Copyright Infringement: Protecting Your Property Media Business w/ Dan Desouza

In this episode of the PropMedia Podcast, hosts Matty and Moses sit down with Daniel DeSouza, an attorney at Copycat Legal, to demystify the complex world of copyright law for photographers. Daniel explains the fundamental principles of ownership, starting from the moment a shutter clicks, and how real estate photographers can protect their intellectual property from common infringements.

Learn about the significant financial stakes involved, including statutory damages that can reach up to $150,000 per image for willful violations. From the tactical benefits of registering with the U.S. Copyright Office to navigating the "innocent infringer" defense, Daniel provides a clear roadmap for turning stolen work into a protected business asset.

Chapter Markers:
00:00 - Welcome to the Prop Media Podcast

Matty and Moses introduce today's guest, attorney Daniel DeSouza, to discuss copyright law.5
00:42 - Copyright Infringement 101

An explanation of the basics: who owns a photo by default and what legally constitutes infringement.6
02:33 - Common Real Estate Infringement Scenarios

A look at typical situations where agents pull photos from the MLS for their own listings or personal branding without permission.7
04:16 - Why Real Estate Infringement is So Common

Despite widespread industry education, many agents ignore copyright rules due to laziness or a rush to get a listing to market.8
07:16 - Defining Intellectual Property and Art

Daniel breaks down copyright as an original expression of an idea, even in "unlikely" subjects like a bathroom photo.9
10:54 - The Role of Specialized Law Firms

How firms specializing in copyright enforcement typically operate on a contingency basis, meaning the photographer pays nothing unless there is a recovery.10
12:50 - Intermission: Like, Subscribe, and Share

The hosts encourage listeners to support the podcast and share this episode to help educate the industry.11
14:06 - Understanding Statutory Damages

A breakdown of potential payouts, ranging from $750 to $30,000—and up to $150,000 for willful infringement.3
18:03 - Overcoming the Fear of Pursuing Claims

Addressing the hesitation photographers feel about being "blacklisted" and why enforcing rights is a valid business decision.12
22:51 - Innocent vs. Willful Infringement

How damages are affected when an agent mistakenly believes they have permission to use a photo.13
27:58 - The Importance of Registration

Why registering photos with the U.S. Copyright Office is the most vital step in gaining legal leverage.14
30:56 - Timelines and Deadlines for Registration

Understanding the three-month publication rule and the three-year statute of limitations for discovery of infringement.15
40:32 - Managing Rights with Employees and Contractors

How to ensure a business retains ownership through written work-for-hire agreements.16
41:38 - Edited Photos and Derivative Works

Clarifying who owns the copyright when photos are sent to third-party editors or composited.17
45:57 - Next Steps if You Find an Infringement

Practical advice on what to do when you discover your work is being used without permission.18
48:54 - Closing Remarks and Contact Information

You can learn more about CopyCat Legal by visiting their website at www.copycatlegal.com.

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Transcript

Speaker 2 0:00

Welcome to the Prop Media Podcast. I'm Matty. This is Moses. We are the co-founders of pixelmob.com and propmedia.com. We talk about everything regarding property media.

Speaker 3 0:10

Today we get to talk with Daniel D'Souza with Copycat Legal about all of our questions and burning thoughts that we've been kind of we've been talking about for years of like, how does this actually work? But with an actual attorney about how copyright law works in the United States, listen in and see what this could be worth for your business. I think uh to orient our listeners, it'd be smart for us to go ahead and explain like the basics of copyright infringement 101. So imagine you're explaining this to a photographer who just took a course, got a camera, they've done 20 shoots. Um, they've never thought about this in their life. Like, how would you explain the basics of copyright infringement?

Speaker 1:08

What I think a lot of photographers don't understand is that, or maybe what they do understand is that when you create a photograph, uh you own the copyright in that photograph. Yeah.

Speaker 3 1:18

Just by default in America. If you click to the shutter and there's no other agreement, it's your deal, right?

Speaker 1:24

Yeah, shutter, shutter click, you don't, you're not an employee of someone, you haven't signed an agreement to transfer ownership, you own the copyright in that photograph. But infringement is essentially, you know, for for lack of a better word, it's someone using that photograph of yours without your permission or your license in a way that you didn't intend. And that's in its most basic form. Uh now, what the consequences of that differ, but at the end of the day, if someone, let's say you're a real estate photographer, you create a photo for your client, who's usually an agent, and some other agent goes online and uses that photo on their own listing. You know, maybe it was an aerial photo, maybe it was a photo of a uh a bridge somewhere, a local park in the neighborhood, and they decide to use it for their listing, that's typically infringement. Now, there are defenses to it. Uh, there are reasons why a unauthorized use might not be infringement, but if we're just sticking with the basics, it's essentially someone using something without your permission that they should have come to you first for permission.

Speaker 3 2:32

Okay, so in that scenario, I'm a photographer, I shot a house, realtor A, Ralph, uh, uses that, puts it in the MLS, does all the normal stuff, and then realtor B, Suzy takes those photos off the MLS and uses them when she lists the house a year later. Like that might be a common scenario or something similar to that.

