The Internet. It’s been great for photographers. Easy exposure. Websites. Blogs. And all the forms of social media extends your reach even more. So many options and opportunities for your images, your hard work, to be appreciated.
Perhaps it’s already happened to you. And if not, we hate to be pessimistic, but in reality it is likely not a matter of if. It’s a matter of when. If you are sharing your images online, anyone can easily cut and paste your work. Your work can be reproduced, displayed publicly (including on the internet), distributed to others, or derivative works can be created from your images. All of these actions are violating your copyright if you have not given your direct permission for these actions.
So what’s a photographer to do? Besides complain bitterly to anyone who will listen?
First realize that the culprits are subject to both civil and criminal penalties. And luckily, there are clear actions that you can follow either to stop these violations or to receive compensation. Here are the steps:
To start with, realize that from the moment you create the image your picture has a copyright. This is true even if your image does not have a circled letter c, your name, and date of creation. However, if your image does have the above items, it will be easier to prove willful infringement in court. Furthermore, you do not need to register your image for it to have a copyright; however, if you are planning to ask for statutory damages, filing this paperwork will be a necessity. More about registering later.
Your first step after discovering your copyright has been stolen is to make a copy of the infringed work by taking a screenshot of the offending image. Save and print this. This is important because you need to show proof of infringement in order to collect damages. Keep in mind that even if your image is removed from the internet, your copyright has still been infringed upon. Note whether your metadata or copyright mark has been removed.
Secondly, determine whether the use of your image is truly theft. “The Fair Use Doctrine” allows images to be used for educational purposes or for satire without the artist’s permission. Furthermore, images shared under “The Creative Commons” licenses can be used as long as the copyright holder is given credit. More info here.
Your third step is to determine the infringing person’s name as well as contact information. You can find this easily in the “About Us” section of the website or use a source such as Whoishostingthis.com to find out the website’s host which will be useful later on in the process.
Fourth, if you decide that your image has indeed been stolen, you have the following options: you could do nothing. Perhaps you have come to the conclusion that it would be too much of a bother to enforce your copyright. Or you see that the website involved has too little traffic. Lastly, perhaps the country where the infringement has occurred is one where the theft of images is not protected by International Copyright law. All these reasons could cause you to decide that further action is too much trouble.
In addition, if your images have been stolen you could contact the party through letter or email and let them know that you are the holder of the copyright, that you did not give permission for the use of the image, and that you would like credit for the use with a byline that includes your name and/or a link back to your website if the infringement happened on the internet. However, a photo credit will typically not bring you any sort of attention by your target market.
You could also send an invoice for services rendered that takes into account how long the image was used as well as its purpose. In the case of infringed upon images, the industry rule is to charge three times your usual usage fee. A good place to learn about current commercial usage fees is fotoquote.com or you could simply explore the rates on getty.com. Include in this mailing (or email) a statement that you own the copyright of the image in question and that the owner of the website used your image without permission. Keep in mind this invoice can actually be used against you should the case go to court and you seek more than this invoiced amount.
A more serious option for you is to hire an attorney to send a cease and desist order. You could, of course, send this letter yourself; however, the letterhead of an attorney will certainly give your request much more weight. In terms of fee, some attorneys either charge a flat fee or a percentage of the amount recovered. Check with attorneys who have affiliated themselves with artists to see if this is an option. If you do decide to send the cease and desist letter on your own, there are many sites online that provide template letters, like this example. *Note: many photographers believe that PPA will help with this process, however we were unable to find any cases where they did step in on a photographer’s behalf and initiate a successful outcome. (If you do know of a case, please email us!)
Yet another option, and usually the quickest/most effective/least expensive one is to send a DMCA takedown notice to the infringer’s web host. The 1989 Digital Millennium Copyright Act enables copyright holders to ask website hosts to remove their stolen images. You should contact the website host of the site who has used your work and tell them which images of yours have been used without your permission, that you hold the copyright, and what your contact information is. This DMCA notice must include two phrases. One, that your complaint is in “good faith” and that two, “under penalty of perjury, that the information contained in the notification is accurate.” Here is a good sample. If there are multiple instances of copyright theft of your images on their site, you could request the whole site be taken down. (We have had to do this in the past with other sites stealing our content, and it is immediately effective, usually within 12-24 hours once you prove copyright.)
If all these steps do not bring you satisfaction, your last step is to hire an attorney experienced in copyright law and to file a lawsuit. Keep in mind though that you will not be able to sue in federal court if your copyright has not been registered. This registration will allow you to claim statutory damages up to $150,000 as well as attorney’s fees.
The odds of you being offered an out of court settlement are very high as well. Your attorney can work in your best interest to help you through the negotiation process if you decide to go that route.
To register your work directly with the US Copyright Office, you can either file your copyright claim online with the official Copyright Office website http://www.copyright.gov/ or fill out a physical form and mail that to the Copyright Office. Processing times for electronic filing can take up to eight months, and paper filing could not be fulfilled for thirteen months. Your copyright will then be valid in most countries throughout the world.
As you work through the above steps, keep in mind that social media sites also have resources to lodge complaints and immediately take down pages with work that has been stolen. These links below should prove helpful:
Having your images stolen is often a painful process. There is often a sense of violation, not to mention the frustration dealing with the perpetrator’s either malicious intent or complete ignorance. However, be assured that your efforts will not only help protect your own work in the future, but those of other artists.