*Disclaimer: This article is for informational purposes only and does not contain legal advice. Products On White Photography, LLC, it’s authors or those interviewed accept no liability resulting from following the steps in this article. Find a copyright lawyer in the Tools Section of the article for official advice on your particular situation.
Image theft is rampant on the web. For a business owner, having a photo that you’ve commissioned stolen from your website and used by a competitor sucks. For a photographer, having people use your photos without permission is, unfortunately, a frustrating part of life. In this article, we'll walk you through the steps you can take against image theft and copyright infringement, whether you're the creator or you’ve commissioned the images. We’ve collected insights from Jeff Delacruz, the president of Chicago-based remote product photography studio, Pow Photography, and from Thomas Maddrey, copyright lawyer & former commercial photographer who acts as General Counsel to the ASMP (American Society of Media Photographers).
What to do if someone steals your photos?
- Document the theft with screenshots or photos.
- Contact the person or company through a cordial and professionally written message asking them to stop using the image. Don’t make statements about legality until a lawyer is involved.
- Email or mail a cease and desist notice that is professional but not threatening. Use an existing template or hire a lawyer to draft one.
- If theft persists, report them on the platform where they use the images, like Amazon, and/or initiate a DMCA takedown notice to the ISP. 5. To pursue further, seek the advice of a copyright lawyer
The Basics Of Copyright
Understanding the basics of Copyright law when creating or using photography is important. The law protects these rights in order to incentivize creators to keep creating. Copyright refers to the creator's legal right to use their creations by displaying, publishing, and creating other things with the work as well as choosing to give others permission to do the same. In a nutshell, when a photographer creates a photo they own the copyright.
If you purchase your images through a photographer or company, it is key to understand license and usage. Usage rights are granted by the copyright owner to you to use the photos; you “license” the image for a specific purpose. Thomas Maddrey, copyright lawyer explains: “A misconception is that if you pay a photographer to do a job, you own the copyright. You 100% categorically do not. What you have is the right to use the work for whatever you and the photographer decided. That goes back to the license.”
It is usually very rare and costly for a photographer to sell the copyright, and it’s not necessary to use the photos and take certain steps against theft. For example, POW! Photography grants what is called Royalty-Free usage, which is unlimited usage for an unlimited time to all orders placed. This is enough usage for most situations, but you do not own the copyright. Other photographers may have more specific usages, and it’s important to be aware of the restrictions. You do not need to own the copyright to make full use of the photos but you do need to be aware of your license terms.
It is copyright infringement to use images that you have not been granted usage rights to, as well as using them in ways that exceed the agreement. The most important thing to note is that, as Jeff Delacruz explains, “the thief is infringing on the photographer’s rights, not the person who bought the photography. If they want to pursue it, you’ll need to cooperate with the photographer.” Even if you’ve licensed the images, the theft is considered an infringement on the copyright owner; pursuing a legal copyright infringement case requires you to own the copyright. There are many steps you can take before filing a lawsuit that do not require copyright ownership, however.
The final key to understanding the basics of copyright is the difference between owning the copyright and registering the copyright with the US copyright office. Registering the copyright with the US copyright office is not a requirement to own the copyright, and is an additional step to protecting your work. Registering the copyright before an infringement happens is beneficial to receive statutory damages in the lawsuit phase.
Steps To Take If Someone Steals Your Photos
Step 1- Document the Offense
The first step is documenting the photo-theft in action. Take screenshots and photos of every use of your images; compile a folder on your computer with everything you find and date your findings (the date of the offense could be important later on). Check out The Wayback Machine, a website that documents the web, to try and figure out how far back the images were being stolen. Take note of the website information where the images are being published. Gather any licensing agreements, photographer contracts or receipts you have that prove you commissioned the photos.
You should start coordinating with your photographer and let them know your plan. “When a customer lets me know they are pursuing a copyright infringement, we try and help them however we can. Sometimes we simply provide documentation and they handle it all and other times we’ve gone as far as being an expert witness on their behalf. We offer a discounted copyright buyout if they need it but not every photographer will do that,” Delacruz explains. In some cases, the photographer may want to pursue the infringement themselves instead. Opening a line of communication with the copyright owner can open up other strategic doors.
