How to Prove Copyright Ownership of Your Photos in Court

The two things you have to prove

There are only two, and they are separate arguments.

One, that you are the author. You were behind the camera. You pressed the shutter.

Two, that there was creative input. The photograph is your own intellectual creation and not a mechanical record of whatever happened to be in front of a lens.

Win the first and lose the second and you still walk out with nothing. Most photographers prepare only for the first, because it never occurs to them that a court might accept they took the photo and still refuse to protect it.

Part one: proving you are the author

Your RAW files are your negatives

Everything starts with the RAW files. If you shoot professionally you are not shooting JPEG, you are shooting RAW, and those files are the closest thing our generation has to a negative.

Think about how this worked on film. Only the photographer held the negatives. That single fact carried enormous weight, because possession of the negative was possession of the origin of the image.

RAW files do the same work, on one condition: you have to actually have them. Not somewhere on an old drive in a box in the attic. Available, on demand, the day a court asks. Without the RAW files, proving your copyright gets very, very tricky.

So the first piece of court preparation is not legal at all. It is a backup system that works.

Never hand over your RAW files

This is the part that surprises people, so read it twice.

Do not give your RAW files to a client. Do not give them to the court either.

Anything you submit to a court becomes part of the record, and in most countries that record is public. A lawyer can walk in, ask to see the case files, get access, and make a copy. From that day on you can no longer stand in front of a judge and say the sentence that wins these cases: only I have ever had these files. Once somebody else holds a copy, the exclusivity argument is gone, permanently, for every future case involving that image.

You spent years building the strongest evidence you have. Do not spend it in one filing.

Give the court view only access instead

What I do instead is upload the RAW files to PicDrop and give the court a link.

They land on a folder that holds the RAW files and the final artwork side by side. They can see the files exist. They can see the file format, the capture information, the whole path from original to finished image. What they cannot do is download anything, because downloading is switched off at the folder level.

The court gets to verify everything and takes possession of nothing. In my experience that is enough, and it is usually the moment authorship stops being contested.

A witness costs you nothing

You were probably not alone. Your partner was traveling with you, or you met another photographer and shot that evening together.

Tell the court you have a witness available who can testify that they watched you make photographs at that location on that date. It is not the strongest piece of evidence on its own and it does not need to be. It sits on top of everything else and adds credibility, and it takes one message to arrange.

Match your camera serial number to the EXIF

Here is the gap in everything above: theoretically you could have obtained somebody else’s RAW files. Holding the RAW proves access. It does not yet prove you were the one behind the camera.

This is how you close it.

The serial number of the camera body is written into the EXIF data of every RAW file it has ever produced. So photograph the body itself, with the serial number legible, lying next to your ID card.

Now the chain is complete and every link is checkable:

• your ID card sits next to a camera body
• that body carries a serial number
• that serial number appears in the EXIF of the RAW file
• that RAW file is the original of the stolen image

Once those links are established, it is very difficult for anyone to argue that you are not the author.

There is a deadline on this one, and it is the reason I keep bringing it up. The moment you sell that camera body you lose the ability to photograph it next to your ID. Do it now, for every body you own, and file the photos with your backups. It takes ten minutes.

The judge is a human being

Never forget who you are actually convincing. Not an algorithm, not a checklist. A person who has to decide whether they believe you.

So show more, not less. Here is my RAW file, backed up and ready whenever you need it. Here is view only access, and here is exactly why I am not handing over the original. Here is the camera body the file came out of, with the serial number, next to my ID. Here is a witness.

Stack that in front of a judge and there is not much left for them to say except: yes, this is your photograph.

Part two: proving creative input

In the United States the flow runs through the Copyright Office. Copyright still exists from the moment of creation, but registration is what lets you sue and what unlocks statutory damages, which is why American photographers file in batches every quarter.

Europe works differently. Copyright exists automatically at the moment of creation and there is nothing to register. There is one limitation, and it is written into Directive 2006/116/EC:

Article 6. Photographs which are original in the sense that they are the author’s own intellectual creation shall be protected in accordance with Article 1. No other criteria shall be applied to determine their eligibility for protection.

