What to do when your image is stolen

[Jim Bryant]

Here's a new Post "What To Do When Your Image Is Stolen Online" was written on the June 1, 2011 at 10:06 am on "A Photo Editor".

Having your images stolen online is not an "if," but a "when" will it
happen type of situation that you should be prepared to take action
on. If you plan to run a photography business then you should plan to
hire a lawyer now and again. If you cannot hire one then you should
marry one, trade photos with one or be best friends with one.

I get a weekly email from photographers who have their images stolen
and used on a site that appears to generate revenue. Several months
ago I ran into this primer called Photography, Copyright, and the Law
written by Carolyn E. Wright the photoattorney.com [1] and published
on Ken Kaminesky's blog (Read the entire post*here [2]). This excerpt
from the post answers the question of what to do when you are
infringed upon:

| *Q: What happens when a copyrighted photo is used without
| permission?*

You have several options when you find that your photo has been
infringed.

*Option #1 – Do Nothing*

You always have the option of doing nothing. If the infringer is in a
foreign country where infringements are rampant and difficult to
enforce or is a small website with little traffic, you may decide that
it’s not worth your time and effort to fight the infringement.

*Option # 2 – Request a Photo Credit*

...if the website would provide a marketing outlet for you, you may
only want the infringer to give you proper credit. If so, write the
infringer a letter officially giving her the right to use the image.
Be sure to designate the parameters of that use, such as who, what,
why, when and where – see my blog entry*here*for more information.
Include the condition that the infringer post a photo credit with a
copyright notice on or adjacent to the use. You may also require the
infringer to add a link to your website. You may get subsequent work
from the infringer or others.

*Option #3 – Prepare a DMCA Take-Down Notice*

Purusant 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 at*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 whose ISP is in the U.S. from using your work.

*Option #4 – Prepare a Cease and Desist/Demand Letter Yourself*

When you don’t want to alienate the infringer (the infringer is a
potential client and/or appears to be an innocent infringer), you may
want to contact the infringer to explain that the use is not
authorized and either request payment of an appropriate license fee, a
photo credit with a link to your website (as discussed above), or 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.

Photographers sometimes send an infringer an invoice for three times
their normal license fee in an attempt to resolve the infringement
issue. While the 3x fee may be an industry standard and some courts
have used it, 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.

There are some risks in sending the letter yourself. First, the
infringer may attempt to preempt an infringement lawsuit and file 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.
Second, your demand for payment may be admissible against you if an
infringement case is filed. If you demand too little, then it may
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 #5 – 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” which is based on the percentage of recovery. Or
the fee may be a combination of both.

*Option #6 – File a Copyright Infringement Lawsuit*

Your most aggressive option is to pursue your legal remedies by filing
suit. Unless you created the work outside of the United States and in
a country that is a signatory to the*Berne Convention for the
Protection of Literary and Artistic Works, you 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, you do not have to
register in the U.S. to protect your copyright or to file an
infringement lawsuit in the U.S. However, if you do, then you may be
entitled to statutory damages and attorneys’ fees, as noted here.)
If your photo was not timely registered for this infringement, you may
want to register the photo for future possible infringements, as well,
to be eligible for statutory damages of up to $150,000 per willful
infringing use for each photograph. See*17 USC Section 504(b) and
(c). Legal fees and costs also may be recovered from the infringer.
See*17 USC Section 505.

In most jurisdictions you need to have received your registration
certificate to file a complaint. Unless you have a breach of contract
or some other state claim, you must file your infringement claim in
a*federal district court. To file suit, it is best to hire an
attorney to help you because the legal procedures are complicated.
Note that you have three years from the date of infringement to sue
for copyright infringement.

When 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. One
source for standard license fees is a software program called
Fotoquote. You also may recover the profits the infringer made from
the infringement if they aren’t too speculative.

Additional Claims
While many photographers place “watermarks”
including their name and/or their copyright notice on their images or
in the metadata of the file to prevent someone from infringing them,
it’s fairly easy to crop or clone over the mark, or to remove
metadata. Fortunately, the DMCA section of the Copyright Act provides
a remedy in addition to the infringement claim when the infringer
removes your CMI to hide the infringement.

Additionally, when you can prove that the infringement was done
willfully, then you are entitled to enhanced statutory damages.
“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.

[Gulf Coast Girl]

Good information. Thanks for posting

[SwissJon]

It is good information, but while I'm an unknown, and am unlikely to become known, I'll stick to either doing nothing, or, more probably, do very little, and be happy with the advertising.

However, if I was a pulitzer prize nominated photographer, things might be different!