By Dan Pollack at Dan Pollack Law
Whether it’s your client’s Facebook page or a business using your beautiful images on their slick website, at one point or another your images will probably be used on the Internet without your permission.
Here are some steps to take if (or when) this happens to you:
First Step: Finding your images.
As you probably know, the Internet makes it pretty easy to steal images. But there are also some great online tools to find your images online. For example, you can upload your images to Google Images and do a reverse search that will provide a list of websites where your images are being used. Other useful free tools for finding your images include Tineye and the Copyright Infringement Finder for FireFox. There are also fee-based services that will do this for you. The bottom line is that if someone is using your photos on the Internet, you can find them.
Second Step: Get the evidence.
Assuming that they don’t have the right to use your image (something you must confirm), get evidence of how they are using your image. New computers make it relatively easy to obtain screen captures from websites and there are tools such as Snagit by TechSmith that make it even easier. Simply printing to PDF or using the “PrintScr” and Paint features to copy and paste will provide you with sufficient evidence. But make sure your screenshots include the date.
Third Step: Determine your approach.
You probably don’t want to immediately file a lawsuit in Federal Court against your client using your image on their Facebook page. A friendly note will probably suffice to get the image removed. Likewise, you might not want to send a formal letter to a non-client using your image in a personal blog. But you might want to move more aggressively if it’s a business using your image to promote its products and services.
Fourth Step: Assess the infringer.
Even if a company is using your work, you may not want to prepare a formal letter if they are located in a country where it might be difficult to enforce your rights, or an outdated font and the “© 2002” notice might send the signal that the company is inactive. There are many helpful tools that can help you learn more about the infringer. Check to see if there’s a physical address on the website and use search engine map tools to see if it’s a commercial operation or a basement apartment. Check whois.com to confirm the company’s address and identify the website ISP/host and contact information for the website administrator. Look for any information that you can find about the company – reviews, social media pages, other websites, federal / provincial / state corporate listings – anything that can help you assess your options.
Fifth Step: DMCA takedown.
Although you may not want to take formal steps directly against the infringer, you can still try to get the image removed. Many website ISPs or hosts are based in the United States and they will have procedures for removing infringing materials from websites pursuant to the U.S. Digital Millennium Copyright Act (DMCA). You can identify the applicable ISP through a whois.com search and if they are US-based, they will provide the procedure that you need to follow to remove the infringing material. Unfortunately, Canadian ISPs are not subject to the same obligations, but they are required to provide notice to the infringer. Moreover, all of the major social media sites have procedures for removing infringing material.
Sixth Step: Pursuing the infringer.
If you don’t want to demand payment (at least initially) and instead only want the infringer to remove the image or an alternative remedy such as providing you with credit on their website, you can prepare the letter yourself. But include your evidence, specific instructions about what you want, and the words “Without Prejudice – For Settlement Purposes Only” somewhere prominent in your letter. This makes it clear that your proposal would probably not be inadmissible in a court case if you later decide to bring a formal legal action.
If you want to demand payment, I recommend hiring a lawyer with copyright enforcement experience. An experienced lawyer can help assess the value of your claim and the infringer’s likelihood of paying. It also adds weight to your demand when it comes directly from a lawyer.
But if you prepare the letter yourself, here are some pointers: (1) don’t accuse the infringer of committing the crime of the century – remember that most infringements are inadvertent – keep the tone professional and avoid histrionics; (2) clearly and succinctly explain how they are using your image and what you want them to do – don’t write a legal treatise; and (3) if you are asking for fees, include an invoice and don’t ask for too much or too little – you lose credibility if you demand 100 times what you would normally charge and you won’t be taken seriously if you ask for $6.43. But setting the demand amount is tricky, which is why it’s a good idea to hire a lawyer.
Use watermarks with your images on your own sites. It won’t stop infringers, but it sends a message that you are trying to prevent unauthorized uses and it can give you a stronger claim for damages if an infringer is using your watermarked image (yes, it happens). Also, make sure your client contracts are clear so that they know exactly what they can and can’t do with your images. Finally, while it’s unlikely to result in a financial windfall and it can be tough sledding, I strongly encourage you to learn more about your rights to help you protect your hard work and livelihood by proactively trying to stop copyright infringements. It not only helps you, but also your fellow photographers.
© 2014 Dan Pollack Law
*This article initially appeared in the Summer 2014 issue of Gallerie Magazine, which is published by the Professional Photographers of Canada (PPOC). You can learn more about the PPOC by visiting their website at www.ppoc.ca.
Dan Pollack is a Toronto-based lawyer who primarily focuses on copyright and contract law, helping creators such as photographers, filmmakers, musicians and writers protect and gain value from their work. Dan is admitted to practice in Ontario and California. He can be reached at firstname.lastname@example.org and his website is www.danpollacklaw.com.