Read that second sentence again, because it works in your favor. No other criteria. Not the equipment, not the commercial value, not whether the judge personally likes the photo. Once authorship is settled, the only question left is whether the work is your own intellectual creation.

Why composition is the wrong argument

There are at least two moments where creative input happens. One is in the field, where you find the composition that says what you want to say about the subject, and you come back at the hour when the light does the work.

Composition is, in my opinion, the most important aspect of photography. It is also very difficult to explain to somebody who has never made a photograph. Everything you did in the field is invisible in the final file. Those decisions leave no trace, and a non-photographer looks at the result and sees a place that simply looked like that.

I have stopped leading with it. Not because it is untrue, but because it does not land.

Show the post-processing, step by step

What works instead is the edit.

I take the image as it comes out of the RAW file and I do a substantial amount of work on it before I release it. That work is documented whether I intend it or not. In Photoshop it is a layer stack. In Lightroom it is a broken down list of every adjustment I made.

So I build a short video that toggles the layers on and off in order, and the court watches the photograph travel from RAW file to finished artwork one decision at a time.

This is what converts a skeptical judge. Somebody who was ready to say you pointed a camera and pressed a button, that is a technical act, not a creative one now watches you pull the shadows and lift the highlights into a harmonic image, correct the verticals, tune the colors. Creative input stops being an abstract legal term and becomes something they can see happening.

Non-photographers understand it immediately in that format. In court it has worked really, really well for me.

Use awards as certified creative input

There is a second route, and it is worth setting up in advance for the images that get stolen most often. Enter them for awards.

Not every award helps here. There are two types and the difference matters:

• Competitions, where one entry wins and the rest lose. Useful for your reputation, close to useless as evidence.
• Scored awards, where a panel judges each image on its own merits and returns a number, usually out of 100. Above 80 points typically earns a gold.

The second type is what you want, because it produces a document. A board of qualified judges has certified in writing that this specific photograph contains significant creative input, and scored it 80 out of 100.

Hand that certificate to a judge in an ordinary court and you have professionals who assess creative merit for a living backing your claim. It is another layer of trust available to a judge who wants to rule in your favor.

Whether you need any of this depends on where you are

Is proving creative input really necessary? In several EU member states, yes.

I am from Germany, and in Germany it is easy. The hurdle for creative input sits very low and almost any photograph you can imagine enjoys copyright protection.

France sets a considerably higher standard for what counts as a creative photograph. There have been cases where paparazzi work and sports photography were denied copyright protection entirely, on the grounds that they were documentary and carried no creative input from the author.

So in France, the step by step edit and a clear account of your artistic intent are not a nice extra. They are the case.

The directive sets a floor and member states build on top of it however they like, which leaves you with real uncertainty about the standard you will actually face. That is exactly why I prepare the creative input evidence for every image, in every country, whether or not I expect to need it.

Do this today, not when the letter arrives

None of this can be assembled after the fact, which is the whole problem. Four things, and you can start this afternoon.

1. Back up the RAW files properly. They are your negatives. Without them the rest of this post does not apply to you.
2. Save your Photoshop work as layered TIFF files. Yes, it eats hard drive space. It becomes very valuable the day you need it.
3. Keep your Lightroom catalog backed up so you can reconstruct the edit history of any image on request.
4. Photograph every camera body you own next to your ID card, serial number legible, before you sell any of them.

Do that and when somebody steals your work you are not scrambling. You are opening a folder.

Now tell me yours

Has this happened to you? Did your photos get stolen, did you go to court, and what did you have to show?

I want to know whether it went easily, and especially whether you used something I have not covered here. Tell me in the comments. We all get better at this by comparing notes, and photographers helping each other is how image theft gets expensive for the people doing it.

Keep reading

• Copyright Law for Photography in the European Union, the directives and CJEU rulings behind everything above
• Photography Copyright Tips: How to Protect Your Work from Image Theft
• Licensing my work, and what a documented pricing structure is worth in a damages argument