Is Taking a Photo of a Work Copyright infringement?

So here’s the situation: You paint an attractive mural on a building, and it’s so amazing that some enterprising soul takes a photograph of it and then sells that photograph to others. Is that copyright infringement? Yes, absolutely.

When you make copies of someone else’s work, be it a sculpture , you’ve created what’s known as a “derivative work.” The copyright owner has a right not only to his or her original creation, but also to any derivative works. Examples of “derivative works” are things like a foreign-language translation of a book, a photograph of a painting or sculpture, a remix of a song or a film adaptation of a play. The definition of “derivative works” in the statute is very broad, and encompasses “any other form in which a work may be recast, transformed, or adapted.”

What remedies does a creator have for copyright infringement? If you registered the work with the copyright office, then you get a ticket into Federal Court and have the option to get statutory damages. A copyright infringement plaintiff has the right under copyright law to a minimum of $750 and a maximum of $30,000 “as the court considers just.” Damages for “willful” infringement — again, at the court’s discretion — can increase the statutory damages award to up to $150,000. Yes, trademark infringement can be very, very expensive. The copyright owner who has registered her work has the option of either statutory or actual damages, so if the court finds that an infringement is “willful,” an infringer can be on the hook for damages of up to $150,000 even if he didn’t earn that much on the material he stole.

If you didn’t register your work, then you have to prove damages. So in this case, the damages would be equal to the amount the naughty infringer profited from stealing the work. A copyright infringer has the burden of proof of any offsetting expenses incurred that would reduce the gross profits to a net profit amount. The defendant has the absolute burden of proving any expenses or other factors that reduce the gross profit to a net amount.

This is why it’s important to avoid copying others’ work. The internet makes it really easy to make and use unauthorized copies, and copyright infringers are liable for infringement even if they only infringe “just a little.” Copyright infringement is a little like speeding: We don’t require that there be any knowledge on the part of the infringer.

Make sure that when you copy something, that you have permission to copy the work, such as a “creative commons” license or is public domain. You don’t want to be on the hook for damages for willful copyright infringement — or any copyright infringement. Damages can add up quickly!

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Contact Dallas, Texas copyright attorney Angela Langlotz today to protection your valuable creations.

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