by Attorney David L. Amkraut
WARNING: The following is a summary of important information regarding the
use and misuse of photos on the Internet. It is not specific legal advice.
Copyright is a specialized field of law, and there are sometimes exceptions
to the rules. If you have a specific copyright concern, you should consult a
lawyer with expertise in copyright issues concerning the use and misuse of
photos on the Internet.
|AN EXCELLENT RULE OF THUMB
If you do not have specific permission (preferably written!) from the
owner of a photo, you cannot legally display it on a website, post it to the
Usenet, copy it, send it around by Email or other means, make photos derived
from it, sell it, or otherwise exploit it.
"I do not need to register my photos with the copyright office, because I
'automatically' have copyright at the instant I snap the shutter."
This is a serious misunderstanding of the law. Yes, you do own copyright
without registration. BUT if you want to protect your photos from theft, you
should register them with the Copyright Office, before you publish or
distribute them. If you register your photos, you gain powerful remedies
against infringers. These can include:
* Civil penalties ("damages"). The pirate is on the hook for up to $150,000
for each misused photo;
* Attorney's fees: the infringer has to pay your attorney's hourly fees and
all costs such as copies, postage, filing fees, etc.
* Restraining orders, Preliminary and Permanent Injunctions against the
infringer, and even seizure of the pirate's computer equipment in some
An important practical point is that if the photos are registered, you might
find an attorney to take the case on "contingency," which means he takes the
risk of gambling on a win, rather than you paying him by the hour. Faced
with a lawsuit over registered images-and an injunction which would likely
mean being put out of business forever-many pirates will quickly settle up
By contrast, if you did not register your photos, it is almost impossible,
as a practical matter, to nail an infringer. To get any damages at all, you
have to prove how much the pirate made off your particular photos, or
exactly how much money the theft cost you. Either is almost impossible to
prove. And you do not recover attorney's fees, so the cost of the lawsuit
would far outweigh your possible recovery.
So-if you have registered your work, you are in good shape to "convince" an
infringer to stop, or to successfully sue him. If you have not registered,
you probably cannot do anything about pirates.
"I got the photo off the Usenet (newsgroups) so it is in the 'Public
The above shows a misunderstanding of the term "Public Domain." The term has
the specific legal meaning that no one controls the photo; anyone can use it
as he wishes. There are two ways for a photo to fall into in the public
* the owner clearly gives up his rights, such as by signing a document
saying, "I now give up my copyright and irrevocably place this work in the
public domain." OR
* 75 Years have passed since the owner died.
When an owner posts a photo to Usenet, he does not lose his rights, any more
than publishing the photo in a magazine or on his own website would. When an
owner posts to Usenet, the only license he gives is for replication and
transmission within the Usenet system. There have been many copyright cases
involving websites which got their content from the Usenet-and courts have
awarded fines in the millions of dollars against the pirates.
In addition, photos are often posted to Usenet against the owner's wishes.
Eg., the many infringing copies of work owned by Playboy, Penthouse, and top
photographers. Such posts are themselves violations of copyright. Obviously
if the original post to Usenet was illegal-as many are-subsequent copying
and misuse is equally illegal.
In short, taking photos from Usenet and using them elsewhere such as on a
website is copyright infringement, and you risk the severe penalties of
"My [website use, posting, whatever] is 'Fair Use' so I haven't violated
"Fair use" is a legal "defense" to copyright. It was created to allow use of
copyright material for socially valuable purposes such as commentary,
parody, news reporting, education and the like, without permission of the
copyright holder. A typical instance would be a brief quotation from a book
as part of a book review. Uses allowed by "Fair Use" are normally a small
part of a work and include an author credit and attribution. Fair uses are
generally for non-profit purposes.
Fair use is rarely allowed where the use competes directly with the work or
harms its commercial value.
Most fair use situations involve text. It is difficult to imagine any
situation involving the Internet where someone copying a photo could claim
the fair use defense. In typical infringement activities, such as
unauthorized posting to Usenet, stocking websites from Usenet trolling,
scanning from Playboy magazine, or simply copying from other websites-the
fair use doctrine does not apply. Because the pirate is taking 100% of the
work, not acknowledging the creator, hurting the work's market value,
competing directly with the creator or licensed users of the work, and for
So if you are a photo pirate, do not even think about the fair use doctrine.
In your context it is a myth. Your lawyer will laugh at you, and the judge
might not have a sense of humor where thievery is concerned.
"If it does not have a copyright notice on it, it is not copyrighted - so
I can use it freely."
This myth results from past law, and misunderstandings of past law being
passed along. In virtually all cases, photo copyright is valid whether or
not there is a copyright notice.
A copyright notice has two main functions. First, it warns off at least a
few would-be pirates that the work is not to be stolen. Second, it has some
useful legal effects, because it prevents the infringer from claiming he was
making an "innocent" mistake.
The copyright notice may be omitted because the owner or legitimate user
does not want to deface the photo, or even because an intermediary infringer
has deliberately removed the notice. (Removing a copyright notice is itself
a serious legal violation.) And of course, if someone has illegally scanned
and posted Playboy pictures or the like, there will not be a notice.
However, the absence of a copyright notice does not change the fact that a
work is copyrighted.
We are reminded of an anecdote about a thief who stole a bicycle from a
public place. When caught by the owner, the thief protested, "I didn't know
that it was your bike." Replied the owner, "You sure as blazes knew that it
A proper notice has the © mark, or word "Copyright" or abbreviation "Copr.";
the year, and the name of the owner. For example, if this author took and
published a photo in 2000, it might be marked "© 2000 David L. Amkraut" or
"Copyright 2000 David L. Amkraut" or "Copr. 2000 David L. Amkraut." You can
add "All Rights Reserved" if you want-it has no real significance in the
U.S. and most countries but has a bit in several 3rd world countries.
