ricktas
10-09-2013, 6:11pm
Image theft, unauthorised use, copyright breach, it can be called many things but it basically refers to the use of one of your photos without your permission.
This thread is to be a repository of information to assist those that are dealing with a copyright breach of one (or more) of their photographs.
Discovery
The initial issue is when you find out your photography is being used without your permission. This usage could be widely varied. It could be one of your photos is posted on someone's blog, it could be on a website, it could be in print (newspaper, book cover, music album cover). It could be used in advertising, on the wall of a cafe and for sale, or any other of a myriad of places that a photograph can be displayed.
How you find out is actually quite irrelevant to the issue of photographic copyright breach. However you could find out from a friend, accidentally, find it yourself, even a complete stranger could recognise your photo and contact you about it. You might see it in an advertisement, or someone might tell you via facebook. You might do an image recognition search on the internet (see resources below). The ways you might come across the photo use are as wide and varied as the subjects we can photograph.
The first thing once finding your photograph is being used without your permission.
Investigate
You then need to do some investigation:
1. Make sure it is YOUR photograph, not just a similar one
2. How long has it been used for.
3. What is the intent of the use. Is it on a blog with a nice write up about how good it is (review), is it in an advertisement? is someone claiming it was taken by themselves, etc
4. How did it get there, where did they get it from?
5. Has it been edited (watermark removed)?
Basically you need to find out as much about the use of your photograph as you can. The more information you can get, the better positioned you will be to take any action, if that is what you want to do. Showing a photo has had your watermark removed shows intent, they removed the watermark on purpose to hide who's photo it was.
What action to take
So you have a lot of information gathered, now you need to decide what you want to do about this unauthorised use of your photograph.
1. Do nothing (yes this is an option)
2. Do you want acknowledgement that it is your photograph (credited as the author)
3. Do you want compensation (monetary, or otherwise)
4. What compensation do you want (how much $$m or sign in shop window apologising for use, etc) There are many different forms of compensation and not all are monetary.
5. Removal of the photograph
6. Legal action
7. Other options you may wish to consider
Firstly, make sure you are dealing with the right person. No use corresponding with the 17 year old junior employee. You need to deal with the person in charge, the person responsible for the copyright breach, or a manager, company owner etc. Part of the investigation phase is finding out who you need to deal with, before you start dealing with them.
Why do we say do nothing, or seek acknowledgment as the Artist, only. It may be that the photo was genuinely used as part of a review or critique (which is allowed under the copyright act) as long as the artist is named. It maybe that the person who is using your work is a 13 year old student who used it for a school project and any act to pursue costs is likely to fail as taking a child to court is not a simple process.
If you want monetary compensation, the value of that compensation is something you need to work out. It could be anything from a few dollars to tens of thousands of dollars, depending on how your photograph was used. A small town country single operator business that used your photo on a flyer to the 200 homes in the town, is not likely to be able to pay you the same as a large multinational company that used your photograph on billboards in all capital cities and large regional towns across the country. You need to work out how much money you want for the copyright breach. There is no single, simple $$ value to seek.
Use common sense when deciding what action to take. Sometimes educating a person on copyright is all that you need to do.
Consider your decision to take further action carefully. Select a chosen plan and stick to it.
How do you take that action
1. Do nothing
2. Contact the person using your photograph and discuss
3. Demand removal of your photograph
4. Send the person using your photograph an account
5. Involve the small claims court or a Lawyer
6. Other options
What you choose to do about the unauthorised use of your photograph is up to you. There are many paths you can take, but ultimately you need to decide what action you want to take and then follow that action to its conclusion and resolution. Decide and stick to your path. No use deciding you want to get the photo removed, and then half way through the dealing, decide you want money. Create a plan and stick to it. Your plan might have two or three options. Ask them to remove photo, they comply, end of issue. Ask them to remove photo, they refuse, send account. They pay. Ask them to remove photo. they refuse, send account, they do not pay, make a claim through a debt collection agency or small claims court. Whatever you do, define a path you wish to travel and get it to the conclusion. If you back down, chances are they will use more of your photos cause they know that you will not pursue it.