Speaker 2:53

That that that is as common as it gets, at least in the real estate architectural sphere. Uh, that that's typically what happens. And we we also see Suzy decides to use your photo as the background on her LinkedIn page, on her Facebook page. Oh, it makes sense. She sticks it on, she sticks it on her website. Uh, there are various ways that Susie can infringe, or you know, realtor number two can infringe. But but I think most typically what we see is usually uh someone just went on the MLS, pulled it off the MLS, and decided to use it for themselves.

Speaker 3 3:25

Yeah, when I was a young realtor, that was like I was like, why don't we always do this? And some older realtor explained, which I'm actually surprised now with when I talk with realtors, very few of them have any understanding of this. But I happened to be talking to somebody who actually knew a little bit about this, which was great for me as a first-year realtor. But it is is interesting, like the realtors, I think a lot of times really don't actually know that they're even doing anything bad. Like it's not even in their consciousness, they're not trying to rip anybody off, but they do, and they do it with somewhat some regularity. Um, where I've sold the photos to one person and then this other person just decides that hey, I can I can use those two. They're on the internet, obviously I can use them, right?

Speaker 4:09

Yeah, of course. I mean, if it if it's on the internet, it's fruit. That's that's the the the general consensus. No, I I find especially real estate photography, it it always boggles my mind because it's the one, and we we do all sorts of different industries. We've got food photography, it's restaurants, real estate, architectural nature, uh, celebrity photos. But real estate is the most ironic of the infringement industries that I deal with. Because I I think it's the one industry with the single most amount of education to realtors that say, don't do this. And and and the single most number of people who say, Yeah, but I'm gonna do it anyway. Who do it? Yeah. Yeah. I mean, if you if if you go to the National Association of Realtors website and you do a search for copyright infringement, they have a whole page on copyright. They've got 15 15 articles telling every realtor, don't do this, you're gonna get sued, uh, things are gonna go bad for you. Here's what you actually have to do. You go to every state's uh, you know, local realtor association, the the California Realtors Association, they've got a page on copyright infringement. Here in Florida, there's Florida Lawyer Weekly. It's a like a trade publication for realtors. They've got multiple front-page articles. Don't do this, you're gonna get in trouble. Uh, so it's it's the rare occasion, Moses, that you spoke to an older realtor who actually warned you against this because you know, I think the education is out there. Uh, and whether it's deliberate, um, people just ignore it. And I have my theories as to why they ignore it. Um, because I don't I don't think people are essentially completely dumb to the concept that you can't use someone else's photo. Uh, to me, frankly, I think it's more laziness and a rush to get to market. You know, you've got a client that hired you, got a client that hired you.

Speaker 3 6:03

They want it up tomorrow, and you can't get your photographer out there fast enough. Just pull it out.

Speaker 6:07

Yeah, I'm not like why why should I get a drone photographer out here that's gonna take three days for him to come out, do a shoot, and he's gonna take another few days to get me the photo. I I want this thing on market today, and look, there's already a drone photograph of this building uh that I can just pull and use right now. Yeah.

Speaker 3 6:25

Or or a Google, uh Google uh satellite image or whatever. Right. All kinds of challenges. Or you also have a variant of enterprising realtor like myself. The actual question I was asking that guy was along the lines of what we're talking about, but I was like, well, why once I get this $300 photo shoot, could I offer those for sale to the next person who lists this and like put it in my listing as a new revenue opportunity, which I'd say is a is a rarer variant, but I just had no idea. And I'm like, okay, I have this asset, but I didn't realize that I didn't actually own that asset. I had a license to use that asset to put it in the MLS, or not even a license, really.

Speaker 2 7:04

I think the fairly photographers don't even know photographers don't even know this. Like I they think that it's a work for hire, and then they treat it like it's work for hire. I would say that most that is the assumption. It's not that some people treat it that way. They they are educated enough to know that.

Speaker 3 7:20

Well, they they treat it that way, except on the social media, then they bitch about it as though they sold the license for ten thousand dollars.

Speaker 2 7:26

But but most people don't. Most people don't even know this. Like that they own the copyrights, and that is and and may not even understand what a copyright is. So maybe when you get down to that kind of like fundamental level, Dan, like, what is a copyright? What does that even mean?

Speaker 7:41

Yeah, you know, copyright is just a legal way of describing ownership of something. Uh, you know, copyright is a form of intellectual property that includes trademarks, patents, copyrights, trade secrets. Copyright is just one arm of that. And what it means is you own something. And it's typically, obviously, in a photographer's world, the most obvious to you would be the photos or the videos that you create. You can copyright a book, you can copyright a play, a movie, uh, music. All of that can be copyrighted, but essentially it's an expression of, you know, essentially art. Uh, you know, it's an original expression of an idea that you are protecting. And that sounds like a lofty way of saying, well, then why is my photo of uh a bathroom in this hotel art? It's not necessarily art, it's an original expression. You, as the photographer, uh, you have to make choices. You have to make choices of what angle am I shooting at, what lens am I using, what lighting am I bringing, what time of day am I doing this? Um, all of those are ideas of expression that find their way into your final photographs. And you know, I I always laugh in the in the real estate context. Uh I am by no means anywhere close to even an amateur photographer. Uh and I I have a rental property that my wife and I own. Uh, we rented out on Airbnb. And I I have a relatively nice Sony camera, and I'm relatively educated in the area and went and decided, well, I'm going to take the photos for the listing myself. And, you know, let me let me go do this. Of course, I completely blow out every window. I can't see outside of it. The lighting is awful. It looks like my 12-year-old is the one that actually took the photos. And the first thing I did was pick up the phone and call one of my real estate photographer clients who's in the area. And I said, I why didn't this work? But but but I but I think I think you know, the world doesn't understand uh because everybody has a camera phone. Yeah, everybody can take their own photos, but I think the world doesn't understand what goes into all of those photographs that people create, whether it's real estate, whether it's architectural or any other you know area, is uh there there are original expressions. You know, you have to show your skill, you have to show what it is that you've done to put this together, and it's not easy. As as I personally know, it's not easy.

