Before we get into theory, it's time to look at practice. Imagine you are a photographer, and one day you find your image on hundreds of URLs, including commercial blogs, corporate social media profiles, or hotel, travel, and airline websites. The thought crosses your mind that if all these infringers paid a license fee for your image, you could make a living from photography alone. Of course, you are entitled to compensation, but what legal steps should you take to get your money back?
Photo copyright infringement
From the moment of their creation that is the moment that someone’s click the camera shutter, photographs are protected by copyright. It means that copying, distributing or publishing an image without the prior consent of the copyright owner constitutes copyright infringement. The most common way to violate the rights of the author is through the unauthorized use or reproduction of images, e.g. by posting such images on the Internet or using them for promotional purposes.
Examples of the most common types of copyright infringement are:
1. Commercial reproduction of a publicly available image (violation may happen even if the image was freely available on the stock library)
2. Misuse of an image by someone who has bought a photo print
3. Derivative works and art made using someone else’s images without permission
4. Illegal use of images taken from Social Media like Facebook, Instagram or Twitter
5. Publishing image with credits but without permission from the author
6. Commercial use of photographs by models or person portrayed on them
7. Using photographs taken from a photo exhibition or gallery
8. Use of images on a products
9. Use of images as a part of the video
10. Even using part of the photography may constitute a violation of copyrights
We could've given more examples, but this is not the point. What is important is that it is irrelevant whether the copyright infringement was committed intentionally or negligently. For conditional intent, it is sufficient if the user accepts the possibility of unlawful publication of the photograph.
The existence of photo copyrights is now recognized (internationally). It is well known in both private and business dealings that illegal publication constitutes copyright infringement. Therefore, in most cases, the publication of a photo without the author’s prior consent will be considered as a deliberate disregard of the photographer’s copyright.
What can I demand from a photo copyright infringer?
Many website owners believe that removing a photo at the request of the author is all they should do. This is not true. As the author, not only can you demand that all copies of the photograph be removed and that future use of the photograph cease, but you can also claim damages.
Read more what should infringer do after receiving the Cease and Desist letter.
The amount of the claim is calculated on the basis of a licensing analogy. This means that damages for infringement are not calculated on the basis of, for example, the number of views of a particular page, but on the basis of how much a lawful license would cost for that particular use.
Of course, emailing the infringer on your own is always a bad idea. This takes a very large amount of time and the result is zero. Maybe your photo will be removed, but your request for payment will most likely be ignored. Many people also try to secure the evidence themselves, instead of outsourcing it to professional companies such as RightsPilot (LINK?).
What legal steps can you take to enforce your rights?
It is important to know that in many cases you can avoid legal proceedings to enforce your copyright by amicably settling the matter with the infringer out of court.
Under German civil law, photographers are generally required to send a warning letter (Abmahnung) to the infringing party before taking the matter to court. A warning letter is also called a cease and desist letter because it demands that the infringer stop infringing your rights in the future. The letter informs the infringer of its legal violations and seeks an amicable settlement between the parties.
What to do if you received a Copyright Infringement Notice? Read our article here.
Fechner.legal has many years of experience in judicial and extrajudicial enforcement of compensation claims for profits made by the infringer of photographic copyrights. If your copyright in a photograph has been infringed because the photograph in question has been copied, distributed or published without your prior consent, it is worth taking action with a help of a attorney specialized in this field. In most cases, you can recover your lost money without having to go to court.
Photo credit: Constantin Stanciu / Shutterstock
latest on blog
- The long list of successful verdicts proves it is possible to effectively enforce photographers' copyrights.
- Robert Fechner Warning Letter. What Fechner Legal really do?
- Best practices! Learn to use images legally. Do not make these eleven mistakes.
- Beware false reviews on Trustpilot about Fechner Legal
- Can I use images from Google, Pinterest or Instagram and other online resources?