I received this note from a reader:

Hi Rob,

I’m a photographer, regular reader and occasional commenter on your blog. One thing that I have been struggling with since starting my freelance career is legal issues. Two specific problems that have plagued me in the last six months are

– A top national news organization reprinting my work (at least four times that I have caught) and not paying, or responding to my calls.

– A Dutch Bank buying one of my photographs for a calendar and promptly stopping communication after receiving the file.

Today I emailed several photographer friends about this and all said that they have to use attorneys regularly to deal with the frequent use without compensation and misuse of their work. Given that this is a larger problem, I’m interested in your thoughts on it and gathering resources/recommendations for lawyers who specialize in copyright law in general and photographers in particular. I’ve seen your posts recommending the Online Media Legal Network who I am currently attempting to work with and discussion of fair use on the internet. This is an important, increasingly complex and ongoing conversation as the rules continue to shift and social networking makes digital images all the more ubiquitous and difficult (if not impossible) to control.

Any thoughts, referrals or opening up the discussion to the group at large would be very helpful.

All the best,

[Redacted]

So, I contacted Carolyn E. Wright, Esq. of the Photo Attorney Blog to see what she thought and wow, she did not disappoint:

Infringements are rampant these days, both because it’s easier for the infringers to find and copy your images and because too many people think that they have a right to use your photos when they don’t or think that they won’t be caught. Fortunately, you can take steps to combat infringement. But the steps you take may limit your ultimate remedies so be sure to first understand what are your options.

Make Copies of the Infringement
If you think that the use is likely an infringement, make copies of it – both in electronic and print forms. Once the infringer realizes that she is caught, she will do what she can to get rid of the evidence of the infringement. You may need that evidence later.

Make Sure That the Use Is an Infringement
Not all uses of your photographs are infringements. Do you use a licensing agency that may have authorized the use? Could the user be related to an entity to which you authorized the use? Is the use a fair use? While only a court can ultimately decide what fair use is, the law gives us guidelines as to what may qualify and an attorney can help you with the analysis. You also may check Stanford’s Copyright and Fair Use website (here) for explanation and examples. While some uses by newspapers are fair use, others are not. The NPPA reports on a case where CBS’ use of Christopher Fitzgerald’s photo was not fair use (here).

Research the Infringer
Next, find out what you can about the infringer. Research the infringer’s website to find their name and contact information. If the infringer is a corporation based in the United States, you can find information about it on the website of the Secretary of State for the state where the infringer is based. You also may be able to find a contact name by searching the website’s “who is” information (here).

Option #1 – Do Nothing
Now that you’ve documented the infringement and have some information about the infringer, 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 them the right to use the image. Be sure to designate the parameters of that use and 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.

Option #3 – Prepare a DMCA Take-Down Notice
Pursuant 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). 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.

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.) 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.

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.

What You Can Do to Best Protect Your Images
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 notice on or at least adjacent to each photo as well as in the metadata of your files. Further, register your photos with the U.S. Copyright Office so that you will be eligible for statutory damages. It’s also important to put all of your licenses in writing, even if by email, and make the license contingent on payment of your invoice in full.

Where to Get Help
Legal help is expensive, but there are alternatives. First, an attorney is more likely to be willing to help you on a contingency basis (for a share in the recovery) when you are eligible for statutory damages. So be sure to register your copyrights timely. Some photography organizations provide legal assistance, as well, with educational materials and/or personal assistance.

As mentioned, the Online Media Legal Network is an option. In addition, most states have Volunteer Lawyers and/or Accountants for the Arts (”VLA” )organizations. As in New York, they serve “low-income artists and nonprofit arts organizations. VLA’s many other programs are more widely available to the entire arts community.” Each VLA organization provides a variety of services, such as a lawyer referral service, free legal clinics, mediation and arbitration, wills drafting, and a speaker program in Georgia. St. Louis’ VLA’s website provides a list of helpful publications and other great links, including other states’ VLAs. Find a VLA near you by searching on the Internet for “Volunteer Lawyers for the Arts” and your state. Some VLAs, such as those in Kansas City and Massachusetts also provide accounting services.