Speaker 3 10:14

I think that is part of what leads people to not think that it's that important, though, is they like they just see it as well, you just pointed your phone at that and took a photo. Like, why why do you own that? Like anybody could have done that. I think there's that kind of that vibe. But for our for our users, let's let's put some stakes in this of like why why they should care, and and I would love to talk about when it's gonna make sense for them to care and often it may not make sense for them to care very much. But like what what do damages actually look like? Like, do you have any fun stories of like this is a typical one or like this was the most outlandish one ever where somebody had this huge payout for something crazy?

Speaker 10:54

This is where where I think a lot of photographers gain interest.

Speaker 1 10:59

Yeah.

Speaker 10:59

Uh because they know the concept exists, but they don't know why it exists or or what rights they actually have.

Speaker 3 11:05

Yeah, and I think I think a lot of them like they think, okay, attorney's really expensive. So like what could I get? I mean, it's $200, $300, $400, and I'm gonna have to pay the attorney $10,000. Like, I think that's kind of the calculus that goes through a lot of people's brain.

Speaker 11:19

Right. So, so so the nice thing in this sphere, uh, you know, in this particular like copyright enforcement work that we do, and and there's various firms that do this, there's probably five to ten around the country that really specialize in this area. Uh, the bulk of us work on a contingency basis, which means you're not paying us. Uh, you know, if we spend 12 hours working on something and we don't get any recovery, then you've paid nothing at that point. Uh, most firms in this area operate on a contingency. They take a percentage of what they recover on your behalf. So you might have a hundred cases, 50 of them decide to resolve. Uh, you get a check in the mail for what the, you know, your percentage of what that resolved were, depending on what relationship you had with the law firm at that point.

Speaker 3 12:08

So, can you give any kind of a like for transparency and clarity for people? I I'm guessing you can't uh give a specific it's usually this percentage, but can you give me a range and an idea? Like does a law firm keep 70% or 20%?

Speaker 12:23

Or no, I I I think typically, depending on the stage of the case, whether it's before a lawsuit is filed, after a lawsuit is filed, it's usually the law firm is taking somewhere between 30 and 45%, maybe up to 50%. But that's that's the typical range that you see. Uh at least to me, I I think every scenario I've seen is the client walks away with more than the law firm makes, which makes sense because it's your intellectual property, your ownership.

Speaker 3 12:50

All right. Today we're actually gonna do the thing, like the podcast thing, where we ask you guys to, you know, like and hit the bell and all that jazz. But I I don't I don't I don't ask that very well. So Matty's actually gonna ask this one. All right. So Matty, why should they do that? Why why should why should they hit the bell?

Speaker 2 13:08

If you're getting uh value from this, you you've tuned in, you maybe heard some clips on Instagram, or maybe you've uh seen some full episodes. We put a lot of time in trying to find uh experts that are in our industry um and bring them onto this podcast so we can all learn. So we produce these once a week and we are releasing these weekly. So uh if you got value from this episode or others, I highly recommend that you subscribe and that you hit the notifications so that you can be uh tuned in when there's new content.

Speaker 3 13:38

Honestly, this one is something that the entire industry needs education on. So this is one where don't just hit the bell, this is one to share. Like, share it with your other three or four photographer friends because we everyone needs to know more about what their copyright is actually worth and whether it's worth pursuing all this. Like we talk about this stuff, but this is this is an episode where you actually dig into like why it would matter for your business. So like, subscribe, share. You guys are awesome. So you win, let's say in a little tiny case, you win a thousand dollars, the law firm gets 400, and the photographer gets 600, and that would be like a that would make sense to you as yeah, that that would track.

Speaker 14:20

Right. Yeah, that would that would track. So, you know, to to go back to your your original question, which is what what are the damages? Yeah. Um you know, and here what matters is copyright registration, which I guess, you know, we'll we'll get into and talk. But assuming, assuming you qualify for statutory damages under the copyright act, uh, what I tell people, and I tell this to clients, and I tell this to opposing lawyers and opposing parties all the time, is the the copyright act says assuming there is infringement and assuming you're entitled to these types of damages, they range anywhere from $750 on the low end up to $30,000 on the high end for each photo or each work that's involved. Uh, that can be increased up to $150,000 if the infringement is found to be willful.

Speaker 3 15:12

Wow.

