Option #4 – Hire a Lawyer to Send a Demand Letter
When an attorney gets involved, the matter is escalated and tensions rise. While the infringer may be more defensive, the weight of your demand letter is dramatically increased if it comes from an attorney and the infringer generally takes the matter more seriously. Some attorneys charge a flat fee to send a letter; others may charge a contingency fee that is based on the percentage of recovery; or the fee may be a combination of both.
If you or your attorney send a demand letter, then there is some risk that the infringer will preempt your infringement lawsuit by filing a request for declaratory judgment that the use is authorized. This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don’t want to litigate.
Option #5 – File a Copyright Infringement Lawsuit
Your most aggressive option is to pursue your legal remedies by filing suit. You first must register your copyright with the U.S. Copyright Office, hopefully before but at least after the infringement. (If you created the photo in a country that is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, you do not have to register in the U.S. to protect your copyright or to file an infringement lawsuit in the U.S.)
You must file your infringement claim in a federal district court. It's best to hire an attorney to help you with your suit because the legal procedures are complicated. Note that you have three years from the date of infringement to sue for copyright infringement.
When the copyright to a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only "actual damages" for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. You also may recover the profits the infringer made from the infringement if they aren’t too speculative. If you have registered your copyrights, then you are eligible for statutory damages of up to $150,000 for willful infringement of each photograph. “Willfulness” means that the infringer either had actual knowledge that it was infringing the owner's copyrights or acted in reckless disregard of those rights. Evidence that the infringed works bore prominent copyright notices supports a finding of willfulness.
Additional Claim for Removal of Copyright Management Information
While many photographers place their name, copyright notice, and/or contact information, constituting "copyright management information," on their images as "watermarks" or in the metadata of the image file, it's fairly easy to crop or clone over the watermark or to remove the metadata. Fortunately, the DMCA section of the Copyright Act provides a remedy in addition to your infringement claim when the infringer removes your CMI to hide the infringement. More information is available on my blog.
Infringements are rampant these days, both because it’s easier for the infringers to find and copy your images and because too many people think that they have a right to use your photos or they won’t be caught. Fortunately, there are many tools to battle copyright infringement. It’s up to you to use them.
Carolyn E. Wright is a licensed attorney dedicated to the legal needs for photographers. Get the latest in legal information at Carolyn’s website, www.photoattorney.com. These and other legal tips for photographers are available in Carolyn’s book, The Photographer’s Legal Guide, available on her website.
NOTE: The information provided here is for educational purposes only. If you have legal concerns or need legal advice, be sure to consult with an attorney.