general
I DON’T KNOW WHERE TO START. CAN YOU HELP ME?
Call us and see if we are a fit. We’ll listen to your needs and tell you what your options are. A job may seem overwhelming until you have the right solution from a design architect helping you out. We can put things in perspective and offer solutions that you may not have even considered. We are problem solvers and brand creators. Let us create the consistency that' s currently missing in your marketing pieces.
WHO OWNS THE COPYRIGHT FOR WORK YOU HAVE DONE FOR ME?
Copyright and approved imagery is yours upon receipt of final payment. We do, however, reserve the right to use any work for promotional purposes. However, custom icon work and any odd web modification pieces are property of The Brand Affect if not included in the project specs. This artwork could be sold to client at the discretion of the sales rep. All stock photography used in your website is licensed to The Brand Affect through a stock account. Client has the right to the images to use in marketing. If client relationship is resolved. Those images might have to be repurchased to use with future design firms.
WHAT TYPES OF PAYMENT DO YOU ACCEPT?
Currently, The Brand Affect accepts business checks, personal checks, Bitcoin, VISA, Mastercard, Paypal, Square, CashApp, cash and money orders. If you choose to pay using a card we will apply a 3% fee to any payments over $250.00
Photography Copyright law
The term “Copyright” is often misunderstood. Especially when it comes to art and photography. The first and most obvious question would therefore be; What is Copyright?
In simple terms, copyright for photographers means owning property. With ownership, you get certain exclusive rights to that property. For photographic copyrights, the ownership rights include:
(1) to reproduce the photograph;
(2) to prepare derivative works based upon the photograph;
(3) to distribute copies of the photograph to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) to display the photograph publicly;
Found in the U.S. Copyright Act at 17 U.S.C. 106 (http://www.copyright.gov/title17/92chap1.html#106)
(1) to reproduce the photograph;
(2) to prepare derivative works based upon the photograph;
(3) to distribute copies of the photograph to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) to display the photograph publicly;
Found in the U.S. Copyright Act at 17 U.S.C. 106 (http://www.copyright.gov/title17/92chap1.html#106)
What is the difference between copyright and creative commons?
Creative Commons is a type of licensing. Licensing means that you grant others some of the rights that you have to the photograph. For example, you may allow someone to reproduce your photo in the December issue of a magazine. You still own the copyright to the photograph, but you allow someone else to use a piece of it. Creative Commons provides different licensing packages without pay. The packages allow some flexibility with your licensing, such as whether you allow commercial use of your photo and whether you require certain attribution, such as your name or website, with the use.
Does a creative commons license mean that I can use the photograph any way I want, for free?
If you offer licensing of your photo through Creative Commons, someone may use your photo for free but that person must follow the of the conditions of the license that you select. The Creative Commons license options include: “Attribution” (this license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation); “Attribution-NonCommercial” (this license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms); and “Attribution-NonCommercial-NoDerivs” (this license is the most restrictive of our six main licenses, only allowing others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially).
Who owns the copyright in a photograph once it is taken?
In general, when the shutter is released, the photographer who pressed the button owns the copyright. An exception is when the image falls into the “work-made-for-hire”(also known as “work for hire”) category. A work-made-for-hire relationship is created in two situations: (1) the photographer is an employee hired to take photographs for the employer—an example would be a photojournalist who is an employee of a newspaper but not a wedding or portrait photographer who is hired for one event; or (2) the photographer is hired to provide photographs for collective works or compilations and signs a written agreement that specifically states that the work is to be considered a work made for hire. Therefore, freelance photographers are subjected to work-for-hire status only when they agree to it contractually.
If I don’t register my copyright, do I still own the copyright to my photos?
Yes. When a photo is not registered with the US Copyright Office prior to an infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or standard licensing fees plus profits derived from the infringement, if not too speculative. One source for standard license fees is a software program called Fotoquote.
Should only Americans register their copyright with the Library of Congress in the United States?
No! All unpublished photos, regardless of the nationality of the photographer, are protected in the United States. Any photo that is protected by US copyright law can be registered, which includes works of foreign origin.
If your photos are first published in the United States or in a country with which the US has a copyright treaty, they also are protected and may therefore be registered with the US Copyright Office. Also, if you are a citizen of or reside in a country that has a copyright treaty with the US, then you can register your photos with the US Copyright Office. See Circular 38a, International Copyright Relations of the United States, for the status of specific countries.
If your photos are first published in the United States or in a country with which the US has a copyright treaty, they also are protected and may therefore be registered with the US Copyright Office. Also, if you are a citizen of or reside in a country that has a copyright treaty with the US, then you can register your photos with the US Copyright Office. See Circular 38a, International Copyright Relations of the United States, for the status of specific countries.
What is the Digital Millennium Copyright Act?
The Digital Millennium Copyright Act (DMCA), enacted in 1998, implemented treaties signed at the 1996 World Intellectual Property Organization (WIPO) Geneva conference. It addresses many issues, one of which affects photographers directly. The DMCA states that while an Internet Service Provider (ISP) is not liable for transmitting information that may infringe a copyright, the ISP must remove materials from users’ websites that appear to constitute copyright infringement.
Your copyright does not have to be registered with the U.S. Copyright Office for you to take advantage of this provision. If you find a website that is using one of your images without permission, contact the hosting ISP and report the infringement. My article here: http://www.naturescapes.net/docs/index.php/articles/314 tells you how to request that your image be take down from a website.
