What To Do If Your Photos Have Been Stolen And Reused
Please note that the information in this post is provided for educational purposes only, is not intended to be, and does not constitute legal advice.
While the digital age has brought photography aficionados many opportunities to share and market their work, the newfound possibilities also provide fertile ground for stealing digital images. These days, it is super-easy to copy an image from the Internet – just click the image and choose “Save image as”. No need to ask for a permission from the photographer!
Meet Cathy, a blogger who one day realized someone stolen a photo from her web store. She saw a pin featuring her image on Pinterest, and followed it to someone else’s blog. It looked like the thief simply googled her image and copied it. The image copy did not feature attribution, nor there was a link to the Cathy’s web store. Needless to say, Cathy was at a loss.
So, if it really is a matter of when, not if, what can you do? Let us discuss first what to do when you found out someone stole your image and used it without permission, and then move on to tips on how to protect your images in the future.
The first thing to do before taking any action is to gather evidence. Make infringement copies in all the ways you can.
- Record web page addresses where the infringed images appear
- Copy the full HTML webpage to your computer (along with its source code)
- Save a copy of the image from the infringing page
- Record whether the copyright information has been removed from the infringing copy. Right-click the saved image copy and check the image details. If your copyright is in place, the infringer will not be able to claim an innocent infringement
- Do a WHOIS search. Enter the offending web site address, and record the gathered information. Especially the abuse contact email, phone, administrator details and the website IP address. You need to do this instantly, in case the infringer later decides to hide this information
- Go to the American Registry for Internet Numbers, enter the website IP address and record the name of the Internet Service Provider (ISP) organization hosting the website
- If the infringement is in a printed form (a newspaper, magazine, outdoor advertisement), photograph it and show it to a person who is willing to testify about it
- If the infringement is on Internet, make a paper print of the offending webpage and a screen-capture of it
Now let us discuss the options for actual actions you can take to stop the infringer when you have the evidence.
1. Do nothing.
Strange as it may sound, in certain situations it may not be worth your while to go after the infringer at all. The rationale behind this philosophy is that there is no point in expending a lot of energy and resources if the expected outcome will bring little to no benefit to you.
Suppose you find out that a particular image of yours ended up on lots of fishy sites that do not look like they represent real business entities or persons. It would take a lot of effort on your part to take the image copies down, only to later for them to pop up on similar sites.
Realizing that parts of your work will always be reused without permission and attribution is a healthy attitude, and is one of the reasons to watermark your images. With a watermarked image, the described situation acts as free advertising, and prospecting customers can find you thanks to your name or website address printed on the watermark.
2. Request attribution.
If your image is being reused without permission on a site that is clearly non-commercial, a good approach to handling the issue is to request attribution. When the market value of the image is not high, use this situation to your advantage as a free advertising of your work.
Contact the website administrator, and send her a letter requesting to insert a copyright notice along with a link to your website into the infringing material. If you like the offending site, add a line saying that the next time she can just ask for permission.
To find out the administrator contact email, look at the website footer and About/Contact/Author pages. When you cannot find a contact email there, it is a sure sign that something is wrong with the site. For instance, this can be a “spam blog” existing with a sole purpose of stealing content. In this case, choose a harsher response from this list.
3. Take the issue public.
In very specific cases, you may be able to stop the infringer by spreading the word about the issue on the Internet. While this approach can rarely be considered a good idea, here is an example describing exactly such a situation.
Romy Ocon and Malaysia Post
Romy Ocon discovered that Malaysia Post manipulated his image to hide its origin and included it into a bird-themed stamp issue. After the photographer took the issue public, two more photography professionals – Con Foley and Roberto de Micheli found out that their images have also been used without permission. Malaysia Post had to remove all public references to the stamp collection, scrapped it, and issued an overprint of a previously released collection. My photo was stolen and used in a Malaysian Stamp?
4. Ask for a usage fee.
A friendly, working approach to dealing with commercial sites using your image without permission if asking them for a usage fee. Contact the website administrator, and state that since the photo was used without permission, the damage in the form of copyright infringement has already been done. Tell her that you understand that probably it was an oversight on someone’s part without any bad intentions; all you want is for her to pay you a usage fee comparable to say three times the regular license price.
A valid business entity will not want to participate in a copyright infringement, nor will it like the idea of going to a court because of one image. If you offer a simple solution to the issue, it will keep you on friendly terms with the website owners and can be a start of a good relationship.