Eg. Approach is made to have your photo credited with your name. They respond and do so. Issue finalised. Do not then change your mind and say you want some money - OR - Approach is made, you send letter/email with an invoice for $100.00 for prior use and $100.00 more of they wish to continue to use the photo. They do not reply, so you just give up. Don't. Send them a second invoice and demand for payment and list what you will do if they do not pay. Stick to it!
Keep your communications professional. Be firm and direct, state your case and your terms. Do not get misdirected by the other party trying to deflect blame or proportion your claim to others. If they try to deflect, reply with "I am dealing with your company, as it was your website. I expect you to make payment within 7 days. Any issue regarding the action of your staff or supplier is just that, your issue. My claim is against you and your company/business using my photograph without permission" or similar. Do not let them try to bamboozle you with multiple excuses and reasons and 'unauthorised action by a staff member', etc.
Some other things to do
Get copies. Take screen grabs of their website with the photo in place, get copies of the pamphlets with the photo, take photos of the shop with your photo in their window with a for sale and $ on it. All part of gathering evidence, but it also goes to prove your side of the issue if you need to present it to a small claims magistrate, take down notification, etc. The more detailed information gathering you have, the more likely you are to prove your case.
Most websites will have a 'contact us' or even a 'staff' page. Also many websites will have who the web design company is. Often a business will employ someone to create their website and that company is the provider of the site, its images etc. So it may well be the web design company you need to direct your inquiry/account to. However, legally the owner of the site is responsible for its content, not the person who designed it, or the office person who uploads the photos to it. The person who owns the site is legally responsible for the site.
The more research you can do, and the more information you can gather, the better chance you have of getting what you want. Often people contact a company to be told 'our web design company does that', you contact them and they say 'we just do what the site owner tells us to, they gave us the photo'. It is called the 'run around' and it is purely designed to make it hard for you to find out who is directly responsible and who to deal with. Persist!
Ensure all correspondence has well defined 'targets'. No use saying you want your photograph credited with your name on their pamphlet. You need to specify by what date! They might have 20,000 pamphlets and tell you they will put your name on the next print run, when that is going to be 2 years away, or they do not even intend to do another print run.
Stay Calm and carry on! hehehe. Do not start getting hot-headed and whipping of emails calling them a pack of bastards etc when they do not acquiesce to your demands/requirements straight away. Remain polite, but firm in the wording of your correspondence. Make them believe you know exactly what you are doing in relation to your photo(s). A well worded letter can impact upon them that you have done this before and you know the 'rules'. A sloppy letter does the opposite.
Try and do all communication in writing. If you do make or receive a phone call, follow it up with an email/letter confirming the phone call, date and time and the contents of the call. Written evidence has more power in court if it is taken that far. Phone calls and the conversations can be disputed.
So an email follow-up could be worded 'Thank you for the phone call at 2.15pm today where we discussed that you felt you should not have to pay me for the copyright breach in relation to my photo that you have been using, unauthorised, for the past 4 months. As discussed, I am seeking a payment of $400.00 for this use, to date, and another $400.00 if you wish to continue to use it. Be assured that if payment is not made, as discussed in the phone call today, I will be lodging the account with the small claims court on the 15th May 2013. I look forward to your reply'". By following up and referencing the phone call, you are getting them to reply and they will no doubt acknowledge part of the phone call contents. Thus you have written evidence, if it does proceed to court.
Photograph(s) on a website - Take Down Notice
Another option available to you if the photograph is on a website is to issue a 'take down notice'. Take down notices are issued to the hosting company where the website is hosted. Hosting companies are obliged to remove any content on a website they host if that content breaches laws, including copyright. You will be required to provide links to the site, the image(s) and provide proof that you are the copyright holder. Hosting companies tend to be very proactive on this. In cases of multiple copyright breaches the hosting company can close the website down completely. A take down notice can be a very effective tool when the site owner refuses to co-operate.
Resources
Copyright Act (http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/), use sections of the Act in your letters to show them they have breached your copyright.
Copyright Council (http://www.copyright.org.au/), for information on copyright
Tineye (http://www.tineye.com/) : reverse search engine for images on the internet
Google Image Search (https://www.google.com.au), Go to Google, Click Images, and then click on the small camera icon at the right of the search box.
