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.