Copyright infringement for photographers
This article is a great place to learn about Copyright Infringement for Photographers.
It happens – A friend or client excitedly sends you a link to a page where they’ve seen one of your images or a copy of a magazine in which your work has been published in all its glossy glory.
Maybe someone took your image by blatantly ripping it off your website or social media account and you find it on a website or blog you’ve never heard of before.
You see screenshots of a gallery on your client’s social media profile where they are thrilled with your work.
Or you were hired to take images but the former client is now using or publishing one or more of these images without your permission or in ways you did not agree to in a license (for example the license was for internal use by a company but ends up on the cover of a brochure, in a magazine, or on a billboard).
It is up to you to protect your intellectual property and educate those who don’t know better. If you don’t, who will?
Once you’ve established that you did not authorize the use of the image (whether personally or indirectly if you use an agency), and you’ve made sure to collect examples of the use of the image (whether screenshots, copies of the publication, etc.), then you will need to decide whether you are going to do anything at all.
Once you decide that you are going to respond to the infringement of your copyright or to the violation of a contract or license, the next steps are figuring out what to do so that it is beneficial for your business, protects your work, and keeps the seas smooth. These steps range from sending a nice email of education through legal action. Just like you choose the right lens for the shot, you do well to choose the right course of action for the situation when it comes to copyright infringement or contract violation.
You may want to just jump right to a lawyer to help you – an attorney can evaluate the specific situation and advise a course of action appropriate for your situation and goals – but first, we recommend reading through the information and the steps below for a good place to begin.
What rights do I have to my images?
Under US Copyright law you have five rights to your images – reproduction, preparation of derivative works, distribution of copies, performing work publicly, and displaying of work publicly.
If they gave me credit, is that enough?
Credit doesn’t negate infringement. If you want the image taken down and/or demand compensation, see your choices below!
What if I want to get paid?
Read more here for a quick guide to photographer’s copyright law.
Do I have to have my photographs registered to be compensated?
No – BUT- having your photographs registered prior to infringement (or within the 3 months from publication date grace period, whether before infringement or not) can afford your statutory damages of up to $150k per image and potential attorneys fees.
What compensation can I receive?
Unregistered images (or not registered prior to infringement) = actual damages. Actual damages can be damage to your business and/or benefit the infringed made from the infringing acts. In negotiations – the demand may either be the actual damages amounts listed above and/or licensing rates.
Registered images = statutory damages of up to $150k per image and attorneys fees
Why does my photograph need registered before I can file a lawsuit?
It’s the requirement!
Can I handle copyright infringement matters in small claims court?
No, this is not a state court offense – it would be handled in federal court.
Now to handle this infringement stuff!
There are a few options you have available to help stand up for your work. Read through this article then make your decision.
We do recommend preparing yourself to protect and defend your images with the Copyright Infringement Kit. This lawyer-drafted kit will equip you with the information needed to protect your images, as well as the steps and legal forms needed to defend your intellectual property rights. This kit includes the following templates:
- demand letter for registered images
- demand letter for unregistered images
- settlement agreement
First – Stop. Breathe.
As we mentioned above, make sure you document everything before taking any action. We highly recommend not going on another’s social media page and blasting them or tagging them from your social media and sending a mob. This can cause the infringer to become defensive and make any potential negotiations or discussion extremely difficult.
For the next step – you’re at a crossroads. Copyright Infringement can be a hard thing to deal with
The steps you take to protect your rights depends on what your end goal is.
If you want to get paid, you’re going to be looking for demand letter options.
If you merely want credit, an outreach may be appropriate.
If you want the images removed, you have options of DMCA take-down notices and/or demand letters.
Maybe you just want to educate the infringer – a simply outreach could suffice.
Your options include (but aren’t limited to):
- Reaching out
- Take-down notices
- Demand letters
- Federal lawsuit
Choosing legal action as your first recourse is likely to be detrimental to any relationship you may have, or hope to have, with the infringer. In fact, it is almost always better to send a kind note (as a form of first outreach), especially if you’re in a situation where you believe that the individual is unaware of their actions and/or you are attempting to preserve your relationship or reputation. Sometimes, you should go to the next steps or reach for the big guns. But, when you reach out kindly, it gives you an opportunity to be an educational voice to others in the business world. Note: this step isn’t always recommended when you are dealing with a large-scale infringement or an infringement by a multi-national company. This step is more appropriate in the situation of a smaller scale and non-malicious infringer such as a personal portrait client who may have screenshot their gallery in excitement to share with family on social media or a non-commercial blogger.
I recommend starting with a phone call and email follow-up documenting and summarizing the phone conversation. By reaching out on the phone, the tone of voice and information can readily be understood and facilitates an environment of discussion – as opposed to defensiveness.
An initial phone call serving as the best way to start the discussion isn’t always the case. Sometimes people are just defensive, and you must simply end the phone call and follow up with an email. Or they are unable to be reached and written communications will be required.
Many times, especially in larger corporations, the individual publishing the image or placing the order for a marketing material may be unaware of the licenses provided to their company, or it may be a small company who simply doesn’t know better. Ignorance of copyright law is not an excuse for their behavior. However, by taking the higher road of reaching out and providing information about your intellectual property and a willingness to discuss, you’ll better preserve your relationship and reputation. At the same time, the probability of retention of educational information is higher if you approach without aggression.
