Copyright:
Infringement

“anyone who violates any of the exclusive rights of the copyright owner ..is an infringer of the copyright or right of the author.”
17 USC §501

“[Copyright] may be infringed a thousand miles from the owner and without his ever becoming aware of the wrong.”
>Justice Holmes, White-Smith Music v. Apollo Co., 1908.

Part 2: Protect:
2.6 Infringement

What if I don’t get permission to use a copyrighted work?

“It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright.”
U.S. Copyright Office, Circular 1

Could I be sued for using somebody else’s work?

“If you use a copyrighted work without authorization, the owner may be entitled to bring an infringement action against you.”
U.S. Copyright Office, FAQ

What can happen if I infringe a copyright?

“A party may seek to protect his or her copyrights against unauthorized use by filing a civil lawsuit in federal district court. In cases of willful infringement for profit, the U.S. Attorney may initiate a criminal investigation.”
U.S. Copyright Office, FAQ

“.. all .. exclusive rights .. are governed exclusively by [federal law, and] no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
17 USC §301 (a)

“Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to

  • (1) subject matter that does not come within the subject matter of copyright .. or
  • (3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright .. or
  • (4) State and local landmarks, historic preservation, zoning, or building codes, relating to architectural works protected under section 102(a)(8).

17 USC §301

“If a notice of copyright in the form and position specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(c)(2).
17 USC §401

“..a single notice applicable to the collective work as a whole is sufficient to invoke the provisions of section 401(d) or 402(d) .. regardless of the ownership of copyright in the contributions and whether or not they have been previously published.
17 USC §404

“Any person who innocently infringes a copyright, in reliance upon an authorized copy or phonorecord from which the copyright notice has been omitted and which was publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, incurs no liability for actual or statutory damages under section 504 for any infringing acts committed before receiving actual notice that registration for the work has been made under section 408, if such person proves that he or she was misled by the omission of notice.
17 USC §405

“In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.
17 USC §410

Small Copyright Claims

“in many cases, the individual creator may have little practical recourse in obtaining relief through the court system, particularly against infringements involving small amounts of actual damages.
U.S. Copyright Office, Report on Orphan Works, January 2006.

“Anyone who has litigated a case—whether as a party or as counsel—in the federal courts knows that the costs of litigation are beyond the means of many Americans. Attorneys typically charge hundreds of dollars per hour for their services, and it is our understanding that contingency fee arrangements in copyright cases are relatively rare. In a typical civil case, after pleadings, discovery, motion practice and trial (as well as possible appeals), attorney’s fees can run to tens of thousands of dollars or more, and other costs can run to thousands of dollars or more.U.S. Copyright Office, Remedies for Small Copyright Claims, March 29, 2006.

“Unlike most areas of the law, copyright law permits a court to award a reasonable attorney’s fee to a successful plaintiff (or defendant).(6) Moreover, a copyright owner may elect to receive an award of statutory damages of up to $30,000 per infringed work—and up to $150,000 per work in cases of willful infringement—in lieu of actual damages and profits.U.S. Copyright Office, Remedies for Small Copyright Claims, March 29, 2006.

“Section 1338 of Title 28 of the United States Code confers upon the federal district courts exclusive jurisdiction over claims of copyright infringement.U.S. Copyright Office, Remedies for Small Copyright Claims, March 29, 2006.

“It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright.”
U.S. Copyright Office, Circular 1

To file an infringement suit, do I need anything from the copyright office?

“.. the Copyright Office must have acted on your [Copyright] application before you can file a suit for copyright infringement..”
U.S. Copyright Office, Circular 1

“.. certain remedies, such as statutory damages and attorney’s fees, are available only for acts of infringement that occurred after the effective date of registration.”
U.S. Copyright Office, Circular 1

Somebody infringed my copyright. What can I do?

“A party may seek to protect his or her copyrights against unauthorized use by filing a civil lawsuit in federal district court. If you believe that your copyright has been infringed, consult an attorney. In cases of willful infringement for profit, the U.S. Attorney may initiate a criminal investigation.”
U.S. Copyright Office, FAQ

Could I be sued for using somebody else’s work? How about quotes or samples?

“If you use a copyrighted work without authorization, the owner may be entitled to bring an infringement action against you. There are circumstances under the fair use doctrine where a quote or a sample may be used without permission. However, in cases of doubt, the U.S. Copyright Office recommends that permission be obtained. ”
U.S. Copyright Office, FAQ

What is copyright infringement?

