What To Do When Your Image Is Stolen Online

- - copyright

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 and published on Ken Kaminesky’s blog (Read the entire post here). 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.

There Are 38 Comments On This Article.

  1. I just went through the whole DMCA process several times with a non-paying client who had the images all over the internet…to my relief it works great (easier with some ISPs than others) and every image was removed fairly swiftly. Its a great tool.

  2. ImageRights provides a no-win, no-fee service for photographers to recover revenue for unauthorised image use. You can contact us through http://www.imagerights.com or on Twitter @imagerights
    Basically, we take care of the whole process for you and we have legal partners in the US and Europe in place should things need to progress to legal proceedings.

  3. After going through most of these options, I recently had to resort to option #6, when my photo was published throughout N. America a number of times without permission or compensation. It’s been almost 3 years of dealing with the issue so if you’re thinking of going this route, don’t expect it to happen quickly!

  4. This thoughtful primer on dealing with on-line infringements is spot on — really simply explained and smart presented. I would only add that option #1 is not really an option. Even in your heart if you believe nothing will come of it, you should always write an infringement as doing nothing can always be pointed to in future action, indicating a history of choosing the infringements you wish to pursue. If you have a record (and being overly litigious is equally silly) of always patrolling and looking after your IP, no one can ever find fault.

  5. Hey all,

    This is a great post and has been saved should any infringement occur with my images. I was just wondering if anyone has any idea with legislation from the United Kingdom? Also internationally. If someone were to use my images in America would I use American or United Kingdom legislation? Another scenario which could occur could be an Australian using a photo I have taken in Australia where I am visiting and am at this current time but as a UK resident with a UK run website would I use UK legislation?

    Any help in this matter would be appreciated, I am but a humble photographer!

    Tom

  6. I recently discovered that 8 of my photos are being used on a Russian website and in the accompanying iPhone app. Any insight on how to go about this as it’s an international case?

  7. Missing one option that I used earlier in the year. A high-profile blog on a major magazine website used one of my pictures without my permission, though they did credit me. I got contact information for the magazine’s photo department (a magazine that I’ve been wanting to work with for a while, incidentally) and sent an email saying that my photo was used without permission, that the damage to my copyright was already done, and that I’m not looking for a fight and understood that it was probably just someone at the blog who didn’t know any better and has never dealt with photo licensing. The magazine photo coordinator quickly called me and apologized and got me in touch with the people who work at the blog.

    I proposed that the blog pay a fee for the usage, comparable to what they would’ve paid had they asked to license the image. The blog coordinator consulted with someone on their end, presumably the legal team, and realized what position they were in. They paid the fee and thanked me for being so gracious. The magazine photo coordinator (who is not connected with the blog at all) was very helpful, and after the whole thing I thanked her for being so helpful. She said she’d gotten a chance to look at my website and liked what she saw and that I should keep her up to date with my work.

    The end result from the infringement was that I got paid some money (on time, too) and began a relationship with a good publication I’d not been in contact with before. Couldn’t have asked for a better outcome.

  8. over 15 years ago I drew a picture off a color photograph of Kurt Cobain – from a magazine/paper. The web was not really available back then, so I know it was not from the web. I drew it in black and white and the photo was color. I may have changed it a little but not sure. I went on line and found a few similar photos but could not find the exact one and could not find name or company that took photo. Just not sure how I would find the photographer. Was curious what I need to do as I am getting ready to put that picture and my other work on-line and to sell. Not sure if I should put a disclamier saying I am not sure who took this photo but please contact me on my web-page or if I should write “may have copywrite of photo, photographor unkown”. Just curious as to what the legal thing would be. I want to do what is right but just really have no idea what I need to do to avoid a lawsuit or nasty letters. If anyone can help or give me ideas it woud be apprecitated. Thank You.

  9. Yep. It so is a WHEN situation not an IF. Been here before too. Everyone I know has faced copyright infringement, I mean like just about every single photographer I know. :-/

    Great post. Thanks for sharing. (p.s.-love the new website!)

  10. As usual a good reminder of the eoptions available to photographers. I still say, be cuatious of what and how you make images available on the internet

  11. Luke Copping

    I have come to understand the importance of registration the past two years. ASMP president Jim Cavanaugh has a great registration workshop that takes you through the history and modern concerns of copyright and even through the registration process. I highly reccomrnd it if you ever get the chance.

  12. The firm, but polite Cease and Desist letter has worked wonders for me… The one time it didn’t, the client I shot the image for sent a much more stern legal letter and that worked fine.

  13. I’d like to know how to keep my photos being “taken” without my permission in the first place. I have a Flickr page and I have found some of my photos from there on other websites or blogs. It seems if you set the highest privacy level on Flickr then only your contacts can see the photots. One of the sites I contacted & asked to remove the photo gave me the impression the image was obtained my some kind of automated gathering source (based on keywords I think). I’d like to start my own blog but I don’t know how to keep my photos from being taken (manually or automatically). Any help is welcome! Thanks!

