What do you do if someone steals your picture?

Photographers, Here’s What To Do If Your Images Are Stolen

Sources: whoishostingthis.com

Sharing photos is now easier than ever. So is stealing them. Professional photographers often find that people are sharing their photographs without their permission. Photographers have several options available to them if their images are stolen.

  • The moment a photographer takes a photograph, that image has copyright.
    • This has been true since the Federal Copyright Act of 1975
  • Copyrights do not need to be registered in order to exist
    • Registering a copyright is necessary to:
      • Ask for statutory damages
  • Adding the copyright symbol ©, the photographer’s name, and the year of publication to an image isn’t necessary to have copyright
    • Publishing an image with a copyright notice does make it easier to prove willful infringement in a court of law

Permission and Theft

  • Unless a person has a photographer’s permission, they cannot do any of the following to an image:
    • Reproduce it
    • Display it publicly (including online)
    • Create derivative works based upon it
    • Distribute copies to others for sale, rent, lease, or lending
  • If a person does any of the previous without the photographer’s permission, he has violated copyright
    • Violators can be subject to civil and criminal penalties.

What to do First

  • Make a copy of the infringing work
    • Often, an infringer will try to delete his version
    • The copyright holder will need to show proof of infringement to receive damages
      • Note: Even if a work has been taken down online, the copyright holder’s copyright has still been violated
    • Take a screenshot/picture of the offending image
    • Create a paper copy of the offending image
      • Be sure to learn whether identifying metadata, watermarks, or copyright notices have been removed
  • Determine that the use is truly theft
    • Under certain conditions, images can be reproduced without the photographer’s permission
      • Works shared under certain Creative Commons licenses can be shared without permission, so long as the copyright holder is credited
      • Fair Use Doctrine allows works to be reproduced under certain conditions, including:
        • Satire
        • Education
        • The work has been transformed
          • Fair Use is a complicated legal topic, and opinions vary as to how it applies to each use
  • Do some research
    • Find out the infringing person’s name as well as their contact information.
      • This information is often available in the website’s “About Us” section.
    • Use a website such as WhoIsHostingThis.com to learn the website’s ISP. This information may be necessary later

Available Options

Photographers who find that their work has been stolen have a number of options available to them, including:

  • Do nothing
  • Personally send a cease-and-desist letter
  • Ask for credit
  • Send an invoice
  • Hire a lawyer to send a cease-and-desist letter
  • File a DMCA takedown notice
  • File a lawsuit

Do Nothing

  • Pursuing a copyright infringer might not be worth the effort in all situations, such as:
    • The website might be small, with little traffic
    • It may be too troublesome to enforce the copyright
    • The images may be on a site hosted in a country where infringement is common

Personally Send a Cease-and-Desist Letter

  • If a photographer wishes for a website to remove their image from the site, they have the option of sending a cease-and-desist letter
  • A cease-and-desist letter:
    • Makes it clear that the photographer owns the copyright of their work
    • Informs the recipient that they have infringed on the photographer’s copyright
    • Instructs the infringer to cease their activity by a specific date or be faced with legal action
    • Informs the recipient what the legal repercussions are
  • There are a number of websites where stock letters/templates can be found, including:
    • Rocket Lawyer
    • Plagiarism Today
    • Cease and Desister
    • Law Depot

Ask for Credit

  • To ask for credit, photographers should send an email or letter that explains that:
    • They own the copyright of this image
    • The infringer did not receive permission to use the work
    • The photographer would like credit for the image
  • A credit can consist of:
    • A “Photo by:” line with the photographer’s name
    • A link back to the original website (if the infringing source is online)

Send an Invoice

  • A photographer who wishes to receive more than credit for their images can also send an invoice for services rendered
    • If a website uses a photographer’s images, then it has used that photographer’s service, even if unintentionally
    • The invoice should take into account:
      • The length of time the image was used
      • The purpose to which the image was put
  • Along with the invoice, a photographer should also send an email or letter (and create a copy of it) explaining that:
    • They own the copyright to the image in question
    • The website used it without their permission
  • An industry rule of thumb is to charge 3X one’s normal fee for an image if it is a case of copyright infringement.
    • Note: If a case of copyright infringement goes to court, an invoice can be used against a photographer if it is determined that they should be entitled to more than what they quoted in their invoice
    • It’s possible that they might only receive what they asked for

Hire a Lawyer

  • Hiring a lawyer to send a cease-and-desist letter has some advantages:
    • The lawyer will know the legal terms and language necessary so that the letter is accurate
    • A letter written by an attorney can carry more weight with the person who receives it
  • Hiring a lawyer will be more expensive than filing a letter oneself
    • Some lawyers will charge a flat fee for filing a C&D letter
    • Some lawyers charge a percentage fee based on the amount of money recovered from the following lawsuit
    • Some will use a combination of these two methods
      • In some cases, it is possible to secure the services of a lawyer pro bono
      • Check with organizations like Volunteer Lawyers for the Arts to see if an attorney is willing to volunteer their help for free

File a DMCA Take-Down Notice

  • If, after contacting the infringer and they do not respond to/comply with the copyright holder’s requests, photographers may wish to file a DMCA takedown notice.
  • The Digital Millennium Copyright Act
    • Enacted in 1998
    • Provides copyright holders with the ability to ask website hosts to remove content that infringes their copyright
      • Copyrights do not have to be registered in order to file a takedown notice
  • To file a notice, follow these steps:
    • Locate the ISP that hosts the website with the infringing material
    • Contact them with the following information:
      • Specify the image that infringes your copyright
      • You own the copyright to the image in question
      • The website has used your copyright without your permission
      • Your contact details
        • According to the National Press Photographers Association, a notice must include:
          • The fact that your complaint is in “good faith”
          • The phrase “under penalty of perjury, that the information contained in the notification is accurate”
  • Note: Someone served with a takedown notice may serve a counter-notice to the ISP
    • This counter-notice will be their claim that the infringer has a right to publish the work
    • By law, the ISP will have to repost the image
    • The only way to proceed from this point (and stop the person from continuing to infringe on one’s copyright) is to serve the infringer with a lawsuit

File a Lawsuit

  • Be sure to hire a lawyer experienced in copyright law.
  • Photographers should register their copyright (preferably before it is infringed).
    • Legally, a copyright holder cannot sue in federal court for copyright infringement if they have not registered their copyright
    • Timely registration of copyright (registering within three months of publication/before it is infringed), offers several benefits to photographers:
      • It shows that their claim to the copyright is valid
      • It allows them to ask for statutory damages (up to $150,000)
      • It allows them to ask for attorney’s fees
        • Works that do not have “timely registration” are only able to secure actual damages and profits
    • Less than one percent of copyright infringement lawsuits go to trial

The internet makes copy and pasting images extremely simple. Too often, works are shared without giving credit back to those who deserve them. Luckily, photographers have legal recourse should they discover that others have infringed their copyrights.

Sources

whoishostingthis.com by KeriLynn Engel