As a photographer, you take photographs to capture and preserve specific moments, and in the age of social media, sharing these photographs is ubiquitous. But just because sharing is common, does not mean that anyone is entitled to use your photographs – especially if that use is for profit. So how can photographers protect their photographs from unwanted use?
The first action that a photographer should take is to register the photograph for copyright protection with the U.S. Copyright Office. Registering for and receiving copyright protection bolsters the copyright holder’s rights, including the right to reproduce, sell, distribute, and publicly display the photograph. 17 U.S.C. § 106. Registration is important for two reasons. First, it puts potential users on notice that the photograph is privately owned and that they must first obtain permission from the owner to use it. Second, it increases the damages available (called “statutory damages”) for any unauthorized use of the photograph (see below). 17 U.S.C. § 504.
Common Law Rights Without Registration
All hope is not lost if a photographer does not register their photograph for copyright protection. Indeed, a photographer creates certain rights in the photograph the moment it clicks the shutter-release button. These rights include the right the right to reproduce, sell, distribute, and publicly display the photograph. In fact, these rights are the same rights that are bolstered by registration. 17 U.S.C, § 412; see also Levine v. Landy, 832 F. Supp. 2d 176, 185 (N.D.N.Y. 2011) (permitting a photographer to recover for infringement of unregistered photographs). Even if you have not yet registered for copyright protection, you may still enforce your rights to protect your photographs.
So What Damages Can I Expect?
As lawyers always say, “it depends.” The amount of damages for copyright infringement depends on (i) whether your photograph is registered and (ii) whether the infringement was willful. If your photograph is registered, you may be entitled your choice of either actual damages or statutory damages. Whereas, if your photograph is unregistered, your recovery is limited to actual damages. Actual damages include the amount of actual financial loss from the infringement (e.g., a lost licensing fee for the use of the photograph) and “any profits of the infringer that are attributable to the infringement.” 17 U.S.C.A. § 504. Statutory damages, on the other hand, range from $750 to $30,000, as the court determines to be just. 17 U.S.C.A. § 504. Further, statutory damages may be increased to up to $150,000 or decreased to $200, depending on whether the court finds the infringement was willful. 17 U.S.C.A. § 504. Registration may thus be a worthwhile investment.
What Other Causes Of Action May Be Available?
In addition to a copyright infringement claim, photographers may bring a myriad of causes of action for unauthorized use of their photographs. First, a photographer can bring a contributory infringement claim against anyone who “intentionally induc[ed] or encourage[ed] direct infringement.” Levine v. Landy, 832 F. Supp. 2d at 186. Second, a photographer can bring a claim of unjust enrichment against any infringer who unfairly benefitted from using the photograph at the expense of the photographer. See Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 305 (2d Cir. 2004) (unjust enrichment exists where: “(1) [the] defendant was enriched, (2) at the plaintiff’s expense, and (3) equity and good conscience militate against permitting the defendant to retain what the plaintiff is seeking to recover.”); Miller v. Schloss, 218 N.Y. 400, 407, 113 N.E. 337, 339 (1916) (unjust enrichment exists “when and because the acts of the parties or others have places in the possession of one person money, or its equivalent, under such circumstances that in equity and good conscious he ought not to retain it”). Finally, if the photographs were taking for a client pursuant to a contract and the client used the photographs in a way that the contract did not allow for, the photographer can bring a claim for breach of contract. See Muench Photography, Inc. v. McGraw-Hill Companies, Inc., 2013 WL 5372785 (S.D.N.Y.) (a cause of action for breach of contract requires: “(1) the existence of an agreement; (2) adequate performance of the contract by the plaintiff; (3) breach of contract by the defendant; and (4) damages”).
Other causes of action may also exist depending on the individual facts and circumstances. Consult with your attorney to determine whether other causes of action are applicable.
The Bottom Line
Photographers retain exclusive rights in their photographs, regardless of whether the elect to register their photographs with the U.S. Copyright Office. While registering a photograph for copyright protection comes with time, money, and effort costs, this precaution is worthwhile because it provides maximum protection of your photographs.