everyone register their images because you never know when it's going to be lifted and it happens. the way that the internet is now it happens and I'll have people tell me I don't need to do it and then they're in my inbox asking for help and they're unregistered and I'm telling you that we can't. there's no damage to you. there's no, they didn't make any money off of that. there was a situation where one photographer took another photographer's images. they never gained any clients off of it and it didn't impact the creator of the image. it didn't impact her work at all. she got nothing, nothing, and it wasn't even worth the investment. I told her when she came to me and I said, cause I'm one of those kind of lawyers. Jim was asking about lawyer jokes. I was like I don't know any because I'm really not a typical lawyer but I told her I said it's not worth you paying me cause you're not gonna make anything off of this. and hopefully you guys find a good lawyer that does that for you too. so just keep in mind though I really strongly recommend you guys go down for the registration because then there are statutory amounts plus the potential for attorneys fees. so you don't have to pay me. the infringer will have to pay me. that makes me happy. that makes you happy. we're all happy when. we go out to Outback and get that side of lobster tail okay? So I definitely strongly recommend registration. the timeline is it needs to be done within 90 days of publication of the image. in our example here using images. so put it on your calendar and do it quarterly. sit down and do it at the first week of every quarter when you're hopefully doing all your other admin tasks, updating your tax spreadsheets, updating your contracts because you went through and made your list from the last class. include on there to do all your registrations. it's really easy and you can DIY a copyright registration. you guys are intelligent individuals who are running businesses. the application is straightforward. it's inexpensive. just good a lot getting the website to handle the large file size when you're uploading it. so resize them because it requires you to submit the images. so they know exactly what is being registered. highly recommend that you guys do get that. now flipping back to what I said and the same thing can go for text. you guys can do this for your blog posts, also for your logo as well. thinking back to what I said a little bit on trademark when it comes to logos it needs to be more distinct. in general a logo is probably not going to be protected. so that's one of the little nuances there as well. there is no duty to police your copyright registration or just copyright in general whether you've registered it or not. there is no duty to police it. however I think our industry should. there is pick your battles. sometimes maybe you just have a client who has altered the image. they've cropped it even though they're print really said no. that's probably not gonna spend a couple thousand dollars with Rachel to sue the client for that right? But I mean I really do think when it's a more egregious acts, other businesses are using the image to market their business or in other ways we really need to stand up because if we don't, it's just going to continue. and I know that sometimes it can feel like you cut off the head of one 10 more pop-up. it is what it is but if we just let them go it's just going to run us over. so there's no duty to defend your copyright. I just really strongly highly recommend that you guys do. now, and this is where you guys can make a nice little checklist because you don't necessarily need an attorney all the time to do this. the first step that I always recommend when someone has utilized your image whether they've altered it, they're using it outside because they have no permissions to do so, or outside the permissions, such as a client, instead of using it just for personal they're now using it for commercial, whoever is using an image and they don't have the rights to do so, the very first step that I recommend is let me back up for a second. it depends on who it is. if it's my client who is now the example I gave in the contracts class. i sold them a print release for a personal print license for that family session and then all of a sudden I see this real estate agent using, she cropped out her face and is now using on a billboard, to promote her real estate company. that's been a commercial use that was outside of that personal license that I sold to her. I'm probably not gonna lawyer up and send the big guns in right off the bat for something like that and this is gonna be a gut check. it's gonna depend on how you want to go about this. but for that I'm not ready to throw the bomb and explode the entire relationship, potential referrals, necessarily over something like that. whereas on the flip side maybe I have photographed an image and all of a sudden I see a large airline using it in their air mall magazine. then I'm probably gonna pull in the big guns and those are big vast differences but it's kind of the sliding scale in between of determining how you want to do it. the most cost-effective way and what I really do recommend for anytime that you see your image being used please do not take to the internet and start bashing them right away. please you're not demand that they take it down yet like just and what I mean by that, I'm not talking about an official takedown. I'm talking about when you directly message them or comment on their page. you need to stop, take a breath, and screenshot everything because we need to know how many times it was used, how it was used and everything. we're gonna need that evidence because you never know how far down the hole we're gonna fall with that and we're