5. Send a Cease & Desist (C&D) letter.
Such a letter is a message to the infringer stating that her use of the image is unauthorized, and that she either has to pay a fee for authorization or stop using the image altogether. A C&D letter should include.
- A statement that she has infringed your copyright.
- (Optional) Demand for compensation of your lost profits and her profits derived from the infringement. Note that not to limit your recovery do not specify a particular sum. Say that you are open to discussion and will review offers to settle to reach a compromise.
- A demand to stop the infringement within a clear timetable (say several days).
- Your contact details for her to respond.
What follows is a sample C&D letter.
Cease & Desist Letter Sample
123-4567 Some St.
Mankato Mississippi 96522
January 11, 2015
Dear John Doe,
It has come to my attention that you have unlawfully copied my copyrighted work entitled [YOUR COPYRIGHTED WORK] and infringed upon my exclusive copyright. The work in question appears on a web site operated by you at [LINK TO THE INFIRNGING PAGE]. The copyright has been in effect since the work was first published on [DATE OF THE FIRST PUBLICATION].
For evidence purposes, I have copies of the infringing web pages. Your actions violate the U. S. copyright laws. The 17 U.S.C 504 provides for damages up to $150,000 in case of a willful infringement. Your continuing infringement after receiving this letter will be evidence of a willful infringement.
Accordingly, I demand that you immediately cease the use of the copyrighted work and provide me with prompt written assurance within five (5) days that you will cease and desist from further infringing on my work. If I have not received your compliance response within five (5) days, I will consider taking legal remedies to resolve this issue.
You can make the infringer take your demands more seriously by sending the C&D letter via a regular registered mail, not email. However, the best option is to contact a lawyer to handle the issue. Many intellectual property lawyers will draft you a C&D letter for a relatively low fee. A letter from a lawyer always has more weight in an infringer’s eyes. Furthermore, lawyers are knowledgeable enough to protect you from unexperienced side effects in each particular case. For instance, if you decide to write and send the letter yourself, there is a possibility that the infringer will instantly file a declaratory judgment request. This may end you up litigating in a court location where you really do not want to litigate.
Ming Thein & Pentax-Ricoh
Ming Thein discovered that his image has been used for commercial promotion of Ricoh GR camera by Pentax Ricoh Indonesia. He sent a cease and desist letter, took the issue public and it generated a lot of heat. The image was removed from the offending web site and the Japanese Pentax Ricoh headquarters issued a public apology. Name and shame: ‘Pentax Ricoh Indonesia’ stole my image.
6. Issue a DMCA takedown notice.
Consider the following situation. You find out that your image is being used without permission. You contact the site administrator. First, you ask her politely for attribution. No response. You send a cease and desist letter. No response again. For some reason you are not inclined to pursue legal actions. Maybe, you are certain that they will cost you plenty, and in this particular case, you will not be able to offset the costs with recovered damages. What else can you do to stop the infringer?
The 1998 U. S. Digital Millennium Copyright Act (“DMCA”) allows you to force an Internet Service Provider (ISP) to disable the infringing website. To do this, you have to send the ISP a takedown notice. All ISPs provide special email boxes for such letter. To find out this email, visit the ISP homepage.
The takedown notice must comply with the following requirements.
- Signed by you – the copyright owner
- Identify the work you claim to have been infringed upon
- Identify the offending web pages containing the infringing material
- State in “good faith” that as the copyright owner you did not authorize the usage
- State, under penalty of perjury, that you are the copyright owner and the information given in the complaint is accurate
- Contain your contact details for ISP to respond
You have to be absolutely precise and honest on all of these points to protect yourself from perjury charges. You must also be sure that the infringing material does not qualify as a fair use. Here is a sample DMCA takedown notice.
DMCA Takedown Notice Sample
123-4567 Some St.
Mankato Mississippi 96522
January 11, 2015
To [HOSTING COMPANY]
The website [OFFENDING WEBSITE], hosted by you is infringing on my copyrighted material. Specifically, an image used on this page – [OFFENDING WEB PAGE] is my copyrighted content, and is used without a license obtained from me or my agents at [YOU SITE URL].
Under 17 USC 512(c)(3)(A), this letter is an official statement to execute removal of the mentioned infringement. I request the immediate disabling of access to the infringing material in the most expedient way. Failure to do this may result in you losing exemption from liability under the Digital Millennium Copyright Act.