Speaker 15:12

Um, it can be reduced down to $200 if it's completely innocent. And and we can get into what you know all of that means. But uh, you know, in a typical case, uh, you know, if if you've got, especially in real estate, and that's what I think realtors, uh, I'm sorry, real estate photographers don't realize. So what if you're a realtor and uh you're a photographer and you send a package of 50 photos to your client uh for selling this house or this apartment building or something, what it is, uh, they don't manage to close the listing, they don't manage to close the sale, and another realtor shows up and gets the listing and says, Well, why should I pay for uh why should I pay for a whole new set of photos? They already exist. I'm just gonna copy these 50 photos off the MLS. If you're looking at a minimum of $750 per photo times 50, or maybe 5,000 per photo or 10,000 per photo, you know, you you can you can start to recognize that uh this could very well be a very large amount of money that's at issue in any particular case. And that obviously differs. There's one photo versus 50 photos involved, but uh the the calculus is the same in that you're working on a contingency and it's essentially found money for you. It's money that you weren't gonna get paid uh just by sitting around and ignoring the fact that people are stealing your photos.

Speaker 3 16:44

So what I've learned here today is I need to get someone to willfully infringe five of my photos as a strategy to pay off my house.

Speaker 16:51

I if uh if if if if people I always say people shouldn't infringe, right? Like like everyone should obey the law and people shouldn't infringe, but then I'd be out of a job and you know everyone would hold hands and sing kumbaya, and that's that's not the world we live in. Uh so so my philosophy is people shouldn't infringe, but when they do, then you should be protected and you should enforce your rights and you shouldn't feel bad about enforcing your rights. You know, you have these rights under the law. The law states thou shalt not infringe, and here are the consequences when you do. Yeah. And you know, it it would be a perfect world if everybody just bought every piece of intellectual property, video, photo that's out there. Uh, and and lawyers wouldn't be needed, but we don't live in that world. Uh, you know, people are going to continue doing this time and time again. And so, frankly, I think, you know, the photographer, the artist, whoever it is, they they deserve to be paid when someone is not paying them. This is their lifeblood, this is how they make their money. Uh, and if everyone just steals your work, why why should they pay you again in the future?

Speaker 3 17:58

So, for uh realtors, if there's these if there's uh statutory damages that range from $750 an image to $150,000 an image, and I mean that's a that's not an insignificant amount when maybe an average listing is 25, 30 photos. Why do you think most more photographers don't actually pursue this? Because it happens all the time, and I would imagine I mean you might know actual numbers, but it I don't know, probably less than one in a hundred of these kind of infringements actually gets filed or pursued. Why do you think that is?

Speaker 18:33

I think it's a hesitation. I think people don't like dealing with lawyers in in general. That I think people don't realize uh people think lawyers are expensive, I'm gonna have to spend a ton of money on the lawyer, it's gonna be a complicated process, I'm gonna have to spend all my time doing this, this is not something that I normally do. Uh you know, my bread and butter is creating photos, it's not dealing with lawyers. I think there's multiple reasons, but I think it's just a hesitancy to act at the end of the day. Plus, uh you know, people not realizing uh just how much money is potentially at stake. Yeah, I think if people think what am I gonna get, $25 out of this, it's not worth your time. But if I said hey, would you like to do this and potentially walk away with a hundred grand? I think most people with common sense would say, Absolutely, sign me up.

Speaker 2 19:26

I mean, I think um what I hear photographers are like, okay, well, I shot these houses for $250. I shot the house, that was my my fee. Um and then I'm looking for business. I need I don't want to get blacklisted by a brokerage, I don't want to get blacklisted by uh um an agent. I'd rather get you know three shoots from a new agent than go through this tumultuous process. When like when what is the when is it worth it? I think that's really the calculus that people ha have to do because it feels like there there might be the potential that I could ask for these damages, um, but is it really gonna hurt my reputation? In what cases is is a brokerage or an agent actually gonna pay out a hundred thousand dollars, even ten thousand dollars for something that I shot that was you know, I shot for two hundred and fifty dollars.

Speaker 3 20:24

Yeah, and I mean if if they get twenty thousand dollars, but like the rest of their business where they were making four hundred thousand dollars dries up, like yeah, I think there's some of that fear as well.

Speaker 20:36

Yeah, and and it's it's a valid fear. You know, this is this is your backyard, it's your business that you're dealing with. Uh but of the hundreds of photographers that we deal with that pursue these types of claims, yeah. I I I I don't think we've had a single one uh that I'm aware of that their actual licensing business has been affected. And I and I think at the end of the day, uh yeah, at the end of the day, it's it's overcoming the idea that am I doing something wrong by asking for money? Uh, and people realizing, no, all I'm doing is enforcing my rights, and under the law, we we've had people threatened with this before, certainly. You know, like you'll you'll never work in this town again, type of thing. And and and it's always been hollow threats of because what are they gonna do? They're gonna go to some other realtor and say, I stole this guy's photos, yeah, and he's such a such a jerk because he stole his photos. How dare this guy? All all I did was steal his photos, and now he says I should pay him for stealing his photos. You shouldn't work with him.

