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.”
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.