miscellaneous notes from the field
I'm not a lawyer, but I've spent much time with one. This page gives
you useful information that we've learned from a decade of litigating
copyright infringement suits. In our cases, I was the plaintiff, and it
was my before and after photos that were infringed.
Much of the information on this page is difficult to find, or you
really won't see it elsewhere. If you have questions or comments, feel
free to email me:
Of course, you need your own attorney. Don't even think of holding us
responsible for errors you make because you used the information here,
whether the information is correct or not!
Here is a link to the Oct 28, 2013 Fortune magazine article
that discusses these lawsuits.
Things you should know and do BEFORE your work is infringed.
I present this information from the standpoint of a surgeon protecting
his before and after photos, but it's certainly applicable to anyone
protecting images, online or otherwise, and non-image intellectual
property as well.
All of your work is already copyrighted. As soon as you take a
photograph, you own it; it's copyrighted. What you haven't done yet is
to register the copyright with the U.S. Copyright Office. You register
the copyright on your photos simply by filling out a form and attaching
copies of the photographs.
If someone uses your photographs without permission, and you want to sue
them for damages or just to get them to stop, you must sue in Federal
Court, and to do that, you must first register the copyright on your
It can take the Copyright Office well over a year to approve a copyright
registration, but if you are planning to go to court, it can be done
much faster. For a small extra fee, the copyright office can give you
"Special Handling." If you have pending or prospective litigation, they
can register your copyright in less than a week. See this link for more
details on special handling:
When you sue, you will be asking for either
- actual damages to you / actual profits made by the infringer, or
- special damages.
Actual damages can be difficult to prove. For example, in the case of
another plastic surgeon using my photos, how do I prove any actual loss
Since actual damages, depending on the case, can be so difficult to
prove, copyright law allows the Court to grant "special" damages, which
are not tied to any "actual" loss of your revenue or profit made by the
infringers. Special damages are up to $150,000 for each infringement if
the infringement was "willful," and up to $30,000 for each infringement
if the infringement was not willful. The law also specifically allows
you to recover your attorney's fees. You will discuss with your attorney
how you might prove that the infringement of your photos was "willful."
Now here's the catch: in order to be eligible for special damages and
attorney's fees, you must register your photographs before the
infringement begins. If you discover an infringement before you register
your photos, you can still sue (after you register the photos), but you
cannot recover special damages or attorney's fees. The most you can get
is an injunction against the infringer continuing to use the photos, and
of course any actual damages, if you can prove them.
The solution: register your photos now. It's easy, it's cheap, and it
provides huge protection.
Copyright law also gives you a grace period for registering your photos.
If you register the photos within three months of their first
publication (first putting them up on your Web site), then you are
eligible for special damages and attorney's fees, even if the
infringement begins before you register the photos.
A couple of examples:
Example A: You discover an infringement of your photos. Your
investigation shows that the infringement began back in January of 2010.
But you had registered your copyright on those photos back in 2008.
You're protected. You can get special damages and attorney's fees.
Example B: You mount your photos on January 1, 2014. An infringement
begins on February 1, 2014. You haven't registered your photos yet. But
as long as you register before April 1, 2014, you are still entitled to
special damages and attorney's fees. As long as you file your
registration application forms by April 1, you are protected.
Example C: This example is probably more common for those of us who are
not in the habit of registering copyrights. You discover an infringement
in January of 2013. You haven't registered the photos yet. But you first
posted the photos back in 2009. Since three months after the first
publication date has long passed, you cannot recover special damages or
attorney's fees. You still must register your photos if you want to sue
in Federal court, and all you can recover is an injunction and actual
damages, if you can prove them. And you'll have to pay your attorney to
do all of that. Solution: register your photos now. Or did I say that
When you see an infringement, print out every page containing
infringements, and download those pages to your computer. You need to
keep a record, because the infringer will probably remove the infringing
images as soon as you contact him.
You cannot prevent people from taking your photos. If you see an image
in your Web browser, you can take it. Easily. From my Web site. From
yours. From the CIA's Web site. If you can see it, you can get it.
Usually by right-clicking the image and choosing "Save as . . ." from the
menu that appears.
