Q: Is it copyright infringement in 2018 for photo posted in 2014 if copyright wasn't filed until 2018?
Can a photographer claim copyright infringement and sue for damages on photos posted to a hobby website in 2014 with clear credit and links given back to the photographers website and Instagram account when the copyright was not filed until 2018 for said photos?
A:
A copyright is established the moment the work is produced in a tangible form (i.e. once the photo is created). So if you have exploited someone else's picture without authorization, you have committed copyright infringement. By registering a work for copyright with the US Copyright Office, an owner is not required to prove "actual damages" suffered by the infringement, which must be proven in court and can be very difficult to establish. Instead, by registering for Copyright, an owner has a right to “statutory damages” which are established by Section 504 of the Copyright Act ranging from $750 and $30,000 (and increased up to $150,000 per work if the infringement is found to be willful/intentional) per work, plus reasonable attorney's fees to the prevailing party, as determined by the court.
So if the photo you're talking about was not registered for Copyright before the infringement occurred, the owner would not be entitled to statutory damages, BUT if proven successful in a lawsuit, could be awarded any damages of lost profits that proximately result from the infringement, such as a disgorgement of the defendant’s profits from use of the photo.
A: Registering a copyright with the US Copyright Office offers a certain level of added protection, but prior to that registration date, there are common law and state protections for copyright - which may be relevant in this case. More details are necessary to provide a professional analysis of your issue. The best first step is an Initial Consultation with an Attorney such as myself. You can read more about me, my credentials, awards, honors, testimonials, and media appearances/ publications on my law practice website, www.AliEsq.com. I practice law in CA, NY, MA, WA, and DC in the following areas of law: Business & Contracts, Criminal Defense, Divorce & Child Custody, and Education Law. This answer does not constitute legal advice; make any predictions, guarantees, or warranties; or create any Attorney-Client relationship.
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