Also check with photographers in your area for recommendations for who they use. Since infringements have increased, more photographers have retained legal assistance.

__________________________________________

Carolyn E. Wright is a licensed attorney dedicated to the legal needs for photographers. Get the latest in legal information at Carolyn’s website, www.photoattorney.com.

NOTE: The information provided here is for educational purposes only. If you have legal concerns or need legal advice, be sure to consult with an attorney.

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47 Comments

  1. It is a good practice for Professional Photographers to make © Registration a part of their workflow. Read about it here
    http://asmp.org/tutorials/copyright-overview.html
    This gives photographers the extra bit of leverage when contacting an infringer to take any of the Actions that Ms Wright suggests.
    Using tracking systems like Google Images, TinEye and other services gives photographers the tools to track their images on the internet.

  3. Another resource for information about copyright, copyright infringement, etc.

    http://thecopyrightzone.com/
    run by New York City based attorney attorney Edward Greenburg and photographer Jack Resnicki.

  4. I’m going through this exact situation right now as I type this. It is a huge headache to deal with but to me it’s worth it.

  5. Things must have changed. In the rare times I had a picture ripped or licensing intentionally misused I simply generated a letter stating the copyright law and requested immediate payment for the maximum usage amount plus a self imposed arbitrary fine I felt justified in requesting. In over 25 years in the advertising industry, which I note I have happily left, I have not one instance of not being compensated….eventually.

    I suggest you exhaust your personal attempts at gaining compensation ( it is not rocket science ) prior to retaining an attorney. It becomes easier after the first attempt as you will know the procedure. My attorney friends do not like to get involved for compensative sums of less than @ 20,000.00 as the effort put forth does not compensate for their time. Sad but true.

    I always handled pictures as assets and while not paranoid am very aware of where and to whom access is allowed.

  6. What are the current thoughts of overlaying a semi-transparent watermark smack dab across the middle of an image used on our websites? Not so big and ugly as to be intrusive, but visible enough that you can’t miss it, and goes right across the main content of the image.

    I realize that won’t stop clients from abusing. But perhaps it might stop online image “borrowing”.

    I am dealing with 2 customers at the moment that are doing these things. 1 is a small business who bought a usage right to some images I did of his business for a magazine. He got the image, and used it on his site but hasn’t paid, and doesn’t respond to communications. This is a small potato’s case (a few hundred dollars) so I am considering eating it. It would cost me more to fight it.

    Second is a regional magazine that is reusing images I took years ago. They did this because they were hurting and stopped giving me work. Last year they would have hired me to go take new images. Now that they don’t have me, and don’t want to pay someone else, so they are reusing with out even asking. Let alone paying. This is to the tune of several thousand dollars worth of lost work. I will be pursuing this one. This article is helping me to decide how to best handle it.

    Thanks

    • @Paul Emberger, I was in a workshop about 8 years ago led by Jay Maisel. The same questions were being brought up then in the industry – watermark or no watermark, would a watermark drive away clients, etc. I had been posting my photos online with watermarks for about a year by then. During a group slide show, my first photo came up, with a watermark (nobody else had shown a photo with any identifying marks).

      Jay stopped and told the group “I don’t know why anyone would post anything on the web without a watermark. It’s stupid not to.” That was enough validation for me to always put a watermark on my online images (as well as full IPTC info in the meta data).

      I thought it was a no-brainer back then and still do. It doesn’t need to cover the entire image, but does need to be legible and take some effort to remove (so there’s proof of intent if someone does remove it). If it’s a good image, you’ll get a call, watermark or no watermark, IMHO.

      • @Mike Shipman, Hey Mike. Thanks for the reply. I too had been watermarking for years. Usually at the bottom of the image. As well as iptc data.

        But over the years I began to wonder: “Lots of images used online get cropped, would some one care if they cropped the lower portion of my image to get the basic content?” In some cases probably not.

