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legal question: unauthorized use of photo on website
A neighbor asked me this: a business website used a photograph that he had taken, in a collage on their homepage. The photographer had expressly denied permission to use the photo, and they used it anyway. The photographer probably doesn’t need the money, but he does not like the idea that this business would just steal his work.
One problem, as I see it, is that any “damages” would likely be smaller than what it would cost to hire a lawyer to pursue the issue. Any advice as to how to proceed?
I’ve advised him to get in touch with a local lawyers-for-the-arts group, just to start.
This must happen on the Internet thousands of times every day. I wonder what the standard operating procedure for the photographer is.
Bob C
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9 Replies
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A couple of years ago one of our clients was employing a rather naive mid-level manager. For their website she found and, without asking anyone, used four city images. Within a month the client received a dead-serious demand letter from an attorney stating that — PRIOR to going to court and seeking punitive damages — my client owed his client, the photographer, $6k EACH for unauthorized use of the photos.
The problem for my client was that the photographer actually had a case and, while no subsequent details were revealed, they settled out of court. As an aside it seemed to me like this particular photographer had deliberately made it fairly easy for photos to be lifted from his website and then used crawlers or search engines to track down the uses so his attorney could jump onto them. But that’s just a theory on my part.
The whole point of this however is that
[Bob Cole] “a local lawyers-for-the-arts group”
may not be the way to go when deliberate infringement has taken place. There are probably any number of contingent fee lawyers willing to take on this case. Your friend may feel the need to take a long shower after meeting with them though. -
It wouldn’t cost much to get a lawyer to draft a letter to send off to these folks asking asking for $X compensation PLUS removal of the photo or face a lawsuit. The letter alone might get it done.
http://www.MediaCircus.TV
Media Production Services
Winnipeg, Manitoba, Canada -
I imagine you could get the letter drafted by a lawyer for maybe fifty bucks. The letter should be a cease-and-desist, aka a “bigfoot” letter. Then you have to give them a “reasonable time” to respond. If they don’t respond, then have the lawyer draft up a suit on contingency basis, or, you could take this to small claims yourself, as it is pretty cut-and-dried. Just a pulled-out-of-my ### guess as to the cost for the filing fees would be in the $100 range, plus whatever your time is worth to you to attend court and physically take papers to the clerk’s office. In small claims, the strategy would be not so much to get a huge payday (as the amount of the award will have some kind of limit on it) but to get the other guys on record in the system as found guilty by a judge. You can then use their conviction and the damages claim to harass the bejeesus out of them and make yourself a general nuisance they would just as soon settle with… and THERE is where the larger payday would perhaps come in. None of this happens fast. If you’re going to go all the way on this, it has to me more on principle than for a payday.
I DO think the CAD letter is an affordable option you should pursue. The rest, well, it’s up to you. I did it once, versus a real scumbag client, and got some limited satisfaction. Then again, I was unemployed at the time and could devote all my energy and time to the case. Had I had a good-paying gig at the time, I might not have pursued it to the full extent, including garnishing the guy’s bank acounts. That part WAS kinda sweet, if a little un-christian: after weeks and months of stiffing us for even tiny 20-dollar payments for a bill in the $2k range, the guy is on the phone the same day as the garnishment was accomplished, complaining we’ve jacked his rent money to the condo as well as all his grocery money. We had finally made an impression on the guy. There was more to be obtained under the court order, but we let him off after we’d gotten about 3/4 of what he’d owed us.
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Though keep in mind that you may have to pay a retainer to get a lawyer to draft a letter for you, I am not sure, depends on the lawyer. A standard retainer is $1500.
http://www.MediaCircus.TV
Media Production Services
Winnipeg, Manitoba, Canada -
This is when ya gravitate to the atty that’ll do it for a percentage. If you have problems finding one that’ll take the case on percentage rather than by the hour, you know there is no case. If the ambulance chasers pounce, let em.
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I know there is a website run by a photographer who is also an attorney. https://www.photoattorney.com/
This would probably be a good resource to look at. The Digital Millennium Copyright Act has some provisions to allow copyright holders to petition for a take down notice of a website. -
Two thoughts.
I’m not a lawyer. I don’t play one on TV either. Use at your own risk.
1. You might be able to complain to his web hosting provider. Some have TOS that don’t allow their hosting/domain services to be used for copyright infringement.
2. If all the parties are in the same city you might be able to go the DIY small claims route and at least get some cash for the use of the pic. Lots of these have a 5k damages limit. If he wins, and has a hard time collecting (always tougher than winning) you might be able to take that to the web host and force a take-down of the web site.
Scott Sheriff
Director
https://www.sstdigitalmedia.comI have a system, it has stuff in it, and stuff hooked to it. I have a camera, it can record stuff. I read the manuals, and know how to use this stuff and lots of other stuff too.
You should be suitably impressed… -
On the advice of a professor of intellectual property law, my neighbor is writing a letter to the CEO of the offending company.
I’ll let you know how it turns out.
Bob C
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Also, just my two cents- there are lawyers who will draft CAD letters without a retainer. Sometimes it costs a bit more than $50 or whatever, though. Not much more.
Patrick
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PatrickOrtman, Inc.
Los Angeles Digital Agency and Video Production Company
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