And the Geek Shall Inherit the Earth

I went off to law school in 1989 to study copyright law. My mentor, a fine lawyer in D.C. who specialized in that discipline, called it geek law: most people don't understand it and it's an area in which most people have no interest. The first part is still true but the second is far from true. I'd be rich if I got a penny for every time I've heard or read mangled copyright or trademark law reporting, but the point is that intellectual property law makes the news on a regular basis these days. In part, that is because intellectual property is the only reason the U.S. has a balance of trade in its favor.

I read Sunday's paper and found a large piece about X17, Inc. suing publicity whore Perez Hilton for copyright infringement. Hilton is quoted about defending his rights and the rights of all bloggers to make "satirical or humorous use of newsworthy photographs." So far, what I've been able to gleen from the reports is that Hilton is making, at best, unauthorized derivative photographs and, at worst, committing a classic case of copyright infringement by reproducing, without permission, photographs copyrighted by X17, Inc.

The legislative history of the 1909 Copyright Act makes it quite clear that publishers like Joseph Pulitzer wanted to appropriate photographs deemed newsworthy without payment to photographers. That effort was actually rejected by Congress thanks to the efforts of independent photographers. If you can find a copy of the 1909 Act's legislative history, it is all there in black and white. I read it in law school when I was writing a paper on work made for hire. People like Perez and corporations which don't want to actually pay for the use of copyrighted material are making that argument all over again and the Internet has definitely contributed to this misdirected sense of entitlement.

Fortunately, the "fair use" provisions of the 1976 act are fact specific, and Mr. Perez's attorney will have a tough fight on his hands if X17, Inc.'s lawyer does his homework.

I'm hoping that the actual filings will be available to read on line. I'm very curious about the calculation of damages, which will shed some light on what business practices X17, Inc. follows.

The reports have stated that the damages claimed are $7.6 million for the unauthorized use of 51 photographs. That's approximately $150,000, or the upper reach of statutory damages, per image. In order to qualify for statutory damages, X17, Inc., must have registered the copyright to each of those images within 90 days of creation OR prior to the first infringement by Hilton. If Hilton's infringement occurred within 90 days of the creation of the photographs and they hadn't been registered at that point, X17, Inc. could still preserve statutory damages by registering the work before the end of that 90 day period. Unfortunately, the law doesn't adequately address the question of what happens when a work is illegally appropriated for publication and this first (unauthorized) publication occurs longer than 90 days after creation.

Lessons to take to heart: If you put it on the Internet, consider it published. Before you put it on the Internet, do a group registration of everything you shot in a session by putting it on a cd or dvd and sending it to the Copyright Office with the appropriate check and get it registered. Registration gets you the right to ask for statutory damages and attorneys' fees (which can be greater than the actual damages, believe me.) Set up a system in your studio for a 60 day registration cycle to take advantage of group registration. All the information and forms you need can be found at http://www.copyright.gov. Someday, we'll actually be able to do registration and deposit on line, but that's not here yet.

Very few creators actually take the time to properly register their work and fewer yet have made the effort to engage in the systematic registration (and, if necessary, renewal) of their copyright interests. This is the key to the courthouse door.

Failing to register the work prior to the infringement is not a bar to litigation, just to statutory damages and attorneys' fees for plaintiffs (about which more some other time.) That means that X17, Inc. can register the 51 images after Hilton's infringement, but X17, Inc. can't ask the court for attorneys' fees and must prove the measure of actual damages for recovery from Hilton. They may be able to do this based on cancelled licenses or license fees already collected on similar images. Reaching actual damages equal to the statutory $150,000 per image will be tough because it is unlikely that every one of the 51 infringed images has equal value in the marketplace or even value close to $150,000 per infringement. I don't doubt that X17, Inc. makes considerable money from the photographs in which they specialize, but I think they will face a good deal of bias from a court or jury who simply doesn't like what they do, even if the individual judge or jury member gawks over a copy of the National Enquirer featuring X17, Inc. pictures.

Unfortunately, very few lawyers actually understand the business of photography and even fewer judges do. That's why there have been a number of reported rulings which have been extremely detrimental to photographers. Some are so bad that I wonder what the point of registration is if the courts won't recognize the inherent contractual relationship created by copyright registration: the creator pays $XX and U.S. law protects the creator from thieves. Big companies can shoulder the cost of copyright litigation, and often win by force of brute strength (Disney's great at this), but individual creators or small companies have a much harder row to hoe even if every fact and the law is on their side.

The American Society of Media Photographers (ASMP, and you'll see those letters a lot here) has made a concerted effort to support litigation to advance photographer's rights over the past 25 years. It has a network of attorneys who are knowledgeable about copyright law and the business of photography and many of them are willing to give advice to other attorneys who are handling copyright matters. It is better to quash this at the summary judgment stage than having to carry it on appeal.

I'm wondering if Mr. Hilton violated the DMCA by hacking his way past protections that X17, Inc. had in place to prevent infringement. That could be an interesting element of the pleading.