Take Down Notice (http://www.unimelb.edu.au/copyright/information/new/infringement/takedowns.html) : General information on how take down notices work, from the University of Melbourne
Take down notice template (http://scribd.zendesk.com/forums/33563/entries/22980) : template form for completing your own take down notice
Who Is? (http://www.whois.com.au/whois/index.html), To find out who owns a website
Who hosts a website (http://www.webtoolhub.com/tn561355-who-is-hosting-this.aspx), this can be used to send a 'take down notice' to. Send it to the hosting company, with all details and they are required to investigate and remove your photo(s) or even remove the entire site.
ABN Lookup (http://abr.business.gov.au/), find out information about an Australian Business if you need to find out more details about who you are dealing with.
Google (www.google.com.au), Google can be helpful to research a company or business, or even a person, so you know who to contact regarding your photograph unauthorised use. Finding out who a manager is, etc.
Small Claims Courts (http://www.complaintline.com.au/consumeraffairs.html), it is reasonably easy and not expensive to lodge a claim in Small Claims Court/Magistrates court against someone who has not paid an account. Matters are often dealt with quickly and a decision reached within a few minutes. You can represent yourself.
Debt Collection (http://www.accc.gov.au/business/treating-customers-fairly/debt-collection), government website detailing how debt collection works in Australia
Copyright Lawyers (http://www.copyrightlawyers.com.au/), search for a copyright lawyer in your area
NOTE: all of the links above are provided for information. We do not endorse their use, or warrant any of the content as being correct or valid. It is up to you to determine the relevance or otherwise of any advice, content, assistance, legal directives of any content from the above links.
Other
This thread has been created to provide a repository of resources and information on how to deal with one or more of your photographs being used without your permission. If others have more information to add to this thread, please feel free to do so. But keep all information in this thread as more general information. Do no use this thread to discuss specific issues related to a matter you might have. We cannot provide specific legal, financial advice on Ausphotography. So if you have a specific matter related to one (or more) of your photos, please create a separate thread to gauge member opinion and views on your situation. This thread is to give overall generic information on how to deal with unauthorised use of photographs only.
AP members are invited to add more details, links to other helpful resources on this matter. We will endeavour to compile any worthwhile information posted by members into this original post, Once we compile this thread into a great repository for anyone having to deal with copyright/unauthorised photograph use, we will add it to the site Library.
This thread is to be a repository of information to assist those that are dealing with a copyright breach of one (or more) of their photographs.
Discovery
The initial issue is when you find out your photography is being used without your permission. This usage could be widely varied. It could be one of your photos is posted on someone's blog, it could be on a website, it could be in print (newspaper, book cover, music album cover). It could be used in advertising, on the wall of a cafe and for sale, or any other of a myriad of places that a photograph can be displayed.
How you find out is actually quite irrelevant to the issue of photographic copyright breach. However you could find out from a friend, accidentally, find it yourself, even a complete stranger could recognise your photo and contact you about it. You might see it in an advertisement, or someone might tell you via facebook. You might do an image recognition search on the internet (see resources below). The ways you might come across the photo use are as wide and varied as the subjects we can photograph.
The first thing once finding your photograph is being used without your permission.
Investigate
You then need to do some investigation:
1. Make sure it is YOUR photograph, not just a similar one
2. How long has it been used for.
3. What is the intent of the use. Is it on a blog with a nice write up about how good it is (review), is it in an advertisement? is someone claiming it was taken by themselves, etc
4. How did it get there, where did they get it from?
5. Has it been edited (watermark removed)?
Basically you need to find out as much about the use of your photograph as you can. The more information you can get, the better positioned you will be to take any action, if that is what you want to do. Showing a photo has had your watermark removed shows intent, they removed the watermark on purpose to hide who's photo it was.
What action to take
So you have a lot of information gathered, now you need to decide what you want to do about this unauthorised use of your photograph.
1. Do nothing (yes this is an option)
2. Do you want acknowledgement that it is your photograph (credited as the author)
3. Do you want compensation (monetary, or otherwise)
4. What compensation do you want (how much $$m or sign in shop window apologising for use, etc) There are many different forms of compensation and not all are monetary.
5. Removal of the photograph
6. Legal action
7. Other options you may wish to consider
Firstly, make sure you are dealing with the right person. No use corresponding with the 17 year old junior employee. You need to deal with the person in charge, the person responsible for the copyright breach, or a manager, company owner etc. Part of the investigation phase is finding out who you need to deal with, before you start dealing with them.