I declare in good faith that I did not authorize the use of the material that appear on the website. The information in this notice is accurate, and as the copyright owner, I certify under penalty of perjury that this notification is correct.
For further communications on this matter, contact me via [YOUR EMAIL] email.
I have attached the infringed image copy to this notification, to help you with removal of the infringement.
After you have sent the takedown notice, the ISP is obliged to take down the infringing material within a short time-frame. However, the ISP then informs the infringer, and this is where it can get messy. The infringer can send a “good faith” counter-notice statement saying that the material has been taken down by mistake.
If the ISP receives a counter-notice, it informs you and gets the infringing materials back online if you do not file a lawsuit for copyright infringement in two weeks.
Please note that just like with a C&D letter, preparing and sending a DMCA notice is best left to lawyers. If you do not word the notice properly for your specific situation, the infringer can file a declaratory judgment and literally make you the defending side of a lawsuit. Although this is a rare situation, if this happens and you do not have enough money to defend your case you may even lose your copyright by default. That is why consulting with a lawyer should be your priority.
7. File a small-claims court case.
When the offender is a local business entity, you can go with the small-claims court route. Keep in mind though that you cannot sue for copyright infringement (that can only be done in Federal Court), and there are limits to how much you can sue for – see Small Claims Court Dollar Limits. The benefit of this approach is that while it is a good idea to consult a lawyer beforehand, you do not need her to represent you in the court. You can present the case yourself, which greatly reduces the litigation costs.
Christopher Boffoli's Case
Christopher Boffoli took an image of a restaurant. Later, the building that housed the restaurant was put on the market. The real estate company listed the building and used the Boffoli’s photo without his permission. He repeatedly tried to contact offenders to get acknowledgement first, then a compensation. However, the offender ignored his attempts. Unsatisfied with this course of events, Boffoli filed a small-claims court case for unlawful use of property. The judge ruled in his favor and awarded him $1,000 plus court fees. Court-case reminder: Most online photos are NOT up for grabs.
8. Sue the infringer in Federal Court.
If three years have not passed since the date the infringement occurred on, you can file a case in Federal Court. Since there are many complications involved, you will have to hire a lawyer, and the process can become rather costly. The recovered damages can also can be astonishing.
Daniel Morel and Agence France-Press
Daniel Morel was among the first ones to post images depicting 2010 Haiti earthquake online. Agence France-Press (AFO) took the images Morel posted to twitter and started to disseminate them via Getty. Morel sued Getty and AFP and won $1.2 million. Photographer Wins $1.2 Million Lawsuit Over Images Taken From Twitter.
The litigation costs can easily exceed the recovered damages, especially if you have not registered your image with the copyright office prior to the date of the infringement. In this case, you will only be entitled to actual damages calculated based on standard industry license fees and the infringer’s profits (if you can prove them, that is).
Andrew Paul Leonard and Stemtech Health Services
Andrew Paul Leonard an expert in microphotography discovered that Stemtech Health Services used his photos for promotional purposes without his approval. He sued the company and was awarded $1.6 million in actual damages. However, he failed to register his images with the United States Copyright Office and thus was denied statutory damages. Photographer Wins Big in Copyright Case, $1.6M Big
Should you decide to take this route, you ought to check out the blog of the Law Office of Carolyn E. Wright, which provides heaps of free information, and will clear a lot of things up for you.
9. Delegate legal issues to a third party.
Should you happen to be a photography professional publishing a lot of images on a regular basis, you work is likely to be routinely infringed upon. In this case, it makes sense to delegate the legal hassle to a company specializing in copyright infringement. Such companies usually manage all of the legal issues on your behalf and work for a percentage of recovered damages. A good example is ImageRights International. For a yearly fee, they can look after your images on the Internet, manage the legal cases and even file your images for registration with the U.S. Copyright Office.
Prevent Stealing Before It's Too Late
As you can see, taking down stolen images can be a lot of work. There are simple actions you can take however, to prevent this from happening in the first place and even help you protect your rights when an infringement occurs.
1. Register your images with the copyright office
If you have not registered your image with the United States Copyright Office prior to an infringement you are only entitled to actual damages calculated based on the industry standard license fees and the infringer’s profits that you can prove. The situation changes dramatically when you register your image and have a registration certificate. In this case, you can recover statutory damages up to $150,000 along with the legal and court costs.
There is no reason not to register your images, as it can be done online, by visiting the Copyright Office online system. The registration fee is $55 per image batch. If you are still unsure, check out what happens when you decide not to register.
