How to Copyright Photos and Protect Against Copyright Infringement: A Photographer's Primer

You will often find that professional photographers often wish they had superior knowledge of contract, legal, and business issues (such as knowing how to copyright photos), on par of their understanding of f-stops, aperture, and lens quality.  Among the most pressing matters is the importance of copyright and infringement protection.  A photographer does not need a lawyer to secure a copyright for works, but a  lawyer is often helpful in reviewing agreements related to copyright, intellectual property protection, photographer/client relationships, and scope of work.

According to the Copyright Office's own advisory FL-107, the first thing you should consider is whether your photos are published or unpublished.  It is up to your knowledge to determine the category of your photos (just because it has been publicly displayed does not mean it's been published), and you cannot register published and unpublished photos on the same application!

Single Published Photographs and Published Units With one application and filing fee, you can apply to register a single published photograph or an entire unit or package of published photographs—for example, photos in a calendar, a set of baseball cards, or illustrations in a book. You can apply to register these types of photographs online using eCO or on paper Form VA.

Unpublished Photographs You can apply to register a single unpublished photograph or an unpublished collection of photographs with one application and filing fee using eCO or paper Form VA. For collections of unpublished photographs:

  • the photographs must be neatly assembled;
  • a collection title must be provided;
  • the same party must be the copyright claimant for all the photos; and
  • one author must have either created or contributed to all the photos.

Related: Don't Get Crushed by a Cease and Desist Letter

Okay, so you've filed for copyright.  Now, what exactly does that mean?  A photographer actually is protected by copyright the moment he or she creates the photograph.  But enforcing the copyright protection against infringement is easier said than done.  And registration allows you to pursue a different amount in damages than an unregistered work.

Let's say that you find one of your beautiful shots on Google Images... what recourse do you have?  The first thing to know is that search engines are protected by a law called the Digital Millenium Copyright Act (DMCA).  Under the DMCA, search engines such as Google and Bing are given "safe harbor." However, it has been my experience that they are quick to remove infringing content when sent a "takedown notice."  Google even allows you to provide your own copyright infringement claims via fax or mail.

In the event you see your shot used on someone's site, you might find it useful to send a Cease and Desist letter.  Very often, a C&D coming from an attorney has a much stronger impact than one coming from a photographer.  A recipient of a C&D must recognize that there are consequences for using copyrighted work without paying, and such a letter containing case law describing penalties can be particularly effective.

Related: Music Copyright, Trademark, First Amendment Legal Lessons Startup Labels and Musicians Can Learn from Disney, deadmau5, WuTang, and Pharrell