So You’ve Been Infringed: 5 Things You Can Do When Your Photograph Is Stolen Online
This post is guest authored by Thomas Tassin, a rising third-year law student at SMU Dedman School of Law. Thomas is one of our summer legal interns here at Maddrey PLLC, and we are happy to present this article. As always, I have reviewed this post for its legal and factual conclusions – Tom Maddrey
The Internet Makes Infringing Easy
If you’re a photographer, this unfortunate reality threatens your ability to protect your works—and your livelihood. Fortunately, there are several options for photographers when you encounter an infringing use online. This post identifies and discusses five of your most common courses of action.
1. Request Credit
First, you can simply reach out to the party that uploads or hosts your photograph and ask for credit. Perhaps the infringing use provides a valuable marketing opportunity for you, so you want to leave it up—just with proper credit.
If that’s your scenario, you should write a letter or email to the infringing site or account, providing clear conditions for their right to use your work. In this communication, you should detail exactly what material you want to accompany your work, such as your name, website, and language about your rights to the work. You could request that the other party link to your Etsy, Instagram, or personal page where users can buy your work. Essentially you are granting them a license to use the works, given certain conditions.
Ultimately, not all infringers are malicious. In fact, many sites and accounts will happily provide credit and collaborate with artists—you just have to ask.
2. File a DMCA Takedown Notice
If you stumble across your photograph on a popular site like Facebook, Instagram, or Reddit, you can file what’s called a “DMCA Takedown Notice” with that site. The Digital Millennium Copyright Act (DMCA) requires content-hosting sites like Instagram to remove infringing content when they receive proper notice.
Thus, if you just want that random account to delete your content, you should file a DMCA Takedown Notice. When you file a Takedown Notice, you provide the site the necessary information to identify the infringing content and remove it (the process usually takes a few weeks). Further, most social media platforms will impose strikes on first-time infringers and even permanent bans on repeat infringers.
3. Send a Demand Letter
It is still the case that a formal letter carries more impact than an online message. Along with thank-you notes, demand letters provide a great example of the power of old-school snail-mail. Get a lawyer to send the letter for you, and your chance of getting your desired result rises even more.
In a demand letter, you typically ask the infringer for licensing fees, damages, and/or credit. You can also request that the infringer stop using your image immediately (a “cease & desist” letter).
If you want compensation, you should provide an explanation of the desired sum based on factors like your typical licensing rate, standard industry rates, the extent and duration of the infringing use, whether the image carried attribution, etc. Here is where an experienced copyright attorney can help craft a demand that is reasonable and represents the fair market value of the infringement.
4. File a Copyright Infringement Lawsuit
If your demand letters aren’t working and the damages are piling up, you should consider hiring a lawyer to file an infringement suit. Prior to filing, you should gather evidence, like screenshots, that provide proof of the infringement. You should also be sure to gather registered copyrights on the works at issue (most jurisdictions require certificates of registration to file a complaint). Finally, make sure the infringement is not a “fair use”—like one for the purposes of education or criticism.
But wait! Most of the time, you have to be eligible for statutory damages to make pursuing legal action make sense. To learn more about actual and statutory damages, read this post by Tom Maddrey.
While the statute allows for recovery of up to $150,000 in statutory damages per “willful” infringing use, there is no guarantee that you’ll recover legal fees, and lawsuits can get expensive. Accordingly, filing one likely only makes sense when your damages become large enough to merit an extended and potentially expensive legal battle.
5. Do Nothing
Finally, you can always do nothing. As mentioned previously, not all infringements are malicious, and some may provide valuable exposure. Maybe an Instagram account used your photograph to promote a charity event and provided proper credit. Under this scenario, a lawsuit could cost you socially as well as financially. In such situations, artists often decline to enforce their copyrights and instead view the infringement in a more positive light—imitation is the sincerest form of flattery, after all!
Ultimately, the best route forward depends largely on the extent of the infringement and the damage suffered. Further, professional photographers may wish to enforce their copyrights more aggressively than other, more independent artists. Your best option also depends on whether you want compensation or simply want the other party to provide credit or remove the content. No matter which path you choose, knowing your options is critical to making an informed choice. Stay safe out there!
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