The DMCA also provides for certain damages when your work is infringed. If the infringer has removed your copyright management information, such as your name, contact information, or copyright notice, from your work in an attempt to facilitate or conceal its infringement, the infringer may have violated the DMCA. Section 1202(b) of the DMCA prohibits the removal of “copyright management information” in certain circumstances. It states in pertinent part:
No person shall, without the authority of the copyright owner or the law—(1) intentionally remove or alter any copyright management information . . . . knowing, or, with respect to civil remedies . . . having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.
The statutory award for each violation of Section 1202 ranges from $2,500 to $25,000. The DMCA is another important tool in the photographer’s legal toolkit.
Your copyright does not have to be registered with the U.S. Copyright Office for you to take advantage of this provision. If you find a website that is using one of your images without permission, contact the hosting ISP and report the infringement. My article here: http://www.naturescapes.net/docs/index.php/articles/314 tells you how to request that your image be take down from a website.
The DMCA also provides for certain damages when your work is infringed. If the infringer has removed your copyright management information, such as your name, contact information, or copyright notice, from your work in an attempt to facilitate or conceal its infringement, the infringer may have violated the DMCA. Section 1202(b) of the DMCA prohibits the removal of “copyright management information” in certain circumstances. It states in pertinent part:
No person shall, without the authority of the copyright owner or the law—(1) intentionally remove or alter any copyright management information . . . . knowing, or, with respect to civil remedies . . . having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.
The statutory award for each violation of Section 1202 ranges from $2,500 to $25,000. The DMCA is another important tool in the photographer’s legal toolkit.
If I am photographing a job for a client, does the client own the copyright or do I?
See above regarding the “work-made-for-hire” discussion.
Do I need a model or property release to own the copyright in my photograph?
Copyrights and rights of privacy for people are different rights. When photographers take photos of people, they must be careful to not invade their privacy. This happens when someone enters a person’s private domain in a manner that would be considered offensive to the average person. As a photographer, the act of going on someone’s land without permission would be trespassing and also may violate the person’s right of privacy. You don’t have to take a photo or publish an image photo for the action to be unlawful. Some courts have found that a photographer has violated privacy rights even when photographing someone in public. Instances would include cases where the photographers harass their subjects, use hidden cameras, or wait for a woman’s skirt to be blown at a fun house. It also is unlawful to view and photograph people inside of residences or other places where privacy is normally expected, even when the photographer is standing in public.
After the photo is taken, however, the photographer should be concerned with the person’s right of publicity. You violate a person’s right of publicity when, without permission, you use a photo of a person for your own benefit. The “editorial” use of a photo is not considered a use of the person’s image for your own benefit. “Commercial” use is different because the use benefits the photographer, so you need the person’s consent to use their image. If you get a model release signed by the subject, you are free to use the image commercially, i.e., for advertising.
If an image is used in a newsworthy item then that constitutes an editorial use. In such cases, a person’s rights are evaluated in light of constitutional interests. “Newsworthiness” is a First Amendment, freedom of the press interest and is broadly construed. Courts traditionally have defined public interest or newsworthiness in liberal and far-reaching terms, not limiting it to the dissemination of news in the sense of current events. They have extended it well beyond that to include all types of factual, educational and historical data, even including entertainment and amusement and other interesting phases of human activity in general.
Commercial use of a photograph usually occurs when the picture of the person has been used purely for “advertising purposes.” While the photograph of a person may be used for something that is sold for profit, such as for use in a book or as a photographic print, selling the photo is not the test for a commercial usage. Using a picture of a person in advertising or for trade without consent may violate the person’s right of publicity, especially when it injures the economic interests of the person due to commercial exploitation. If someone looking at a photograph would think that the person in it is promoting or endorsing a product affiliated with the photograph, then the use is commercial. When the photo of a person is incorporated into a product such as a tee shirt, the use is commercial. At times, it is difficult to determine if a usage is considered commercial or editorial, so it is always safer to get the model release.
In general, if property is visible and can be photographed from a public place, you don’t need a property release to use an image that depicts the property and you may use the photo in any manner. Copyright law provides an exclusion for photographing buildings located on property, but not for statues or other items that may have separate copyrights. There also are restrictions on some governmental property. These include federal seals and insignia as well as military or nuclear installations due to security concerns. If the statue or copyrighted item has minimal presence in your image, your photo may fall under the exclusion due to fair use. Otherwise, you must get permission to take an image and to use it for any purpose.
Nevertheless, some companies have tried to prevent the use—both commercially and editorially—of photographs of their buildings or objects via trademark protection or contract law. Examples include the Rock and Roll Hall of Fame, the Lone Cypress tree on the 17 Mile Drive at Pebble Beach, CA, the Golden Gate Bridge, and the “Hollywood” sign. While these attempts have been unsuccessful, it can be expensive to litigate them
After the photo is taken, however, the photographer should be concerned with the person’s right of publicity. You violate a person’s right of publicity when, without permission, you use a photo of a person for your own benefit. The “editorial” use of a photo is not considered a use of the person’s image for your own benefit. “Commercial” use is different because the use benefits the photographer, so you need the person’s consent to use their image. If you get a model release signed by the subject, you are free to use the image commercially, i.e., for advertising.