“As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.”
U.S. Copyright Office, FAQ

Part 2: Protect:
2.6 Infringement:
Remedy: Court

“(a) The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases.”
U.S. Code, Title 28, §1338(a)

“(b) The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent, plant variety protection or trademark laws.”
U.S. Code, Title 28, §1338(b)

“(c) Subsections (a) and (b) apply to exclusive rights in mask works under chapter 9 of title 17, and to exclusive rights in designs under chapter 13 of title 17, to the same extent as such subsections apply to copyrights.”
U.S. Code, Title 28, §1338(c)

“(a) Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found.”
U.S. Code, Title 28, §1400(a)

“(b) Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”
U.S. Code, Title 28, §1400(b)

“Hereafter, whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504(c) of title 17, United States Code: Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government: Provided, however, That this subsection shall not confer a right of action on any copyright owner or any assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used: And provided further, That before such action against the United States has been instituted the appropriate corporation owned or controlled by the United States or the head of the appropriate department or agency of the Government, as the case may be, is authorized to enter into an agreement with the copyright owner in full settlement and compromise for the damages accruing to him by reason of such infringement and to settle the claim administratively out of available appropriations.”
U.S. Code, Title 28, §1498(b)

“Except as otherwise provided by law, no recovery shall be had for any infringement of a copyright covered by this subsection committed more than three years prior to the filing of the complaint or counterclaim for infringement in the action, except that the period between the date of receipt of a written claim for compensation by the Department or agency of the Government or corporation owned or controlled by the United States, as the case may be, having authority to settle such claim and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as a part of the three years, unless suit is brought before the last–mentioned date.
U.S. Code, Title 28, §1498

“Whoever, in any of the circumstances described in subsection (c), knowingly traffics in .. a copy of a pictorial, graphic, or sculptural work .. that is, without the authorization of the copyright owner .. distributed or intended for distribution not in connection with the copy, phonorecord, or work of visual art to which such labeling component was intended to be affixed by the respective copyright ownerU.S. Code, Title 18, §2318(a)(1)(v)(B)(i)

“In general. — Any copyright owner who is injured, or is threatened with injury, by a violation of subsection (a) may bring a civil action in an appropriate United States district court.”
U.S. Code, Title 18, §2318

“may award to the injured party reasonable attorney fees and costs; and actual damages and any additional profits of the violator .. or statutory damages.”
U.S. Code, Title 18, §2318

“The injured party is entitled to recover .. the actual damages .. and any profits of the violator that are attributable to a violation ..”
U.S. Code, Title 18, §2318

“Actual damages. — The court shall calculate actual damages by multiplying .. in the case of a pictorial .. work, the retail value of an authorized copy of that work value . By the number of phonorecords, copies, or works of visual art which are, or are intended to be, affixed with, enclosed in, or accompanied by any counterfeit labels, illicit labels, or counterfeit documentation or packaging.”
U.S. Code, Title 18, §2318

“Statutory damages. — The injured party may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for each violation of subsection (a) in a sum of not less than $2,500 or more than $25,000, as the court considers appropriate.”
U.S. Code, Title 18, §2318

“Limitation on actions. — A civil action may not be commenced under this section unless it is commenced within 3 years after the date on which the claimant discovers the violation of subsection (a).”
U.S. Code, Title 18, §2318

Part 2: Protect:
2.6 Infringement:
Civil

“Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.
17 USC §411

statutory damages and attorney’s fees

“In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(c), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for —

  • (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
  • (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

17 USC §412

Part 2: Protect:
2.6 Infringement:
Remedies

“Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.
17 USC §502

Part 2: Protect:
2.6 Infringement:
Impound

“At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable

  • (A) of all copies or phonorecords claimed to have been made or used in violation of the exclusive right of the copyright owner;
  • (B) of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced; and
  • (C) of records documenting the manufacture, sale, or receipt of things involved in any such violation..

17 USC §503

“As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced.
17 USC §503

Part 2: Protect:
2.6 Infringement:
Damages

“.. an infringer of copyright is liable for either —

  • (1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or
  • (2) statutory damages, as provided by subsection (c).

17 USC §504

Actual Damages and Profits. — The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
17 USC §504

Statutory Damages.

  • (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are li– §503 Copyright Infringement and RemediesCopyright Law of the United States 161 able jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
  • (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in section 118(f)) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.
  • (3) (A) In a case of infringement, it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement.

