Copyright Infringement: Using Photos Without Permission

[Andy M]

A large and well known organisation in America has 'kindly' used one of my photos without permission, or without crediting the photo to myself.

I've mailed them notifying them of my displeasure; requesting they remove the photo in question and requesting they contact me to arrange payment for the use of the photo. They've removed the photo, but have so far declined to reply to my e-mail.

In my original mail to them I stated a deadline for them to contact me and this is yet to expire, but should they not reply I want to be prepared.

The complication in this matter is that I am a UK citizen living in the UK, but as stated the organisation is US based. In the UK we have a Small Claims Court which is easily accessed, and ideal for a situation alike this. Does the US have such a facility which can be accessed by non-US citizens?

If not, does anybody know what options are available?

[alainbriot]

I'd start with a phone call.  A letter may or may not reach the person "in charge".  Talk to their lawyers.  Once they know you are not OK with it things start moving in the right direction.  Usually these matters can be resolved quickly, at least as far as removing the photograph you have not authorized the use of.  Regarding financial compensation a well-accepted practice is to multiply  the amount you would have charged if they had contacted you by the factor of your choice (10x is a good place to start).

If they already removed your photo then things are less likely to go your way.  You'll have to prove how long it was there and ask for payment for something they no longer use.  That can be tricky!

[Andy M]

I'd start with a phone call.  A letter may or may not reach the person "in charge".  Talk to their lawyers.  Once they know you are not OK with it things start moving in the right direction.  Usually these matters can be resolved quickly, at least as far as removing the photograph you have not authorized the use of.  Regarding financial compensation a well-accepted practice is to multiply  the amount you would have charged if they had contacted you by the factor of your choice (10x is a good place to start).

If they already removed your photo then things are less likely to go your way.  You'll have to prove how long it was there and ask for payment for something they no longer use.  That can be tricky!

Hi Alain,

Many thanks for your reply. I have screen grabs to show the use of my photo, and thankfully there is a time stamp on each of these grabs so proof of use is relatively easy to provide. What's more, the webpage itself stated the date and time the article was posted.

Regarding calling them, this really is a huge organisation (50-60 people on their board of directors) and their website is somewhat unclear on who is best to contact. I've sent an e-mail to the address provided on their 'contact' page, and have also cc'd the author of the article in on the e-mail. It's very likely they've read it, as why else would the photo have been removed?

What is the situation with The US Court system in regards to a case such as this?

Thanks again

[bdkphoto]

Hi Alain,

Many thanks for your reply. I have screen grabs to show the use of my photo, and thankfully there is a time stamp on each of these grabs so proof of use is relatively easy to provide. What's more, the webpage itself stated the date and time the article was posted.

Regarding calling them, this really is a huge organisation (50-60 people on their board of directors) and their website is somewhat unclear on who is best to contact. I've sent an e-mail to the address provided on their 'contact' page, and have also cc'd the author of the article in on the e-mail. It's very likely they've read it, as why else would the photo have been removed?

What is the situation with The US Court system in regards to a case such as this?

Thanks again

Unless you register your image with the Library of Congress copyright office you will not be able to take legal action in the US courts.

[Paul Sumi]

Unless you register your image with the Library of Congress copyright office you will not be able to take legal action in the US courts.

Are you sure?  I thought that only applied to getting damages above and beyond the license fee.

Paul

[RSL]

Unless you register your image with the Library of Congress copyright office you will not be able to take legal action in the US courts.

Not so. But -- if you pursue it the case will be a civil proceeding initiated by you, and the most you'll be able to recover is actual damages. What it boils down to is that (1) you'll have an absolute heck of a time proving damages -- the burden's on you, and (2) even if you win your case the whole thing probably will cost you far more than you're likely to collect. Sometimes you just have to roll with the punches.

[bdkphoto]

Not so. But -- if you pursue it the case will be a civil proceeding initiated by you, and the most you'll be able to recover is actual damages. What it boils down to is that (1) you'll have an absolute heck of a time proving damages -- the burden's on you, and (2) even if you win your case the whole thing probably will cost you far more than you're likely to collect. Sometimes you just have to roll with the punches.

