The band has been burning the candle at both ends, and now the final mix is in the hopper. It’s time to go viral on your latest record. Before you load it up on ITunes, and Reverbnation, Bandpage, and every other medium of distribution, you need to package it around a feeling, a mood, a vibe — something that is commensurate with the lyrics, the sounds, the expression of your music. So you dig through some images the unofficial band photographer sends over from the past year and you find something the grabs you, speaks to you, and resonates with fellow band members as well.
The image is uploaded with the music, name of the band, record and songs. Soon thereafter, a yellow manilla envelope arrives on the doorstep. It’s heavy, really heavy, and takes a wide cut at the mouth to pull through the logger of pulp contained inside. It’s a copyright infringement lawsuit, violation of 17 U.S.C 106. It shared the envelope with a demand letter requesting $25,000 for you and each other member of the band. Your throat feels like a golf ball just slid deep down, and all the euphoria from the completion of the record is silenced from being a named defendant, and threatened with unimaginable financial damages. What to do? Find out if and when the photograph or image was federally registered. It can make the difference between unfathomable statutory damages under 17 U.S.C. 504, and the actual damages realized by the photographer, which might be a couple hundred bucks.
Specifically, you need to find out if the photo was registered within three months of when it was taken or prior to when the alleged infringement took place. Therein lives the difference between heaven and hell. If, in fact, the registration was timely done. the statutory damages are as follows under Section 504:
(c) Statutory Damages. —
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the nfringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in section 118(f)) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.
(3) (A) In a case of infringement, it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement.
For the most part, most agreements in the music business are done with a handshake between friends or friends of friends. From prior conversations, a scattering of emails and the way things were done previously, one might be led to believe the use of the photo was kosher. So instead of finding yourself in a pickle make sure your understanding in crystal clear, and in writing, signed by the photographer and a representative of the band.
Practice safe music!