17 USC §504

(B) Nothing in this paragraph limits what may be considered willful infringement under this subsection.
17 USC §504

(C) For purposes of this paragraph, the term “domain name” has the meaning given that term in section 45 of the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes” approved July 5, 1946 (commonly referred to as the “Trademark Act of 1946”; 15 U.S.C. 1127).
17 USC §504

(d) Additional Damages in Certain Cases. — In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110(5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that Copyright Infringement and Remedies §504162 Copyright Law of the United States the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.
17 USC §504

“The only purpose of awarding damages for an innocent infringement is to compensate the copyright owner.”
1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

“..statutory damages are intended (1) to assure adequate compensation to the copyright owner for his injury, and (2) to deter infringement.”
1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

Part 2: Protect:
2.6 Infringement:
Attorney’s Fees

“In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.
17 USC §505

“[An award of attorney’s fees to the defendant represents] a penalty for the institution of a frivolous or bad faith suit.”
— Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.), cert. denied, 459 U.S. 879, 103 S.Ct. 175, 74 L.Ed.2d 143 (1982).

“Fees and costs in copyright infringement cases, like statutory damages, are matters assigned to the court’s discretion, to be awarded with an eye toward encouraging the pursuit of colorable copyright claims and deterring further infringement.”
— Engel v. Wild Oats, Inc., 644 F. Supp. 1089, 1093 (S.D.N.Y. 1986).

“Because Section 505 is intended in part to encourage the assertion of colorable copyright claims and to deter infringement, fees are generally awarded to prevailing plaintiffs.”
— Diamond v. Am-Law Publishing Corp., 745 F.2d 142, 148 (2d Cir. 1984).

Part 2: Protect:
2.6 Infringement:
Criminal

Criminal Infringement.

“Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a) .. is an infringer of the copyright or right of the author, as the case may be.
17 USC §501

“The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.
17 USC §501

“The court may require [the copyright] owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case.
17 USC §501

“The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright.
17 USC §501

(1) In General. — Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed —17 USC §506

(A) for purposes of commercial advantage or private financial gain;17 USC §506

(B) by the reproduction or distribution, including by electronic means, during any 180–day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or17 USC §506

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
17 USC §506

(2) Evidence. — For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.
17 USC §506

(3) Definition. — In this subsection, the term “work being prepared for commercial distribution” means —17 USC §506

(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution —17 USC §506

(i) the copyright owner has a reasonable expectation of commercial distribution; and17 USC §506

(ii) the copies or phonorecords of the work have not been commercially distributed; or17 USC §506

(B) a motion picture, if, at the time of unauthorized distribution, the motion picture — §504 Copyright Infringement and RemediesCopyright Law of the United States 16317 USC §506

(i) has been made available for viewing in a motion picture exhibition facility; and17 USC §506

(ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility.
17 USC §506

(b) Forfeiture, Destruction, and Restitution. — Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18, to the extent provided in that section, in addition to any other similar remedies provided by law.
17 USC §506

(c) Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.
17 USC §506

(d) Fraudulent Removal of Copyright Notice. — Any person who, with fraudulent intent, removes or alters any notice of copyright appearing on a copy of a copyrighted work shall be fined not more than $2,500.
17 USC §506

(e) False Representation. — Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500.
17 USC §506

(f) Rights of Attribution and Integrity. — Nothing in this section applies to infringement of the rights conferred by section 106A(a).
17 USC §506

Part 2: Protect:
2.6 Infringement:
Filing Time

(a) Criminal Proceedings. — Except as expressly provided otherwise in this title, no criminal proceeding shall be maintained under the provisions of this title unless it is commenced within 5 years after the cause of action arose.
17 USC §507

(b) Civil Actions. — No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.
17 USC §507

Somebody infringed my copyright. What can I do?

“A party may seek to protect his or her copyrights against unauthorized use by filing a civil lawsuit in federal district court. If you believe that your copyright has been infringed, consult an attorney. In cases of willful infringement for profit, the U.S. Attorney may initiate a criminal investigation.”
U.S. Copyright Office, FAQ

Part 2: Protect:
2.6 Infringement:
International

“Berne Convention for the Protection of Literary and Artistic Works. Appearing within parentheses in the country listing that follows is the latest act of the convention to which the country is party. Thus “Berne (Paris)” means the Berne Convention as revised at Paris on July 24, 1971 (Paris Act). “Berne (Brussels)” means the convention as revised at Brussels on June 26, 1948. “Berne (Rome)” means the convention as revised at Rome on June 2, 1928 (Rome Act). Other acts of the convention were revised at Stockholm on July 14, 1967, and at Berlin on Nov. 13, 1908. In each case, a reference to a particular act signifies adherence only to the substantive provisions of the act—for example, to articles 1 to 21 and the appendix of the Paris Act; articles 22 to 38 deal with administration and structure. The effective date for U.S. adherence to the Berne Convention is Mar. 1, 1989. The latest act of the convention to which the United States is party is the revision done at Paris on July 24, 1971.”
U.S. Copyright Office, Circular 38a

