Many artists have asked me recently about protecting their images from online theft. Downloading photos from websites is as easy as 1-2-3 so… what can you do to protect your work, and more importantly, should you be worried about it?

1. Why is your work online?

Let’s start by examining the reasons you have put your work online in the first place. As an artist, having a website means that millions of people and potential collectors are able to see images of your work for free. A digital portfolio can reach potential galleries, collectors, art critics, curators, museums, friends and family. To ensure your site will be seen by as many people as possible, it needs to be easily accessed, should be easy to navigate, with clear images that are large enough to be seen properly on most monitors, yet not too big that they will take too long to download .

Making it easy for everyone to see your work of course makes the images vulnerable to theft. What tools are available to prevent theft and are they effective?

2. Are the tools to protect images effective?

There have been many attempts to prevent theft from websites, from disabling right-click to putting watermarks on images. Unfortunately, most of those have simple work-arounds that any tech-savvy thief will know:

- Flash site: though you cannot download an image from a flash site, anyone can use the print screen function to get an image. Get a flash site because you like the look, not because you are told it will protect your work from copyright infringement
- Disabling right-click: this will annoy anyone who legitimately wants to promote your work (a blog reviewer trying to post an image of your work for example) yet is easily circumvented.
- Watermarks: to be effective, the watermarks would have to be so big that no one (including potential collectors!) would be able to see the image properly. But, a watermark which allows the image to be seen unscathed can easily be removed by anyone with some Photoshop expertise. Watermarks, then, seem to be a doomed proposition.

3. Who are the thieves anyway?

Let’s stop for a minute and think about the purposes of our potential thieves. Possibly the most threatening would be someone stealing images for mass printing and distribution. Imagine walking into a Bed and Bath, and seeing your paintings on shower curtains!

Here, your best defense is the web itself: images prepared for the web are usually not suitable for printing, because they are at a low resolution (72 dot-per-inch) and are typically fairly small (on average about 500 pixels or less than seven inches).

A licensing company usually has large pools of artists doing work for them, and basically do not need to steal art that will reproduce poorly on their products, and lower their quality.

4. Can nothing be done?

If you are truly worried about copyright infringement, you can register your images with the government (see the government site at www.copyright.gov). The current cost to register is $45. You do not need to register to obtain copyright. According to the law:
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
You only need to have the copyright registered if you wish to take legal actions against someone:
Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.
Beware that an actual lawsuit against anyone can be quite expensive, and you probably should be comfortable spending up to $5, 000 and risk not recovering any monies.

In conclusion, though the risks of copyright infringement do exist, artists should probably not spend too much time worrying about their images being stolen for nefarious purposes. Most people who will download your images will do so with or without your permission, and usually will not have any criminal intents (bloggers, galleries, friends, students). For those who do, bringing any legal action against them will be costly, time-consuming, and in the end, may not bring any reparations or compensations.

http://www.copyright.gov (government site)
http://www.StarvingArtistsLaw.com
http://www.vlany.org (volunteer lawyers for the arts)
http://www.websiteforartists.com (author’s site)

Copyrighting anything you have created costs you nothing. You simply put ‘Your Name 2005’ (2006, etc.) on it, beside it, or wherever the public can read it, and the act of copyright is done. It’s free — a gift from your government.

You’ve probably heard that registering your copyright costs you $30. Yes, that’s true, there is a $30 dollar fee if you choose to formally register your song, short story, photograph, painting, or whatever. You fill out Form TX for the written word, or form VA for graphic creations, such as photographs. Send in two copies of the ‘work’, plus your $30 dollars, to the Register of Copyright, Library of Congress, and your work will be entered into the archives and you will be in a better position to collect compensation in case of copyright infringement.

However, your work is still protected when you simply place a (c), plus your name or the name of your publication, on your masthead of your periodical, or over one of your thumbnails on the web.

Many people confuse registering a trademark, or patenting an invention, with copyright. The first two consist of long and drawn-out processes, and usually require an attorney. Not so with registering a copyright.

If you haven’t taken advantage of the free copyright privilege provided to you by our Copyright Law, begin to do so today. A (c) on everything you’ve produced, wards off would-be infringers. It carries the aura of a federal offense — like the label on a mattress: Do Not Destroy Under Penalty Of Law. The (c) sign also adds an air of professionality to your photograph.

* What does work-for-hire mean?

If you are employed by a company and take a picture or write a story for that company as part of your duties as an employee, generally speaking that is work for hire. The company owns the picture or created work, not you. You have probably, somewhere along the line, signed a “work for hire” agreement with your employer. (If you haven’t, the new law assumes you have total ownership of your pictures, or writing, unless there’s an agreement in writing to the contrary).

If you are an editor of a company magazine and you specifically order or commission a freelancer to take a certain picture for which you want to retain all rights, and you have a signed agreement saying so, the freelancer is “working for hire.”

