You’re sitting in your easy chair, surfing the web. You’re not paying much attention, until you see it. It’s your photo, but you did not post it on this website. You can’t believe someone used your photo without your permission. Now what? The next steps you take are important to protect your rights.
Make Sure That the Use Is an Infringement
Not all uses of your photographs are infringements. Do you use a licensing agency that may have authorized the use? Did you grant too broad of a license so that a licensee could have licensed your photos to others? Finally, is the use a fair use? While only a court can ultimately decide what is fair use, the law gives us guidelines as to what may qualify. (Read more about fair use in my blog entry here.
Save Proof of the Infringement
After you decide that the use is an infringement, make copies of it – both in electronic and print forms. The infringer may remove your photo without notice or once the infringer knows the infringement has been discovered. You may need that evidence later.
Investigate the Infringer
Next, find out what you can about the infringer. Research the infringer’s website to find a contact name and address, such as by searching the website’s “who is” information. Several websites provide free “whois” services, such as whois.net. After you enter the website name there, you may be able to find contact information for the owner/administrator of the website.
Option #1 – Do Nothing
You always have the option of doing nothing. If the infringer is in a foreign country where infringements are difficult to enforce or runs a small personal website with little traffic, you may decide that it’s not worth your time and effort to fight the infringement.
Option #2 – Prepare a DMCA Take-Down Notice
Thanks to the U.S. Digital Millennium Copyright Act (“DMCA”) enacted in 1998, the Internet Service Provider (“ISP”) that hosts a website is not liable for transmitting information that infringes a copyright only if the ISP removes the infringing materials from a user’s website after receiving proper notice of the violation. The notice must: be in writing, be signed by the copyright owner or the owner’s agent, identify the copyrighted work claimed to be infringed (or list of infringements from the same site) and identify the material that is infringing the work. Additionally, the notice must include the complaining party’s contact information, a statement that the complaint is made in “good faith,” and a statement, under penalty of perjury, that the information contained in the notification is accurate and that the complainer has the right to proceed (because he is the copyright owner or agent). Check my article here to learn more about how to prepare a DMCA take-down notice. Even if you don’t reside in the U.S., you may use this great tool to stop an infringer from using your work as long as the ISP is in the U.S.
Option #3 – Send a Cease and Desist/Demand Letter
Another option you have for resolving infringements is to contact the infringer yourself. You may request payment for the infringement and/or ask that the infringer cease use of the image. It’s best to do this in writing – a letter by surface mail seems to have more clout than email correspondence.
If the website would provide a marketing outlet for you, you may only want the infringer to give you proper credit. If so, make a written agreement with the infringer that you will provide a license for the image (be sure to designate the parameters of the use, such as who, what, why, when and where – see my blog entry on the subject for more information), on the condition that the infringer posts your photo credit / copyright notice on or adjacent to the image, along with a hyperlink to your website. You may get additional work from the infringer or others.
Photographers sometimes send an infringer an invoice for three times their normal license fee as an offer to resolve the infringement claim. While the 3x fee may be an industry standard, is not a legal right given by any court of law or statute. Instead, U.S. law states that you are entitled to actual or statutory damages for infringement as provided by 17 U.S.C. Chapter 5, specifically section 504. The damages that you can receive from infringement - especially if you timely register your photographs - sometimes can amount to a lot more than three times your normal license fee. So you may want to think 2x before you send the 3x letter.
Your demand for payment may be admissible against you in an infringement case, which can limit your ultimate recovery. To avoid this possibility, include in your demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”