        So I have been considering the center image placement for water marks

        Another technique I have considered for proof of authorship harks back to the days of film. I learned to only provide prints that have had a small portion of all the edges cropped off. Not so much as to infringe (no pun intended) on the image content, but enough that if you laid a copy of the photo down and projected the neg around it you could see where the 2 “fit”. Instant proof.

        I may do this automatically upon importing my images from now on.

        And, I think I will work on making the least offending/center placement watermark I can, as I get my new site built this week.

  7. These issues are only going to becomes more frequent with the Wild West free-for-all on the net.

    I am assuming that in the original post and issue 2, the Dutch Bank; they agreed to buy the image and received it but wont pay.

    The last time this non-payment happened to me it took 2 years to get paid and I eventually did, but that was the last time I worked that way.

    In this day and age and with all the e-commerce options, I will not send an image to a client without a pre-payment prior to the file being sent. Just like buying and downloading from a stock site or any site, payment always comes before delivery.

    You can even save your high rez file as a pdf that is password protected, send that to the client after terms are agreed, but have a statement with the file that says the password is not provided to open the file until payment has been received.

    This approach has avoided the headaches and hassles for me and not one client has refused to work this way.

  8. It recently came to my attention that a company in China and the UK scanned work of mine that was printed as an editorial in a magazine and used these images in posters, product display cases and other forms of advertising without my knowledge or permission..

    I hired a lawyer and sent a letter of demand with a take down notice. Delivery was confirmed but all my requests were ignored by the company and my only option now is to pursue expensive legal action or let it die.

    Unfortunately I have learned that copyright means nothing if the company has more money than you do.

  9. Hi Carolyn,

    Great article. I run a website for ski and snowboard photographers and I was wondering if I could post this article on my site. I would, of course, give you full credit and links.

    • @Erich,

      Sure! Please contact me by email (photoattorney at g m a i l . c o m) with specifics and I’ll authorize it.

      Best,
      Carolyn

  10. […] Infringements are rampant these days, both because it’s easier for the infringers to find and copy your images and because too many people think that they have a right to use your photos when they don’t or think that they won’t be caught. Fortunately, you can take steps to combat infringement. But the steps you take may limit your ultimate remedies so be sure to first understand what are your options. […]

  12. Thanks,
    This is a great site and a helpful resource. I’m excited to hear about the VLA’s.

    Keep’em coming,

    Cheers!!!!

  13. Not sure about the first case, but in the second analogy with the Dutch company, I’d highly advise doing some research about how to make it very easy for a new, unknown, (unverified), client to do a Wire Transfer to you before you send the High-Rez TIFF. Maybe you send them a 72dpi JPG for approval, (maybe even heavily watermarked), and let them see the file and drop it into the layout. And then, once it’s approved, then they wire the money to your business account. Once that’s verified, then you send the TIFF.

    You can call your bank for your Routing Number, and your Account Number, and any other pertinent information needed for a routine Wire. Then, take that info, produce a small PDF that’s easily emailed to the potential client, as an Attachment. They take that info and send you the money. Pure and simple.

    They might balk at this transaction style, but when dealing internationally, I don’t know of a better way to protect yourself. And in the end, what is worse — not making the sale, or going through all the trouble and then not getting paid?

    And my feeling on “getting a lawyer”? Only if there’s a lot of money on the table, and you’ve registered the image with the copyright office in advance. Life is short — who wants to deal with, and then pay, a lawyer, over a measly few hundred dollar lost invoice? I sure don’t. It’s easy to throw that term around — “get a lawyer” — but trust me, it’s highly overrated, in reality.

  14. There’s a class on Kelby Training Online with Jack Reznicki and Ed Greenberg, also a copyright attorney, on how to register your images with the Copyright office – http://bit.ly/b9VMEC

    Ed and Jack discuss the importance of copyright registration, and even talk about the specifics of registering images that have been infringed after the fact. They take you step-by-step through the registration process and explain each option.

    I do work for Kelby Media Group, but I learned quite a lot about copyright and found this class to be a very valuable resource. Just wanted to share it with you all!

