It is not uncommon for contractors to take photos of their work. After all, photos can be an excellent marketing tool to display your craft and obtain new clients. But what happens if someone else reposts your photos without first getting your permission?
Believe it or not, this scenario is a classic example of copyright infringement. At its most basic level, copyright is the ownership of original work, such as a photograph. The Copyright Act of 1976 remains the primary basis of copyright law in the United States. It supersedes all relevant common law and state copyright laws.
In general, copyright lies in any original work of authorship fixed in a tangible medium of expression. Works of authorship certainly include photographs as well as films and music and other works; and a tangible medium of expression can include a business website, Facebook page or other online forum.
Under the law, photos are considered intellectual property thus ownership of a photo starts and almost always stays with the creator, i.e. the photographer. Copyright in photography essentially means you own a photo you create, and according to the law, a photo is created as soon as it is taken. Creating a copyright in a photo you took is as simple as posting the photograph online. This is because as soon as the photos have been posted online, they are “fixed in a tangible medium of expression,” and therefore the owner will automatically have a copyright in the photo.
When you own a photo, it means you have the exclusive rights to the photograph. This means you and only you can publicly display the photo, reproduce your photo, prepare derivative works based on the photo or distribute copies of the photo to the public. Therefore, when another person or entity uses without your permission a photo you have taken and posted online, it is copyright infringement.
So what can you do if someone uses your photo without your permission? Before taking any legal action, you should understand that there are certain categories of exceptions to the general rule that owners have exclusive rights to their works. Doing so will ensure that the unauthorized use of your photo does not fall within an exception and thus not actual infringement.
One of the broadest categories of exceptions is the concept of Fair Use. This exception basically permits copyrighted material to be used in limited scenarios such as for reporting, news, criticism, comment, teaching, scholarship, or research. Using copyrighted material for such purposes does not constitute infringement under the law. Four factors will be considered to determine if unauthorized use constitutes fair use. No one factor is more important than the other—all factors will be given the same weight and a fair use analysis will always be done on a case-by-case basis.
The first factor to consider is the purpose and character of the use, including whether the use is for commercial or nonprofit educational purposes. Commercial uses will less likely be considered fair use. This factor will also ask whether the use is transformative. For example, if someone uses your photograph as part of an essay describing new trends in construction, then the use is likely for a transformative purpose and will be considered fair use.
The second factor considered is whether the photo was published or unpublished. If a photo was already published, then the infringer probably has a stronger fair use claim than if the photo was unpublished before the infringement. The third consideration is how much of the photo was copied. As a general rule, the less the person copied, the stronger the fair use argument. The final factor is what effect the copying will have on the owner’s market. If the use will diminish the owner’s ability to make money on the photo, then there is most likely not fair use.
If you find yourself the victim of copyright infringement, rest assured that there are a number of steps you can take other than outright filing a lawsuit, which consumes both time and money. First, you can request photo credit. It may be that the infringer’s copying of your photo actually provides a decent marketing outlet for your work. In this case, you could send an email or letter to the infringer requesting credit for the photo and setting the parameters for the right to use your photo, such as including a link to your website with the photo. You can also request the infringer pay a reasonable licensing fee to you for using the photo in the past and in order to continue using the photo in the future. Both a request for photo credit and a licensing fee could certainly be included in the same correspondence. If you simply wish that your photo no longer be used by the infringer, you can send a cease and desist letter explain that the use is unauthorized, and the use should cease. You can elect to send this correspondence on your own or consult an attorney for assistance.
Finally, you can make use of a law called the Digital Millennium Copyright Act to report the infringement and/or send a take-down notice to the infringer. The law allows the owner of a photo who is not given photo credit to contact the hosting Internet Service Provider (ISP) or simply go to https://www.dmca.com/ to report the infringement. The IPS is then authorized to remove the image from where it has been reposted or copied. The law also allows the owner to send a take-down notice to the infringer. The notice must be in writing, signed by the owner and must identify the copyrighted photo in question. The owner must also include a statement that the notice is accurate, and it is within the copyright owner’s rights to send the notice.
A quick word should be said about registering a copyright. Owners can register their copyrights with the U.S. Copyright Office, but obviously are not required to do so in order for the copyright to exist. Photos can be submitted in bulk for copyright processing at once so long as the photos are all taken by the same photographer and during the same calendar year. While registering a copyright is completely voluntary, doing so does provide certain benefits—especially if you anticipate wanting to take legal action in the case of an infringement. For example, registering a copyright allows the owner to obtain statutory damages and be reimbursed for legal fees if an infringement occurs. Depending on the situation, statutory damages under the 1967 Act often exceed $150,000. Herein lies a primary benefit of registration. On the other hand, if a copyright is not registered, the owner will be disqualified from seeking the statutory damages in the case of an infringement, and will be limited to recovering only his or her actual damages i.e. the fair market value of the photograph.
In conclusion, the action to be taken in the face of an infringement depends on what you seek to gain from the situation. Whether you have registered the copyright, whether you ultimately intended to sell prints of your photo for money, the way in which and purpose for which the photo has been copied and your relationship with the infringer will be among some of the things you should consider when determining how to respond to an instance of infringement. In some instances, it may be more beneficial to simply do nothing.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.