However, if you, as an editor of a magazine, give a freelancer an assignment (writing or photography) and your magazine pays for the film and expenses, the writer or photographer is not necessarily working for hire unless you and he/she sign an agreement saying so.

Most writers or photographers don’t care to sign such documents. If they do, they demand a much higher fee than their normal “one-time rights basis” fee.

On the other hand, if you do not commission the writer or photographer to “work for hire,” there’s a monetary advantage when you “lease” a photograph or an article on a one-time rights basis, at a cost much lower than if you were to purchase exclusive rights to that article or photograph. If your magazine or periodical has a medium or low budget, explain to the photographer or author that he/she is free to market their work elsewhere since you are purchasing only one-time rights. Because your periodical is specialized, you’ll probably have no problem with cross-readership conflict.
[Section 101(1)(2)]

* How long does an author own the copyright on his/her writing or a photograph?

The new Copyright Law says a created work “subsists from its creation” (when the article is completed, or the picture is snapped), and he/she owns copyright to it for as long as he/she lives, plus 75 years. That is if the author registers the copyright. In some rare cases, an author could publish an article in an uncopyrighted magazine, and if no copyright notice ((c)2005 John Doe) appeared alongside the article, and if the author did not rectify this within five years, the article could become public domain — that is, anyone could use the article (or photograph, or drawing, etc.). But this would be rare.

The old copyright law, by the way, allowed only fifty-six years to own a created work.
To register your copyright, the current fee is $30. Ask for Form VA for graphic arts and Form TX for non-pictorial work such as writing. The address: Register of Copyrights, Library of Congress, Washington, D.C. 20559. Their phone: (202)707-3000. (Information specialists will answer your specific questions any time of day). Again, it is not totally necessary to register (fee) your created works. Doing so does make your legal recourse, in case of infringement, much stronger with regard to collecting monetary recompense. However, simply placing a (c) on your photograph or writing is usually sufficient to tell the world that the work is yours. Placing that (c) on it costs you nothing. Section 302(a); 405(1)(2)(3)]

* Can a photographer place the (c) notice on his/her slides and photographs and be protected, in court, even if he/she didn’t register the picture with the Copyright Office?

If a picture is not registered (with the Copyright Office), it does not mean it is not copyrighted. Use this analogy: Your automobile — you own title (copyright) to it, even if you choose not to register it. Once you drive it (publish your picture), you’re vulnerable to accidents (infringement). If you were to go to court, it would be a lot easier for your attorney to represent you (and to win your case), if your automobile (photo) was registered with the Department of Motor Vehicles (Copyright Office). [Section 401(a)(c), 405(a)(2)(3), 407(a)(2), 408(a)]

* What if you, as publisher or editor, want to reprint a photographer’s picture a second time, as a reprint of the original publication of it, or you want to use the photographer’s picture to advertise your publication, or want to use his/her picture a second time in an anthology? Do you, the publisher or editor, have the right?

A publisher is privileged to use a picture a second time without agreement with or additional compensation to the photographer, when a picture is used as a revision of the original book or periodical. For other usage, such as advertising, or a different editorial use, other than the original use, additional compensation to the photographer (or author) is in order. [Section 201(c)]
Note: a common practice in the publishing world is to pay a photographer 75% of the original fee for the photograph when the photo is used a second time, for a use different from what the photograph was originally used for.

* What is the statute of limitations for infringement?

If you don’t discover an infringement within three years, you have no legal recourse for damages. [Section 507(a)(b)]

* Are pictures used in advertising also copyrighted by the publisher in a copyrighted publication?

No. The publisher can claim copyright only on that material over which he has editorial authority and control. Therefore, if a photographer’s picture is used for advertising purposes, it should be published with the copyright notice visible. But this is a task for the advertiser to address, not the publisher or editor. [Section 404(a)]

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References:

Public Law 94-553 (90 Stat. 2541) Title 17 USC Copyrights, signed on October l9, l976, by President Gerald Ford; entered into force on January 1, 1978; supersedes the Copyright Act of 1909.

Rohn Engh, veteran stock photographer and best-selling author of “Sell & ReSell Your Photos” and “sellphotos.com,” has helped scores of photographers launch their careers. For access to great information on making money from pictures you like to take, and to receive this free report: “8 Steps to Becoming a Published Photographer,” visit http://www.sellphotos.com

Recently Viacom embarked on a program of litigation against YouTube for copyright infringement. The sums sounded quite astonishingly high. The question here of course is whether YouTube which offers a free video posting service, is the culprit at all. Surely YouTube is purely the storage place? If you were renting out factory space to people to store stuff and the police arrived to inform you that the innocent boxes in locker 10 contained illicit diamonds, would it be your problem? Interesting one.