The commonly-seen parenthesis "(c)" instead of the proper copyright mark "©"
has no legal significance and may invalidate the notice. So, if you do not
see a copyright notice, do not assume the photo is yours to use; someone
owns copyright and you have to get his permission before using it.
"If I am not making money off the photos, I am not violating copyright."
Copyright infringement is not excused if you are doing it for some reason
other than profit, such as malice or the collectivist notion that an
individual's creative work "should be free for all to share." These are the
typical motives of some people who post thousands of Playboy photos to
newsgroups. The court may fine you more or treat you more harshly if you
have a profit motive. But you can still get punished-badly-if your actions
are harming the commercial value of the infringed pictures. Or if you
infringed "knowingly" or "willfully." Or if the judge thinks it appropriate
to "send a warning" to discourage other would-be infringers.
Violating copyright is illegal whether you do it for money, love,
competitive advantage, malice, or any other reason.
"I'll win. I have a lot of rights in court. And they can not do much to
Very wrong. A pirate is far more likely to be sued in civil court than to be
arrested and criminally charged. As a civil defendant you have far fewer
rights than in a criminal case. The Plaintiff only has to convince the judge
that he is more right than you. He does not have the heavy burden of "beyond
a reasonable doubt" as in a criminal case.
A copyright Plaintiff does not have to prove much to win. He just needs to
show two things: (1) Ownership of the copied work; and (2) Copying or other
misuse by the Defendant. He proves the first by showing his Certificate of
Registration from the copyright office. He proves the second by showing his
photos and your infringing copy side-by-side. End of story.
And a copyright suit, in federal court, moves surprisingly quickly. You
could be slapped with a restraining order immediately after the suit is
filed, meaning an end to your infringements under threat of arrest for
contempt of court. For technical reasons having to do with the copyright law
and federal rules of procedure, final judgments may be reached within a few
Perhaps you think you can charm or fool a jury? If the facts and issues are
clear-and they generally are in such cases-the judge will decide the case.
You will never see a jury.
Think you can fight it? Talk to a copyright specialist attorney and think of
paying by the hour for what will probably be a hopeless defense. And do not
forget, Mr. Pirate, that when you lose you will also be stuck for the
Plaintiff's legal fees.
Can they "do much" to you? Copyright penalties have been called "nuclear."
Penalties of up to $150,000 per photo are permitted. And an injunction
which, depending on your business method, may put you out of business
forever, is likely.
Do not assume you can successfully defend a legitimate copyright case,
especially when registered photos are concerned. As a rule of thumb, if you
get caught, better try to settle cheap and quickly.
"Copyright violation is not a crime-it is just a quarrel between two
Wrong. Copyright violation is a crime as well as a civil wrong. Read the
splash screen disclaimer at the start of any video you rent if you think
otherwise. Or talk with an FBI agent. Most of the copyright cases we see are
federal felonies, as well as civil law violations.
In addition to the severe civil and criminal penalties of copyright
violations, the same acts leave the pirate open to additional civil and
criminal charges, for wrongdoing like "unfair competition," and violation of
the "No Electronic Theft" law and other statutes.
We are not saying that a pirate can expect to be arrested by FBI agents for
his theft of photos. But it is a possibility, especially if the FBI responds
to demands for action against Internet pirates and begins pursuing such
cases more actively. And especially if the pirate is infringing on a large
scale or infringing work owned by a large corporation.
Unless you have specific permission, you can not distribute, copy,
publicly display, sell, or otherwise exploit or commercially use someone
Photos posted on newsgroups are not yours to use. They are not in the
"public domain." In fact, with extremely rare exceptions, no
recently-created photo is in the public domain.
The "Fair Use" doctrine almost never excuses infringement of a photograph,
particularly where the infringing use is commercial or where it hurts the
market for the photo.
Copyright is normally valid with or without a copyright notice.
Copyright infringement is copyright infringement regardless of the
People who infringe photographs are likely to be crushed in Court, and even
have their businesses closed down.
Copyright violation may be treated as a serious crime, as well as a civil
David L. Amkraut is a Los Angeles-based Attorney at law. His practice
emphasizes cutting-edge Internet-related copyright matters, especially cases
involving photographs. He was attorney for the Plaintiffs in Louder v.
CompuServe, a class-action case involving publication of 930 photographs of
models by the 2nd-largest Internet Service Provider in the world. Recently
he served as counsel in KNB v. Matthews, an important case about the
relationship between copyright and the "Right of Publicity." He has
repeatedly obtained judgments in the hundreds of thousands of dollars and
represents some of the best-known glamour photographers against web sites
which infringe their work.
Fax: (818) 637-7809
Mail: Law Offices of David L. Amkraut
2272 Colorado Blvd., #1228
Los Angeles, CA 90041
© 2000 David L. Amkraut - All rights reserved. Permission granted to
reproduce this document provided the document is reproduced in its entirety,
including the information about the author and his contact information, and
this copyright notice. Quotations for review, reportage, etc. are permitted
as long as there is proper attribution and full contact information as
"From The 7 Deadly Myths of Internet Copyright"
by Los Angeles Attorney David L. Amkraut
Fax: (818) 637-7809
Law Offices of David L. Amkraut
2272 Colorado Blvd., #1228
Los Angeles, CA 90041