In one of my cases, the defendant's attorney tried to beat me up for not
disabling right-clicking on my Web site. What does that mean? It's
possible to program your Web pages so that if someone right-clicks on an
image, trying to save it to his disk, he just gets a message box saying
that the photo is copyrighted and cannot be downloaded. But then, here's
what the infringer does: see that never-used key on your keyboard that
says "PrtSc"? It means "Print Screen." Hold down the Shift key, press
PrtSc, and the whole screen is copied to memory. Then open any paint
program, start a new file, click "Paste", and voila, you've got it! (In
court, it seemed that defendant's attorney was suggesting that I was at
fault because I didn't make it incrementally more difficult for the
infringer to steal my photos. Now there's a vigorous defense!)
The award for a successful lawsuit is a certain amount "per
infringement." That means that if the infringer took ten of your photos,
there can be ten awards given by the Court. To minimize his losses, the
infringer's attorney may try to claim that the copyright of your Web
site is a "compilation." You "compiled" your photos together into a Web
site, so he infringed on only one item, the compilation, and you are
entitled to only one award, not ten.
Well, his infringement is almost certainly not of a compilation (email
me if you want the arguments along these lines that we prepared for the
Court), but you can thwart that legal defense by "group registering"
your images. I'll explain.
A Web site is often registered using the U.S. Copyright Office's Form
TX. That's how I originally registered my Web site, claiming ownership
of all text, diagrams, and photographs. But that's not the best way to
register a Web site if it's really the photographs, and not extensive
creative text, that you want to protect. Better is to make a "group
registration" of your photos by using Form GR/PPH/CON, and submitting
the photos and a list describing each photo. Now it will be clear that
you have individually copyrighted each photograph, and you are entitled
to a separate damage award for each photograph infringed. The group
registration form must be submitted with Form VA (visual arts) as well.
Group registration form GR/PPH/CON is available here:
Form VA is available here:
More information on group registration can be found here:
An infringement can be "willful" or not "willful." If the infringement
is not willful, it can be "innocent" or not "innocent." Copyright law
says that the infringement of a photograph cannot be considered
"innocent" if the copyright mark is affixed to the photograph, so do
that if you can.
In my business, and in many others, people sometimes put the copyright
mark over the center of the image, so the image won't be of use to
anyone else: removing the mark would ruin the image, such as the image
I personally don't recommend that — it just degrades the value of the
image on your publication. Rather, affix the copyright mark to the photo
in a location where it won't get in the way of someone learning from or
enjoying the photo, such as its location on the right photo. Those words
are part of the image, not printed below the image. When someone saves
these photos to his disk, he'll have the copyright mark, and the
infringement cannot be "innocent." It's also possible that having the
copyright mark on the same Web page as the photograph, close to the
photograph, could make the infringement "not innocent," but if the mark
is part of the photograph, there's no question.
If the mark is not on the photograph, it does not mean that the
infringement was innocent — it's just that having the mark on the
photograph means that the infringement cannot be innocent.
The copyright mark must be formatted correctly: the C-in-a-circle, or
just the word "Copyright," and the year of first publication, and the
owner of the copyright.
If you infringe on photos and are caught and sued:
First, find out whether your infringement began before the copyright was
registered and more than three months after the images were first
published. "Published" can mean "put up on a Web site." If so, then the
copyright owner cannot get statutory damages or attorney's fees from
you. Make sure your attorney informs the plaintiff of that fact; it can
push him to settle early, for a smaller amount.
If the copyright that you infringed on was registered in a timely
fashion, settle the case right now. Don't let your attorney drag it on.
Whether the infringement was willful or innocent, if there truly was an
infringement, plaintiff will prevail, and whatever the damages, actual
or statutory, you will have to pay plaintiff's attorney's fees. And
think about this: whatever work you cause the plaintiff's attorney to
do, your attorney will be doing the same work, and you'll have to pay
him, too! Double trouble.
For example, in several of my cases, the defendant started out with many
months of trying to have the lawsuit moved from the U.S. District Court
for the District of Nebraska to a Federal District Court closer to the
defendant's home. But the defendant had to pay his lawyer for all that
work, and my lawyer had to match all that work to try to keep the suit
here in Nebraska. Eventually, defendant would have to pay both attorneys
for the work of trying to move the case. And moving the case won't
change the outcome. Save your money and settle.
This may shock you, but the rare, rare attorney might launch into
other shenanigans, too, such as extensive, unnecessary interrogatories,
to prolong a case and bill more hours. Skip the double trouble. If you
are sued for infringement, get a realistic assessment of whether you
really did it. If you did, get the case settled!
When you make an offer of settlement, have your attorney make it as a
Rule #68 offer. Using that rule of the Federal Courts, if the plaintiff
refuses your offer, and then wins his case, but is awarded less than
your offer, the Court can require that the plaintiff pay many of your