Copyright in the digital world: photo industry attorney Philip Moilanen covers rights and responsibilities. (Feature).

"Is everything copyrighted?" Philip Moilanen, who has been a practicing attorney representing PMA for more than 30 years, asked a PMA 2002 audience. "The answer is yes, everything is, even without people necessarily intending to copyright their work. Somebody owns the copyright on every image

Recent big legal cases on copyright issues, such as the one involving online music sharing company Napster, have brought new awareness to the issue of copyright.

Professional Photographers of America (PPA) is taking a hard line on the issue of copyright on behalf of its members. In addition to conducting investigations into illegal copying of images and creating a copyright hotline, PPA is taking violators to court.

In 1999, PPA filed a lawsuit against Kmart Corp., Troy, Mich. The case was settled after Kmart paid PPA $100,000 and agreed to a number of terms, including the adoption of industry copyright guidelines, increased employee training, implementation of a mystery shopper program, and posting materials in lab areas that notify customers copyrighted images will not be reproduced without the consent of the photographer.

"Just recently, PPA did a test on Office Depot. They tested 12 different locations in nine states; of those, only three actually refused to copy the copyrighted images presented," Moilanen says. "PPA and Office Depot are now discussing how to resolve the situation. PPA's interest is in having people comply--not necessarily in bringing lawsuits, because it's time consuming and expensive for everybody to get into litigation. If you can avoid it, that's obviously to your advantage."

If your lab is sued for copyright infringement, what may the consequence be? Moilanen says the biggest issue is that of statutory damages.

"Statutory damages are used when the amount of actual damage suffered is very nominal. Statutory damages are discretionary. They're set by a judge, and they can range from $750 to $150,000 per infringement."

In the case of an innocent infringer--someone who copies a copyrighted image because it was not marked--the judge may reduce the penalty to $200.

"The court also can issue an injunction to stop you from continuing to violate the copyright, and you can be required to pay the attorney fees and court costs for the party that brought suit," Moilanen says.