If an image is used in a newsworthy item then that constitutes an editorial use. In such cases, a person’s rights are evaluated in light of constitutional interests. “Newsworthiness” is a First Amendment, freedom of the press interest and is broadly construed. Courts traditionally have defined public interest or newsworthiness in liberal and far-reaching terms, not limiting it to the dissemination of news in the sense of current events. They have extended it well beyond that to include all types of factual, educational and historical data, even including entertainment and amusement and other interesting phases of human activity in general.
Commercial use of a photograph usually occurs when the picture of the person has been used purely for “advertising purposes.” While the photograph of a person may be used for something that is sold for profit, such as for use in a book or as a photographic print, selling the photo is not the test for a commercial usage. Using a picture of a person in advertising or for trade without consent may violate the person’s right of publicity, especially when it injures the economic interests of the person due to commercial exploitation. If someone looking at a photograph would think that the person in it is promoting or endorsing a product affiliated with the photograph, then the use is commercial. When the photo of a person is incorporated into a product such as a tee shirt, the use is commercial. At times, it is difficult to determine if a usage is considered commercial or editorial, so it is always safer to get the model release.
In general, if property is visible and can be photographed from a public place, you don’t need a property release to use an image that depicts the property and you may use the photo in any manner. Copyright law provides an exclusion for photographing buildings located on property, but not for statues or other items that may have separate copyrights. There also are restrictions on some governmental property. These include federal seals and insignia as well as military or nuclear installations due to security concerns. If the statue or copyrighted item has minimal presence in your image, your photo may fall under the exclusion due to fair use. Otherwise, you must get permission to take an image and to use it for any purpose.
Nevertheless, some companies have tried to prevent the use—both commercially and editorially—of photographs of their buildings or objects via trademark protection or contract law. Examples include the Rock and Roll Hall of Fame, the Lone Cypress tree on the 17 Mile Drive at Pebble Beach, CA, the Golden Gate Bridge, and the “Hollywood” sign. While these attempts have been unsuccessful, it can be expensive to litigate them
Do I need to put the © notice on my photos?
You’ll often see a copyright “notice”—the familiar © or the word “copyright” with a date and name of the copyright owner—posted on creative works. A proper notice has three parts: the first part is the © (the letter “c” in a circle), the word “Copyright,” or its abbreviation, “Copr.” Some people use a “c” within parentheses like this: (c), but it has not been designated to be part of the official copyright notice. The second part notes the year when the work was first published. The third required part of a copyright notice is the name of the copyright owner. The final form looks like this: © 2011 Carolyn E. Wright. Including a copyright notice is no longer required for copyright protection, but it is a good idea to use it.
When you use the copyright notice it may stop someone from stealing your photographs, either because it serves as a reminder that the work is protected or because the notice interferes with the use of the work when it is part of the photo. Also, it helps to post a copyright notice on your photos because the infringer then cannot say the use was innocent. Further, you may be eligible for DMCA damages if your copyright notice is removed to hide an infringement (see above). You may use the copyright notice without registering your work with the U.S. Copyright Office.
When you use the copyright notice it may stop someone from stealing your photographs, either because it serves as a reminder that the work is protected or because the notice interferes with the use of the work when it is part of the photo. Also, it helps to post a copyright notice on your photos because the infringer then cannot say the use was innocent. Further, you may be eligible for DMCA damages if your copyright notice is removed to hide an infringement (see above). You may use the copyright notice without registering your work with the U.S. Copyright Office.
What is “Fair Use”?
Fair use is the right to use copyrighted materials without the copyright owner’s permission. It was designed as an exception to the exclusive rights granted above, permitting limited and reasonable uses without permission as long as they do not prejudice the copyright owner’s rights or interfere with normal exploitation of the work. The classic example of fair use is the quotation from a book being reviewed. Since an author usually does not review his own book, the impact of the quotation on his interests should be minimal. If, however, so much material is quoted that the review will substitute for a purchase of the book, the use will not be considered fair.
Thus, fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. But fair use has its limits, too.
Specifically, Section 107 of the Copyright Act states that:
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 USC Section 107. http://www.copyright.gov/title17/92chap1.html#107
All four factors (as indicated by the “and” before the last factor) are considered by a court to determine whether a use is fair.
The “purpose and character of the use” is considered one of the most important indicators of fair use. Courts determine whether the copyrighted work has been used to create a new work (often referred to as a “transformative use”) instead of simply copied and/or placed into another work.
A court is more likely to find fair use when the “nature” of the copyrighted work used has been published, rather than unpublished. Copyright law recognizes the right of photographers to control the first public appearance of works.
An unauthorized use will more likely be considered a fair use if a small amount or insubstantial portion of the entire work has been used, such as a short quote from a book. While such a “de minimis” use is more difficult with photographs than when copying text, it can occur when the photos are in the background of a video, for example.
When the unauthorized use directly effects and competes with the copyright owner’s business or potential for income, a court will usually find that the use was not a fair use. This is true even when the use is not in an area of business directly competing with the photographer – such as selling sculptures based on a photo. What matters is that the photographer could have made money in that field.
Thus, fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. But fair use has its limits, too.
Specifically, Section 107 of the Copyright Act states that:
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 USC Section 107. http://www.copyright.gov/title17/92chap1.html#107
All four factors (as indicated by the “and” before the last factor) are considered by a court to determine whether a use is fair.
