How do you know if a picture is copyrighted if permission is un-obtainable?
I'm not really sure what you are asking here. IF your question is, how do you find out if a picture is copyrighted or not, well, you could search the database at
www.copyright.gov. Beyond that, there simply isn't an easy way to determine whether or not a picture is copyrighted -- the best way is to just simply assume that any picture you find IS copyrighted, and then try and figure out if it isn't. If the picture is old, say pre-1950, it's possible that the picture is public domain. If the picture is newer than that, it's much less likely that the work is public domain. If the work is less than 20 years old, it's almost 100% certain that it is NOT public domain.
Does the picture owner have the right to sue if the picture is not copyrighted and can the picture be copyrighted after second party use?
If the picture isn't copyrighted, then it is public domain -- that's my point, virtually every picture IS copyrighted, because copyright is automatic n-- you don't have to do anything for a work to be covered by copyright, it's automatic. Before anyone can sue, however, they must register their copyright -- but this can be done even after infringement occurs. If you wait until after infringement occurs, then you have fewer remedies you can avail yourself of, but you can still sue even if you register after infringement has begun.
f I were to use the picture without permission what would it require for the person to copyright it and prevent me from using it?
It costs $35 to register a copyright. As to how much it would cost to sue, that's so variable there's not really any way you could put an "average" or "ballpark" number on it. That's especially true when there are any number of ways to enda case early -- if the infringement is clear, the case oftentimes can be ended pretty early on with little cost to either side. Further, if the infringement is a good case, and there are lots of damages available, it's possible that the case could even be a contingency-fee case, in which case the plaintiff wouldn't be out anything.
As far as what you would be out, well, you would need to hire a lawyer to defend yourself, so there are legal fees to consider. If the copyright is registered prior to the infringement, then the plaintiff can the choice of suing for "actual" damages -- the amount of money he or she has lost due to your infringement, lost profits, that sort of thing -- or "statutory" damages, damages set by statute, which can be as high as $35,000 per work infringed. In addition, the plaintiff may seek injunctive relief, such as a court order requiring you to remove and destroy any infringing works, etc.
If the copyright is not registered prior to infringment (or within 30 days of infringement beginign, I believe), then you can't sue for statutory damages. You can still sue for all of the rest, however.
Plus, if the plaintiff can show that your infringment was "willful" -- that you knew you were infringing, and kept doing it anyway -- then damages may be tripled in the case of actual damages, and statutory famages can go as high as $150,000 per infringed work.
Is there any loop holes or statements i could say in presentation that would protect me?
If your use is a "fair use," that's a defense to copyright infringement. You'll still need a lawyer, of course, but you might avoid damages. Google "fair use," and look up 17 U.S.C. Section 107 for more info on "fair use."
Is it possible to retain an attorney to protect myself and continue to use the picture even for a short period of time?
If you can find an attorney who would be willing to write up an opnion letter saying that, in their opinion, after a review of the facts and the law, that they don't think you are infringing, then you could avoid a willfulness finding, but it wouldn't save you from being found liable for infringement. Copyright infringement is a type of "strict liability" offense -- it doesn't matter if you knew you were infringing, or what your motives for infringement were, if you were infringing, and don't have a valid defense, that's it. It doesn't matter if you knew you were infringing or not -- if you ARE infringing, that's all the other side needs to show.
if permission was un-obtainable and I wanted to risk using the picture what would be your recommendation on how to go about it with the minimum risk to myself, a corporation? or ???
Find a picture where you CAN obtain permission, or take your own picture. That would be my recommendation.
Look, gthis picture belongs to somebody else -- you don't have a right to use it, and more than someone else has a right to use words you've written or a picture you've taken without your permission. You'll either need permission, find another avenue for your pictures, or risk getting sued for infringement.