Step 2- Contact the “offender”
When addressing image theft it’s wise to escalate slowly. Contact the person directly; sending a message may be all it takes to solve the issue and you do not need to own the copyright to take this step. Delacruz recommends “write a personalized, professional email. Don’t be threatening; ‘I saw this photo, please take it down. It is not yours.’ You may leverage them to take it down and if it's not a competitor consider asking them to pay for it or give you a backlink.” Maddrey also suggests “think of it as maybe the other side doesn't know they are infringing; don’t come out of the gate angry.” As you draft the message, consider the outcome that would benefit you and your business.
Another important factor in creating this message is to avoid making false statements about the law. For instance, don’t say they infringed on your copyright if you don’t own the copyright (remember, if you only have a license to use the images, the copyright infringement is technically against the photographer). “One thing I see in my private practice is that people immediately begin threatening things and making big statements and talking about copyright law. When they finally come to me and I say, ‘show me the correspondence,’ they’ve already put us in a cage. What that does is tie the hands of an attorney who is trying to get a good resolution for you,” Maddrey relates. The most effective message needs to be non-threatening, accurate, and work towards a positive resolution.
Step 3- Send Cease And Desist Letter
If the theft continues, consider sending a formal “Cease And Desist” letter to further discourage the infringer. You do not need to own the copyright to send one, but keep this in mind as you draft the letter. Sending correspondence that is aggressive or inaccurate to the law may be a hindrance in the future, so draft your cease and desist letter carefully.
A Cease And Desist informs a person that they must stop using a material that they don’t have permission to by a certain time; it shows instances of the copyright infringement, states a date it must stop being used by, as well as what will happen if they don’t comply. There are many templates online. You may choose to get a lawyer involved at this point to send the strongest Cease And Desist possible. “No matter what business you're in,” Maddrey observes, “ when you get a letter from a lawyer it means more... if something is happening that’s pretty egregious, it's a good time to reach out to an attorney who can help write that letter in a way that is going to include the law”.
A Cease And Desist letter should:
- Include a header with your name and address, and begin the letter by stating the person or company you're confronting
- Cite where the theft is taking place and identify the work being used
- State that the work is being used without authorization, or if it is violating your copyright
- State a deadline they must stop using the image by
- Include a consequence; typically that you will “seek legal advice on how to proceed.”
- Consider offering a licensing agreement if you hold the copyright
When writing a Cease And Desist letter, you want to cite that they are using the image without permission; that this image is valuable to your company, and that you need them to stop using it. Once again, in order to argue copyright infringement, you need to be the copyright holder. We asked Maddrey about what an effective consequence in a Cease And Desist letter could look like; he suggests “you don’t want to say ‘take this down or I'm going to sue you.’ You want to say ‘take this down or I'll explore what my options are,’” or seek legal council. As with sending a message, it is important to stay professional and refrain from making threats or statements that would be unrealistic or inaccurate in your cease and desist.
Step 4- Report On Platform + DMCA
Confronting the thief is often enough to resolve the issue, but sometimes they may persist. If the theft is being carried out on a platform like Amazon, report the offense to them. Platforms like Amazon take these claims seriously. To pursue this avenue, you still don’t need to own the copyright. If you purchased these photos through a photography studio, you may provide them with your receipts to prove your usage rights.
You can also consider filing a DMCA (Digital Millennium Copyright Act) takedown. “The DMCA is a special type of cease and desist. If I were to take someone's photograph and put it up on my website, you would send a general cease and desist letter to the individual. You would send a DMCA letter in most cases to the internet service provider (ISP)...A takedown is a very standard cease and desist that says you have to take this down; and if you don't the penalties go up quite a bit” Maddrey tells us. Webs hosts in the US have legal incentive to take down images from their platforms that violate copyright laws.
Larger websites may have a takedown form ready for you to fill out; otherwise, you will need to locate the website’s host. You can do this by using a website like www.whoishostingthis.com. Send your DMCA takedown letter to the host’s copyright agent, which you may be able to find under their legal information page or by Googling for it. Be aware that if you are not the copyright holder, you will need authorization from your photographer in order to send a takedown request.
