Personal pictures become fodder for legal fights in digital age

01/03/2013 6:11 AM

01/03/2013 6:54 AM

When JoMarie Mirabile and Travis Soden became engaged in 2009, one of the first things they did was reserve the Kansas City church where they wanted their wedding ceremony.

The October 2010 wedding at Our Lady of Perpetual Help, also known as Redemptorist Catholic Church, was picture-perfect.

But later, JoMarie Soden got a shock as she perused a bridal magazine. On the page was a wedding photo of the couple in an advertisement promoting weddings at Redemptorist.

“I couldn’t believe what I was seeing,” Soden said. “I had no idea they had any of our pictures.”

Soden sued the Kansas City-St. Joseph Diocese for copyright infringement, saying that it used her pictures without permission to advertise wedding services at the church.

The diocese disagreed, and for now the suit has been withdrawn.

But some legal experts say Soden’s experience illustrates the importance of copyright registration to protect and establish one’s rights.

Although that may seem far-fetched, it’s increasingly necessary in an age where our digital images are so accessible, they say.

“I usually equate copyright registration to an approximate $35 insurance policy,” said Tammy Browning-Smith, an Ohio-based attorney who focuses on intellectual property law in creative industries. “Should something go wrong and someone takes your work, it allows you to be able to collect attorney’s fees, enhanced damages and the like.”

Registering a copyright is “painless and quick,” Browning-Smith said. To do it, go to the U.S. Copyright Office at www.copyright.gov and fill out the form. It costs $35 for online registration of a basic claim and $65 to register a group of photographs. It takes up to 2½ months to get an application processed, according to the agency’s website.

Although a copyright can be registered at any time, Browning-Smith said, it’s best to have it in place before you encounter a need to enforce it. It’s also a lot cheaper. If you don’t have a registration and end up needing to get one processed quickly, the fee is $760.

Andrew Torrance, a law professor at the University of Kansas who specializes in intellectual property law, said that although it’s possible to register a copyright after you believe someone has infringed on your property, you’re limited in the remedies you can get.

“If you register before any kind of infringement, you get access to the federal courts, but you also get access to statutory damages,” Torrance said. “So instead of having to prove you’ve suffered actual damages, like for example the cost of the photographer, with statutory damages you just need to convince the court that you’re on the high end of the damages and you can get a tremendous amount of money.”

It’s not just brides and grooms who might want to register their copyrights, Browning-Smith said. One of her cases involved a woman whose child’s graduation picture was plastered on a billboard without her knowledge.

“Imagine driving by a billboard and seeing your kid’s graduation photograph up on the sign,” she said. “That was very disturbing to the mother.”

Other venues where a person’s photos might be used without permission include social media such as Facebook. And the issue attracted international attention last month when outcry from irate users prompted Instagram — a popular mobile photo-sharing service purchased by Facebook last year — to back down from new language in its service agreement.

The language appeared to give the company ownership of users’ images. In an update to its terms of service, Instagram had said that businesses could pay the service for the use of images “without any compensation” to people posting on Instagram.

Among those complaining: Facebook CEO Mark Zuckerberg’s own wedding photographer.

“I don’t know what they were thinking,” Browning-Smith said of Instagram’s initial language.

The issue isn’t over yet. A class-action lawsuit was filed in California on Dec. 21 seeking to void parts of Instagram’s terms of service.

Browning-Smith said the incidents show that in the digital age, people need to use good judgment when publishing their items.

“If you post your pictures a lot and maybe want to be able to stop somebody if they use them, the way to handle it is to register the copyright,” Browning-Smith said. “Then, if somebody puts it up on Facebook against your will, one of the quickest ways to take it down is to show a copyright registration.”

Torrance agreed that it’s good advice to register photos that you post on Facebook if you want to control who uses them.

“You can register them as a big batch,” he said.

But there’s a kicker: The contract you accept gives Facebook rights to anything you post, including photographs, he said.

In other words, he said, you can keep others from taking your pictures from Facebook, but you can’t stop Facebook itself from using them on its promotional website.

As for Soden, she said the couple were thrilled to have had their wedding at Redemptorist at 3333 Broadway.

“The weekend we got married was the only available weekend that they had, and that was booking over a year in advance,” she said.

But the ordeal with the photos left a sour taste in her mouth, Soden said.

“You can pretty much guess how we felt about that.”

According to the lawsuit, filed in U.S. District Court, Soden purchased the copyright to her wedding pictures from the photographer. Her mother, who was employed by the church at the time, stored some of the photos on her computer at work.

Afterward, the suit alleged, the diocese took some wedding pictures from her mother’s computer and, without permission, used them in bridal magazine ads.

In a motion filed late last year, the diocese argued that the case should be dismissed because Soden failed to get a federal copyright registration for the wedding pictures and failed to identify any specific pictures or the names of the bridal magazines they allegedly appeared in.

Jack Smith, spokesman for the diocese, said in an email that “the Diocese believes its motion to dismiss was well-founded and that there was no basis for plaintiff’s copyright action.”

Soden voluntarily dismissed her lawsuit on Dec. 3, but her attorney is looking into the copyright registration issue and other legal options.

To reach Judy L. Thomas, send email to jthomas@kcstar.com.

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