Copyright Violation: Now what?

[Todd Corzett]

Well, two years ago while doing a search for copyright violators I stumbled across a commercial website that was using a few of my images as part of a bio for a professional race car driver who is associated with the business. After contacting the owner of the business and discussing the violations, the owner removed the images from their website. I discussed purchasing usage for the image (basically ignoring the unauthorized usage), but the owner did not want to pay the fee. The owner was demanding nearly unlimited usage of the image for web rates, and refused to pay more for their desired usage. Basically, things ended less than favorably... but for a hundred bucks (and since the images were removed), I wasn't going to go further with action (which may have been a mistake).

This morning I decided to check-out the offending website again. I didn't see my image being used online, but they have posted a photo gallery of their business location. After going through a few images, I noticed a large print posted on the wall using my image (as well as images of three other photographers, one of which I know didn't grant usage). The prints look to be several feet square (I'd guess 5'x5', but they could be bigger)... all printed from 720x480 web images (so I can only imagine what they actually look like in person). The photo of the prints that was online was taken 8 months after the original discussions with the owner (gotta love EXIF data), so doesn't appear to be from prior to my previous conversations.

At this point I'm fed-up, and since they are clearly violating my rights... and for something worth significant money... I'm not going to let this be resolved by just taking down the print. Also, given there are 3-4 other photographers who's images are being used without permission, I'm not on my own with this.

How would you handle this? Would you even offer them to buy rights without paying for damages? Would you just send an invoice, if so... for how much? Would you just go to a lawyer? Would it be best for each photographer to go alone? Or should we work as a group?

Any advice is greatly appreciated.

-Todd...

[Jeff Wilson]

Are your images and the images of the other photographers registered with the US Copyright office? If so, I would suggest contacting a lawyer for a consult, and contact the other photographers to inform them of the violation as well as any advice the lawyer provides.

Normally, I would suggest sending an invoice with a cover letter explaining the situation via certified mail. However, in this case, you have already spoken about a violation with the business owner so they know this is a problem, and they now have shown a pattern for violation.

It may be that the lawyer advises you just send them an invoice, or there may be other options depending on how the image has been used. Also, you may be entitled to damages. If the other photographers are interested in pursuing reimbursement as well, they need to ensure that their images are also registered with the copyright office.

Copyright cases are very long and drawn out, and if the images aren't actually registered, they are a nightmare to win, even though you clearly have ownership. Realistically, the best you could probably hope for is a cease and desist written by the lawyer on behalf of you and the other photographers with an out of court settlement of a few hundred bucks to be split amongst you all, with the lawyer taking most of it.

To win a large settlement, you would not only need to prove the violation, but actual monetary damages incurred by the violation and intent by the business to steal and use the images for their own monetary gain. The violation is easy to prove, and you will win an injunction against the business and prevent them from using the images again. The other two items need to be proven to win a cash settlement, and they are not easy to things to prove.

All that said, I would strongly suggest you get the actual opinion of a lawyer specializing in IP cases. If you are an ASMP member, I believe there is council available to you for free or at a discount.

[Erik Anderson]

Where's the 'I'm not a lawyer but I play one on TV smilie face'?! This guy (or girl) obviously doesn't learn. As this point, I would discuss this with an attorney. They would best be able to tell you if this was something you should do solo or as a 'class action' suit. I'd save the entire webpage, pull all photos and html from the site and sort through any other violations and take it to the atty.

My suggestion might be tainted by too many law drama's, but I'm thinking a search warrant to seize the print for measurement, damages for the 8 months (you registered the copyright, right?) and the bill for the print usage (at your highest reasonable rate possible) would be in order.

[Mike Ditz]

Todd-

What do you want? Do you want him to take down the poster (which is pretty amazing that you saw it in the background) or do you want money? How much is it worth to you $200? $500? $1000? $5000?
What are your damages by his ripoff of shot made into a poster? Did he print hundreds or thousands of these posters or is it one display print? What is the distribution/ Look at Photoquote and 2x or 3x (because you are pissed off) what they suggest.
Unless you have a lawyer in the family nobody is going to take this as a copyright violation case, it's simply too far under the radar. Copyright violation goes to Federal court, the big one downtown. It's very expensive to bring a federal case. If you treat it like a business disagreement after you and your friends bill him for the use in the poster and he doesn't pay you can drag him into small claims. If he doesn't show up you will win a judgement. Then it's time to collect, but with a judgment you have a hammer to knock him upside the head to get his attention. No lawyers are involved in small claims court.
If/when he talks to his lawyer , he will be told to settle in order to make you go away.

good luck

[John Thawley]

Todd:

A great tool for mounting a counter offensive to web site misuse is the Digital Millenium Copyright Act.

To impliment the Act, you put the website on notice and MORE IMPORTANTLY, the Internet Service Provider that hosts the site.

The DMCA was put into place to give ISPs an opportunity to insulate themselves against copyright claims for infractions by their clients and/or information that is being hosted on their servers. So... you're basically giving them an opportunity to comply or being included in any court/legal actions.

I succesfully used the DMCA agains the Trans-Am Racing Series and Rocketsports Racing. They insisted they owned images and intellectual property that they did not. They kept relocating the web site, but each time I convinced the ISP that it was in THEIR best interest to remove the material. Ultimately, Trans Am and Rocketsports acquiesed and stopped using the material.

JT