So this photographer had an image ripped off by National Geographic. While that is of course totally wrong on National Geo., the photographer has a lot wrong in his post about how the law works and how the magazine reacted. I’m NOT saying National Geo got it all right or are the good guys here, but they aren’t as wrong or bad as he seems to think.
First off, the photographer claims that “If the infringement is ‘willful infringement’, the settlement range is typically $150,000.” Oh child… if only that were so. No, the maximum statutory damages available for a willful infringement are $150,000. Maximum. Most settlements are far, far, far below that. So are most awards by the court.
Second, the photographer ignores the registration requirements for statutory damages to be available. That is, I assume he has since he doesn’t mention if he had timely registered his work. Registration timing is a very big deal. If your work is not registered with the copyright office before the infringement takes place (or within the three calendar month safe harbor immediately after first publication by you), then you cannot even get statutory damages. Oh, and National Geo gets that part wrong too, by the way. The registration has to be before the infringement; it doesn’t have to be “within ninety (90) days of first publication” as National Geo stated but rather anytime before the infringement (also the safe harbor is three calendar months after first publication, not 90 days).
If the work isn’t registered, then all one can recover is what are called actual damages which, here, would likely be his lost license fee. He’d have to prove up that fee and if he doesn’t have a record of similar licenses then he’d have to prove a reasonable market license fee. Since there are a lot of free or almost free images available anymore, that number can be very low.
Also, this photographer offered the work under a Creative Commons license for free. The terms of that license state “non-commercial” use and often editorial use falls into non-commerical. I personally disagree with that labeling, but there it is. The cover use by a magazine, however, is usually considered commercial (this is one reason why editorial use is complex legally) at least within the industry. Nonetheless, that would be a difficult legal battle. I have railed against Creative Commons licensing since they were created and here is another example of why they suck. That “free use” could also impact his ability to prove the value of his license for the purposes of actual damages.
I feel for this photographer. It was completely wrong for National Geographic to use the work without a proper license. But all creatives have to take the right steps to protect their work, like registering the copyrights. I tell photographers to think of it like insurance–you buy it and may never use it, but when you do need it you are surely glad you took that responsible step.