Attention Photographers: Digitally Watermark Your Photographs

Photo by ATC Comm Photo from Pexels

If you have ever been to an art gallery or museum, you have likely noticed that most of the art pieces, whether a photograph, sculpture, painting or drawing, bore the signature or other mark of their creator. From Sophilos Me Grafsen’s imprint of his name into a Greek pot in the sixth century B.C. to Raffaello Sanzio’s artfully placed signature in the painting “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 specific artist or artist created this particular piece of art and that this piece has been completed to the satisfaction of its creator(s). Without such a moniker / watermark, except for highly well-known pieces, most individuals in the world would not readily know the name of the artist who 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 to address the creation of an electronic marketplace. The Digital Millennium Copyright Act (DMCA) Amendment 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, an artist needs to use some form of a moniker, especially if their work can quickly be digitally transcribed, such as in the form of a digital scan or digitally reproduced. In addition, this indicates to the electronic marketplace that only the artist has the presumption of exclusive rights in his work, especially in copying and sharing their work for commercial purposes.

Monikers

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. Nevertheless, skilled artists would attempt to replicate a piece of art to reproduce an artist’s very signature. Unfortunately, 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 aliases embedded 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 work, or even worse, replaced with a moniker of a third party who 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 I.Q. Grp., Ltd. v. Wiesner Pub., L.L.C., 409 F. Supp. 2d 587, 596 (D.N.J. 2006), Congress, concerning the DMCA, viewed a digital watermark as an example of copyright management information. Further, the DMCA, under section 1203, provides for statutory damages for not less than $2,500 or more than $25,000 for each violation of section 1202.

It is imperative 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 essential that as a photographer, you embed a digital watermark or some copyright management information, into your digital photograph, especially before making such a photo available on the Internet. This will not only allow you to potentially recover additional civil damages if a digital watermark is removed or altered but also will hopefully deter unauthorized reproductions and copyright infringement of your work generally.

Has your copyrighted work been used? Contact McClanahan Powers today to schedule your consultation.

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