Berne (Paris)
CountryYear Signed
Australia1928
Canada1928
China199
France1887
Germany1887
India1928
New Zealand1928
United Kingdom1887

Copyright:
Contributory Infringement

Contributory InfringementUnder the doctrine of contributory copyright infringement, one is liable for contributory infringement if "with knowledge of the infringing activity, [he/she] induces, causes or materially contributes to the infringing conduct of another[.]" Napster, 239 F.3d at 1019 (citations and internal quotation marks omitted).There are two factors that come into play in determining liability for contributory infringement: (1) knowledge, and (2) material contribution. The secondary infringer must "know, or have reason to know of [the] direct infringement." Adobe Systems Inc. v. Canus Prods., Inc., 173 F.Supp.2d 1044, 1048 (C.D.Cal.2001) (citations and internal quotation marks omitted). Furthermore, with regard to the second element, "liability [for contributory infringement] exists if the defendant engages in personal conduct that encourages or assists the infringement." Napster, 239 F.3d at 1019 (citation and internal quotation marks omitted).FEIST PUBLICATIONS, INC. V. RURAL TELEPHONE SERVICE COMPANY, INC.499 U.S. 340, 111 S.Ct. 1282 (1991) Supreme Court of the United StatesJustice O’CONNORVicarious InfringementThe doctrine of vicarious infringement, an expansion of traditional respondeat superior, extends liability for copyright infringement to "cases in which a defendant ‘has a right and ability to supervise the infringing activity and also has a direct financial interest in such activities.’ " Napster, 239 F.3d at 1022 (quoting Fonovisa, 76 F.3d at 262 (citation omitted)).There are two elements required for vicarious infringement: (1) financial benefit, and (2) the defendant’s right and ability to supervise the infringing conduct. As opposed to contributory infringement, one can be liable for vicarious infringement without knowledge of the infringement. Adobe Systems, 173 F.Supp.2d at 1049 (citation omitted) ("Lack of knowledge of the infringement is irrelevant.").FEIST PUBLICATIONS, INC. V. RURAL TELEPHONE SERVICE COMPANY, INC.499 U.S. 340, 111 S.Ct. 1282 (1991) Supreme Court of the United StatesJustice O’CONNOR

Infringement / Enforce
18DMCAMr. Gorbachev, take down that photo More
19Cease-and-DesistStep off More
20File SuitWhen all else fails, go to court More

Legal

Nothing

PRO:The easiest solution.
CON:Can only get actual damages in a court;
better terms require copyright registration.

You don’t need to do anything to gain legal protection, as your photos gain copyright upon creation. Copyright is bestowed automatically when you press the shutter release, and registration or notice are not required.

But that doesn’t stop people from copying your work and is only minimally helpful if you take your case to trial. Plus, you wouldn’t be reading this article if that were enough for you.

Proving your case

Keep your originals

If someone else claims to be the author of your photographs, how can you prove them wrong? Establish a workflow where you first keep pristine, unaltered originals, then work on copies. You can demonstrate ownership by showing your timestamp and the uncropped, unmodified original.

Fair Use

Copyright is not an absolute power. Under the law, other people may legally copy and use your photos without authorization or attribution for purposes that are considered to be “fair use.” This may include:

  • Education
  • Research, scholarship
  • Criticism, parody
  • Some private, non-commercial displays

The test is generally: Does this use deprive the author of potential income? If there is no commercial effect then the use might be fair use. If money is being made from the use then it is unlikely to be considered fair use.

This is a complex issue. Learn more about fair use.

Enforcement

What can you do if you find illegal copies of your work online? Here are some ideas:

18. DMCA Takedown Notice

The easiest, quickest and most effective weapon in your arsenal is the DMCA Takedown Notice. You simply submit an online form and illegal work is often quickly taken offline.

Instead of going after the individual people that post illegal copies online, you can bypass them and go direct to their hosting company. Big Internet companies that provide social media, blogging and portfolio services have a vested interest in quickly removing potentially illegal displays. In the past, corporations have been found liable for secondary, contributory, or vicarious infringement, and the U.S. Copyright Act has been amended for online companies.

A provision of the 1998 Millennium Copyright Act (DMCA) requires that Internet Service Providers (ISPs) “expeditiously” remove infringing materials from a user’s website after receiving proper notice of the violation. This notice is called a DMCA Section 512 takedown notice, after the law that specifically requires it.