You cannot make copyright infringement claims in state or local courts.  The only claim the OP has is infringement. It's just not going to fly in small claims court. You must register the image with the LOC to make an infringement case.

[RSL]

You cannot make copyright infringement claims in state or local courts.  The only claim the OP has is infringement. It's just not going to fly in small claims court. You must register the image with the LOC to make an infringement case.

Check http://www.keytlaw.com/Copyrights/cheese.htm. Also, if you have spare time on your hands, check http://www.copyright.gov/title17/92chap5.html.

[bdkphoto]

Check http://www.keytlaw.com/Copyrights/cheese.htm. Also, if you have spare time on your hands, check http://www.copyright.gov/title17/92chap5.html.

Here's the part about the need to register for litigation from the above site:

"If you do not register your copyright before the infringement occured, you have rights against an infringer such as the right to obtain damages for your lost profits, the infringer's profits and an injunction, but you cannot obtain statutory damages or attorneys' fees.

If you did not register the copyright to your website before the infringement, you should do so immediately.  The reasons to register the copyright are:

If it becomes necessary to file a lawsuit for copyright infringement, you cannot do so unless you first obtain a Certificate of Registration for the work or a denial of Registration from the Copyright Office.  A pending application is not sufficient to sue for copyright infringement.  Currently it takes at least four months from the date the application is received until the Copyright Office issues the Certificate of Registration.  Your lawsuit can be substantially delayed if you have to wait for the Certificate.

Registering your copyright gives you the added benefits of attorneys' fees and statutory damages if there is future infringement."

[Gary Brown]

The relevant section is actually 17 USC 411(a):

§ 411. Registration and infringement actions

(a) Except for an action brought for a violation of the rights of the author under section 106A(a) [relating to rights of attribution and integrity], and subject to the provisions of subsection ( [relating to live broadcasts], no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

(That's supposed to be a letter "b" in parentheses where for some reason it shows a smiley face.)

However, I believe the key words here are "any United States work." The original question came from a British author, so I don't think the requirement for a U.S. registration applies (but obviously only a lawyer could say for sure).

[RSL]

In any case it looks as if litigation is a lost cause -- whether or not you can pull it off. Best to go for a byline and relax.

[Kumar]

Send a cc mail to all the people on the board. With that many people, there's a good chance of finding someone who doesn't like the person in charge, who will insist that the matter be resolved properly.

Kumar

[joedecker]

The complication in this matter is that I am a UK citizen living in the UK, but as stated the organisation is US based. In the UK we have a Small Claims Court which is easily accessed, and ideal for a situation alike this. Does the US have such a facility which can be accessed by non-US citizens?

If not, does anybody know what options are available?

There is no federal small claims court in the US, which is a big pain for copyright issues.  

If the image is gone (and isn't being used elsewhere to sell the product), and the lawyer route seems too expensive to follow through on, you could do worse than to simply send them an invoice.  They may not want to pay their lawyers, either.

(If your image is still being used, then you may be able to leverage the DMCA, particularly if your image appears in product advertising elsewhere.  I had a band end up wwith one of my images on their album cover, and the album was being sold by Amazon.  I was able to get amazon to take down the cover of the album from their web site with a letter, and that, after three weeks of "playing nice" to get ahold of the record company and band, got me a phone call in two hours and payment an hour after that)

Warning:  I am not a lawyer.

Joe

[Andy M]

Huge thanks for the advice offered

Still no reply from the other side, and the deadline now fast approaching

[kaelaria]

So who was it?

[ashley]

These things are a pain in the neck to deal with. I am currently dealing with IP lawyers in a case against one of the biggest companies in the world (US based) which used several of my images without permission to promote products on their website. As a suggestion for all photographers out there, don't just make screenshots, but save copies of the webpage itself as a web archive. You could even make a video recording of your computer screen as you navigate to that web page as additional proof which can be done with several screen capture applications. Unfortunately you need masses of proof and the patience of a saint to see these things through. Although I am UK based, I now register all my images for copyright in the US before publication.