Speaker 3 21:45

Yeah, that doesn't it doesn't have a lot of credibility, but I do think that's a it's a real uh it's a real monkey on people's backs of like thinking about it. You don't I and I think people's shortcut thinking is that they think they're gonna. to be uh suing their actual uh client I think I think they don't think all the way through that it's actually someone that probably doesn't shoot with them that is doing the the wrong like when people kind of talk about this and there is less there's obviously less uh potential damage there than like suing someone who actively pays you.

Speaker 2 22:22

Yeah. Well I mean it might be I mean we're talking about scenarios where like an agent takes that photo and now that they you know they commission you to do or whatever. And then they yeah use it on LinkedIn they use it on uh a billboard or on their business cards or in a brochure for their brokerage you know and and those the calculus might get a little closer to home but like the the basic scenario we're talking about where Ralph bought it Susie used it there's less of that yeah challenge the the the scenario that that I think comes up infrequently doesn't come up often but this this is the business scenario uh that that I'll have a frank conversation with a with a client.

Speaker 23:02

So in the real estate scenario it's you created a photo for realtor number one or you you know you did a listing set of photographs for realtor number one. Realtor number two calls them and says hey you know you got some great photos I'm taking over a listing can I use those photos and your agreement with realtor number one says no you know it's only for you you can't give it to any third parties hopefully that's what your agreement says uh well and realtor one they have a real an agreement because most of them do not right if you have terms or not uh but but let's assume you do uh you know what what I see come up infrequently but it comes up is realtor number one says yeah absolutely you know feel free to use them you've got every right to use them and then you get pissed off at realtor number two for using your photos realtor number two points the finger back at your client yeah and and to me to me that's a business decision that's got nothing to do with copyright law yeah sure uh like what 100% realtor number one is in the wrong he shouldn't have given those photos and and I've got clients so does he get in trouble in that scenario? Yes he he is an infringer he distributed photographs without your permission he broke the terms of a contract or a license whatever it is um he could be in trouble now you choose to just sue the other guy and like not for the in my mind in my mind remember I said you can reduce damages down to $200 if you're innocent. Yeah to to me there's no clearer version of someone as innocent. You know they try to do the right thing. The way I look at it is what more could they have done to try to figure out if they had permission to use this versus you know beyond picking up the phone calling the realtor saying hey do I have permission to use this and he says yes. Seems like a credible source. So so even person number two is still an infringer and you could still pursue them but I I I think they're probably the innocent infringer that you're really looking at if I do go after them am I getting the $200 per photo at that point. And if you've got a one got a one photo case you know it it it may not be worth it to pursue but the business decision is what do I do with my own client if my client gave her permission I I've got people that are for lack of a better word ruthless.

Speaker 3 25:19

And they would be so their own client would be the the willful infringer so assuming them would be more uh lucrative.

Speaker 25:28

And yeah but but but that's also do you bite the hand that feeds you? Exactly uh you know is that you know so I don't know if it pays off my house I might maybe but in you know in in in the scenario of getting blacklisted and not working with people clearly uh if if you pursue or sue someone uh that's a realtor chances are they're not picking up the phone calling you later and saying hey you know I'd like you to go photograph this building for me at this point. So you know you'll you've probably you've probably burned that bridge in those scenarios I I usually tell people you're better off just picking up the phone calling your client and saying look you did this you can't do this you know my terms specifically say don't give this to other people let let's move beyond this you know put this behind us but don't do it again and if they do it again you know I think the gloves are off at that point.

Speaker 3 26:18

Let's say they don't have terms it's still like it's still infringement like even if they don't have like a signed thing right?

Speaker 26:24

Yeah if if if they don't have a signed work for hire agreement that gives them full ownership then you control the rights. They don't have a right to give that to somebody else. Now it's it's obviously better for you if you have a signed agreement that says you know thou shalt not give this to third parties but you you still ultimately control the distribution of that as to who it goes to beyond your client.

Speaker 3 26:46

Yeah just like the the default still protects the photographer in that scenario even if they don't have the terms but the terms would strengthen we we think every photographer should have terms and licenses baked into their photos and take the wild west of the industry and streamline it.

Speaker 27:02

Yeah no absolutely absolutely that's that's what everybody should have uh of course you know when I when I go to a conference for real estate photographers or or whatnot and and the question inevitably gets asked how many people register their photos with a copyright office you know out of the out of the 400 people there 10 people put their hand up and it's you know how many people have terms and conditions and you know everyone just stares at each other you know maybe the same 10 people put their hands up uh you know absolutely every everybody should be doing this yeah uh be because you know quite frankly uh you may think you don't have an infringement but if you're a real estate photographer in any market where there's multiple realtors out there I I can almost guarantee you there's at least 10 100 people that have used your photos without your permission that you probably don't know about or or you do know about and you just thought what can I possibly do?

Speaker 2 27:58

What does it look like to register uh copyright like do I have a copyright whether or not I register or not? Like how does that how does that work?