The “purpose and character of the use” is considered one of the most important indicators of fair use. Courts determine whether the copyrighted work has been used to create a new work (often referred to as a “transformative use”) instead of simply copied and/or placed into another work.
A court is more likely to find fair use when the “nature” of the copyrighted work used has been published, rather than unpublished. Copyright law recognizes the right of photographers to control the first public appearance of works.
An unauthorized use will more likely be considered a fair use if a small amount or insubstantial portion of the entire work has been used, such as a short quote from a book. While such a “de minimis” use is more difficult with photographs than when copying text, it can occur when the photos are in the background of a video, for example.
When the unauthorized use directly effects and competes with the copyright owner’s business or potential for income, a court will usually find that the use was not a fair use. This is true even when the use is not in an area of business directly competing with the photographer – such as selling sculptures based on a photo. What matters is that the photographer could have made money in that field.
What is public domain?
When a work is not protected by copyright law, it is considered as being in the “public domain” and any one may use the work without permission.
What is a derivative work and who owns the copyright?
A derivative work is one that is based on one or more earlier works. Derivative works include editorial revisions, annotations or other types of modifications. The work must be different enough from the original to be regarded as a new work—in other words, it must contain some substantial, not merely trivial, originality. The threshold for originality in a derivative work is higher than that required for the original work.
The person who creates the derivative owns the copyright to revision, annotation, or other type of modification only. The original copyright is still owned by the original creator.
The person who creates the derivative owns the copyright to revision, annotation, or other type of modification only. The original copyright is still owned by the original creator.
Is copyright violation a crime?
The Copyright Act includes elements of crimes related to copyright. http://www.copyright.gov/title17/92appg.htmlThe government usually prosecutes only the most egregious cases, such as counterfeited goods.
What happens when a copyrighted photo is used without permission?
You have several options when you find that your photo has been infringed.
Option #1 – Do Nothing
You always have the option of doing nothing. If the infringer is in a foreign country where infringements are rampant and difficult to enforce or is a small website with little traffic, you may decide that it’s not worth your time and effort to fight the infringement.
Option # 2 – Request a Photo Credit
If the website would provide a marketing outlet for you, you may only want the infringer to give you proper credit. If so, write the infringer a letter officially giving her the right to use the image. Be sure to designate the parameters of that use, such as who, what, why, when and where – see my blog entry here for more information. Include the condition that the infringer post a photo credit with a copyright notice on or adjacent to the use. You may also require the infringer to add a link to your website. You may get subsequent work from the infringer or others.
Option #3 – Prepare a DMCA Take-Down Notice
Purusant to the U.S. Digital Millennium Copyright Act (“DMCA”) enacted in 1998, the Internet Service Provider (“ISP”) that hosts a website is not liable for transmitting information that infringes a copyright only if the ISP removes the infringing materials from a user’s website after receiving proper notice of the violation. The notice must: be in writing, be signed by the copyright owner or the owner’s agent, identify the copyrighted work claimed to be infringed (or list of infringements from the same site) and identify the material that is infringing the work. Additionally, the notice must include the complaining party’s contact information, a statement that the complaint is made in “good faith,” and a statement, under penalty of perjury, that the information contained in the notification is accurate and that the complainer has the right to proceed (because he is the copyright owner or agent). Check my article at here to learn more about how to prepare a DMCA take-down notice. Even if you don’t reside in the U.S., you may use this great tool to stop an infringer whose ISP is in the U.S. from using your work.
Option #4 – Prepare a Cease and Desist/Demand Letter Yourself
When you don’t want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer), you may want to contact the infringer to explain that the use is not authorized and either request payment of an appropriate license fee, a photo credit with a link to your website (as discussed above), or that the infringer cease use of the image. It’s best to do this in writing – a letter by surface mail seems to have more clout than email correspondence.
Photographers sometimes send an infringer an invoice for three times their normal license fee in an attempt to resolve the infringement issue. While the 3x fee may be an industry standard and some courts have used it, is not a legal right given by any court of law or statute. Instead, U.S. law states that you are entitled to actual or statutory damages for infringement as provided by 17 U.S.C. Chapter 5, specifically section 504. The damages that you can receive from infringement – especially if you timely register your photographs – sometimes can amount to a lot more than three times your normal license fee. So you may want to think 2x before you send the 3x letter.
There are some risks in sending the letter yourself. First, the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don’t want to litigate. Second, your demand for payment may be admissible against you if an infringement case is filed. If you demand too little, then it may limit your ultimate recovery. To avoid this possibility, include in your demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”
Option #5 – Hire a Lawyer to Send a Demand Letter
When an attorney gets involved, the matter is escalated and tensions rise. While the infringer may be more defensive, the weight of your demand letter is dramatically increased if it comes from an attorney and the infringer generally takes the matter more seriously. Some attorneys charge a flat fee to send a letter; others may charge a “contingency fee” which is based on the percentage of recovery. Or the fee may be a combination of both.</strong
Option #6 – File a Copyright Infringement Lawsuit
Your most aggressive option is to pursue your legal remedies by filing suit. Unless you created the work outside of the United States and in a country that is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, you must register your copyright with the U.S. Copyright Office, hopefully before but at least after the infringement. (If you created the photo in a country that is a signatory to the Berne Convention, you do not have to register in the U.S. to protect your copyright or to file an infringement lawsuit in the U.S. However, if you do, then you may be entitled to statutory damages and attorneys’ fees, as noted here.) If your photo was not timely registered for this infringement, you may want to register the photo for future possible infringements, as well, to be eligible for statutory damages of up to $150,000 per willful infringing use for each photograph. See 17 USC Section 504(b) and (c). Legal fees and costs also may be recovered from the infringer. See 17 USC Section 505.