  15. Using a site like PhotoShelter http://www.photoshelter.com to host and manage the image licensing and delivery could be a solution for this type of problem. The client would need to pay up front before the image is delivered.

  16. Steven, Photoshelter is a great service (I use it myself) and what you said is true. However, I think it is worth mentioning that thumbnail images (at 500 pixels) are not protected, nor is there currently functionality for watermarking these thumbnails. They may not be big files, but they are still usuable; especially for web purposes.

    Rob, thanks for the informative post and to Carolyn for providing the legal insight.

  17. A while back a WW agency w/office in Asia scanned one of my images out of a prominent industry journal. They used the image as the fundemental part of a presentation to a client for a regional ad campaign covering most of Asia. The client was a large Japanese company with business WW. After the agency pitched the campaign and got approval they asked me to bid the job.

    There were a few images to produce, all with different production needs. They had a deadline, and weather was an important factor. After discussions with the producer (Asian for AB) I was told my bid, and approach looked excellent and she would get back with me. After a week and no response, I sent her an email, and received a short reply that they had decided to use someone from xxx country (a place known for very low fees/production costs).

    I emailed her a letter along with an invoice for a creative fee (a few $K) . Essentially it was my idea (image) that was used to sell this campaign to the client. I explained this in the letter, and told them my recourse was to be compensated for a copyright violation. After a week I heard nothing back. In Letter two I expressed my need to be compensated or I would get in touch with their client and demand payment. I heard back from her immediately. She told me the head of accounts would be in touch soon.

    The head of accounts was very nice, complimented my work and thanked me. His response, “We do a lot of advertising and would love to use your services for future campaigns”. I told him that was wonderful, I would very much like to continue doing business together, but I need to be compensated for this use now. If you’d like a discount, lets do ten projects together. I’ll waive my fees on the tenth one. The interaction was mutually respectful. The $$ was wired to my account the next day.

    I also insisted on seeing the final media for my campaign to make sure the art was not derivative of my images. They complied. Neither side lost face. For a long time it has been a given that ad agencies will use photographers images as comps for the final art (for free). Many image makers go along with this, some require payment depending on the details of the project.

  18. Carolyn E. Wright:

    “Unless you created the work outside of the United States and in a country….”

    Do any readers (Carolyn?) know how this applies if a US Citizen creates images in say China? Is there a legal problem filing copyright with the U.S. gov on images created outside the United States?

    TIA!

    • @Bob,

      Let me qualify this, as my question may not be clear.

      An image maker residing in the U.S.A. creates images outside the U.S. Is there any legal problem with copyright protection through U.S. copyright laws on these images created outside the country?

  19. Great article! I don’t think you can completely eliminate copyright infringement. I think any extra effort to protect beyond registration and water marking hurts the photographer.

    Theft/violation of copyright laws actually increases the cost of doing business. When a photographer has to battle a violation it takes them away from doing what they are suppose to be doing which is being creative.

    I think if there was a partnership with the end users to help battle the theft and peers would ostracize the violators, then maybe there would be a reduction. I would then be limited to those small companies who don’t hurt the photographer as much financially.

    I think peer pressure is a viable tool if applied to those who do violate. Just a thought.

  20. Another photographer, no stranger to the legal system when protecting his rights, suggested to me that if/when hiring a lawyer for infringements, you should try to negotiate payment as a percentage of your loss – and pay a hefty one if you have to.

    His reasoning was twofold, the first is an obvious try not to pay any money up front, if you can avoid it. His second reason I particularly liked though and it went something like this: Most infringers think that they can wear you down and your legal costs will get to a point when it’s not worth chasing them anymore. However, if your lawyer can truthfuly say that they are not going to let the matter drop because they don’t get paid if they can’t win a settlement, it may make the other party think twice. Just a thought.

  21. > A Dutch Bank buying one of my photographs for a calendar and promptly stopping communication after receiving the file.

    Never happened to me, but I always require pre-payment (in general by credit card), except if I have done business before with them, or the company is in the US and confidence-inspiring.

    > Unfortunately I have learned that copyright means nothing if the company has more money than you do.

