Blueberries – apparently infringers love Blueberries
If you’ve been searching for your images on the internet and have found copyright infringements – what do you do next?
For many photographers finding our photographs on the internet in places we did not intend for them to appear can be frustrating. I have written this post as a follow up to my earlier post “Finding Copyright Infringements on the Web“. My previous post illustrated one method for finding your images in use on the internet, while this post tries to cover some of the options for what you can do next. I of course should point out that I am not a lawyer, but many cases of infringement are below the threshold for when we may get lawyers involved.
Your first step should be to first verify that this is actually an infringement. If you have never sold an image license, uploaded to any agencies or even told people they can use an image then this probably isn’t a concern. If you have, however, double checking your licenses beforehand can save potential embarrassment later on.
There really isn’t a “one size fits all” answer for what to do once you have discovered a copyright infringement. What you choose to do is up to you, and people may see some forms of infringement as no big deal, while others will not. Those sharing their images with a Creative Commons license such as “Attribution Non-Commercial” probably will not care if one of their photographs shows up on a non commercial blog. Some photographers who share their “All Rights Reserved” images will not want their images shared without permission or license in any location other than their own sites. What you are able to do also changes depending on the copyright laws in the part of the world where the infringement occurred. So I can’t tell you what you should do specifically, but I’ll outline a few potential responses that may fit your situation.
The Easy Method – Do Nothing
I bookmark most infringements that I find, but with many I wind up doing nothing about them. Sometimes an infringement is just a personal blog with little following and no advertisements. Perhaps the infringer even gave me image credit (rare). While credit is worth next to nothing really, sometimes it will mean I simply move on rather than take the time to do something about it. Sometimes I will find an infringement that I would normally do something about, but the server is based in a foreign country where copyright laws are nonexistent or not enforced. Usually this means I am out of luck. While this can be frustrating, sometimes I just have to forget about it and move on. This gets easier the more it happens.
The Removal Request
This is an option I only reserve for completely non commercial infringements. In a perfect world this kind of request would be met with a positive response and honoured. In my experience, however, most friendly requests for image removal are ignored. Very few actually respond by removing the image, or perhaps giving image credit if that was requested. The remainder respond with the sort of vitriol I won’t repeat here – but you can use your imagination. Whatever the form of non compliance, this means I have to write another email to their web host, or issue a DMCA takedown – which takes even more of my time. For this reason, in instances where I am not pursuing payment, I go straight to the DMCA notice – or email the webhost/social media site directly. I would rather communicate with people in a friendly manner, potentially even educating them about image usage… but it just has not been worth it in the majority of times I have tried it.
The Payment Request
I always request payment from uses of my images that are even vaguely commercial. I sometimes handle this on my own, and sometimes use a company called ImageRights (more on them later). My usual first contact is fairly gentle. I explain that there must have been some sort of mistake as I have no record of a license for the image use. I then outline that they are infringing on my copyright and give them a price for a retroactive license. If paid, this only give them a license up to the current date. If they want to use the image going forward I point out a new license can be negotiated. Some times this “gentle reminder” goes ignored, but often it is successful and most communications I have had with reputable companies have been fairly civil. Those who ignore my initial letter receive a follow up with much sterner (but still professional) language. Often those who ignored the first letter respond to the second.
There have been a few cases where I have sought the advice of a lawyer but thus far have not been able to have one return my calls or emails. I suspect that the cases I have brought up have been relatively small, and have been based in Canada (these were Canadian Lawyers). A US based infringement of a photograph that is registered with the US copyright office would likely be met with a much different reception. So while it is necessary to suggest you may seek the counsel of a good IP lawyer – I have not yet discussed these issues with one myself. I suspect that if you reside in the United States this would be much easier.
The DMCA Notice
The DMCA (Digital Millenium Copyright Act of 1998) protects online service providers (website hosts, Social Media companies etc) in the United States from liability for the content their users upload. When a complaint is made under the DMCA the service provider usually disables the content in question quickly so as to not become liable themselves. What this means for us is if your infringed photograph is on a US based webhost then having the material removed can be relatively easy. If you decide to go after most image infringements a lot of the DMCA notices you may issue will be on social media sites. Rather than writing an email and finding an appropriate recipient for it – many of these companies have a form to fill out that is much quicker and easier. I’ve included a few links to notable services below and their DCMA/Copyright Complaint forms.
For most web hosts you can find the DMCA agent (who to contact) on their website, in their terms of service document, and occasionally in their support section. Individual services may also outline the exact language they require in a DMCA notice. While these things are pretty standard, sometimes a web host will require an address and phone number, which is information I tend not to give out unless it is necessary.
The US Copyright website also has a list of DMCA Agents that may come in handy for some web hosts: http://www.copyright.gov/onlinesp/list/a_agents.html.
How do I write a DMCA notice and who do I send it to?
A DMCA notice requires some specific “legalese” to be valid. The article “Two Easy Steps for Using the DMCA Takedown Notice to Battle Copyright Infringement” on the NPPA website explains both how to write a DMCA notice and how to determine where to send it. Written by a lawyer too. I did point out before that I’m not a lawyer right?
While this article outlines a way to find a website’s host via IP I have found the initial method of a simple whois search to be fruitful at least half the time. The nameservers for a website domain name are often something like ns1.websitehostname.com and this makes determining who to contact rather easy in many circumstances.
Generally speaking most of these notices are acted on within a week. Some may take longer depending on how busy they are but I have also had takedown notices work in the same day I sent the notice. Do be aware that the sort of person that would have given me a nasty email (see “The Removal Request” section above) occasionally responds in the same manner with a DMCA request. At that point, however, you can pretty much ignore them – the image is no longer on their site. In one case this did mean that suddenly a LOT of my images were suddenly on their site. Another email solved that, and their site never resurfaced online again that I have noticed. They were likely asked to find new hosting.
US based ImageRights is a company that can pursue copyright claims for you in many corners of the world. I initially tested them out with their Basic service to pursue a Canadian infringement of one of my photographs in a visitors guide. The publishers had asked me to use the photograph, and when I mentioned the image was not free (and quoted my price) they did not return further emails. Later the next year I accidentally happened upon the same photograph used in their guide. This was the first infringement I had found that really got my blood pumping – so I tried out ImageRights for the first time. They successfully recovered a settlement worth many times what the image license would have been. Pleased with that result, I signed up for a Pro account for a year. It is early yet, but I am happy with their progress on subsequent infringements so far. Maybe I’ll write a review of my experience with them after a year of data.
Ultimately this can be a full time job depending on how many images you are finding without licensing or permission. Often just looking through your images with a reverse image search can take a lot of time. This is why I occasionally do nothing – it often isn’t worth hassling personal bloggers or non commercial users. Even writing a DMCA notice for them can take time, and you may not want to spend that time in every circumstance. I do think it is important to take copyright issues with your work seriously, however. If you do not look into these issues at all – you may find an infringement that does get you angry eventually. At that point you may find that your image has been all over the internet for several years, and having all those images removed that late in the game can be difficult or even impossible. I stay on top of this so none of my images get away from me in that manner, though a few still have.
Good luck! If you have any questions or comments feel free to leave me a comment below.