Generally, the photographer owns the copyright in photographs he takes. Of course, if a photographer working for someone else, then the photographer’s employer may own the copyright in the photographs. A photographer may transfer or not receive a copyright if he agrees to assign his copyright or if the photographer is employed and his work requires the photographer to take the photos.
Now if the photographer owns the copyright he may sue someone who copies or uses his photos without his permission or license.
However, if a photographer timely registers his photographs with the United States Copyright Office and receives a certificate of registration he can sue the infringer for statutory damages (up to $75,000.00 per photograph infringed) and for attorney fees from prosecuting the lawsuit. Actual damages from an infringement may be small but statutory damages allow the jury to award large sums from small infringements. So timely copyright registration is important.
Along with copyright infringement, a photographer may have a claim or claims according to the Digital Millennium Copyright Act. The DMCA, in part, protects copyright materials such as computer programs or music from having their copyright protections removed and used or distributed.
Metadata for a photograph which lists the photographer as the photographer or copyright owner is protected by the DMCA. Old fashioned copyright notices also are protected by the DMCA.
So if someone steals your pictures, changes or erases your metadata, or copies your photos without the accompanying copyright notice, then you may have a copyright infringement claim and additional DMCA claims. The DMCA claims also have statutory damages and attorney fee damages. The DMCA statutory damages are a maximum of $25,000.00 per copyright or metadata removal.
This means you can add the statutory damages from copyright infringement to the DMCA statutory damages and suddenly your maximum statutory damages can be $75,000.00 plus $25,000.00 or more.
If your photography had a copyright notice with it, any infringement is assumed to be willful allowing you to seek the higher level of statutory damages.
So the lessons to be learned are register the copyright for your photographs, embed metadata stating you are the photographer and copyright owner for each photograph, and always have a copyright notice accompany your photographs. These steps will enable you to seek the most damages from infringement.
Robert frequently represents photographers in lawsuits against infringers.
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