Speaker 28:07

Yeah so so under the law uh registration is is vital uh it's probably the most important thing you can do to protect your copyright you have a copyright the moment you click the shutter uh you own it but if you register with the copyright office and an infringement comes after your registration so you create your project for your client uh you send them the photos you send a registration into the copyright office that's where all of those statutory damages I was telling you about are available so the 750 to the 3000 the 1500 that's available to you if you're in a lawsuit you can get your attorney's fees recovered from the other side even though you're not paying them it's on a contingency you can still recover that so the the immense amount of pressure and leverage frankly that you have against an infringer goes up exponentially when you have registered photos of the copyright office. When you don't uh like I said you still own the copyright but you you are limited to what's called uh disgorgement of profits or the actual damages that you've suffered so actual actual damages is akin to like you said you know I charge my client $200 for this well that's probably what your actual damages are. If another realtor uses them in the same context your damages are probably 200 bucks. Now if they used 50 of your photos and sold a 12 million dollar home and made a 3% commission off of it that's their profits you know that you might be able to disgorge and say I'm entitled to some portion of that. So there are scenarios where it makes sense to say I don't want the statutory damages. I want the disgorgement you made a million dollar commission off this thing I'll I'll take that over the 3000 that uh I might be able to get otherwise uh but but registration is another one that I think keeps people from engaging in this area because I think it's hugely complicated it's it's time consuming it's neither nor is it expensive so the the federal government US Copyright office uh you can register if you're a photographer up to 750 photos all in one registration for the low low sum of $55. It is basically you fill out a form you list out the photographs that are included you give them you know the titles of the photographs the month they were published or the year they were published you click submit you pay your $55 and somewhere in the next one to three months you get a nifty little copyright certificate back from the federal government and that's it that's the entire process for registering photographs. And you have to do you have to do that within a certain period of time or good question yeah like I I'm thinking you don't but it also has to be before anyone infringes it right yeah there there's an exception but typically the the general rule is you have to do it before someone not before the person you are pursuing infringes. Not before anyone has infringed uh but if I if if I think Matty is an infringer uh and I've registered before Matty then it doesn't matter that Moses infringed before you know as well I have to register my photo before Matty has infringed for me to pursue Matty for statutory damages.

Speaker 3 31:37

Yeah and you could only pursue me for whatever $250 or whatever actual I caused or something like that.

Speaker 31:45

Right now the the the the exception and you know maybe it's a little too technical for the conversation but this comes up more in like news photographs where they get infringed like that and the moment it goes out there. The exception is if you register within the first three months of publication your first publication then it doesn't matter that someone infringed before you submitted the registration. So if you if you know if you submit your photographs if you give your photographs to your realtor client let's let's assume you're you're photographing Will Smith's home or Mara Lago something cool. Something cool that's going to pick up a lot of attention uh you know you you give them to your client they put them out there today and in the next two weeks 50 different news sites pick them up and decide to use all these photographs you can go to the copyright office submit your registration two months later and all of that would still qualify as uh you registering before the infringements or giving you that access to the the statutory damages. So a lot of our clients especially in like the news photography world they have a workflow where every three months they register all the photographs they took in the preceding three months.

Speaker 3 32:58

Once a quarter every every quarter yeah I mean that would be pretty easy if you're gonna build this into your workflow just once a quarter go through register all your stuff and I was doing a little math here on my my iPad and you said it was $55 to register 750 images. So if you register them at that rate and let's say those sets of 30 images you charged $200 in a mid-American market for those photos then you'd make five thousand dollars you'd pay fifty five dollars so about one percent goes into this kind of insurance policy. It's probably not worth it if you're never going to act on it but if you think you might act on it.

Speaker 2 33:38

I mean that does seem pretty affordable there's people that might be infringing on your uh stuff that's not uh super obvious like the cases we're talking about here are like the obvious ones I think where they're obviously being resold to another agent you it's in your market you know it but your photos might be pulled off of Zillow and being used by a dentist in you know another county you know like uh on their on their website you know like sure um you took a beautiful downtown picture and it's being used uh in a completely different way you know like you just there's all those kinds of cases where if you had that copyright uh registered you'd be able to go pursue those things um and it's a no-brainer for sure if it if the house has any kind of like broader appeal you know like it's a celebrity home that's where that would definitely make multi million architectural houses and things like that that's I don't think it even has to be like Will Smith's house like if you're in a normal middle of market middle market America place where less than five percent of your stuff is a luxury kind of listing and you shoot a luxury house the likelihood of other people using that imagery for your area seems pretty high.

Speaker 34:53

So like you could also kind of cherry pick some of this stuff I would think I mean there are the there are photos that clearly get stolen more than others right like if you're a if if you're a wedding photographer or a bar mitza photographer chances are your stuff is not getting like who who cares like like like I I don't want to I don't want to even a half batch you know on a cul-de-sac somewhere no one's taking that photo generally and but yeah but but but but but you'd be surprised like I I've seen I've seen the gr the granite manufacturer uh search for their photos find something and say hey you know let's put this on our Facebook page as an example of you know our work or yeah uh you know a a a real estate photographer that takes a photo of a nice sunset and it winds up on a company's blog that has nothing to do with real estate nothing to do with the house it's just you know I'm gonna use this on the blog to to advertise our our business you you just really don't know and and so to me the the insurance policy of paying that $55 even if you never intend to pursue something uh you know you you might one day find out uh you know whether it's one photo or 75 photos you might one day find out someone has used a lot of these photos and it's a big brokerage you know it's Keller Williams it's Douglas Ellen it's you know something has used these photos in a listing and and I can guarantee you you will kick yourself in the rear end if you wake up that day and say you know by by simply paying 55 bucks I I I could have I could have gotten a minimum of 750 bucks for each of these photos which would have paid for itself you know a thousand times over at that point. You know we have had real estate cases involving 40 50 plus photos. Obviously I can't get into details of particular cases but you know we we've had cases settle for upwards of $200,000 for for one case where we send money to our client. Now that's not the average one photo case but but but at our firm and every firm does this differently you know my my philosophy is if you have a photo that's registered with the copyright office and the default range is $750 to $30,000 I'm I'm gonna ask you hey uh Moses which one would you prefer? Pick a number somewhere between $750 and $30,000 for me to make a demand on your behalf and you're gonna tell me what?