gonna need this evidence for a claim. people are so quick to say send a DMCA, send a takedown notice. contact Facebook or Instagram with like their takedown link. screenshot everything first and don't tip them off that you're doing this because what's gonna happen? Say you only saw it in Instagram and you commented hey this is my photo. and they have used it five other places but you haven't seen it yet. what do you think they're gonna go do? They're gonna go delete the evidence elsewhere and it's gonna be hard for us to find or know of that later. take a deep breath. don't post about it in a Facebook group. although the LawTog Facebook group's really good. don't post about it yet. go screenshot everything and then depending on the platform that has been posted you have a couple options. Facebook, Instagram, Twitter and all those places all have a take down copyright infringement and I think even trademark infringement method that you can just fill out the form and they'll hopefully take care of it for you. if it is a website you guys can send a DMCA takedown notice. majority of websites have a method of what you need to include in that or a form already to fill out but that's after you've already compiled all the evidence and probably that's about the time that I would start talking to an attorney if you're really gonna pursue an actual claim. maybe it's on this far end of the spectrum. it's the you know the airline that's using it on their website. I'm gonna go talk to an attorney before I send a takedown because I want them to look and see what else so I can get paid because that's the goal there, to make sure that you're compensated for that commercial use. if it's at this end where my client maybe just used it on her real estate business card. yeah I mean maybe she really pissed me off. maybe she didn't. I don't know I'm gonna gut check that and see and maybe just reach out to her first but those are the first. those options I just gave you are the first lines that I would look at doing before you start yelling to someone copyright infringement, I'm gonna sue you, because that is throwing gas on the fire. they're gonna start hiding evidence. you're not gonna know. you may say something that you shouldn't have. it's gonna end up being used. so just keep all of that in mind all of that that I just listed can be used whether images are registered or not. it doesn't matter. my recommendation too is I recommend that all intellectual property that you create remains with you and it does with a copyright unless you have an overt document of transferring it to somebody else. okay, so when we are selling our images to our clients unless, this is the general rule, that is exceptions, they are not purchasing in the United States, they're not purchasing the copyright. they have no ownership rights. they only are receiving a license of use and hopefully you guys have narrowed that down in the print release that you've provided to them. okay if you don't give them a print release you just let them use it it's kind of this general, you can't really regulate what they're doing. you can stop them but it just becomes a very tricky miscommunication with your clients. I'm of the mindset, there's this pervasive idea in the industry that you should never sell copyright of your images and I don't knock people either way. whether you are okay with that but some get so offended when clients ask but what is the majority of the time the clients are asking when they say they want the rights? They don't say copyrights or they might but they typically say rights. they're only wanting the rights, majority of the time, they're only wanting the rights to reproduce. they just want to know what's in your print release because they probably aren't going to see your print release because of the... if you guys check the contracts class we talked about contract and model release is what gets you guys booked. the print release typically doesn't come to them and they don't get to see that until it sells time, until its delivery of product time. so unless you're actually sitting there and showing them you can't fault them for not understanding the difference between the actual ownership and having the rights to do everything that we just talked about versus just a license to reproduce which is done through the print release. I see so many photographers. they come in our inbox and like oh my god how dare this client and I'm like why wouldn't my client ask? They're not a photographer. they don't know the difference between the two and I want to say you probably didn't know the difference before you read my blog. and that's okay. that's what I'm here for but we can't fault them for not knowing that. it's all about education. and I'm not saying that you necessarily need to sit and read the print release to them before they book but it is good and this is a sales thing more than a legal thing. sit down and ask them what they're intending to do. in that example with the real estate agent she may not know any better. she probably has no idea of the difference between a print license or a personal license and a commercial license. so she may end up just telling you if you say hey what do you plan to do with these images, she may say oh yeah I'm going to hang it above the fireplace, make some for granny, oh and put it on all my business cards, that's when you can go ding ding ding. there's a difference okay and that's all about licensing. now flipping it on it's head a little bit we kind of talked about this when I mentioned trademark. by default the person who creates the logo, the image, the text, is the intellectual property rights owner of that. however if you are employed by somebody the employer owns it. so if you're a photographer that is working for