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250 Million Reasons You Should Register Your Photo Copyrights

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We recently spoke to PhotoAttorney.com’s Carolyn Wright and former ASMP President Richard Kelly about the importance of registering your copyright regularly. In that vein, A Photo Editor recently updated us on the Richard Reinsdorf v. Skechers case, which illustrates the complexity of copyright violation cases and re-emphasizes the necessity of copyright registration.

From 2006 – 2009, Reinsdorf was hired by Skechers to shoot a series of images that he alleges were licensed for a 6-month duration in print, displays, and various collateral. However, in 2010, he discovered that Skechers was still using the images without extending the license.

He subsequently sued the company for 1) copyright infringement, 2) breach of contract, and 3) statutory unfair competition. The requested damages? $250 million.

The good news is that the United States District Court in the Central District of California ruled in favor of a copyright violation despite Skechers position that they were a co-author of the images because they had taken delivery of his RAW files and made “slight modifications in the models’ skin tone…” among other changes.

One of several images that Richard Reinsdorf shot for Skechers, which was subsequently composited into an ad.

One of several images that Richard Reinsdorf shot for Skechers, which was subsequently composited into an ad.

But back to the money.

In any copyright infringement suit, damages can be awarded as either “actual” or “statutory.” Actual damages for copyright infringement can be notoriously difficult to calculate. And in this case, Reinsdorf argued that his images led to indirect profits. That is, without his images, Skechers wouldn’t have made so much money. Reinsdorf’s expert witness, Jamie Turner, concluded:

[W]e can broadly conclude that more than 0% but less than 100% of the net profits generated by Skechers during this period can be attributable to Mr. Reinsdorf’s brand imagery… I have a lot of experience with brands and marketing, therefore I can divine that 50-75% of this large, successful company’s profits come from Reinsdorf’s photographs.

The court disagreed, stating:

Turner somehow settles upon an indirect profits figure between $161 million and $241.1 million without any specific data or discernible methodology, and in reliance on such ‘facts’ as ‘it is safe to assume that Mr. Reinsdorf’s images are worth less than 100% of the net profits…’

Because Turner’s opinion fails to illustrate a relationship of any kind between infringing conduct and specific income, it cannot serve as a basis for granting Reinsdorf Skechers’ indirect profits.

So the court excluded his expert testimony, finding that the causal connection was tenuous at best, and in doing so, granted Skecher’s summary judgement to ignore any indirect profit calculations. (One could make the counterfactual argument that if Turner had concluded a lower amount, that perhaps the court wouldn’t have called BS. But that is neither here nor there.)

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Since the court didn’t buy the $250m “actual” damages claim, the next stop would be statutory damages. US Copyright Law 17 USC § 504 (c) 1, provides for a damages award of $750 – $30,000 for each infringed work plus the possibility of attorney’s fees, as an alternative to calculation of actual damages. If the infringement can be proven to be “willful,” that statutory amount rises to $150,000 per work.

But here’s the kicker: statutory damages are only available for infringements that occurred after registration, and Reinsdorf didn’t register his copyright at all. So Skechers sought a summary judgement to exclude statutory damages and attorney’s fees, and Reinsdorf didn’t contest it.

What’s Reisndorf entitled to then? I’m neither a lawyer nor a judge, but it looks like he’s entitled to a licensing fee for the images — as if Skechers had properly licensed the images back in the day — plus some extra to deter Skechers from doing it again.

I suspect that this will amount to a few tens of thousands of dollars, but given his legal fees, he probably won’t net much, if any. By the way, the judgement is worth reading if for no other reason than to see the buffoonery of his experts.

Paradoxically, the outcome is a victory for photographers because there is now a legal precedent that prevents a client from claiming co-ownership of a work because they Photoshopped it. That has huge implications for every professional photographer. But Reinsdorf fell on his own sword by not registering his copyright of the images prior to delivery. As Richard Kelly stated in his webinar, “Do you want to make money, or do you want to make a point?”

Point made, my friend, point made. Note to self: register your copyright.


About the author: Allen Murabayashi is the Chairman and Co-founder of PhotoShelter. Allen is a graduate of Yale University, and flosses daily. This article originally appeared here.


Image credit: Free Stock: Copyright sign 3D render by MusesTouch – digiArt & design and Courtroom by Fayerollinson


 
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  • ton of bs

    SAD! All it would have taken was 35bucks and he would have had a windfall of money.

  • Photographer Curt

    The international (Global!! ) Bern Copyright Convention of 1917 would have super ceded this ruling!… internet ads are international, as a consequence local copyright registration become irrelevant… and overruled… i am getting really upset about the fact that Intellectual Property Lawyers are nt doing their Homework these days..wow!!

    check out case : Akos Simon versus LVMH in New York, where Louis Vuitton counterfeited ( 1:1 copy !!) Akos’s already published images in Vogue Taiwan , and used them for main Visuals in a Global Launch for a new Make Up line Brand called Tokidoki …

  • fp100c

    Can anyone point me how to register photo copyrights? Or is it only applicable to commercial work? I am genuinely curios/interested. Thanks.

  • Jorge Parra

    Be on the lookout for many more buffoons out there ho claim to have a say in copyright…

    As Creators, we NEED to emphasize that those judges who are NOT copyright experts be removed from critical cases too!

  • K S B

    So in order to have your own copyright on your every image, you would have to pay up to the government for your hardwork? This sounds so very familiar–it’s called tax. What a world we live in.

