If you’re a marketing-savvy contractor, you likely have a website filled with photographs of your projects. But what do you do if you find those photographs on someone else’s website? That question came up recently when a deck builder discovered that photographs that he had taken of his work and posted on his website also appeared on a decking manufacturer’s website and printed marketing materials—without his knowledge or permission. In another case, a contractor had an employee who posted photographs on the company’s website of remodeling work that was not done by the contractor. And beyond that, the photos had taken by a professional photographer, who wanted to be paid for the use of his pictures.
In both cases, the primary legal issue is the ownership of a photograph. In other words, who actually owns a photograph, and what can that owner do if someone else is using the photograph without permission?
I've become interested in this issue of photo ownership because I am a construction attorney in Northern California who works mostly with contractors—all of whom have websites. But I am not a legal specialist in copyright law. It bears repeating the disclaimer at the end of this article. If you need legal advice in this area, contact an attorney who is a specialist.
Copyright, the federal law that protects photographs and other original works of authorship, attaches as soon as the original work is created. It is an automatic right and does not require the author to file special paperwork, though the author may elect to register the photograph for additional protections (see sidebar).
Federal law (Title 17 United States Code, Section 106) grants the owner of a copyright the right to do four things, which are called “exclusive rights”:
- Reproduce the copyrighted work
- Display the copyrighted work publicly
- Prepare derivative works based on the copyrighted work
- Distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image
The legal exception to the exclusive rights an owner has for his or her copyrighted work is called Fair Use. It allows for limited and reasonable uses as long as the use does not interfere with owners’ rights, as discussed above. Under Fair Use, for example, it’s probably okay for a reviewer to copy a photo from a manufacturer’s website to include with a product review without contacting that manufacturer (or the photographer) for permission. Other examples of fair usage include commentary and news reporting, teaching (including photocopies for classroom use), and scholarship and research for non-commercial purposes (see 17 USC Section 107).
So, what happens when your copyrighted photograph is used without your permission? According to pro photographer Ken Kaminesky, who writes about the business of photography in his excellent blog, you have a number of options.
- Do nothing. You always have the option of doing nothing if you decide that it’s not worth your time and effort.
- Request credit. ?If the website is a marketing outlet for your business, you may only want the infringer to give your business proper credit. Contact the infringer and negotiate giving them the right to use the image. Put it in writing and be sure to designate the parameters of that use, such as who, what, why, when, and where. Also include the condition that the infringer post a photograph credit with a copyright notice on or adjacent to the use and perhaps add a link to your website.
- Send a "DMCA Take-Down Notice." Send the notice pursuant to the U.S. Digital Millennium Copyright Act to the Internet Service Provider (“ISP”) that hosts the website. The notice must be in writing, be signed by the copyright owner (or the owner’s agent), identify the copyrighted work claimed to be infringed (or list of infringements from the same site), and identify the material that is infringing the work. Be sure to include your contact information, a statement that the complaint is made in “good faith,” and a statement, under penalty of perjury, that the information contained in the notification is accurate and that you have the right to proceed (as the copyright owner).
- Send a "Cease and Desist/Demand Letter." The letter to the infringer must explain that the use is not authorized and request payment of an appropriate license fee or a photograph credit with a link to your website (as discussed above), or that the infringer cease use of the image. If you have your attorney send the demand letter, the infringer may take the matter more seriously.
There are some risks in sending the letter yourself. First, in a serious case the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. Second, your demand for payment may be admissible against you if an infringement case is filed. If you demand too little, then it may limit your ultimate recovery. To avoid this possibility, include in your demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”
Of course, you can always pursue your legal remedies by filing a copyright infringement lawsuit, in which case you’ll want to hire an attorney to help you navigate the legal system. You have three years from the date of infringement to sue for copyright infringement, and your copyright must be registered with the U.S. Copyright Office, hopefully before, but at the very least after, the infringement. And even if your photograph was not timely registered for this infringement, you may want to register it for future possible infringements.
U.S. law (17 USC, Chapter 5, Section 504) states that you are entitled to statutory damages of up to $150,000 per willful infringing use for each registered photograph, along with legal fees and other costs. When a photograph is not registered prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. One source for standard license fees is a software program called fotoQuote.You also may recover the profits the infringer made from the infringement if they aren’t too speculative.
Photographers whose copyrighted works have been used in violation of the law can sue copyright violators in federal court for an injunction and financial restitution. In this context, an injunction is a legal order to desist from using a copyrighted photograph or collection of copyrighted photographs. Failure to comply with a legal injunction can result in criminal charges for contempt of court. Financial restitution can include repayment for all income earned using copyrighted material, payments for lost revenue to the copyright holder, and payment of the plaintiff's legal fees.
And if you can prove that the infringement was done willfully, then you are entitled to enhanced statutory damages. “Willfulness” means that the infringer either had actual knowledge that it was infringing the owner’s copyrights or acted in reckless disregard of those rights.
- Bryant H. Byrnes practices construction law in the San Francisco Bay Area. You can email him at Bryant@bryantbyrnes.com. This article is a summary discussion only, and the information contained herein is not legal advice. Every scenario is different and if you need legal advice, you should contact an attorney immediately.