Speaker 3 37:25

$30,000. No I'm gonna tell you $150 now because I'm gonna prove that guy was a willful jerk.

Speaker 37:30

Right so you know we we tip we typically for any one photo case or two or three or four will make a demand for $30,000 per photo on your behalf. So if you've got a 30 photo case I'm sending out a $9000 demand on your behalf. Now you know you you can ask me name on one hand all the infringers that decided to pay what you asked for uh you you can guess how many you know how many foot how many fingers I'll put up uh but if you make a $30,000 demand that case might settle for eight grand $10 $152 you know anywhere along that scale and if you're if you're making 60% of that number you know let's say the case settles for 10 you just made $6,000 for a $55 registration. And if you've got 50 cases for the year and you make six thousand dollars off of 50 cases I I don't think there's any photographer in America that would say yeah it's just not worth my time. It's not worth my time to spend half an hour to do a registration.

Speaker 3 38:29

What's the what's the statute of limitations on this? Because I'm thinking this could be a retirement plan for people. If it's like seven years you could just like stack up all of them that happen in your market and then just sue the entire market when you're retiring well the the the the the copyright act says it's three years.

Speaker 38:46

Three years. Okay still that's a decent window. But but three years measured from and this is how courts typically do this it's three years measured from the date that you knew or should have known about the infringement right like you know I went on Zillow one day I'm like I'm like hey that looks like my photos uh you know what the hell is this guy using them for? You know you found out at that point that someone is is infringing should have known it is a lot more complex but I I I liken it to uh someone finds your photo and tags you on Instagram and says you know at Matty awesome photo you know using it for my uh you know for for for my business now you know like there there were things there were clues that you had that could have pointed you in that direction it it doesn't mean that you have to be omnipotent and know the entire internet uh and search 24 hours a day for infringements of your work so you know you you might find something today that got posted in 2017 uh you know it just so happens that you found it today uh that's not beyond the statute of limitations that that to me means today today that three years starts moving forward so you got to do something about it in the next three years.

Speaker 2 40:03

And how long does your actual copyright how long is that active?

Speaker 40:06

It's active for at least as long as most of us are going to be alive at this point. You know typically it's 70 years that that will stay active people can get around it in terms of how they register you know whether it's in a business it's it's usually the life of the person or 70 years. So you might want to register the name of your business if this is something that you know your kids take over one day or something like that.

Speaker 2 40:32

Yeah. How would you recommend uh a photography business set up if they've got multiple photographers either as contractors or as employees that go and shoot on their behalf but the company wants to remain retain the copyrights.

Speaker 40:49

Yeah that that that's all by written agreement at the end of the day. If if if if someone's a W-2 employee then typically you own the work they create for them. You know you don't you don't need a specific employment agreement that says I own everything. If they're just a contractor then it's really no different than your realtor hiring you uh you know you're a 1099 you own the photograph unless there's an agreement that says otherwise so if someone's a contractor you're gonna want a work for hire agreement in place with them that says anything they capture for you, you own the copyrights on.

Speaker 2 41:22

And what does it look like when a photo is edited particularly if it's the editing is outsourced uh how does is the copyright still maintained by the photographer particularly you know with architectural photography where it's like you're combining three photos and compositing them together and you're kind of blending them in an editor's doing this is that a new expression like how does that work?

Speaker 41:45

Yeah so uh under the Copyright Act you own the exclusive right to make edits and modifications to your photos so if if somebody else changes the background color the you know the sky color or they add a Christmas tree in the background that's still your photo at the end of the day. Now you know the the bigger question is if you make those edits uh and you put that photo so let's say you register the original and you Photoshop in a couple of Christmas trees and change the background color to red or you know something and then you send that to your client and that goes online and someone steals that photo the the question is then is that photo protected by your original copyright registration?

Speaker 3 42:28

Yeah.

Speaker 42:29

Yeah and and I think the answer is typically yes uh but that's one that courts have to weigh in on and you know whether it's is it the same is it not is it still subject to the same protection. I think there's enough case law out there that says yes uh but it's one that that's why lawyers get paid to argue these things.

Speaker 3 42:47

But in that scenario if the photographer wanted to be on the side of the preponderance of the cases then they would just register the final image the one that's actually going to go out to the public not the original unedited it sounds like yeah no I mean you if if if it's sitting on your hard drive and never sees the public then no one's ever going to steal it right yeah like like the the the whole point of registration is to protect you from other people infringing your work.