  • Ben

    It is HILARIOUS that the photographer’s expert tried to claim that “50% to 75%” of Sketchers’ entire corporate profits were due to “imagery” used in some advertisements. What were the profits before the images were used? After? Oh crap, the two numbers were almost exactly the same. An expert on corporate financials who has a degree in… Marketing? Great choice.

  • iowapipe

    Feel free to develop your own alternative Copyright organization that is not a part of governmental oversight and law. Otherwise, if you want the protection of your governmental body for what it deems as copyrighted works, then pay your fee to register your work for that protection. It’s not a tax.

  • K S B

    That actually sounds like a very good idea.

  • Aaron

    As a Marketing firm owner, I can call a huge BS that 50%-70% of profits came from his image. The lawyer is a moron when it comes to taking into account things like ad placement location, time ran, ad size, platforms, logo size, background design, etc. I could argue that his images actually lost the company money because they didn’t inspire more conversation within a target demographic. People could care less about how big her earrings were and how great the photograph was, they only vaguely remember they saw a sketchers ad on the subway. That would be like me taking credit for 50%-70% of the tourism industry in our city just because I live here.

    Also, I get the whole “license and copyright” conversation but give me a break. Be realistic. Tell them you want fair compensation (what you would normally get paid) for the extra time they ran the ad, be happy with a good portfolio and go get more jobs with that photo. We work with companies who use our marketing strategies for years after we work with them and crying about it is stupid. Use that as an example of how awesome you are and go land a bigger client.

  • Marcus Sudjojo

    But I thought all Art end-products (including photographs) are automatically registered as the artist’s copyright? Meaning there’s no need to physically register the end-products, and get patent papers for each products.

    Or am I wrong this whole time??

  • Aussie

    That’s why I love the Australian legal system as soon as you press the shutter the image is copyrighted to you, the photographer, unless you are employed by the firm on a salary/wage. No need to register a copyright it is automatic.

  • KJ

    It’s automatically copyrighted but not automatically registered. Copyright
    exists from the moment the work is created. You have to register,
    however, if you want to bring a lawsuit for infringement the work.

  • KJ
  • Marcus Sudjojo

    Okay, I’m lost, wouldn’t that defeat the basic purpose of itself (copyright)? I mean the purpose of copyrights are for legal purposes, right? So, the moment I take the picture, I have copyright of my picture, but that copyright won’t mean a thing later when I’m going through legal issues?

    It’s like, for example, there’s a new regulation, ‘Driver’s licenses are now available online. Just input your data, print out the driver’s license, and you’re good to go. But if you got pulled over by the cop, that driver’s license won’t mean a thing, because you’ve not register it with the DMV’

    I’m genuinely curious here. This is a new knowledge for me…

  • Joe Gunawan

    Your images are automatically copyrighted, but if you want to pursue statutory damages (outside of fair compensation to license the images), then you have to register your images.

    Main thing to remember is distinguishing “published” vs. “unpublished” work.

    If they are not published yet (even online or Facebook), you can register a batch/volume of images in one registration. If they are published, they have to registered separately from the unpublished images.

    It’s ok if unpublished images are registered, then become published images but if you register a published image as an unpublished image, you may have problems down the line.

  • Lightmancer

    Worth pointing out that the “need” to “register” your copyright is a US thing. In sensible parts of the world with less rapacious lawyers – ie countries signatory to the Bern convention – copyright is yours once you press the shutter and create your image. In other words, it is not a 2-step process anywhere else.

  • http://www.markwheadon.com/ Mark Wheadon

    Advertising has an effect, sure, but it’s usually pretty subtle — more about building awareness than any direct profit from the ad campaign. Ad campaigns often lose money in the short-term if you simply measure the cost of the campaign vs the increase in revenue — it’s often about the long game and, as I say, subtle. So “I can divine that 50-75% of this large, successful company’s profits come from Reinsdorf’s photographs” is somewhere deep, deep in la-la land.

  • KJ

    It’s all there at the government’s website: copyright dot gov.

    Also, ASMP has some nice info.

  • Mike b

    You have 90 days after first publication to register a copyright and still be eligible for statutory damages. If you publish a photo, have it infringed upon, the next day, and you register a week later you are just as eligible to statutory damages.

  • Edward

    allen, as I understand it, you are incorrect in stating:
    “Paradoxically, the outcome is a victory for photographers because there is now a legal precedent that prevents a client from claiming co-ownership of a work because they Photoshopped it. That has huge implications for every professional photographer.”
    A careful read reveals that Skechers didn’t focus their defense on a claim to own the photographer’s copyright. They claimed the reverse — that Reisndorf co-owned copyright in the skecher’s advertisements. Joint copyright owners can’t sue each other for infringement.

  • jakeniece

    What is the standard for registering? Should I register everything I shoot in case something like this happens, which would be crazy time consuming and expensive, or just images that I think might be ripped off?

  • James

    You know, you’re spot on there, and I in no way think that 250million is an accurate number for the real increase in profit gained by the extended use of his IP, but as you said advertising is about the long term rather than the short term, but the court was handling the case as if all of the profits that they gained from his ads would be realized in the time frame they where used. It makes you wonder what the real ill gotten gains are.

    And while they again where clearly not going to reach 250million, they are obviously far above the measly few grand he received. Take in to account that a company simply paying what they should have in the first place when caught stealing sets a horrible gain now pay later precedent I think it would have been completely reasonable for him to be awarded 50% of the companies PROFITS during that time because honestly there is nothing punitive in a company that large paying out a six figure sum.

  • James

    we have the same here, just the law gets a lot easier to use if you register.