When a photographer discovers a photo has been published without authorization, the photographer maybe able to secure an injunction, recover actual damages and lost profits. The legal advantage to writing a copyright notice on the photograph consisting of (c)1995 Artist's Name. That advantage is possible elimination of the innocent infringer defense.
Innocent infringers (meaning they successfully claim ignorance) may only be liable for a fair licensing fee.
An order to sue an infringer the copyright holder
must register the photo. In order to register the photo, the photographer must possess the photo. Traditionally this is not a problem because the photographer would have a negative, or a print or a slide or some tangible object as a photo. If the photographer has scanned the photo onto a home page or provided the photo to a gallery then there would be no problem if the photographer retains the original.
Similarly a CD disk photo would also be tangible to register. However when a photographer uses a filmless camera this projects images directly onto a computer for real-time adjustment. If a photographer were to upload this kind of photo, some
tangible print would still be required for registration.
The problem of "fixation" as it relates to photos on the Net will usually arise in the context of whether or not a photograph was "copied" by an infringer. Certain ephemeral artworks like the type produced by Christo, have been the subject of controversy in terms of the fixation requirement for copyright protection.
In the context of copyright protection for computer programs the Ninth Circuit held in MAI Systems Corp. v. Peak Computer Inc., that "copying for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer's RAM (random access memory)."
The court described fixation as "sufficiently permanent or stable to permit (them) to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."
This decision as it relates to photos on the net may be a practical problem of proof. Net photos, like Christo's sculptures, may be here today, gone tomorrow. Consequently the problem will be a whether a copyright claimant will be able to provide a court documentary evidence of the copyrightable subject matter.
It's not an easy task to "go after" someone regarding copyright infringement. IMHO, unless you are being robbed for alot of money via infringement, it's really not worth the time, effort, and expense to try and crucify them.
My .08 cents worth.
