Copyright - The Basics

It's important for artists and creators to circle their wagons, examine their practices, and make sure that they are protecting their copyrights. Let’s talk about some of the most basic and essential tools for protecting your creative works when you post online.

The first order of business is always to register your copyright. To be true, copyright registration is not technically necessary to own a work: prior to the 1976, the Copyright Act required an author to register their work in order to own a copyright, but now you need merely “fix” your work in a “tangible form” in order to own it. However, copyright registration is vitally important if you want to do anything - you cannot sue an infringer until you register your work. What’s more, if you wait until you see someone infringing your work to register your copyright, you will only be eligible to receive “actual” damages. Actual damages consist of the money that was actually made from the infringement of your work, and it’s usually pretty low. However, if you register your copyrights in a “timely” fashion - before any infringement or within three months of first publication - then you will be eligible for “statutory” damages and attorneys’ fees. Statutory damages can go up to $150,000 for willful infringement, so registering your copyright is very much worth the effort. Registering is also simple and relatively cheap; you can file an electronic application at copyright.gov, and depending on what kind of work you’re registering and how many authors it has, fees can range from $25 to $140.

Once you have your work registered, you can go about displaying it properly. The second order of business is to make sure that all of your work, wherever it is displayed, contains the correct copyright information. That includes two things - first, a notice of copyright (the © symbol, or some other indication that the work is copyrighted, such as including the words “copyrighted”), and second, your “copyright management information,” or CMI. Your CMI includes the name of the work, your name (or the name of all the authors), the date it was created, and how people can get in contact with you so they can ask your permission to license your work. The CMI on your work is extremely important. Not only does it allow potential licensees of your work to find you and ask permission, but section 1202 of the Copyright Act makes it illegal for someone else to remove this information. If someone reposts your image and removes your CMI, the Copyright Act provides for a minimum statutory fine of $2,500, up to $25,000 - on top of whatever royalties or damages you may receive for the infringement itself.

The copyright notice and CMI are important for another reason as well. Displaying a copyright notice means that everyone who sees the notice knows that your work is copyrighted - and therefore any infringement can be considered “willful.” And as stated above, “willful” infringement can be grounds for statutory damages of up to $150,000. It pays to let people know that your work is owned.

The third line of defense is more subtle, but no less important. When posting images on any website, carefully read that website’s terms and conditions of use. A website may repost your image, edit or alter it, or even offer it for sale, all while hiding the release allowing them to do these things deep inside its terms and conditions. Some websites may strip your image of its CMI, or add metadata that allows potential infringers to more easily find or appropriate it. This website may be able to help you determine which sites are safer to use: http://www.embeddedmetadata.org/social-media-test-results.php . Only post on websites that do not edit your images and won’t post your images elsewhere without your consent.

Your fourth line of defense is a good offense. When and if you catch people infringing your works online, don’t be afraid to come after them. There are three distinct ways to do this. First, you can start with a DMCA takedown. The DMCA (Digital Millennium Copyright Act) requires websites hosting copyrighted works to take down works after receiving proper notice of an infringement. Most large sites and social media platforms will have their own online form that you can fill out if you believe someone is posting your work on that site without your authorization, and if a site has such a form, using it will get you the fastest response. Otherwise you will need to send a takedown notice to that site’s authorized agent, or to the hosting ISP if the site doesn’t list any method to communicate takedown notices. A DMCA takedown notice should include some very specific information, so if an online form isn’t provided, make sure to find out what information you’ll need from a reputable source.

A DMCA takedown notice can be effective on large social media platforms, but it may not be useful for someone posting your work in a different forum. To deal with specific infringers, a cease-and-desist letter may be best. A C-and-D letter is simple: it’s just a polite letter that states that you own the image in question and that you’d like them to remove it immediately or face legal action. You can write a C-and-D letter yourself, and there are plenty of sample C-and-D’s online. It may be wise to include a copy of your copyright registration with your letter.

The last method is the most intense, but also the most effective. If your DMCA notices and C-and-D letters haven’t gotten any results, hire an attorney. Your attorney can write a more strongly worded C-and-D letter, and C-and-D’s from lawyers are usually more effective than those from authors, but if that doesn’t get results, your attorney can help you file a lawsuit. Lawsuits are costly, time-consuming, and draining, but they can have a big payout, if you’ve registered your copyrights in a timely fashion, and at the very least a lawsuit will force your infringer take down your images. 

Your creative work is a valuable resource. Don’t think that just because it is intangible intellectual property, instead of a briefcase full of diamonds, that you don’t need to protect it. Take these steps to make sure that nobody gets the value of your work before you do.