another photographer it is not your copyright by default if you are under employee status. now let's look through those real quick. you can't merely just call someone an employee or merely call someone an independent contractor and that be the status. you have to look at the actions and the tests for the majority of states, so this is a little bit state stuff here, the majority of states is control. the more control that that person... so let's take for example you guys have second shooters. alright, maybe you're a wedding photographer. let's pretend even if you despise weddings that you're a wedding photographer right now and you have a second shooter. typically, second shooters, if you have very little control of them, maybe you only tell them the time to show up and maybe give them a little bit of a shot list to work from. other than that they can wear what they want. they use their equipment. I mean you have very little control beyond that right, the more control. maybe you're only paying them just for that job. by default the intellectual property ownership, the copyright ownership of those images absent any contract, absent any agreement, remains with that second shooter. what does that mean? That second shooter has full rights to not allow you to use the image, especially if you guys had no documents in place, at any time that second shooter can go hey primary I don't want you using that anymore. and maybe it's one of those images that you're using for your business marketing and everyone in your town knows that's you. how are you gonna feel when it's time when that second shooter realizes because they listen to the LawTogs class and CreativeLive that they actually are the copyright owner and they can demand for them no longer to be using it. so this crosses over to the contracts class. have a document in place that all people, employee or independent contractors, sign over the intellectual property rights when they're working in the course of your business. employee by default. it's owned by the business entity. independent contractors like the logo designer, it's owned by them. does that make sense? So we're tossing all this into copyright. so not only in that circumstance that the second shooter can require you to take down the image you no longer use in a marketing because they're an independent contractor and there was no document in place, say that that image gets ripped off by another photographer in town who is using it to market. you the primary photographer have no enforcement rights over that image. so maybe the second shooter and you is like yeah you can keep using it for your business but then Susie down the street, Susie SweetPea photography who had all sorts of trademark issues she is now using the image. technically you as the primary photographer have no enforcement rights to stop Susie from SweetPea. it's gonna be the second shooter. so you see how complex this can come when it could have been fixed just by signing a contract. this is why intellectual property stuff is so important and they don't think about. and a lot of you are probably thinking well this will never happen to me. it doesn't matter. well you never have an issue till you have an issue and especially when money comes in a play and someone's supposed to be getting paid just like the airline miles magazine example I gave you earlier. that's all where this came from okay? The primary photographer nothing. nada, because they didn't come to me first and get everything signed over. so copyright ownership, super important so that you guys can protect and maintain the brand as well. no duty to police but I feel like the you guys definitely should do so. and again walking through the application for that, it's super simple. you need to do it within three months and before infringement. I know you'll see people say oh my image was infringed. I'm gonna quickly go register it. we still recommend that too but we have stronger teeth in the legal argument if it's done within that three months and before infringement. and you didn't just react to an infringement and then decide that you were going to go and file and get the registration for it. 50, 60 bucks. super simple. I don't see why you shouldn't do it. if you're not willing to spend that for the lot of images, that's okay. I at least recommend that if you have these images that you are known for in your area that is your style and these are the key ones that you find you're using in your portfolio over and over, those are the ones that you probably definitely want to use because you think people would be smart enough not to use the ones that you're using prominently but they do. they lift it, especially if it's not another photographer, if it's just some obscure third party that decides that they're going to use it.

Understanding how to create and defend your intellectual property is one of the trickiest issues plaguing photographers today. Join Rachel Brenke, TheLawTog®, as she gives you a 101 crash-course to make sure all areas of your business are covered, not just your photographs!

The Brenke Group, LLC, doing business as TheLawTog® (“TheLawTog”) provides an online legal portal to help customers identify business and legal problems commonly encountered by individuals in the photography industry. TheLawTog is not a law firm and does not and will not perform services performed by an attorney. TheLawTog is NOT a substitute for the advice of an attorney. Instead, TheLawTog provides templates and education to individuals who voluntarily chose to prepare their own legal and/or business documents, submit templates to licensed attorneys for modification, and/or for education purposes prior to contacting a licensed attorney.

 
 
 
 

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