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Steal This Photograph

Free Advice
People at cocktail parties (How old am I that I wind up at actual cocktail parties?) often ask me what they can do about people stealing photographs from their blog or website. I start by asking them what they have done to protect their photographs. The only constant seems to be that they all crash cocktail parties, cornering unsuspecting intellectual property attorneys for free advice (its the virgin strawberry Daiquiris that makes us so easy to spot).

Luckily, waxing philosophic on the origins of copyright works like holy water on Nosferatu, and usually even before my ice gets all melty. Since you kind readers have been thoughtful enough to allow me to enjoy my beverages in peace, I have decided to share my thoughts on this subject, sans the legal history lesson. Here are the steps I would recommend to protect that precious shot of the snowboarding squirrel:

Make Sure You Own the Photograph

Many people mistakenly believe they own photographs they do not. If you hired someone to take the photograph, you likely only have a limited license to use the photograph for a specific purpose. If you did not take the photograph, you probably need to talk to an intellectual property attorney to determine if you own it and how to obtain and assignment to avoid problems like this in the future. If there are people in the picture, or artwork, or trademarks, you probably need to investigate the law of photography a little to determine if you have any other issues besides ownership.

Offer to License
If people are stealing your photographs, they might be willing to pay for them. Even if they are not, once you associate a dollar amount with what people are stealing, they are less likely to steal. They know that the “innocent infringer” defense is probably not going to fly and even their misguided thoughts of “fair use” fall by the wayside when they see a price tag associated with their actions.

Register Your Copyright
“Copyrighting” your photographs is kind of a misnomer. As soon as you take your photograph, copyright attaches automatically. So then why register your copyright? One main reason is that you cannot sue for copyright infringement until you register the copyright with the United States Copyright Office. Another advantage is that if you register early enough, you can get statutory damages against an infringer. This makes it easier to prove damages in cases where there is no set value for the copyrighted material. Compared to trademark and patent registration, copyright registration is relatively inexpensive. The Copyright Office provides instructions as to how to register your copyright. If you anticipate ever having to use the registration in court however, I would suggest paying a copyright attorney a few hundred dollars to do it right.

Find Infringers
Watermarking your photographs, giving them unique names and visiting similar websites are all ways to find infringers. Often vigilant web surfers will let you know about infringements they run across in their online travels if there is something in the photograph to identify it as yours. Searching Google for unauthorized copies of your photographs (or your text) is a good way to locate infringers. Be sure that when you find an infringement, you document it. Often, by the time a client comes to me, the infringing photograph is gone.

Send a Cease and Desist Letter

Putting the infringer on notice is critical. Your letter can demand cessation of the infringement and/or money for the unauthorized use. Be careful when sending a cease and desist letter, however. A poorly drafted letter might just be your invitation to a lawsuit in the infringer’s backyard.

Sue Somebody
Just like Fonzie (okay, I’m really old), you have to have been in at least one fight before everyone takes you seriously. I would not necessarily recommend suing the first person to steal a photograph. However, if people are stealing your photographs on a regular basis, a lawsuit may be the way to go. With a lot of infringers, you have the luxury of selecting the most egregious perpetrator, with the highest likelihood of sending a message to the other infringers that you are indeed serious about protecting your intellectual property. At the very least, it is like hanging a sign on your front door that says “I have a $100 stereo and a $1,000 alarm system. My neighbor, however, has a $1,000 stereo and a $100 alarm system.” You won’t be able to stop infringers, but at least you might be able to encourage them to steal from someone who does not have your knowledge of copyrights in photographs.

Brett Trout

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