In most jurisdictions you need to have received your registration certificate to file a complaint. Unless you have a breach of contract or some other state claim, you must file your infringement claim in a federal district court. To file suit, it is best to hire an attorney to help you because the legal procedures are complicated. Note that you have three years from the date of infringement to sue for copyright infringement.
When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. One source for standard license fees is a software program called Fotoquote. You also may recover the profits the infringer made from the infringement if they aren’t too speculative.
Additional Claims
While many photographers place “watermarks” including their name and/or their copyright notice on their images or in the metadata of the file to prevent someone from infringing them, it’s fairly easy to crop or clone over the mark, or to remove metadata. Fortunately, the DMCA section of the Copyright Act provides a remedy in addition to the infringement claim when the infringer removes your CMI to hide the infringement.
Additionally, when you can prove that the infringement was done willfully, then you are entitled to enhanced statutory damages. “Willfulness” means that the infringer either had actual knowledge that it was infringing the owner’s copyrights or acted in reckless disregard of those rights. Evidence that the infringed works bore prominent copyright notices supports a finding of willfulness.
Option #1 – Do Nothing
You always have the option of doing nothing. If the infringer is in a foreign country where infringements are rampant and difficult to enforce or is a small website with little traffic, you may decide that it’s not worth your time and effort to fight the infringement.
Option # 2 – Request a Photo Credit
If the website would provide a marketing outlet for you, you may only want the infringer to give you proper credit. If so, write the infringer a letter officially giving her the right to use the image. Be sure to designate the parameters of that use, such as who, what, why, when and where – see my blog entry here for more information. Include the condition that the infringer post a photo credit with a copyright notice on or adjacent to the use. You may also require the infringer to add a link to your website. You may get subsequent work from the infringer or others.
Option #3 – Prepare a DMCA Take-Down Notice
Purusant to the U.S. Digital Millennium Copyright Act (“DMCA”) enacted in 1998, the Internet Service Provider (“ISP”) that hosts a website is not liable for transmitting information that infringes a copyright only if the ISP removes the infringing materials from a user’s website after receiving proper notice of the violation. The notice must: be in writing, be signed by the copyright owner or the owner’s agent, identify the copyrighted work claimed to be infringed (or list of infringements from the same site) and identify the material that is infringing the work. Additionally, the notice must include the complaining party’s contact information, a statement that the complaint is made in “good faith,” and a statement, under penalty of perjury, that the information contained in the notification is accurate and that the complainer has the right to proceed (because he is the copyright owner or agent). Check my article at here to learn more about how to prepare a DMCA take-down notice. Even if you don’t reside in the U.S., you may use this great tool to stop an infringer whose ISP is in the U.S. from using your work.
Option #4 – Prepare a Cease and Desist/Demand Letter Yourself
When you don’t want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer), you may want to contact the infringer to explain that the use is not authorized and either request payment of an appropriate license fee, a photo credit with a link to your website (as discussed above), or that the infringer cease use of the image. It’s best to do this in writing – a letter by surface mail seems to have more clout than email correspondence.
Photographers sometimes send an infringer an invoice for three times their normal license fee in an attempt to resolve the infringement issue. While the 3x fee may be an industry standard and some courts have used it, is not a legal right given by any court of law or statute. Instead, U.S. law states that you are entitled to actual or statutory damages for infringement as provided by 17 U.S.C. Chapter 5, specifically section 504. The damages that you can receive from infringement – especially if you timely register your photographs – sometimes can amount to a lot more than three times your normal license fee. So you may want to think 2x before you send the 3x letter.
There are some risks in sending the letter yourself. First, the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don’t want to litigate. Second, your demand for payment may be admissible against you if an infringement case is filed. If you demand too little, then it may limit your ultimate recovery. To avoid this possibility, include in your demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”
Option #5 – Hire a Lawyer to Send a Demand Letter
When an attorney gets involved, the matter is escalated and tensions rise. While the infringer may be more defensive, the weight of your demand letter is dramatically increased if it comes from an attorney and the infringer generally takes the matter more seriously. Some attorneys charge a flat fee to send a letter; others may charge a “contingency fee” which is based on the percentage of recovery. Or the fee may be a combination of both.</strong
Option #6 – File a Copyright Infringement Lawsuit
Your most aggressive option is to pursue your legal remedies by filing suit. Unless you created the work outside of the United States and in a country that is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, you must register your copyright with the U.S. Copyright Office, hopefully before but at least after the infringement. (If you created the photo in a country that is a signatory to the Berne Convention, you do not have to register in the U.S. to protect your copyright or to file an infringement lawsuit in the U.S. However, if you do, then you may be entitled to statutory damages and attorneys’ fees, as noted here.) If your photo was not timely registered for this infringement, you may want to register the photo for future possible infringements, as well, to be eligible for statutory damages of up to $150,000 per willful infringing use for each photograph. See 17 USC Section 504(b) and (c). Legal fees and costs also may be recovered from the infringer. See 17 USC Section 505.