Speaker 43:14

If you have it under a locking key sitting on a hard drive and it's never gone to a client and never made it online I can pretty much guarantee you that photo is not going to be infringed. No no it's no no one's breaking into your house.

Speaker 3 43:24

No one's breaking your house and a lot of guarantees from lawyers but I feel like that's a good one. That's that's pretty good.

Speaker 2 43:29

The heck of heck of a lifetime someone hacks in and uploads all those kitchen photos.

Speaker 43:34

Yeah the the terabytes and terabytes of pack rat storage and all the photography brackets yeah but but but but but I but I will tell you a horror story uh because because I think some people are like well I can register 750 photos but uh you know these photos I send to my client are trash and these aren't great and these aren't going to be stolen. So you know I I may have sent 200 photos to my client but I'm only gonna register five of them. Uh we we had a case where our client was a thousand percent sure. It was a real estate case. Uh it was a photo from the outside of a very expensive home just looking at the home. Uh and he he he pursued this case with respect to you know, this realtor is infringing this photograph. I want to go after him. And that photo was registered with the copyright office. Well, uh, what he didn't disclose, or what he didn't know at the time, was that he actually took six photos from that exact same angle sitting on the ladder, uh, all in rapid succession, you know, one, two, three, four, five, six. Uh turns out, uh, if you looked at the bushes in the front yard, like there was six red flowers on the bush in the registered image, and four on the bush in the one that they actually stole or infringed. And that's because the one that was infringed was taken a half a second later and the wind blew and flowers had come off, and that photo wasn't registered. For whatever reason, he decided I'm only going to register this one, which is insane when you think you've got 750. So, from you know, from my perspective, if you're sending photos out into the wild to your clients, register them. You know, don't have that fight where is this one that I chose to register or that I didn't register. You send 50 photos to your client for their use, register those 50. You send 100, register those hundred. At the per photo cost at that $55, it doesn't make any sense for you to start making judgment calls of, well, I like these, so I'll register these because you have no idea which one is actually going to be infringed at the end of the day. You know, you might think this is the greatest photo I've ever taken. It sits out there and it's never infringed. Like, well, this is a you know standard photo of a bathroom, and for some reason it winds up on 50 websites.

Speaker 2 45:57

To wrap it up, what what does someone do when they find an infringement? What's the next step? Whether it's uh some local market thing or they find it being misused online, what could they do?

Speaker 46:09

I I think I think the best first step is getting past that that I want to bury my head in the sand and ignore this and you know just just be mad and realize that I can't do anything and pick up the phone and and call someone. Whether it's my firm, whether it's another law firm that does this specific area. You know, I wouldn't just call a lawyer. I would just pick up the Rolodex and say, local lawyer, call because they don't deal with this area. You know, call call someone who deals with this who's gonna walk you through the process. I I would say 90% of the people that I represent, uh, they did not start by being on the ball with registering photos and searching for infringements. They they started because they got pissed off that they found something or someone told them, hey, I saw your photo somewhere. Then they called the lawyer. That lawyer might tell them, I can't do anything about this particular case. Uh, or they might tell them, hey, here's what we can do. But more often than not, that's gonna start you down the path of let me help you get your photos registered, let me help you get the right agreements in place with your clients. Uh, let me show you the ways of how you can search for and find these things. And then people realize, like, hey, this isn't that hard of a process, and it can actually be pretty profitable at the end of the day if um if I am finding these things.

Speaker 3 47:32

I have dozens more questions. I feel Sammy. I feel like we should maybe do a part two of this down the road, but for now, I think we're out of time. But like, I would love to talk with you about MLS photos, like syndication, work for hire, AI ramifications, like all kinds of different things that I think could be an entirely different episode about derivative works and licensing. Um, so if you're game, let's figure out some time.

Speaker 48:01

But here's uh here's the thing. I don't know that I've met the lawyer yet that doesn't love the sound of his own voice. So uh I I I I I am more than happy to come back and talk to you about any of these topics.

Speaker 3 48:12

Yeah, we might even maybe something like if you're listening to this and you've you've stayed all this way, then you want to know about copyright. So put in the comments stuff that you would be interested in knowing about. Um, and we can definitely do that because I think this is really useful. This is there's a ton of education that the industry needs, both on the photographer side and the realtor side, and I think on the MLS side and the portals, we're all there's this whole web of people who benefit from this photography, and there's tacit agreements at best, usually. Uh, and everyone just kind of does their thing. And I think there's a lot to explore and a lot to understand to navigate really well.

Speaker 2 48:53

Dan, where can people reach you if they've got questions and want to uh pursue this further?

Speaker 48:58

So our our firm is copycat legal. You can go to copycatlegal.com, and that's our website. Uh, you can call us at the office. We're at 877-437-6228, is our toll-free number. Uh, we we love talking to photographers, we love giving them advice, setting them down the right path. So, you know, you can just Google Copycat Legal, you can go to our website, you can call us, send a smoke signal, you know, we'll we'll figure we'll we'll we'll figure out how to talk to you.

Speaker 3 49:26

Well, thank you so much for your time, Daniel, and we'll look forward to talking with you again in the future.

Speaker 49:30

Thank you.