Richard Reinsdorf and Skechers
Richard Reinsdorf took a number of images for a six-month promotional use by Skechers USA in advertisements restricted to North America. Later he found out that Skechers used the images for several years, including overseas use and use on unauthorized media. He filed a $250 million lawsuit, which he lost, failing to demonstrate a link between Skechers profit and the infringing conduct. The really interesting part is that Richard did not register his images with the United States Copyright Office and as such he was not legible for statutory damages and even attorney fees. Richard Reinsdorf v. Skechers.
Had Richard Reinsdorf registered his images, his story could look more like the following one.
Panoramic Images and John Wiley & Sons
Panoramic Images brought a copyright infringement case to Federal Court against John Wiley & Sons, after having found out the publisher used 6 copyrighted images in an unauthorized manner (outside of license terms). The court satisfied the claims and awarded a total of $403.5 thousand dollars in profits, statutory and actual damages for the 6 images in question. Grant Heilman and Panoramic Images.
2. Do not publish high-resolution images.
Most of the time you do not need the high resolution a camera produces to publish the image on the Internet. Such a resolution is only important for printing. If you limit the images you post online to say, 500 pixels on the widest side, it will be impossible to reuse the image in print. This prohibits potential infringers from selling prints of your images while also limiting online usage options. So, while such an image can be used to display your work and its value, potential infringers will often just walk away.
3. Disable right-click on images.
To deter petty thieves, most publishing platforms allow you to disable the right-click save functionality for images. For instance, if you are hosting your photos on a WordPress blog, you can use the No Right Click Images or Photo Protect plugin. You can go further and when adding an image, set the “Link To” property in the Attachment Details to “None”.
4. Disable hot linking.
Instead of copying your image to another site, the site administrator may instead try to hot link you image. In this case, she inserts a direct link to you image on her site page. When a user visits the page, the image appears as if it were a part of the site, when in reality it is loaded from your blog. For WordPress, try the Hotlink Protection plugin, or check out this thorough tutorial if you feel like diving into the heart of the issue.
5. Choose where to share your images wisely.
Undoubtedly, the best place to showcase your work is your own website. Showing your images this way clearly identifies the owner of the images – you. Plus, you have the benefit of being able to clearly spell out your copyright notices and usage policies. The reality however is that these days the Internet has gone social and provides many opportunities to market your services outside your site. Wading through a sharing site’s legal policies can be a complex task. If you are not careful, you may end up agreeing to terms you could not imagine beforehand. While it is a topic of its own, there is a good place to learn about it – the free Know Your Rights on Social Media: Legal Considerations and More guide published by the American Society of Media Photographers. If you are serious about doing any promotion on the Internet, you should definitely read it.
6. Watermark your images.
Some find the idea of watermarking their images arguable at best. The general reasoning boils down to the following two facts. Watermarking does not prevent theft, and a poor watermark can make images look awful. However, there are simple counter-reasons as to why watermarking should be a basic tool of any photography professional or a would-be professional.
First, watermarking software available today can create even most exquisite watermarks. Second, a good idea for the watermark is a copyright notice. This is a single line starting with the © symbol, followed by its publishing year and your name. For one, honest people who may stumble upon your image via Google image search will recognize that the image is copyrighted. They will walk away from the image or may try to contact you for a permission to use the image if they really like it.
The better part though is that when a registered image includes a copyright notice, an infringer cannot claim an innocent infringement to reduce damages. Courts tend to rule that an infringement on such an image is willful and support the maximum infringement damages. So, while such a watermark cannot prevent theft, it certainly protects you and your rights. You should put a copyright notice onto your website footer for the same reasons.
As a final note, know that there are tools to help you find stolen images. The basic way to check whether your image was stolen is to use TinEye or Google Images Search. Follow these links and upload your image or link to it, and the services will look for similar images found on the Internet. It is a good idea to check the image using both the services, as they provide different images search results. Use them as complimentary applications. There is also an advanced option, albeit not free – the Digimarc Search Service. It can track multiple images at the same time and provides many advanced reporting options.
Now that you know how to protect your rights, it may be a good time to perform an image search and check that no one is reusing your images without permission. A good place to start is to check out some of your more popular images. As for Cathy’s story, it all ended up well and the infringer took down the photo after a bit of a back-and-forth conversation. If you like to see the whole story, read on – When Another Blogger Steals Your Photos.