Published: 17 Jul 2018
In the days before the Internet, newspapers and magazines automatically contacted and paid photographers or their agencies for the use of their images: without doing so, they would not have access to their photographs. But with the advent of digital media and the World Wide Web, photographs have become so easy to copy that media companies often do so without thinking about the source – and this has led to frequent and expensive copyright infringement litigation.
Copyright infringement is defined as the unauthorized reproduction, display, and/or distribution of a copyrighted work. When a photographer sees an image that they have taken appearing on a site or displayed by a user that has not paid for the right to do so, they have generally called and either asked for it to be removed or for a minimal fee. But now copyright attorneys have become more sophisticated in their pursuit of copyright infringement on behalf of photographers, and this has led to hundreds of lawsuits being filed – and millions of dollars in settlement fees.
Software now also exists that can find and identify lookalike images which may constitute infringement. This makes it easy to track down unauthorised material on a global basis.
The ability of an experienced copyright attorney to collect tens of thousands of dollars for use of a photograph stems from the existence of the Copyright Act of 1976, which potentially awards federal plaintiffs as much as $150,000 if they are able to prove willful infringement. Photographers are able to register their work with the copyright office at any time up to three months after the work is initially published, and that means that even if a work had not been copyrighted before the infringement occurred, the photographer still has time to do so in most cases, especially in those involving current events. With such a high potential fine existing for unauthorized use of a photograph, it is easy for a copyright attorney to demand a payment that far exceeds the actual value of the photograph to the photographer in order to settle.
This tactic has been successfully pursued by a single copyright attorney, Richard Liebowitz against such notable media companies as Time, Condé Nast, and Rolling Stone. Even the major networks have ended up paying large sums to photographers in response to claims of unauthorized use and infringement. Though the photographs themselves would have commanded only small sums had the media companies taken the time to license them, their failure to do so leads to extremely high costs. According to freelance photographer Yunghi Kim, “Photographers are basically small businesses. They’re little men. But you have this powerful tool, which is copyright law.”
If your media organization relies on photography to support your content, there is always the risk that an inexperienced or rushed employee might inadvertently publish an unlicensed photo or copyrighted work – or that you can be accused of doing so. To protect yourself against the rapidly rising costs of copyright infringement litigation, you need the right type of insurance. Contact La Playa Insurance today to speak to a representative who understands your needs and risk exposures.