In the situation of where your photography has been used without permission by news organizations and you think it is likely that you will want to work with them in the future, contacting the editorial team and negotiating usage fee + penalty may start a relationship that later turns into work. Going straight to an invoice or cease & desist (C&D) may not lead to a productive long-term relationship in the way a softer approach may yield.
Education is especially important if you’re working with a client who may have departed from a purchased license. You want to ensure that they understand the license that they paid for and that their conduct is outside that scope.
For a website or blog where you believe the use was out of ignorance rather than intentional misuse and you would be happy for credit alone, you could send a letter or email along these lines:
Good Afternoon [or morning]. I am the photographer who took XXX photographs you are using on your XXXXX blog. Although I appreciate that you like my photographs enough to share them, I require that non-commercial uses of my images be accompanied by an appropriate photo credit and a link back to the source image on my website. While I’m not generally concerned by non-commercial use of my work, uncredited uses like those on your blog are a source of commercial infringements downstream that can become a problem, and adding a credit helps prevent these.
The images in question are these:
[URL 1, URL 2, etc.]
My original work is here:
[URL 1, URL 2, etc.]
I would appreciate it if you could add a credit (“Image ©xxxx”, or similar) to the photo caption, as well as a link back to my source image. If the images are not appropriately credited, I may send a takedown notice to your web host and the images will be removed automatically.
Send an invoice and a request
Perhaps you want to skip the nice phone call, or they refuse to answer your requests. Then it’s time to start stepping into the legal arena. This is where you can send an invoice for their improper use of your image, accompanied by a letter that is a more straightforward explanation and education of their action.
Don’t know what to charge in your invoice? Here’s some recommendations when it is a commercial infringement.
If this person is someone who hired you, make sure to include your original agreements and/or communications to refer them to the contracts signed and licenses sold.
When drafting your invoice and letter, be sure to include documentation of the usage, normal rates, and other relevant information to demonstrate your case to the infringer.
Look at sending a properly drafted removal document. A cease and desist letter can aid in this matter. A cease and desist letter is sent directly to the individual improperly using the images. Note: you don’t necessarily need a lawyer to send a C&D (cease and desist letter), but being on a legal letterhead can definitely help! In the very least, send it on your own business letterhead.
Also, consider sending a DMCA take-down notice or applicable website infringement form. A DMCA can be used to have the intellectual property removed from the infringer’s site through the Internet Service Provider that hosts their website. You can search for information about the ISP through whois.
To be eligible for maximum damages for copyright infringement and violation of your DMCA rights, put your copyright notice on each page of your website and put your Copyright Management Information (CMI) at least adjacent to each photo as well as in the metadata of your files (on the image is best). While it is relatively straightforward to crop out or erase a watermark or copyright notice, by including a watermark or copyright notice a photographer can arm themselves with additional evidence of “willful infringement” which may trigger statutory damages should you end up litigating the infringement. “Willfulness” is inferred on the part of the infringer when it is held that they had actual knowledge that they were infringing on the owner’s copyright, and/or acted in “reckless disregard” of the rights of the copyright owner.
The best option available: Engage an Attorney
The best option available – and we don’t just say this because we’re attorneys…promise!
Attorney sends letter of demand
You could have an attorney send a C&D and a DMCA takedown notice on your behalf or a further letter explaining options for settling the matter prior to litigation if you have already sent the first two. However, you should do this in the full knowledge that by engaging an attorney, the stakes are raised. The infringer is likely to become even more defensive than they have already been and risks to reputation and relationship are even greater. However, it is also true that a letter from an attorney may carry more weight than one on your own letterhead. Attorneys vary in the way they charge for letters of this nature: some will charge a flat fee while others may want a contingency based on a percentage of what you are hoping to recover.
Attorney files suit for copyright infringement
Filing a law suit for copyright infringement is the most aggressive course of action to pursue legal remedies and one which you invariably need the assistance of an attorney to execute.
If this is a course of action you are open to considering, you may also want to seriously consider registering the copyright for your images with the US copyright Office as part of your workflow, especially for images you license commercially. While it is true that you hold copyright in an image regardless of registration, registration can impact your rights to file a complaint and the amount of damages you can claim/receive.
You generally have three years from the date of infringement to file suit for copyright infringement. Infringement claims are generally filed in federal district court, unless there is a claim for a breach of contract or some other claim that can be filed in State court. In some jurisdictions, a US Copyright office registration certificate is needed to file a complaint. In any case, where an image/photo has not been registered with the US Copyright Office prior to the copyright infringement (or within three months of the first publication of the Photograph), the copyright owner may only discover “actual damages” rather than statutory damages for the infringement (see 17 USC Section 504(b)).
Actual damages are generally calculated based on usual license fees or standard licensing fees for the industry. If the infringement has resulted in profits for the infringer, these may be recovered by the copyright owner.
If you do register your copyright, then you may be entitled to statutory damages and attorneys’ fees (17 USC Section 505). If your photo wasn’t registered prior to the infringement, you may want to register the photo for future possible infringements to be eligible for statutory damages of up to $150,000 per willful infringing use for each photograph (17 USC Section 504(b) and (c))
We recommend that registration of images occur in your regular workflow. For strongest argument + statutory damages, you need to register within 90 days of image publication and BEFORE infringement.
As always, all recommendations in this article should be lawyer-reviewed and approved!
Stay ready by grabbing the Copyright Infringement Kit. This lawyer-drafted kit will equip you with the information needed to protect your images, as well as the steps and legal forms needed to defend your intellectual property rights. This kit includes the following templates:
- demand letter for registered images
- demand letter for unregistered images
- settlement agreement