    That’s the other way around. All companies are likely to have more money than you do. On the other hand, if the company does not have enough money, a lawyer may not be interested in taking the case, even if the infringement is blatant.

  23. This seems really important in these tough economic times, both because we need the income and because folks are more likely to steal images. This is great info for me to have. Thanks.

  24. I think this is going to become a growth area for lawyers if nothing else.
    Up until last year I dealt with infringers on my own, in most cases it was web use. The companies would always blame their web people etc etc.
    I would go in high and settle for a smaller amount but overall I was happy with 100% of the results.

    Last year an english company specialising in data protection used an image from one of their competitors on their website. I work for the competitor and the image was exclusive to them. I also do some non-exclusive stock work for them which they release. This of course left me in an awkward position with my clients and I felt I had to resolve the issue quickly.
    I issued the usual take down notice and agreed a fee.
    4 months of emails and I handed it over to an IP specialist lawyer.
    The company still refuses to see why they should pay, after all they took it off google (its on page 17 of a google search for the right search terms and they passed equally sufficient images in pages 1-16 so I suspect thats not quite the truth) and they took it down immediately.
    Thats now 8 months ago and the bill they are facing is 4 times what I invoiced them for.
    If it goes to court it will cost them even more in legal fees and they will ultimately have to pay out.
    The UK IP lawyer is on a percentage of the payout so its also in their best interests to get the best deal.

    Quite often Im billing more for illegal usages than they would legitimately license images from some stock libraries who would discount to get the business.

  25. After trying to get a magazine in Moscow to pay for over 150 days, and having the stress of getting paid far outweigh the payment itself, I’ve put a new policy into effect: For all international usage, payment is required in advance, in full, before the image is delivered.

    It’s easier than ever with PayPal – you can accept credit cards, and the payment goes through instantly. So far everyone has paid up front, without complaints, and everyone is happy.

    I know this can’t apply to all situations, but it certainly helps alleviate some of the stress of getting paid.

  26. I love you photographers, but I think you have to band together and change the system a bit. I am speaking specifically about a bank that buys a photograph for a calendar and doesn’t communicate after getting the digital file. This is really bad.

    Please, please promise me (cause I love you) that you will get a PO before turning over any digital files. Even payment if you can. If I go on Getty to buy images, I have to pay before I get to download! I know, seems crazy. If I buy any kind of digital product, like Adobe programs, etc, I have to pay before I download. You should hold yourself to the same standards, don’t give into the client. If they really want/need it, they will make it work. I work with many large corporations (like banks) that are watching every penny, so if you turn over files and are not paid and don’t have a PO, the person who ‘purchased’ your image might not be authorized to do so.

    Good luck. It will take a crowd to change the industry standard. The digital world has made people want files in an instant. That should mean you get paid in an instant.

  27. >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.
    ———

    I have to say, I find #4 in particular, to be horrible advice.
    The LAST people in the world, I’d want as a client is someone who has  infringed ( see also “stolen”) my work. That is not a “client”. It’s a thief and deadbeat that will drive you to bankruptcy court in their Mercedes.

    An honest mistake by a reputable client as to the term of use for a given image can and will be resolved by a simple phone call. Failing that, having a photographer write a demand letter makes as much sense as having a lawyer do a photo shoot.
     
    That attitude and idea has really hurt photographers and freelancers right in the pocket book over the years.  “Requesting” payment from an infringer is laughable and lawyers representing infringers treat such requests as jokes – if they address them at all.. I know the answer from them already. I call it the “Whimpy”  defense as in cartoons of “I’ll gladly pay you Tuesday for a hamburger today”.

    I had an infringer offer “future work” in order to pay less for the infringement.
    Sorry, I didn’t fall off a turnip truck yesterday. I said, “Pay me my full amount now, and I’ll give you a big discount on the future work”. Right.
    Folks- “future work” is like the tooth fairy or the pot of gold at the end of the rainbow- it’s all Fairy Tales.

