Today’s technology allows users to simply drag-and-drop or copy images they find online. Given the ease of replicating and appropriating images online, how can the images’ creators protect their exclusive rights to display, duplicate, alter, and distribute their works?
One option is copyright registration under the Copyright Act, which entitles copyright holders to file infringement claims and seek statutory damages and attorneys’ fees. The trouble with copyright registration is that many artists, like photographers, produce a high volume of images, making copyright registration for each image overly burdensome. Besides, even if each of a photographer’s images is registered, the photographer will bear the expense of prosecuting the infringement action in federal court, which can be costly and time-consuming. For these reasons, high-volume artists like photographers do not usually register their copyrights.
For artists that do register their images, using the Digital Millennium Copyright Act’s (DMCA) notice-and-takedown procedure is an option for curbing infringements, without the expense of litigation in Federal Court. Filing claims under the DMCA involves informing the Internet Service Provider (ISP) that is hosting the registered image of the violation. The DMCA allows ISPs to avoid liability if they take down infringing content. Although DMCA claims may result in successful takedowns, a copyright holder is not entitled to damages unless she proceeds to court. Many copyright holders have given up on DMCA claims all together given the ubiquity of image infringement. Such infringement is also not limited to the United States, and many countries lack an equivalent to the DMCA, leaving copyright holders with little to no recourse.
Photographers have another cause of action under the Copyright Act that deals with altering an image’s metadata, or copyright management information (CMI). Each image commonly contains CMI, which identifies camera settings, time and place, and other identifying information unique to that image. In addition, photographers can add their own CMI, like watermarks, to each image in an effort to protect against infringement. Photographers can bring a lawsuit against any person who intentionally alters or removes an image’s CMI for purposes of infringement. Proving this cause of action is typically an uphill battle, though, because one must show intent, and an image’s CMI is sometimes inadvertently wiped.
Making life more difficult for artists looking to protect their images online is the Ninth Circuit Court of Appeals’ recent ruling in Perfect 10, Inc. v. Giganews, Inc. In that case, the Court held that “passively storing [registered] material at the direction of users in order to make that material available to other users upon request” does not create a display-rights-based infringement claim. Unfortunately for copyright holders, this type of passive image hosting is now commonplace, and unless the law changes, photographers will have difficulty bringing display-based infringement actions.
Fortunately, for photographers and other image creators, the U.S. Copyright Office has taken a number of steps to improve image creators’ ability to protect their works in the digital age. Perhaps the Copyright Office’s most promising initiative is its effort to modernize the DMCA. The Copyright Office is conducting a study, Section 512 Study, to evaluate the effectiveness of the DMCA, and it fielded comments and empirical research from interested parties to better understand what reforms are needed. The Copyright Office has yet to issue a final report on this study, but hopefully Congress will be receptive when the Copyright Office does issue its report.
While modernizing copyright laws appears to be the best long-term solution, the pace of technological change will doubtless render even modernizations of the law insufficient. In the meantime, image creators can engage companies like Digimarc, Image Protect, and ImageRights International to assist them in protecting their images and prosecuting infringements.
For more information about protecting images online or other copyright matters, contact Tori Kluess or another member of the Intellectual Property Team at the Law Firm of Conway, Olejniczak & Jerry, S.C.