Step 5- Consult Lawyer About Next Legal Steps
If you have taken these steps without legal counsel and still have not reached a positive resolution, it is necessary to consult a copyright lawyer to go further. To pursue legal steps in a copyright infringement case you also need to own the copyright, which you can purchase from the copyright holder after an infringement. We asked Maddrey about this; “The trick is to figure out where the infringement took place, how serious it was, and what your steps are. If you thought it may end up in court, you may want to buy the copyright. No one but the creator or copyright owner can bring the infringement to court, so you may want to think about buying the copyright or joint ownership.”
Registering the copyright will also be a factor when considering to pursue a case. Although you can register at any time, Maddrey tells us you must register before an infringement in order to be eligible for statutory damages. If a lawsuit seems like it may become an option, your photographer may be willing to prove your ownership of the images. “ We've been a part of a few of these cases. The company’s legal counsel flew out to conduct interviews and depositions with us” Delacruz tells us in regard to POW’s support in previous cases.
Getting a lawyer involved does not equal a lawsuit, however. Maddrey tells us that a copyright lawyer will look to leverage the best outcome for you, and that may not be a lawsuit. “It takes 2-3 years and hundreds of thousands of dollars to pursue a lawsuit for copyright infringement from start to finish…[so] the most common resolution is that someone takes it down. Next is that someone pays some money or apologizes. They may get a retroactive license to continue using it. The last option is the judicial option, which no one really wants to get to, it's very expensive.” He goes on to say “you want a situation where you've been adequately compensated but can also sleep at night. There are few things more stressful in life than being involved in a federal trial, for either side.”
Copyright Protection Tools
Helpful resources mentioned in this article
- Pixsy – Image monitoring software
- Thomas Maddrey – General Council To ASMP & Copyright Lawyer
- Other copyright Attorneys
- US Copyright Filing Link
- The actual copyright laws
Important: Many of these are made for photographers, make sure to edit the template so that it comes from your business and make sure it doesn’t make any legal claims that are untrue, like copyright ownership.
Copyright Infringement and photo theft from another country
Copyright laws vary from one country to another, it can be especially difficult to confront international infringement. If a business in a different country steals your photos, you may not be able to stop them as many countries do not recognize US copyright laws.
Consider using a platform like Pixsy; they monitor the internet for unauthorized use of your photos and offer resources for images that have been stolen internationally. They offer legal resources as well and allow you to send cease and desist letters from their platform.
The Case Act & The Future
While measures such as cease and desist letters are effective in certain cases, federal lawsuits remain the final legal action that can be taken to enforce copyright. Realistically, this is daunting for most business owners due to the costs, time frame and repercussions. The CASE act put forward by the ASMP could be a more accessible means for businesses to pursue infringement in the future. Maddrey explains “the CASE act [would be] for smaller claims of copyright that doesn't require going to federal court. It was passed by the house and now it's in the senate... It's so important for small creators to have an option other than federal court. It's hard to pursue a case if it isn’t a huge matter.” The CASE act would open the door to fully pursuing copyright infringement in a way that makes sense for smaller businesses and independent creators to combat the numerous minor offenses across the web today. Delacruz states, “Because of the cost and complexity of the cases, it makes it impossible to do anything [legally] when someone legitimately steals your photo. We're stuck in a time when these laws are set up for physical film theft and we live in a digital world.”
We continue to look forward to legal avenues like the CASE act in the future, but you can follow our escalating steps to addressing image theft in the present. Document the theft and your communication as you reach out to the person or company. Slowly escalate by sending a formal cease and desist letter; “think of what resolution would be good. Is the resolution always to take it down? Maybe. Is the resolution to give credit? Maybe it would be beneficial if they linked to you. So get as much information as possible and think about your options” Maddrey advises. Be aware of what you are saying; keep all of your statements factual and, again, non-threatening. Following this, report the theft wherever applicable; through the platform(s) where the images are being used as well as a DMCA takedown notice. To pursue further, contact a legal advisor who is familiar with copyright law and can guide you toward a resolution. While this likely will not become a lawsuit, it may lead to a situation that is more beneficial for your business.
Combating image theft is complicated and frustrating for many businesses and creators in this digital world. As photographers ourselves we understand. It is our hope that the steps outlined in this article will provide you with a helpful roadmap in dealing with these difficulties.