In most jurisdictions you need to have received your registration certificate to file a complaint. Unless you have a breach of contract or some other state claim, you must file your infringement claim in a federal district court. To file suit, it is best to hire an attorney to help you because the legal procedures are complicated. Note that you have three years from the date of infringement to sue for copyright infringement.
When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. One source for standard license fees is a software program called Fotoquote. You also may recover the profits the infringer made from the infringement if they aren’t too speculative.
Additional Claims
While many photographers place “watermarks” including their name and/or their copyright notice on their images or in the metadata of the file to prevent someone from infringing them, it’s fairly easy to crop or clone over the mark, or to remove metadata. Fortunately, the DMCA section of the Copyright Act provides a remedy in addition to the infringement claim when the infringer removes your CMI to hide the infringement.
Additionally, when you can prove that the infringement was done willfully, then you are entitled to enhanced statutory damages. “Willfulness” means that the infringer either had actual knowledge that it was infringing the owner’s copyrights or acted in reckless disregard of those rights. Evidence that the infringed works bore prominent copyright notices supports a finding of willfulness.
How can I get permission to use copyrighted photography?
You may obtain a non-exclusive license from the copyright owner orally, but exclusive licenses must be in writing. It’s always best to put license agreements in writing, even if it’s only an email.
When can bloggers use photos they find online for free?
A blogger may use photos found online for free only when the photo is in the public domain, the use is a fair use, or the copyright owner has granted the blogger a free license, such as through Creative Commons.
How do I know if a photo is in the public domain?
The law is designed so that works of authorship eventually (or, in a few cases, immediately) are made available for all to benefit from and use freely. Works go into public domain for one of three reasons:
(1) the author failed to satisfy the required statutory formalities needed to perfect the copyright;
(2) it is a work of the U.S. government; or
(3) the term of copyright has expired.
Item (1) only covers work published prior to March 1, 1989. At that time, the copyright notice had to be affixed to the work immediately or it immediately lost copyright protection. (Copyright protection has been restored for some foreign works even if they were published without notice before 1989.) That law has been changed; work published after 1989 does not need a copyright notice to maintain its copyright protection. It is, however, a good idea to use a copyright notice when displayed or offered in any manner.
Item (2) refers to works created by government employees such as maps, charts, and surveys. They fall into the public domain from the date of creation. Item (3) addresses the length of time that a work is protected by copyright law. Since the length of time that copyright protection remains in force has been changed several times over the years, it can be difficult to determine when exactly a given work falls into the public domain without doing some serious research. For photographs created after 1988, you (or your heirs) own the copyright for 70 years after your death (unless you have transferred it in writing). After that time, the copyright falls into the public domain; anyone can use the photos in any manner that they choose. For a period of time before 1988, copyrights expired 50 years after the copyright owner’s death. Before then, the laws dealing with the length of copyright protection changed quite frequently. The chart found at http://www.unc.edu/~unclng/public-d.htm may be helpful in determining the applicable duration of copyrights for works established at various times.
(1) the author failed to satisfy the required statutory formalities needed to perfect the copyright;
(2) it is a work of the U.S. government; or
(3) the term of copyright has expired.
Item (1) only covers work published prior to March 1, 1989. At that time, the copyright notice had to be affixed to the work immediately or it immediately lost copyright protection. (Copyright protection has been restored for some foreign works even if they were published without notice before 1989.) That law has been changed; work published after 1989 does not need a copyright notice to maintain its copyright protection. It is, however, a good idea to use a copyright notice when displayed or offered in any manner.
Item (2) refers to works created by government employees such as maps, charts, and surveys. They fall into the public domain from the date of creation. Item (3) addresses the length of time that a work is protected by copyright law. Since the length of time that copyright protection remains in force has been changed several times over the years, it can be difficult to determine when exactly a given work falls into the public domain without doing some serious research. For photographs created after 1988, you (or your heirs) own the copyright for 70 years after your death (unless you have transferred it in writing). After that time, the copyright falls into the public domain; anyone can use the photos in any manner that they choose. For a period of time before 1988, copyrights expired 50 years after the copyright owner’s death. Before then, the laws dealing with the length of copyright protection changed quite frequently. The chart found at http://www.unc.edu/~unclng/public-d.htm may be helpful in determining the applicable duration of copyrights for works established at various times.
If you take a photo of a work of art that you did not create, who owns the copyright?
As the creator of art, the copyright owner has the exclusive rights in the art such as for reproduction. Courts have disagreed as to whether taking photos of copyrighted works is a violation. Regardless, the law prevents you from having copyright ownership of anything that is an infringement.
Q: If an illustration of one of my photographs is made and used commercially or editorially, is it an infringement of my copyright?
Yes, if it is deemed to be a derivative work and the illustrator has copied your copyrightable elements.
Someone is using my photos without paying me or asking permission. What do I do now?
See the options identified above.
wEB dESIGN
CAN I GET E-MAIL WITH MY WEBSITE?
Yes you can have email and you will probably wish you set-up several email addressed e.g. sale@your-domain.com, info@your-domain.com, john.smith@your-domain.com
CAN YOU PROVIDE ALL OF OUR WEB DESIGN AND HOSTING SERVICES?
Yes - we are your one stop company to provide all your web services and fully backed by Google & Weebly. No more not knowing who to call if you have problems - we can register your domain name - design your website - provide your web hosting and arrange your email accounts for you at your level to scale.
