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.

For statutory damages to be awarded to the plaintiff, the copyright has to be registered with the U.S. Copyright Office within three months of the first "publishing," which, in the case of photos, usually means the time a professional photographer gives the image to his or her customer. Registration is retroactive for that three-month period.

"Group registration of images is also possible," Moilanen says. "The Copyright Office recently eased the photo registration requirement so you can send in a CD with hundreds or thousands of photos taken within the three month period for one filing fee. That makes it much simpler for photographers to register their images and then be in a position to recover statutory damages if their copyright is violated."

So how can a lab protect itself? "PMA has sample policies, forms, and guidelines for your use. There are a number of different steps industry members, including PPA and PMA, have agreed are reasonable. They are designed to give photographers and photo labs more protection than they would get under the law," Moilanen says. "These guidelines are not binding in any court, but the industry encourages courts to follow and apply them. They give broader innocent infringement protection and a different definition of what's innocent than the law provides. To the extent the industry organizations are involved, this would be a benefit if you get sued. The guidelines basically require that everybody exercise good faith, and there are some specific steps you can take that indicate your good faith."

First, the lab should adopt a copyright policy and notify customers of that policy. Among the resources from PMA is a form explaining to customers what copyright is, why it's important, and how to get copies made legally.

"The guidelines also say you need to educate and train your employees. You should have a policy manual that includes the materials in the industry guidelines, and you should actually apply those policies," he says.

In addition, "You need to check the image for any copyright marks. The copyright notice is the letter C in a circle, a year, and the name of the photographer. But you don't have to have those on an image for it to be protected. If just the photographer's name is on it, that would give you a clue someone is claiming it," Moilanen states.

There are many other things that can signal a photo is professional, such as the lighting, a good background, the appearance, the pose or a formal setting, among many other indications.

"There are professional images, obviously, that don't look like that; but you have to judge each one on a case-by-case basis to make a decision," Moilanen says. "The more it looks like a professional took it, the more concerned you need to be, and the more you may be second-guessed if you make the wrong decision.

"Obviously, getting permission to copy an image is the best protection," he continues. "You can give the customer a form that calls for the photographer's consent. There is a sample form in the material available from PMA. Many photographers don't want to keep their images for a long time and are happy to give consent after six months, or whatever their policy happens to be."

If a photographer is not willing to give up his rights to an image, the lab may offer to charge the customer an additional fee and pay that money to the photographer in exchange for the right to copy the image. The photographer may or may not agree to this, and the lab must be willing to forgo copying the print if the photographer refuses to allow it.

If there's no indication an image is a professional photo, the industry guidelines say you can make a copy. If there's reasonable doubt, however, the guidelines require obtaining a written statement from the customer indicating either the customer is the photographer, or other circumstances exist, he says.

This is an example of a special circumstance, Moilanen says: "Somebody's mother or father recently died, and they want to have a photo for use with the funeral services. You can see it's a copyrighted photo. You call and try to reach the photographer to get consent, but can't reach them. Chances are, there are not going to be objections to making a copy. If you made 100 copies, it might be a different story. But, under some circumstances like that, if you document them in writing and get a customer statement about the masons, the guidelines say it's okay to copy it. If you act in good faith, the guidelines urge any court that gets involved in a lawsuit not to do anything about it. On the other hand, if you get caught willfully copying something that shouldn't have been copied, stiffer fines and penalties may apply."

For more information ...

The Photo Marketing Association Business Resources Department offers a number of products to assist with legal questions. For instance, the Copyright Package includes a copyright and customer counter card, a leaflet containing guidelines and other forms. Photo Processing and the Law serves as a reference tool. Contact the Business Resources Department at (517) 788-8100 or PMA_Business_Resources@pmai.org for more information.

Copyright Q&A

Photo industry attorney Philip Moilanen answers frequently asked questions concerning copyright.

Are penalties assessed against the customer, or just against the lab that reproduces a copyrighted photo?

If the photographer sues the customer, the customer could have the same problems as the lab, although the customer may not have actually made the copy. If all they've done is ask you to make the copy and you do the copying, the liability is primarily going to be determined by whom the photographer decides to sue. Whether or not you would bother sue the customer may depend on who the customer is. A photographer may think it's better public relations to not sue his customers. just like you probably think it would be better public relations not to sue your customers. But, for example, if they have cut off the copyright notice so you didn't know of the claim, they would be liable for having removed that copyright information. They could be held liable if they are sued.

Do you need a signed transfer of copyright ownership, or is verbal permission OK?

If you're dealing directly with the artist--and you know it's actually the artist--their verbal OK on it is probably going to be sufficient for reproducing their work and giving it back to them. It's better, however, to have it in writing in case they change their minds. It depends on how well you know them and how often you do this. If you've never heard from them before, they may just be pretending to be the owner. If it's somebody you know, who's in business down the street, there's less risk of being scammed.

What is the statute of limitations on copyright infringement?

The normal statute of limitations for a suit would be three years. If you haven't heard something in three years, chances are you never will. But there's no guarantee and there might be reasons why the copyright owner didn't know about the infringement, which might extend the running of the statute of limitations.

Is it okay to scan a copyrighted image to CD or floppy, as long as you don't make a print?

Putting the image on a CD or floppy is making a copy. That's prohibited, just like a print would be.

When does a copyright expire?

The issue of duration of copyright is incredibly complicated because the law has changed a number of times. An image created today is copyrighted for the life of the photographer plus 70 years. For images created before 1978. the law provided for a 28-year period of copyright and a 28-year renewal, so that gives you 56 years. But because they extended the 1978 law, anything since 1929 may or may not be protected. In 1989. they removed the requirement that you put a notice on the image. So, if an image was taken before 1989 and distributed without a copyright notice on it, then it's okay to copy it.

What's the liability of the photo processor who receives an image over the Internet?

From a legal standpoint, the fact you received it over the Internet doesn't change a thing. As a practical matter, it creates all kinds of problems because you may never see the image. You may never meet the customer. You may not have any clue what he just sent you was a picture of some famous image that has been copyrighted and maybe even the subject of a tot of litigation. You've stepped into this mess unintentionally.

The legal issue doesn't change. You don't have permission to reproduce the image. From a practical standpoint, I think it's unlikely someone is going to sue you. If someone does, your biggest defense is you had no way of knowing. That might fly.

Jennifer Barr Kruger
e-mail: jkruger@pmai.org