Confusion about the legal effect of watermarks and other copyright management information by visual artists reigns. Such misunderstandings and myths are created and then bolstered by bloggers who merely and uncritically repeat the false musings of others.
We are giving you the facts and the truth here because we believe you can handle the truth. Please note that the author may receive monetary awards for actual infringement or statutory infringement and a separate award of money damages for the alteration or elimination of copyright management software.
Before we get to the straightforward letter of the law, remember that it will be much easier for your lawyer to prove willful copyright infringement if you can demonstrate that the infringer altered or removed you watermark, copyright notice, tracking data, or metadata. If your image was timely registered, a finding of willful infringement allows for a much greater recovery of money in court than just actual damages and if you are entitled to request statutory damages (rather than actual damages), willfulness kicks that statutory number up as well. Simply put, given timely registration the Court has the power to increase the award if the infringement is deemed willful.
A finding of willful infringement allows the court to award a minimum award of $30,000 all the way up to $150,000. A finding of willfulness – as opposed to an “innocent infringement” – allows for a greater amount of money to be awarded to the photographer because the Copyright Law says just that.
Additionally… there are consequences to those who alter or eliminate copyright management software, ie watermarks or metadata. The Copyright Act. In official speak – USC Title 12 Sections 1201 – 1205 allows for additional monetary awards for the mere alteration or removal of such information. Here’s the skinny but by all means click on the link and read the entire sections as both the United States Copyright Office and your humble servants want you to do.
Secs. 1201 – 1205 in plain English say (in part):
* No one is allowed to alter or circumvent copyright management software, identifiers etc. without the author’s permission nor is anyone permitted to market in any devices or techniques which will enable others to circumvent such software;
* If you use techniques like encryption, software, watermarks etc. to track your work and nevertheless someone eliminates or alters such information and that the unauthorized alterations/elimination causes you harm, you can sue in federal court;
* The Federal court can award your one or more of the following: an injunction preventing further use of the offending image in any form, an order directing the recall and/or destruction of the goods which use the image, money damages (see below), reasonable attorneys fees.
* The money damages may take the form of actual damages $200 – $2,500 per act of circumvention or statutory damages which may run $2,500 – $25,000 per act of circumvention. The statutory damages may be increased by the court if the infringer is a for example a repeat offender. Certain violations constitute criminal conduct and the penalties can go to fines of $500,00 – $1,000,000 or a 5 or 10-year prison sentence.
Note: these damages may be separate and apart from any monies sued for and which may be recovered arising out of the infringing use of the image. These damages refer to the mutilation or removal of management software. Actual or statutory damages recovered for the infringement(s) is/are a separate item(s).
* There are certain enumerated exceptions for law enforcement, broadcasters and certain not for profit institutions like libraries. There are other exceptions addressed to analog media and certain types of transmitted materials. Again, these exceptions are listed and spelled out right there in the law.
If after reading the sections you are confused or have questions about anything you see, you can send us a question or consult your own attorney. Do not, do not, seek guidance or legal advice from other photographers, illustrators, bloggers, agents, reps or self appointed experts who, daily repeat the myths posted by other unqualified “opinionators” or simply make up their own “law”.
Time to use a cliche’ here: “Opinions are like (pick a body part), everyone has one” whereas these statutes are laws composed in black and white