Attention Photographers: Digitally Watermark Your Photographs or Possibly Lose Thousands of Dollars!

If you have ever been to an art gallery or museum you have likely noticed that most of the pieces of art, whether a photograph, sculpture, painting, or drawing, bore the signature or other mark of its creator. From Sophilos Me Grafsen’s imprint of his name into a Greek pot in the sixth century BC to Raffaello Sanzio’s artfully placed signature in the painting of “The Mystical Marriage of St. Catherine” around 1499, for thousands of years artists have outwardly expressed ownership in their work. This imprint or signature delivers authenticity and closure by letting the world know that this particular piece of art was created by this specific artist or artists and that this piece has been completed to the satisfaction of its creator(s). Without such a moniker, with the exception of extremely well-known pieces, most individuals in the world would not readily know the name of the artist whom created a particular piece of art.

A lack of an expressed moniker can create serious issues when an artist decides to commercialize a work and the artist can miss out on extra protection in the U.S. afforded by U.S. copyright law. With the implementation of the Internet and its ability for widespread and rapid dissemination of information, the U.S. Copyright Act of 1976 needed to be amended address the creation of an electronic marketplace. The Digital Millennium Copyright Act (DMCA) is an amendment to the U.S. Copyright Act of 1976 and implements two 1996 treaties of the World Intellectual Property Organization (WIPO).

The DMCA addresses artist imprints and signatures, among other monikers, as ‘copyright management information,’ “used to ensure the integrity of the electronic marketplace by preventing fraud and misinformation.” H.R.Rep. No. 105-551 (1998). Because of the Internet’s sophisticated level of information technology, it is extremely important for an artist to use some form of a moniker, especially if his or her work is able to easily be digitally transcribed, such as in the form of a digital scan, or digitally reproduced. This indicates to the electronic marketplace that only the artist has the presumption of exclusive rights in his work, especially in reproducing and sharing his or her work for commercial purposes.

Monikers, however, can be displaced, replaced, cropped, copied, distorted, or removed altogether. Predating the Internet and electronics, including the photocopier, such modification, reproduction, or removal of an artist’s moniker was not necessarily an easy task. Skilled artists would attempt to replicate a piece of art down to the reproduction of an artist’s very signature. Such reproduction led to a lucrative market in art forgery that still exists today, although not to the extent that it once was.

With present technology, the modification, reproduction, or removal of an artist’s moniker has become an easy task, especially with monikers imbedded in works such as digital photographs. Too often, an artist’s digital moniker, often in the form of a digital watermark, will be cropped entirely out of the work, or even worse, replaced with a moniker of a third party whom had no hand in the creation of the work. Rest assured, however, the DMCA, although sometimes characterized as antiquated in many respects, does address this troublesome affair.

Section 1202, among other things, of the DMCA makes it illegal for someone to remove any copyright management information from another artist’s photograph as a means to disguise an act of copyright infringement. As addressed in IQ Grp., Ltd. v. Wiesner Pub., LLC, 409 F. Supp. 2d 587, 596 (D.N.J. 2006), Congress, with respect to the DMCA, viewed a digital watermark as an example of copyright management information. Further, the DMCA, under section 1203, provides for statutory damages in the amount of not less than $2,500 or more than $25,000 for each violation of section 1202.

It is extremely important to note that damages resulting out of a violation of the DMCA’s section 1202 can be in ADDITION to damages provided for in section 504 of the Copyright Act of 1976, which addresses, among other things, copyright infringement generally. Consequently, it is important that as a photographer, you embed a digital watermark, or some type of copyright management information, into your digital photograph, especially before making such photograph available on the Internet. This will not only allow you to potentially recover additional civil damages in the event that a digital watermark is removed or altered, but also will hopefully deter unauthorized reproductions and copyright infringement of your work generally.

Entertainment Law: Growth and Innovation!

McClanahan Powers warmly welcomes you to its Entertainment Law Blog. The entertainment industry continues to grow at an alarming pace, especially with access to many forms of entertainment only a finger touch away through many of the latest smartphones and other gadgets. According to a study commissioned by the CCIA, the value of the worldwide entertainment industry grew from $449 billion in 1998 to $745 billion by 2010.

Economic and innovative growth in an industry brings new legal challenges, opportunities, and pitfalls. Entertainment law embodies many areas of the law ranging from contracts to intellectual property ownership, comprising of copyright, trademark, patent, and trade secret laws.

For individuals and organizations in the entertainment industry, the playing field continues to change. The global system of the Internet itself has led to the dissemination and exchange of information in such a rapid medium that artists oftentimes have trouble protecting their rights in a published or licensed work.

The construction of systematized ‘paparazzi’-esk organizations such as California based Thirty Mile Zone (TMZ) have led to an emerging focus on the rights to publicity. While the introduction of social media platforms such as Facebook and Twitter have led to concerns regarding rights to privacy.

Innovations in information sharing technology provide exciting opportunities for entertainers and fans alike. However, such technology comes with its pitfalls. File sharing platforms, referred to as peer-to-peer technology, has given rise to bit-torrent protocols, which is a file sharing platform much more advanced than its Napster predecessors. This technology enables users to exchange a wealth of content in a short amount of time, content in which is often protected by copyright.

This has further led to the conception of ‘copyright trolls’ litigating cases against an excessive number of internet subscribers for copyright infringement. Copyright trolls are essentially individuals or organizations that opt to commercialize their work, often in the form of a movie or photograph, by finding people committing copyright infringement through file sharing.  Then, through the legal system and threats of a lawsuit, they obtain money in the form of settlement from alleged infringers, as opposed to earning money through sales in the marketplace.

Whether you are a musician, actor, author, athlete, painter or programmer, it is important that as an artist and innovator you understand your rights and responsibilities in an industry being modernized through technology and how to protect those rights. It is our hope that in the years to come this blog assists new artists and reminds older artists of the legal implications within their industry.