Why do we say do nothing, or seek acknowledgment as the Artist, only. It may be that the photo was genuinely used as part of a review or critique (which is allowed under the copyright act) as long as the artist is named. It maybe that the person who is using your work is a 13 year old student who used it for a school project and any act to pursue costs is likely to fail as taking a child to court is not a simple process.
If you want monetary compensation, the value of that compensation is something you need to work out. It could be anything from a few dollars to tens of thousands of dollars, depending on how your photograph was used. A small town country single operator business that used your photo on a flyer to the 200 homes in the town, is not likely to be able to pay you the same as a large multinational company that used your photograph on billboards in all capital cities and large regional towns across the country. You need to work out how much money you want for the copyright breach. There is no single, simple $$ value to seek.
Use common sense when deciding what action to take. Sometimes educating a person on copyright is all that you need to do.
Consider your decision to take further action carefully. Select a chosen plan and stick to it.
How do you take that action
1. Do nothing
2. Contact the person using your photograph and discuss
3. Demand removal of your photograph
4. Send the person using your photograph an account
5. Involve the small claims court or a Lawyer
6. Other options
What you choose to do about the unauthorised use of your photograph is up to you. There are many paths you can take, but ultimately you need to decide what action you want to take and then follow that action to its conclusion and resolution. Decide and stick to your path. No use deciding you want to get the photo removed, and then half way through the dealing, decide you want money. Create a plan and stick to it. Your plan might have two or three options. Ask them to remove photo, they comply, end of issue. Ask them to remove photo, they refuse, send account. They pay. Ask them to remove photo. they refuse, send account, they do not pay, make a claim through a debt collection agency or small claims court. Whatever you do, define a path you wish to travel and get it to the conclusion. If you back down, chances are they will use more of your photos cause they know that you will not pursue it.
Eg. Approach is made to have your photo credited with your name. They respond and do so. Issue finalised. Do not then change your mind and say you want some money - OR - Approach is made, you send letter/email with an invoice for $100.00 for prior use and $100.00 more of they wish to continue to use the photo. They do not reply, so you just give up. Don't. Send them a second invoice and demand for payment and list what you will do if they do not pay. Stick to it!
Keep your communications professional. Be firm and direct, state your case and your terms. Do not get misdirected by the other party trying to deflect blame or proportion your claim to others. If they try to deflect, reply with "I am dealing with your company, as it was your website. I expect you to make payment within 7 days. Any issue regarding the action of your staff or supplier is just that, your issue. My claim is against you and your company/business using my photograph without permission" or similar. Do not let them try to bamboozle you with multiple excuses and reasons and 'unauthorised action by a staff member', etc.
Some other things to do
Get copies. Take screen grabs of their website with the photo in place, get copies of the pamphlets with the photo, take photos of the shop with your photo in their window with a for sale and $ on it. All part of gathering evidence, but it also goes to prove your side of the issue if you need to present it to a small claims magistrate, take down notification, etc. The more detailed information gathering you have, the more likely you are to prove your case.
Most websites will have a 'contact us' or even a 'staff' page. Also many websites will have who the web design company is. Often a business will employ someone to create their website and that company is the provider of the site, its images etc. So it may well be the web design company you need to direct your inquiry/account to. However, legally the owner of the site is responsible for its content, not the person who designed it, or the office person who uploads the photos to it. The person who owns the site is legally responsible for the site.
The more research you can do, and the more information you can gather, the better chance you have of getting what you want. Often people contact a company to be told 'our web design company does that', you contact them and they say 'we just do what the site owner tells us to, they gave us the photo'. It is called the 'run around' and it is purely designed to make it hard for you to find out who is directly responsible and who to deal with. Persist!
Ensure all correspondence has well defined 'targets'. No use saying you want your photograph credited with your name on their pamphlet. You need to specify by what date! They might have 20,000 pamphlets and tell you they will put your name on the next print run, when that is going to be 2 years away, or they do not even intend to do another print run.
