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Friday, April 2, 2010

Copyright and your right to put up pics on Facebook...Where do you stand?

I'm getting a little concerned with the proliferation of my school friends and online contacts putting up "pro-pics" (photographs taken by professional photographers) of their weddings, their children, their engagements...etc. I'm hoping that all my friends have taken the time to read the contracts that they signed at the start of the photo shoot that they have had. As much as I love seeing the photographs of the friends that I've known for many years, especially when they're done up so superbly, I also wonder what the professional photographer is thinking when he/she sees their work displayed all over the place without recompense. As a photographer myself, I know that I wouldn't want my photos displayed all over the place without a limited use disclaimer for the end-user (that is yourself...) When I did photography for my friend from college, I gave him "limited use rights" for his own Facebook page/website and for his own promotional materials (as he is a professional orchestral/soloist trumpeter/trumpet teacher). That's why you see his photos on both my blog as well as his Facebook. But unless you have that disclaimer in writing, you tread on very thin ice.

Back in the days of film, you either had to get a film print directly from the professional photographer because in those days, none of the commercial photo-developers would touch a professional print with a ten foot pole. The copyright infringement implications were too great. And despite web-media nowadays, the laws are even stricter. Not only are there monetary fines, but there are also jail terms for copyright infringement. That's a scary prospect; just for putting up a professional picture on your Facebook account.

Canadian Copyright Laws:

US Copyright Laws:

The penalties under US Copyright Law:

(b) Actual Damages and Profits. — The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
(c) Statutory Damages. —
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

So when you go in to see a professional photographer, please do your due diligence homework and get yourself a limited use rights release allowing you to put your "pro-pics" up on your website, on your Facebook. After all, putting up your pics for everyone to see is worth it, but getting dinged $30,000 or more up to an amount of $150,000 is not worth it to the pocketbook. Please be careful, my friends.

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