  14. Craig Swinson

    If the infringement is willful and on the web, use step 3 to get the image off the web, go as high as you need to up to the ISP to seek remedy. Often I skip the original infringer and just go to the ISP. Then go to step 6. The step 4 and 5 and billing at 3 or 5 or even 10x is a disservice, it’s like saying “yeah you stole my car but I’ll sell my integrity for 3x its value” Some say that 5x is a good rate but that is a mere slap on the wrist. Consider that if they did it to you, they have probably done it to others and are not paying others as well. Make a “Federal case” out of it. Taking your money and walking away lets them do it to the next guy, to you again, and shows them we roll over.
    Also I would suggest NOT signing a NDA as part of the settlement. I’ve done it a few times and then saw that the same photog was taking credit for someone else’s photos a few years after my problems with him/her.

  15. Craig Swinson

    @Erica….consider google and other search engines that can peer past standard security of many sites. A very simple test of this, embed a nonsensical term in your in your metadata, post the photo to a protected section of your hosting account. Give it a few weeks and use the various search engines to test that term in an image search. It has to be something wholly unique, and you should test the term prior to using it to make sure it doesn’t bring back results.

  16. I’ve had my portraits used without permission a number of times now. Its interesting what the reaction is sometimes, and not just the reaction of those using the portraits; one time I’d asked the agency (I’ve now moved but not because of this) that syndicated my portraits if they’d given permission as I hadn’t and they said it was probably best to just ignore it.
    Another time I simply sent a site an (inflated) invoice for the unauthorised use, they got back to me very quickly and after a few emails back & forth I got them to pay a fee half what I’d invoiced. I was OK with that – but sadly that doesn’t always work I must admit.
    Michael

  17. There HAS to be a way to find the copyright owner of photos seen online. I have looked at many and checked for metadata, file information and copyright information. Have copied them to run a Tineye.com search trying to find th copyright owner. Did it to check for ownership using Google images.
    NO LUCK.
    Would be much nicer if the information was imbedded in each photo.

    My particular quest was to locate the copyright owner as the images were being used no some questionable sites I don’t believe the photographers would ever have consented to. If I could have found them I could have informed them – a DMCA notice would be up to them. But…, if you can’t find the copyright owners you can’t inform them of wierd uses.

  18. How about realizing that images are easily consumed and exchanged. If we put images on the web it’s because we want people to see them. I understand wanting to get paid and credited for work done, but once it’s out there in the public why not just allow the public to consume. Of course there are abuses and this post goes a long way to help photographers get their due compensation. But sometimes I think we get obsessive about getting our due.

  19. Chris Flateau

    I am a part-time photographer and have most of my images on Flickr with All rights reserved attached to my photographs . Recently i recieved a leaflet through my door from my local council and it was headed with one of my images. I wasn`t approached for permission and it has more than likely been copied from Flickr photostream. Do i have redress and if so what would be the best course of action. Thankyou

  20. And i guess all you can hope for is a correction in a following issue if you are only given credit for ONE spread-when your images are used in SEVEN spreads in a magazine… and OTHER photographers are credited in the other places….??!! Or should some of these action here be taken anyway…? *sigh*

  21. I have found many MANY images of my artwork on a site called ratedesi.com. The contact link on the site does not work. Some images hold my name, some do not. The images are easy to slide off their site and copied. Very easy. I found an email and sent them an email to please at least credit me as the artist of the works and link the images to my site w/ copyright@heleneruiz on each image. I rec’d a very rude reply reading “stop your blah blah blah” sent from an iphone. I rec’d word from other artists that this site also did the same to them and are also very upset. This is like a nightmare.

  22. I did some work for a magazine with a national publication which they are using both in their print and on their website and they jerked me around for months about when I would receive the payment I was due by contract. I contacted an associate of mine who happens to be an attorney and issued the demand letter. He then spoke with their publisher and they gave him the run around as well. I’m getting ready to procede with litigation now but my attorney contact isn’t a copyright lawyer so he has been helpful but doesn’t have all of the details I need to keep my ducks in a row. Any ideas or advice would be very helpful and appreciated.

  23. I have had numerous photos stolen and used on commerical websites, everyone ignoring my take down letters, now I have just found someone is selling them on canvas through amazon and there own website, I had just gotten over the website usage but now someone making money off my photos when I can’t even pay rent, I am just so upset :-(

  24. THis has just happened to me!!!

    Surfing the internet and I’m surprised to see my photos on a blog. When I read what it’s about someone has published a coffee table book with my photos in it!!! The book is selling wide world through countless avenues and has 6 pages of my work.

    I have no idea how it has happened or what to do about it. I’m so furious I could explode!