Have you ever been browsing through the internet and you find a photo that you have taken and you realize it’s not your account that posted the photo? If so, you’re not alone. What’s even worse, it may not even be someone reposting your content and giving you credit. When this happens, there are typically 3 routes you can take to rectify the situation.
Before diving in, I want to be clear about something. I spend a lot of time in Facebook groups for entrepreneurs. I see questions almost daily about photos being stolen. More specifically, I see questions that refer to “What can I do if someone reposted my photo without permission?” I want to be VERY CLEAR here – this is copyright infringement. If someone reposts your photo without permission (a license), they are liable to YOU! Even if they didn’t know it’s illegal, it’s copyright infringement. There is even more confusion about giving credit. It does not matter if someone reposted your photo but gave you credit – it’s still copyright infringement.
Alright, so let’s get to it. Here’s 3 things you can do when someone reposts your photo without permission.
Approach the infringer yourself
The first thing I typically tell my clients is to reach out themselves. This is not always the case. But most of the time, it’s an innocent infringer and they had no idea posting your photo without permission amounted to copyright infringement. The reason I tell clients to reach out first is because education can save my client money. Yes, I can certainly send a cease and desist letter since the infringer committed copyright infringement. However, if the infringer is a very small business that may not be generating much income, if any, then we may not even be able to recover the cost of the letter, if anything. As you’ll read below, I don’t send out letters just to have the infringer to remove the content. I send out an official cease and desist letter in an attempt to obtain a settlement for my client.
There are 3 instances when I don’t advise my client to reach out to the infringer. This usually occurs when the infringer is a larger company, the company looks like they’re making decent income, and when it’s a repeat infringer. If Walmart has used your photos without permission, it is unlikely that your email will cause them to act on your requests. It is certainly necessary to take additional steps in order to have a company like Walmart to stop infringing on your work. If the company looks to be making money (not someone that started in business yesterday), then they should be able to pay a settlement to you. This is when it is worth it to take additional steps instead of just you asking the infringer to remove the photo. Finally, if it’s a repeat infringer, then you have probably previously reached out to the infringer without success. Repeat infringers often don’t believe you have rights, or they want to make you spend money on an attorney. If you have an infringer that falls in to one of these 3 categories, then you should probably use another method below.
DMCA Notice
The Digital Millennium Copyright Act is a law that was enacted specifically for the internet ages. The Act allows copyright holders to submit takedown notices with online platforms and internet service providers in order to have the infringing content removed. Once the copyright holder, you, makes the request, the content is normally removed within 24-48 hours. This is the easiest and most efficient way to have infringing content removed from the internet.
Although a DMCA takedown is quick and efficient, there are a few things you need to be aware of. The infringer will be provided with the reporter’s information, so be prepared for hate mail. I fill out multiple notices almost every day for my clients, and I receive hate e-mails from the infringers all the time. They either don’t understand the seriousness or they don’t care. Additionally, the infringer can submit a counter-notice. Once a counter-notice is submitted, the platform has to allow the infringer to repost the content unless you provide notice within 14 days that you have sued the infringer in court.
Even though the counter-notice is annoying and most of the time made fraudulently, the DMCA takedown request is still beneficial. And most people that make a counter-notice don’t realize that they are doing so under penalty of perjury. So if a counter-notice is made knowing that they are still liable for copyright infringement, they are liable for additional damages. If you’re submitting the takedown requests on your own, make sure you’re keeping records of everything!
Cease and Desist Letter
This method is very effective, but it sometimes isn’t very cost-efficient. As a baseline, my cease and desist letters start at $350. This is a flat rate, and it does cover follow up communications. You are out money at the beginning, but like I stated above, my goal when sending out a copyright infringement cease and desist letter, the goal is to obtain a settlement for my client.
If you’ve encountered a repeat infringer, more than likely, a letter will get the job done as far as having the content removed. There is never a guarantee of a settlement payment. However, before I send out the letter, I inform my client of the chances of receiving a settlement. When someone commits copyright infringement, they are liable to you for damages. The determination then must be made of what damages can realistically be recovered. If the infringer would likely be liable for at least a few hundred dollars in damages, then it’s usually worth it to send out the letter. That may seem easy to determine, but it can be pretty difficult to determine what damages you’re eligible for. This is why it’s so important to obtain a copyright registration ASAP!
Sending a cease and desist letter does cost money. But it can certainly provide you with the biggest return – removal of content + settlement payment.
NEW BETA PROGRAM!
Andrea Sager Law is launching a new copyright monitoring program exclusively for photographers in order to help photographers combat infringement. If you’re interested in being part of this special group of beta testers, at no cost to you, please send an email to andrea@andreasager.com giving us a brief description of your business!
If you have additional questions about how to handle copyright infringement, shoot over an email – andrea@andreasager.com!
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