How to submit a DMCA Takedown Notice

Most major Internet companies provide online forms for notification of copyright violations.

Note that a DMCA Takedown Notice is simply that; a notice. It is not a legally argued case or a legal ruling, or necessarily the end of the process. The alleged violator may not be a violator if they have fair use, so they can file a §512(g) counternotice. According to Google, one-third of takedown notices are “not valid copyright claims.” Other legal issues may follow.

More information on DMCA Takedown Notices:

  • >The Fair Use Network

19. Cease-and-Desist Letter (C&D)

The first step to contacting an alleged infringer is usually by sending what is commonly called a “cease-and-desist” letter. This is typically a short statement highlighting the offending situation and requesting quick removal.

“A cease and desist letter will quite often be the first course of action for infringement of copyright, trademarks or other Intellectual Property rights. It is a cost-effective alternative to going to court and may well be sufficient to stop infringement.“
>Free Legal Documents

As a non-lawyer, you may want to start with a polite email or letter on a one-to-one basis. Approached with respect, a person may be willing to help and resolve the matter amicably. Approached with a threat, a person may refuse, retreat, become obstinate, lawyer up, or even counter-threat.

“It is almost always a bad idea for a non-lawyer to send a threatening ‘cease and desist’ copyright letter — even some attorneys make mistakes with legal threats around copyright issues, if they are not specialists. However, a polite explanation of your objection and request to stop the problematic practice can often work wonders. And if the polite letter doesn’t work, you can follow up with other measures.“
University of Minnesota Library

Before sending any legal documents, consult an attorney to ensure that this is the best course of action and that you comply with the law in your jurisdiction.

“Please remember that in all contacts and correspondence regarding copyright infringement, always maintain a professional demeanor providing only the relevant details in a succinct and organized manner. Refrain from emotional pleas or threats: copyright infringement is a matter of law and issues regarding protecting your rights should be handled with a business-like attitude.“
>Rights for Artists

Sending a C&D letter does have specific advantages even if it does not immediately stop infringement.

  • It serves as proof of your attempt to resolve the matter before seeking legal action.
  • It serves as proof of your notice to the alleged infringer of your rights. Should infringement continue thereafter, you may have a claim of willful infringement.
  • It may protect you against an adverse costs order, because it will show that your resort to legal proceedings was the only remedy.

>Free Legal Documents

“Cease and Desist Letters are best sent by attorneys because they carry more weight when a lawyer writes a letter threatening legal action if someone doesn’t cease and desist illegal conduct.“
>Aaron D. Hall, Attorney

Sample cease-and-desist letters for copyright infringement:

  • >Aaron D. Hall, Attorney, Twin Cities Law Firm
  • >Free Legal Documents
  • >LawForInternet.com on TechRepublic
  • Plagiarism Today
  • >RightsforArtists.com
  • Wikipedia

20. File Suit

When all else fails, you may have no other recourse than to file a lawsuit. You will definitely need a lawyer for this.

Copyright is a federal civil matter so your suit will be filed in a district federal court. You cannot file for copyright infringement in a local small-claims court (although you could for contract disputes). From the date of infringement, you have three years to sue for copyright infringement.

“There is a statute of limitations on copyright claims — if you wait more than three years after you find out about the potentially-infringing use, you may not be able to take legal action. (In some jurisdictions, the statute of limitations is understood to begin at the time of infringement, not the time you find out about it! Cases in these jurisdictions expire even faster!)“
University of Minnesota Library

You will have to prove three things:

  1. Ownership
  2. Access
  3. Substantial similarity

For ownership, keep your originals and register your copyright.

“To prove copyright infringement, a plaintiff must establish (1) ownership of a valid copyright; (2) factual copying; and (3) substantial similarity.”
Armour v. Knowles, 2007

“In order to succeed on a copyright infringement action, a plaintiff must prove ownership of a valid copyright, actionable copying, and substantial similarity.”
Rogers v. BBB Houston, 2011

Next: Use »

“"To prove infringement, a plaintiff with a valid copyright must demonstrate that: (1) the defendant has actually copied the plaintiff’s work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectible elements of plaintiff’s." [24] "Actual copying" — which is used as a term of art to mean that "the defendant, in creating its work, used the plaintiff’s material as a model, template, or even inspiration" [25] — may be shown by direct evidence, which rarely is available, or by proof of access and probative similarities (as distinguished from "substantial similarity") between the two works. [26]”
— Mannion v Coors Brewing, 377 F.Supp.2d 444, 2005

Next page: Contributory Infringement

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