Stay Calm and carry on! hehehe. Do not start getting hot-headed and whipping of emails calling them a pack of bastards etc when they do not acquiesce to your demands/requirements straight away. Remain polite, but firm in the wording of your correspondence. Make them believe you know exactly what you are doing in relation to your photo(s). A well worded letter can impact upon them that you have done this before and you know the 'rules'. A sloppy letter does the opposite.
Try and do all communication in writing. If you do make or receive a phone call, follow it up with an email/letter confirming the phone call, date and time and the contents of the call. Written evidence has more power in court if it is taken that far. Phone calls and the conversations can be disputed.
So an email follow-up could be worded 'Thank you for the phone call at 2.15pm today where we discussed that you felt you should not have to pay me for the copyright breach in relation to my photo that you have been using, unauthorised, for the past 4 months. As discussed, I am seeking a payment of $400.00 for this use, to date, and another $400.00 if you wish to continue to use it. Be assured that if payment is not made, as discussed in the phone call today, I will be lodging the account with the small claims court on the 15th May 2013. I look forward to your reply'". By following up and referencing the phone call, you are getting them to reply and they will no doubt acknowledge part of the phone call contents. Thus you have written evidence, if it does proceed to court.
Photograph(s) on a website - Take Down Notice
Another option available to you if the photograph is on a website is to issue a 'take down notice'. Take down notices are issued to the hosting company where the website is hosted. Hosting companies are obliged to remove any content on a website they host if that content breaches laws, including copyright. You will be required to provide links to the site, the image(s) and provide proof that you are the copyright holder. Hosting companies tend to be very proactive on this. In cases of multiple copyright breaches the hosting company can close the website down completely. A take down notice can be a very effective tool when the site owner refuses to co-operate.
Resources
Copyright Act (http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/), use sections of the Act in your letters to show them they have breached your copyright.
Copyright Council (http://www.copyright.org.au/), for information on copyright
Tineye (http://www.tineye.com/) : reverse search engine for images on the internet
Google Image Search (https://www.google.com.au), Go to Google, Click Images, and then click on the small camera icon at the right of the search box.
Take Down Notice (http://www.unimelb.edu.au/copyright/information/new/infringement/takedowns.html) : General information on how take down notices work, from the University of Melbourne
Take down notice template (http://scribd.zendesk.com/forums/33563/entries/22980) : template form for completing your own take down notice
Who Is? (http://www.whois.com.au/whois/index.html), To find out who owns a website
Who hosts a website (http://www.webtoolhub.com/tn561355-who-is-hosting-this.aspx), this can be used to send a 'take down notice' to. Send it to the hosting company, with all details and they are required to investigate and remove your photo(s) or even remove the entire site.
ABN Lookup (http://abr.business.gov.au/), find out information about an Australian Business if you need to find out more details about who you are dealing with.
Google (www.google.com.au), Google can be helpful to research a company or business, or even a person, so you know who to contact regarding your photograph unauthorised use. Finding out who a manager is, etc.
Small Claims Courts (http://www.complaintline.com.au/consumeraffairs.html), it is reasonably easy and not expensive to lodge a claim in Small Claims Court/Magistrates court against someone who has not paid an account. Matters are often dealt with quickly and a decision reached within a few minutes. You can represent yourself.
Debt Collection (http://www.accc.gov.au/business/treating-customers-fairly/debt-collection), government website detailing how debt collection works in Australia
Copyright Lawyers (http://www.copyrightlawyers.com.au/), search for a copyright lawyer in your area
NOTE: all of the links above are provided for information. We do not endorse their use, or warrant any of the content as being correct or valid. It is up to you to determine the relevance or otherwise of any advice, content, assistance, legal directives of any content from the above links.
Other
This thread has been created to provide a repository of resources and information on how to deal with one or more of your photographs being used without your permission. If others have more information to add to this thread, please feel free to do so. But keep all information in this thread as more general information. Do no use this thread to discuss specific issues related to a matter you might have. We cannot provide specific legal, financial advice on Ausphotography. So if you have a specific matter related to one (or more) of your photos, please create a separate thread to gauge member opinion and views on your situation. This thread is to give overall generic information on how to deal with unauthorised use of photographs only.
AP members are invited to add more details, links to other helpful resources on this matter. We will endeavour to compile any worthwhile information posted by members into this original post, Once we compile this thread into a great repository for anyone having to deal with copyright/unauthorised photograph use, we will add it to the site Library.