DENVER — Lucinda Dugger and I spoke before a gathering of photographers here at a dinner sponsored by one of our members, the Advertising Photographers of America (in particular, their LA-Denver chapter). I did my song-and-dance about what’s happening in copyright policy (the suit filed that morning by photographers and illustrators against Google certainly made that discussion timely — more on that development here). Lucinda shared stories about the activities of our one voi(c)e grassroots network. And we were graced with the presence of Karin Sullivan, an accomplished IP attorney here in Denver.

I had actually asked APA to put an attorney on the panel. Why? Because I’ve learned in this job that if you get, say, 20 professional photographers in a room, they’re going to be able to share about 200 stories of copyright infringement. Karin, naturally, was the popular panelist, fielding a ton of detailed questions. So as not to put her in the position of offering legal advice through q&a, she asked that the questions be “hypothetical.” There were a lot of “hypothetical” horror stories.

The key takeaway was the point Karin kept reinforcing, namely, “read your agreements.” (She went further, of course, to say don’t be afraid to insist on your own language or demand changes in the agreement given to you.) This was key, because while at the Copyright Alliance we focus a lot on infringement by those unknown to the photographer, quite often the infringer is someone who has contracted with the photographer.

Frankly, when I suffered copyright infringement as a freelance writer, it was usually by someone who had exceeded the terms of a contract I had signed with them. (I also suffered some web infringement, but in the mid 1990s there were only about 20 people on the web so the financial impact was less.) Photographers shared during the event and in conversations with me how little respect there is for the rights of photographers, this assumption that once they’ve got your image, they’ll do what they like with it, regardless of what the terms of the agreement state.

Karin noted that violations of contract such as those are indeed copyright infringements. That, of course, led her to echo a point we make everywhere we go, including before this APA crowd and also at the writers’ conference we’re exhibiting at here in Denver — register your work.

It’s not as easy as it should be, but we have a two-pager on our web site that walks visual artists and writers through the process online with the U.S. Copyright Office. As Karin noted, you need to be registered to file an infringement suit, and you need to have registered your work BEFORE the infringement in order to seek statutory damages.

If all an infringer ever faces is actual damages, those could total more than he would have paid had he licensed, but (1) not everyone he infringes is going to come after him, and (2) he didn’t have to worry about the rightsholder saying no. So without the threat of statutory damages, he’s essentially being encouraged to steal. Statutory damages are a critical deterrent to infringement, and we need to register our works to ensure infringers continue to face the threat of statutory damages.

Kudos to the LA-Denver chapter of the APA for hosting Lucinda, Karin and me at an illuminating event, and thank you to the LA-Denver chapter of APA for your support of our Copyright Alliance Education Foundation.

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This entry was posted on Thursday, April 8th, 2010 at 7:53 am by Patrick Ross and is filed under advertising, copyright law, creators, licensing, piracy, property rights. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.