I wanted to update you all on several festive developments pertaining to photography rights I have learned/experienced over the last year. This stuff is really important to Photographers, so listen up:
1. Photobucket
For those of you still using Photobucket, be aware that Section 6.1 requires that you give away your rights in any photo uploaded to their site to the entire world
for free. So long as your photo is hosted by Photobucket, anyone can use the photo for free with potentially no recourse by you. Here is the offending language underlined by me:
Proprietary Rights in Content on Photobucket.
6.1 Photobucket does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Photobucket Services. By displaying or publishing ("posting") any Content on or through the Photobucket Services, you hereby grant to Photobucket and other users a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content marked "private" will not be distributed outside the Photobucket Services. Photobucket and/or other Users may copy, print or display publicly available Content outside of the Photobucket Services, including without limitation, via the Site or third party websites or applications (for example, services allowing Users to order prints of Content or t-shirts and similar items containing Content).
I am pursuing a copyright infringement case right now (see Section V below) and the defendant is attempting to use this clause. I will be arguing that this clause is not reasonable nor expected, especially for a user like me with a pro (paid) Photobucket account (who had taken the step to disable right-clicking of photos in my account), thus it is unconscionable and unenforceable. Why would anybody give up their rights in their photos forever for nothing? There's no bargain here at all. I will also argue this was an obscure term buried in a contract of adhesion. However, for the time being, I have yanked all of my potentially profitable photos from Photobucket.
II. Skyy Vodka case
In April 2009, I found Skyy Vodka using my most popular photo, my Phoenix Skyline Sunset shot, in an ad campaign for a Skyy Infusions Launch Party the previous summer here in Phoenix. They neither asked permission nor paid for this use of the image. I sent them a cease and desist "DMCA takedown" letter, and they promptly took the images off of Myspace, which was the only place I could find they used them. I haggled with them and their ad agency for a year and finally settled the case last month for $3,000. I would have charged them perhaps $500 to use the photo for this one event they were promoting, so the rest of the costs were for a "stupid fee."
The offending images are here:
III. Federal copyright laws
Contrary to popular belief, you can sue in state court for violations of federal copyright laws, because the federal copyright laws are derived from common law. In other words, these various courts have concurrent jurisdiction. Small claims (in Arizona, up to $2,500) and Justice Court (in Arizona, up to $10,000) are a good choice to litigate these cases. The filing fees are smaller than "regular court" (in Arizona and California, they are called Superior Courts, and in Arizona, the filing fee is now $303, versus $85 in justice court) and the process is streamlined and fairly straightforward. Drawbacks - less likely to get a jury trial and it's possible the small claims/Justice court judge (JP) may not know much about copyright infringement. In Arizona, not all of the small claims/JP judges are even attorneys. Still, it's the closest thing to Superior Court mediation you can get.
IV. Copyright versus no copyright
It is true that the second you snap the photo, you enjoy immediate and broad intellectual property rights in that photo. HOWEVER, if you have not specifically copyrighted your photo, you are limited to actual damages. This means you can only collect the damages you can prove you suffered. This can be a real pain in the butt if your photography income fluctuates, which for most self-employed people, is a given. If you copyright the photo, it costs $35 and then you can make claims for statutory damages, which includes all sorts of goodies such treble damages, punitive damages and more. The process is relatively simple, and you can go here to set up an account and copyright your photo:
http://www.copyright.gov/
V. My latest copyright infringement case
I was sitting in Buffalo Exchange the other day waiting to sell some of my clothes and saw a flyer for an event coming up soon. They are, of course, using a photo of mine for the background of their flyer. I went to their website and then e-mailed the webmaster a DMCA takedown notice. We have reached an understanding, given this was a non-profit motive. He is claiming protection from the Photobucket term of use.
--don
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