Oh, Snap: You’ve Posted an Infringing Photo

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Oh, Snap: You’ve Posted an Infringing Photo

By: Samuel P. Madden

Getting a threatening letter and being accused of copyright infringement can be intimidating.  For better or for worse, even innocent infringement can result in liability.

Today, it’s common for photographers to register their images with a licensing agency that monitors the internet for unauthorized use.  The agency often performs reverse image searches – using a picture, instead of key words, as a search term – to find websites using the photo without the photographer’s permission.  If the agency finds infringement on a site, they may contact the website owner for payment to use the image or threaten some other action.

Often, people on the receiving end of these notices do nothing, either because they think they are not obligated to pay or think the emails are a scam.

If the licensing agency gets ignored, they may hire an attorney.  That attorney may in turn send a letter demanding an amount of money and threaten to sue if you do not pay. What to do?

  • Ask to see a copy of the photo’s copyright registration. Very commonly, photographers will not register the copyright to their works in a timely fashion.  This does not mean that they don’t have copyright protection, but it does limit their legal remedies.
  • Look back at the letters/emails sent to you by the licensing agency. Does it say whether the amount of money requested is the typical amount the photographer usually charges for their work?  Often, this is approximately what the infringement is worth, regardless of what the lawyer’s letter demands.  Hint: if this language is not included, check the photographer’s website, and see what they charge to buy or license that work or similar works.
  • Note the lawyer’s location and licenses. Is the lawyer in a random area of the country where neither you nor the photographer are located?  Some licensing agencies have an ongoing relationship with just a few lawyers around the country.  Lawyers must be admitted to practice in any court they file a lawsuit (and, practically, if the case goes beyond the initial documents, they must physically show up there).  Posting a photo on a website alone does not enable any court around the country to hear an infringement action brought against you.  Often, the lawsuit must be filed in a jurisdiction where you or the photographer are located, placing extra burdens on a remote lawyer.

To possibly avoid getting these threatening letters, be cautious not to use copyrighted digital photos, and if you are going to, get permission in advance.

Remember, if you do get an email or letter from a licensing agency, don’t panic or ignore it.  Most often, claims made by licensing agencies and attorneys are legitimate, although, they are typically small-sum matters, with their worth exaggerated by those representing the photographer.

If you need to make a payment, make sure the licensing agency is legitimate, payment is secure and the price is negotiated and reasonable.

 

Samuel P. Madden

Associate Attorney

(212) 865-9848

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This Blog is made available by Romano Law PLLC for general informational and educational purposes only, not to provide specific legal advice. By using this Blog you understand that there is no attorney client relationship between you and Romano Law PLLC or any individual contributor. You should consult a licensed professional attorney for individual advice regarding your own situation.

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