Like viral memes, cat videos and tweets from the President, image theft is endemic on the Internet.
In a PhotoPlus Expo panel, photographers John Harrington and Jeff Sedlik laid out a number of useful strategies that photographers can take when their images are stolen. Both took pains to emphasize that they are not lawyers and their suggestions and strategies should not be construed as legal advice. Let us relay the same: your first and best recourse when someone steals your photos isn’t this article, it’s a lawyer.
That said, there are steps photographers can take on their own should they encounter an image thief.
The Scale of the Problem
Copyright theft is pervasive, Sedlik said. Even photographers actively searching for stolen images may only find about 5 percent of infringements. Using Google News alerts with your name as the search criteria and image-scanning services like ImageRights can help, but will still fall short, Sedlik said. For one thing, they can’t catch offline cases of infringement.
Before You Catch a Thief, Register Your Copyright
Your legal claim against anyone who has stolen your work rests with your copyright, which means you need to have registered for a copyright for your image in the first place. It sounds obvious, but Harrington noted that very few photographers are actually diligent about registering their copyrights.
If you register your copyright, you’ll not only have a stronger legal case against an infringer but you’ll get enhanced legal remedies, like having your legal bills paid if you prevail in court, Sedlik said.
The copyright registration process can be a bit intimidating at first, but Harrington has created this video to walk you through it.
The Copyright Office gives you a choice to register a work as published or unpublished. Harrington said if you’re unsure of the status of your work, select publish – you can retroactively change a registration from published to unpublished, but you can’t go back and change an unpublished work to published. Not registering the work in a timely manner, as well as mistakes with your paperwork or how and what you file can all create problems.
Your Photo Has Been Ripped Off, Now What?
You have two broad options when it comes to pursuing an image thief: seek professional help or go it alone.
Both Harrington and Sedlik stressed that the best mechanism for pursuing an infringer is through an attorney. But not just any attorney. Sedlik said you need to find a copyright attorney in the correct jurisdiction, with a winning track record who specializes in photography.
When evaluating an attorney, it’s important to ask them whether you’ll be required to advance expenses for any research they do and whether those expenses will applied against any damages you recover. “You may end up paying more in expenses than you’ll recover,” Sedlik warned.
Many photographers choose to confront infringers themselves, without using an attorney. While it’s sub-optimal, there are steps photographers can take to set themselves up for success.
Step One: Prep
Before you approach the infringer, do your research. If your stolen image has been posted online, take a screenshot of the site with your image on it and download the page contents. Be sure to capture the URL bar in the screen grab. Document every example of the infringement you can find and be sure the image is copyrighted—if not, file for a copyright.
Step 2: Initial Approach
Don’t send an infringer an invoice. Since you don’t know how pervasive the infringement is, an invoice might underestimate what you’re owed. The speakers also advised not going after the infringer with guns blazing. You’ll want to avoid direct threats and backing the infringer into a corner. Sedlik outlined a number of approaches to corresponding with infringers, while also maintaining a record of the correspondence.
Step 3: Decision Time
If the infringer is hostile or non-responsive and you want to pursue them, you’ll need an attorney to escalate. If they’re cooperative and want to settle, you’ll still need an attorney to draft a settlement letter, taking care not to release the infringer from any cases of infringement that you’re not aware of.
Don’t write your own settlement letter, Sedlik stressed, since there are subtle legal terms in those documents that non-lawyers may misuse.
It can be psychologically draining (and time consuming) to pursue infringers, but the reward can be significant. For some photographers, enforcing copyright provides an additional revenue stream.