WILL EVERYONE SEE MY WEB SITE THE SAME?
Your website visitors will see some things differently depending on their browser, screen resolution setting and their individual computer settings and toolbars. We design sites with that in mind and preview them in several browser types and resolution settings before publishing. Obviously as technology alters then eventually all websites may need reevaluation.
AM I TIED INTO Immortal Still LLC FOR ANY SITE MAINTENANCE OR UPDATES I WISH TO DO ONCE MY WEBSITE IS DESIGNED?
No - once your website is designed, it belongs to you and you can commission anyone to update it for you - although of course we would like to think that you are happy with our services and will continue to use us for your website maintenance.
I HEAR THAT THERE ARE HIDDEN COSTS ASSOCIATED WITH WEB DESIGN SERVICES. IS THIS TRUE?
No. We discuss with you your website requirements and then price accordingly and once you have placed an order for your website design with us, that price is strictly adhered to.
I RUN A SMALL/MEDIUM SIZE BUSINESS AND WANT AN ONLINE PRESENCE TO PROMOTE MY BUSINESS IN A PROFESSIONAL MANNER TO NEW CUSTOMERS AND TO PROVIDE A MORE PROFESSIONAL IMAGE TO EXISTING CUSTOMERS. WHAT DO I NEED TO ACHIEVE THIS?
You need a professionally developed website, a domain name, and hosting facilities for your website. You also need the website to be uploaded onto your hosting facilities and promoted to the search engines.
WILL MY WEBSITE DESIGN BE "SEARCH ENGINE" FRIENDLY?
All our websites are created with search engines in mind and the website design is compliant with search engine guidelines. It is a good idea for your website to be re-evaluated in time, as over a period of time the search engines do alter their rules and algorithms and you will want to be certain that your website is kept up to date and complies with new rules etc.
IN WHAT FORMAT SHOULD I SUPPLY WORDS AND PHOTOGRAPHS ABOUT MY BUSINESS FOR MY NEW WEBSITE?
It is helpful to us if you are able to provide text and photographs in electronic form - for example, the files output by a digital camera and the words in MS word or similar format. If this is not possible, we can help get your information ready for use on the website.
DO I HAVE TO KEEP MY WEBSITE WITH YOU FOREVER, OR CAN I MOVE IT TO ANOTHER SUPPLIER TO HOST IT IF I WISH?
You may move your website to another web hosting service at any time. We set the account up in your name so that you would have access to it at any time.
CAN I SEE HOW MANY VISITORS I'VE HAD TO MY WEBSITE?
Yes, we setup Google Analytics, a web tracking software which records where you visitors are coming from and which pages they looked at, which search engines are being used, which phrases are being typed into which search engines and many more interesting web tracking facts which you should find useful for future marketing campaigns.
DO I NEED TO INSTALL ANY SOFTWARE?
No.
WHY SHOULD I HIRE A WEBSITE DESIGN PROFESSIONAL?
We all know someone who designs web sites as a hobby – your nephew, a friend, a co-worker. This also explains why there are so many poorly designed web sites – or “all lookalike” – commercial template type of design. Some “designers” don’t even bother to change the original photos…
Let’s say you hire your nephew or an employee’s relative who “creates websites in her spare time”. The Result: Your website does not have the professional look that shows in your other marketing campaign so the first impression could be negative. Your site might be hard for web site visitors to navigate, the pages might take too long to load, or it could be just…plain boring, causing people to leave your website without contacting you.
From their first impression, website visitors do not take your business seriously and they choose to take their business to your competitor.
Web Design is a unique design medium and requires extensive knowledge in designing graphics and page layout for the Internet.
The Internet is VISUAL! You have 4 seconds to grab your visitor’s attention. You miss with a poor design, your client is gone!
Let’s say you hire your nephew or an employee’s relative who “creates websites in her spare time”. The Result: Your website does not have the professional look that shows in your other marketing campaign so the first impression could be negative. Your site might be hard for web site visitors to navigate, the pages might take too long to load, or it could be just…plain boring, causing people to leave your website without contacting you.
From their first impression, website visitors do not take your business seriously and they choose to take their business to your competitor.
Web Design is a unique design medium and requires extensive knowledge in designing graphics and page layout for the Internet.
The Internet is VISUAL! You have 4 seconds to grab your visitor’s attention. You miss with a poor design, your client is gone!
HOW DO I CHOOSE A WEB DESIGNER?
The best way to familiarize yourself with a web designer is to spend time at their own business website. As you review the work of a web design company, ask yourself:
Do their links work throughout their own site?
Are the graphical images and photos they’re using in focus and in color?
Is the idea behind their web design original or does it look like a template?
Can you view the web designer’s client list or portfolio? Do they come up in Google if you enter a search: ex – Maine Website Design – are they TOP TEN in Google? or at least, on the 2 first pages of Google? If they cannot be found with a basic search relative to their content, then your website will never be found either!
Marketing skills… you certainly want to make sure your web designer has those skills!
Do their links work throughout their own site?
Are the graphical images and photos they’re using in focus and in color?
Is the idea behind their web design original or does it look like a template?
Can you view the web designer’s client list or portfolio? Do they come up in Google if you enter a search: ex – Maine Website Design – are they TOP TEN in Google? or at least, on the 2 first pages of Google? If they cannot be found with a basic search relative to their content, then your website will never be found either!