    And the idea of 3X or even 10X your “regular” fee as a penalty is a flat out stupid concept that should die and be buried.  How can you estimate your “penalty” when you have no written representation of all usages that have been made  nor an assessment from a competent copyright lawyer as to what the infringement could be worth?   The value in court and thus for settlement purposes may exceed 50X “your fee”.  A demand letter sets the tone for the whole approach.  If it comes from a photographer who avoids hiring a professional the recipient knows the photographer is easy pickins.  Photographer vs. Lawyer in a legal fight?  Vegas won’t take action on that absurdity.

    I’ve sued for infringement, with Ed Greenberg and frankly, there is nothing like a good old-fashioned Federal lawsuit to get someone to pay close attention to you. I just collected a few weeks ago, a large sum from someone who offered a whole $100 for a prior infringement and future license. I collected far, far more. I wish I could say how much more, but that settlement came with a non-disclosure clause.

    I’ve also collected for a web infringement, really big time, from someone who was taking in a million bucks a year and claimed we’d bankrupt them. Well, in deposition, we found out that was not really true. The nice thing about having your paperwork and registration in order is that when an infringement comes up, I turn over to my lawyer, Ed Greenberg and then he works for a check. He does the work, he’s the professional, and I don’t have to get aggravated.  The Copyright Law has an assortment of specific remedies which photographers can use to get money, statutory damages and yes, even lawyer’s fees.
     
    Photographers are upset when clients don’t use a professional photographer, but then why are photographers scared many times to use a professional lawyer to handle legal issues?  Should we also act as our own doctors when surgery is in order?
     
    Register all of your work.  If something’s goes wrong get the right person  to fix it. That right person is never a photographer.
     
    Jack Reznicki
    http://www.thecopyrightzone.com

  28. This is a great discussion. Now, except for the idea about sending a PDF that is password protected I feel like everybody is thinking inside the box, no offense. We have great new technology on our fingertips, things we couldn’t dream of a couple years back are possible now, why can’t we come up with a technology that really protects our images? I am a photographer and not an advanced tech wizard but shouldn’t it be possible to do something similar to what Itunes is doing? Create digital files that have a limit of authorization and which are easy to track via the internet somehow. Maybe I am dreaming here but if it is so easy to steal images why can’t it be easy to track or limit their use. There could be a dialog popping up when one tries to open or download the image file stating copyright and contact information of the photographer.
    One has no control over digital files right now, the moment it is sent out who knows where it ends up. Of course it would be difficult to make such a technology not be hindering but which one would be the greater pain, legal issues or sending a password or code or whatever it would be to the person who wants to use your image?

  29. You write “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”

    When I go to the website for Contracting parties to the Berne Convention I see that the United states enforces it since March 1, 1989. So why do I need to register copyright if the work is produced in the USA but not another country that is a Berne Convention signatory?

  34. […] ago Wright made a great post on another blog I look at regularly, A Photo Editor, in an article Photographers- How To Deal With Infringements and one of the benefits of not mentioning it here immediately is that this has now attracted quite […]

  35. […] Over at A Photo Editor blog, the question came up on what to do when your image has been used without your permission.  To get the straight scoop, APE contacted Carolyn E. Wright, Esq. of the Photo Attorney Blog who did a great job of explaining all the different avenues that can be taken if this happens.  It’s always good to keep this info in mind, you know, just in case some foreign car company snags your images off of Flickr for one of their ads.  You can read the whole article here. […]

  37. […] the circumstances of the infringement, and what damages you can recover.  My guest post at “A Photo Editor” blog provides more […]

  38. […] and Fair Use Information Center, Carolyn E. Wright’s Photo Attorney blog (and see her recent guest post at A Photo Editor on dealing with infringements), and Matt Slaby’s Legal Left, Meet Creative Right […]

  39. Just getting started in photography, EditElf.com has give me a huge advantage over well established photographers. I don’t have to buy expensive editing software,learn all the tricks, and waste time on my computer. I started shooting weddings because I love photography and I love people, so that’s what I spend my time doing!

  42. Great tips,

    I am at the moment interested in tools that search the web for potential infringements. Could you please provide some links to such tools ?

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