Are you on social networking sites? Do you use Facebook, Twitter, Google+, Flickr or a combination of the four? Perhaps you are on a smaller, niche social networking site. No matter what sites you are using, you are probably uploading photos – photos of yourself, your pets, scenic spots on your vacations – that you may have taken yourself. What happens if these photos end up being used by someone else? It is potentially a copyright infringement.
A photograph may be copyrighted so long as it is a representation of an original intellectual conception of the author. Quantity of originality that need be shown is modest – only a dash of it will be sufficient. Elements of originality may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, etc.
However, before you run to get an attorney to sue a potential infringer, realize that there is such a thing as a fair use defense. Fair use permits other people to use copyrightable material without the owner’s consent if it is used in a reasonable manner for certain purposes. Taking your photos and posting them on an advertisement for a dating website will not be considered a fair use. However, if the photos are not being used for personal gain and there is little to no adverse impact on the owner of the photo based on the use by another, there is a good chance that it will be construed as a fair use.
Carolyn E. Wright provides some strong guidance as to what you can/should do if you believe that your photo is being used without your permission. The most important thing to do is to save proof of the potential infringement. This can be done by performing a quick Print Screen and saving the image on your computer. While caching systems tend to work efficiently, nothing is better proof than the original form.
If you are ready to take action, preparing a Digital Millennium Copyright Act (DMCA) take-down notice and/or sending the potential infringer a cease and desist/demand letter would be the proper step(s). This is where an attorney who is well-versed in these types of issues can really come in hand. They have likely drafted many of these notices/letters and can use those templates, while crafting them with regards to your particular claim, in an effective manner. Plus, it adds credibility to your notice/letter when it comes from an attorney’s office.
If the notice/letter is ignored or rejected, it may be time to file a copyright infringement lawsuit. Having an attorney who is already familiar with the case is helpful if you happen to reach this stage in the process. Thus, it is important that you are comfortable with the attorney you are working with in the notice/letter stage, because that person may be the one who represents you in litigation.
If you have any questions about someone using your photo(s) without your permission, feel free to contact us.