Marketing skills… you certainly want to make sure your web designer has those skills!
WHO OWNS THE WEBSITE ONCE THE WEBSITE DESIGN IS COMPLETED?
The website belongs to you – 100%
WHAT IF I DO NOT LIKE THE DESIGN?
If you do not like the design which we have suggested for you, we will discuss further with a view to ascertaining what type of design you would like to see and then place another "suggested design" in your web area for you to view. We would not like to think that you are not happy with the final website design. Our aim is to design for you a website specific to your requirements which you are completely happy with.
DO YOU DISPLAY ANY BANNERS OR POP-UP ADS ON MY WEBSITE?
Absolutely not! - It's your website and you have total control over the contents and who advertises on it.
DO YOU REDESIGN EXISTING WEBSITES?
Yes we do. We can redesign, retaining your company corporate style or we can redesign to give you a complete new image. Is your website up to date? We can redesign your website to take advantage of the latest web technologies
I ALREADY HAVE A WEBSITE AND I NEED IT UPDATING, CAN YOU HELP ME?
Yes, we would be happy to look at your existing website and give you a quote for updating it.
HOW MANY PAGES CAN I HAVE ON MY WEB SITE?
As many as you would like. From a search engines point a view - The more the better!
ONCE MY WEBSITE DESIGN IS COMPLETED - WHAT AFTERSALES SERVICE DO YOU OFFER?
We fully support any website we design and are always available should you encounter any problems or require any enhancements. We offer web site maintenance so that your website needs never get out of date.
wHEN CAN I UPDATE MY WEBSITE CONTENT?
You can access your administration areas from anywhere as long as you have an internet connection and make updates instantly as frequently as you wish.
HOW LONG WILL IT TAKE FOR MY WEB SITE TO BE DESIGNED?
The timescale of a website design project is often dictated by the client, but typically ranges from 4-8 weeks. If you have a deadline in mind, we will do our best to meet it for you. The most common delay in the creation and completion of a new website is waiting for content (text/images) to be sent to us by the client.
Graphic design
WHAT DO YOU CHARGE FOR YOUR GRAPHIC DESIGN SERVICES?
Prices depend on many variants, but you can be sure you are getting a great value for your design project. Design jobs are charged by the hour. Typical graphic design projects are $75/hr. or a flat $100 for a small to med setup job. We also bill in 15min increments for web work. If you have small changes to a pre-existing file that takes 5 min for a quick update, we will charge the min amount of $35. Web site work starts at $75 per hour. You won’t find that with some of our competitors. We encourage prospective clients to compare The Brand Affect with agencies producing the same level of work.
HOW DOES YOUR LOGO DESIGN PROCESS WORK?
During our initial logo meeting, we first begin by discussing the client’s ideas, target market, and uses for this logo. We then ask for samples of existing logos that the client likes or dislikes to get an idea of their taste. Sometimes the client already has a design concept in mind. Other times, they have no idea what they want. Either way, we make sure we have collected enough information before we begin work. Our logo design service is very straight forward. If you’d like to see extra concepts after our initial three ideas or if you need a couple logo designs for multiple companies our service can be priced according to your needs.
IS THE ARTWORK OUR PROPERTY ONCE PAID FOR?
No, not the actual artwork files unless agreed upon in the proposal. However, ALL approved web images and high resolution images purchased are 100% yours one the project is fully complete and paid for.
IS THE ARTWORK FOR MY LOGO SOMETHING FROM MICROSOFT CLIPART?
NO, we create and draw artwork from inspiration given in our meeting and style review.
HOW WILL I RECEIVE MY DESIGN PROJECT ONCE IT IS FINISHED?
A finished project is yours upon receipt of final payment. At your request, we will supply the electronic files to you on CD, dropbox, or through e-mail. We also keep a copy of your project on file for later updates or should you lose your copy.
DO I GET A VECTOR FILE FOR MY LOGO ONCE CREATED?
YES, you get EPS (vector), jpeg, png, and a word file that works like clipart. Our logo design can be used to complete stationery and brand marketing – including business card, letterhead, envelopes, brochure design, websites, graphics for web sites, direct mail design, email marketing, mailing labels, presentation folders, and any other designs your business may require.
HOW DO I CHECK ON THE PROGRESS OF MY LOGO JOB DURING DESIGN PROCESS?
Once deposit is received, normal turnaround for logo design is 14 days. We present the logos to the client at the black and white stage, then again at color stage, and wait for final approval before we save out all the files for you. The client logo files are their artwork and we are up front about this part of the process. We do save your work in case you lose the files or need them sent again.
WHAT IS THE CLIENT’S INVOLVEMENT IN THE DESIGN PROCESS?
We listen to our clients from the start. We encourage the client to bring in any samples, color combinations/swatches, and ideas they may have to help us get an idea of style before starting to work with new clients. During the design process, the client is asked to approve certain colors and fonts before work continues. Once the design project is ready for print we will submit a final proof for the customer’s approval before submitting to production. Once a job is in production, the job cannot be cancelled. At the conclusion of a project, the client may request the artwork in various formats if payment was made for design services.
I NEED SOMETHING DESIGNED YESTERDAY. CAN YOU HELP ME?
We can usually accommodate your rush job depending on how full our production schedule is however, a rush fee may be added. Call us to find out.
