I see social media posts from fellow photographers all the time with huge watermarks, because if I put my name on it nobody can steal it right? A watermark does little to deter a potential photo thief. A watermark is easily cloned out using Photoshop, and if you copy the image and paste it into a new file in Photoshop you can easily get rid of any Metadata in the file header, such as copyright, owner and date taken. If it is so easy to steal photos, then why bother watermarking them? Well that is a good question.
First, I have a quick word on copyright in general – when you click that shutter yes you “technically” have copyright over the image produced. The big problem comes when you need to prove that you took the image or that you are the rightful owner. Sure, copyrighting your images can be a hassle, you have to get a file together with thumbnails of all the images and have a copyright.gov account – oh and pay 50 bucks. Let’s consider two different scenarios –
Photographer A goes on vacation and takes the perfect beach shot in Miami. He watermarks the image with a garish watermark with his name “Photographer A Photography” and posts it to his Instagram account. A travel company in Miami sees the trending image and “borrows it” for their fall catalog of fun places to visit in Miami. Photographer A finds the image online and knows that he has the original raw file, so he thinks he’s all set for a big payday. The first thing a copyright attorney will ask Photographer A when he sits down is “did you copyright the image in question”. If the answer is yes, they will happily move forward – if the answer is no or “I put a watermark on it before I posted it” – the photographer will likely see little if no return even if it is a large company. Photographer A also may run into issues if he used the name of his company and in the eyes of the court that company doesn’t exist. In other words if I marked my images all “Copyright 2018 Blue Sky Photography” (which I do not own but I think is a cool name) and I don’t have the paperwork to say I own or am doing business as Blue Sky Photography – the problems are compounded. Likely this scenario would be settled with a pittance being given to the photographer just to settle the case.
Photographer B goes on vacation and takes another equally perfect image in Miami and copyrights it – which is also “borrowed” by the travel agency. This time, there is no ambiguity about ownership of the image. The copyright attorney can easily take this to the judge, show ownership and the amount the photographer will get in damages will be significantly higher than a non-copyrighted image situation. Some copyright attorneys will not even take cases unless the photographer has copyrighted the images. Depending on the offending company, this scenario could be settled for many thousands of dollars.
I use a simple rule when considering posting a photo online, do I care about this image. If I worked hard for an image, hired a model, booked a studio, spent a lot of time editing the image then no – I won’t post it until it has been copyrighted. I copyright a minimum of once a year but often several times a year especially after a shoot for my Landscapes of the Body project. Sure, it’s a pain, sure it takes time, but this way I can freely share my images online without a garish watermark and know that I have legal ownership.
If you discover one of your images has been used without permission, that is considered an infringement – there are two types: willful and innocent. Innocent infringement damages are capped at 30,000 and willful infringement caps out at 150,000. Willful infringement would be a company or other entity removing a watermark or copyright metadata from your image before it was used (and we are all adding copyright and owner information to our Metadata, aren’t we?). When you can prove ownership of an image but do not have it copyrighted, your biggest hurdle will be attempting to prove malicious use of your image, the onus is on you to gather the information from the sources and determine how much the company made from the image, how much you lost with them using the image and if the integrity of the image has been tainted. Larger companies with council on retainer can afford to stretch court cases out and bleed you dry, since you are responsible for all your legal costs with a non-copyrighted image. Proving how much an image is worth to you can also be difficult since you need a history of images you have sold to clients and the prices you received. Alternatively, if you have copyrighted the images, you do not have to prove your damage, there are provisions for calculating statutory damages rolled into the US Copyright system – and all your legal costs are covered. The damages you can receive are significantly higher as well.
Maybe you think that your work isn’t good enough for someone to steal and use in a catalog or something similar? Perhaps not. Remember this: there are millions of photographers taking millions of great photos every day. There are also countless companies or people that think that if an image has been posted online that they can use it freely. I am not vain enough to think that someone would be hunting out my work to steal it, but I do want to make sure that I can show my work and give it to magazines doing stories on me free of concern that the image would be used without my permission.
Do I copyright my work? You bet I do. Have I ever had one of my images stolen, I sure have. One of my images was put up on istock and Getty images. The original crop was changed, and I am not sure how much the offender made off my work. I used tineye .com which is a reverse image lookup system to find out that my image was being sold on a stock site. DO the smart thing, take the time to copyright your images and save yourself some headache down the road. My computer teacher used to say “if it’s worth doing, then its worth saving”. In this case – if you do the work, then take the time to copyright it.
Remember: I am not a lawyer, nor do I offer legal advice. I know enough about copyright to advise others to take the time to secure and copyright their work. Legal concerns or questions should be directed to a copyright attorney.