What is however even more interesting is that the web is one of the quickest disseminating places. With other words, you post it on this website, and in the blink of an eye, it has been copied and is on somebody else’s website. This could be on a competitor’s site or on a private individual’s site. If the video has appeal, it will be copied and discussed and find its way on to myriad other computers and places. I’m reminded of the story of the poor young man who sent off a video as a job application. He wasn’t entirely truthful in addition to being not particularly good as a presenter. The company he submitted this to, were so amused by it that this video made it onto YouTube and was so successful there that the poor man ended up being interviewed on national TV etc.

At which stage of the journey of a popular snippet of video is it possible for a company such as Viacom to sue for copyright infringement. Do they end up suing the participating distributor chain whether organisations or individuals? The internet is primarily based on free participation and content sharing. People automatically will presume that they can download the video for free, send it off to their friends, share it with work colleages etc.

Viacom is faced with trying to capture their copyright material as one would trying to carry water in a sieve. They are faced with a fairly large problem with other words. It is really quite amazing that the company has not realised what an opportunity this could be rather than getting nasty and in the end only making the lawyers wealthy. The publicity which the man in the street is providing for the movie material could be considered to be invaluable. Why not rather capture that and work with it. Free public promotion and exposure should be welcomed rather than treated as a threat by suing.

Anja Merret lives in Brighton, UK. She has recently started a blog and writes on issues that interest her from self-improvement to tech stuff for amateurs.
Anja has had a varied and interesting career journey. She started as a high school teacher, changed professions to become an admin manager at her late husbands law firm because this allowed her the flexibility to look after her small children at the time. After many years she left this position to try her hand at an art gallery, moved across to public relations and finally found her niche in education again managing a computer training centre for many years. During this time she also involved herself in writing standards and qualifications in the new media field.
10 months ago she moved from South Africa to join her younger daughter. She now writes a blog and also looks after the business interests of her daughter who is a Flash and Accessibility expert. She has BA (Hons) MBA degrees and on rare occasions she feels like a frustrated wannabe academic. That passes quickly though. http://www.anjamerret.com

Society is currently moving through a transition from a community whose wealth is based in tangible goods, such as the means of production, to a community whose true wealth lies in intangible forms of property. We are moving toward a period where knowledge and ideas are more valuable than physical objects. Intellectual property, such as patents, copyright, trademarks and even trade secrets are what drive many of this country’s booming sectors. With widespread internet access, the creation of intellectual property is no longer restricted to large corporations or wealthy people who can afford to develop such property. Any person can develop value through a copyright, a patentable invention or a trademark. As intellectual property continues to grow as a wealth creation tool, individuals will be faced with the challenge of determining the value of the property, and the effect that such property will have on estate taxes.

Estate taxes on intellectual property, especially those based on copyrights, can have a substantial effect. When determining a person’s estate for purposes of estate taxes, it is first necessary to determine one’s gross estate. A person’s gross estate includes probate property and other tangible and intangible assets, such as retirement accounts or joint property. The current exemption for estate taxes is $2 million and will remain at this level through 2008. The estate tax exemption amount will then increase to $3.5 million in 2009, and is currently scheduled to be repealed in 2010.

When valuing intellectual property for estate tax purposes, the taxable amount is generally accepted to be the fair market value of the intellectual property on the date of the creator’s death. For example, the fair market value of copyrights will generally be considered their income producing potential, discounted for net present value. A common method for determining a copyright’s fair market value is to determine the likely annual earnings for the intellectual property for a future period, often between 5 and 7 years. A multiple, often between 3 and 7 is then applied to that number for the current valuation. Much of the valuation analysis is largely subjective, so determining the accepted method with the lowest valuation is usually the best choice, at least in terms of estate tax purposes.

Often, the taxes on a valuable piece of intellectual property in a decedent’s estate will be more than the available liquid assets or cash on hand to pay the estate tax. This often results in the estate being forced to sell some of the property in the estate to pay for the estate tax. Alternatively, the Internal Revenue Code does allow for tax payment deferment. Internal Revenue Code § 6161 allows for the deferment of estate taxes for up to ten years with a reasonable cause showing. Reasonable cause has often been interpreted as being met with a showing that the estate is comprised of illiquid intellectual property. This deferment period can allow an estate to take its time in determining how to pay the estate taxes, without being forced to make a hasty decision to sell estate property. However, keep in mind that the estate does have to pay interest on the deferment amount, which is generally the short term federal rate, plus 3%. See, IRC § 6621(a)(2).

Much of society’s wealth lies in intangible intellectual property. When determining the amount of a decedent’s gross estate for tax purposes, it is necessary for the zealous advocate to choose the generally accepted valuation method that is most advantageous to the client. Valuation methods will vary by industry and type of intellectual property, be it copyright, trademark or patent. If you or your client’s estate is comprised largely of intellectual property, it may be necessary to contact an attorney experienced in intellectual property valuation and tax planning. Contacting the property advocate may save the estate a substantial amount in the form of taxes, allowing it to dispose of the rest of the property in accordance with the decedent’s wishes.

This article was written by Nick Delaunt for the Law firm of Goldstein and Clegg, LLC.