How to Respond to Copyright Infringement
Two sibling brown bears, a few years in age, play with one another along the banks of a river in Lake Clark National Park, Alaska. Photo and story by: Annalise Kaylor
When I was about nine years old, I entered a lip-syncing contest at a small community festival. The goal? Winning some money so I could buy my first camera. I practiced and practiced and ended up with $200. I quickly convinced my mom to take me to the local Kmart so I could buy my very own camera.
I’ve had a camera glued to my hands ever since, but it wasn’t my career until about a decade ago. For almost 20 years, I worked in the digital marketing space, a career I never really wanted, but ended up in simply because I was an “early adopter” to the internet; it was $8/hour plus long-distance fees when I first start going online. I even remember attaching my landline telephone receiver to the modem with velcro straps. I figured out how to make money in the early versions of the World Wide Web, and almost overnight, found myself full throttle down a career path that didn’t exist when I was heading into college.
A big part of marketing and advertising is covering one’s behind when it comes to intellectual property, like photographs and copy. This is why stock photography is such a big deal - people know that when they spend a little bit of money on an image, they can use it commercially without worrying about breaking the law (mostly) and violating the copyright of photographers. I got a crash course on the business side of navigating copyright, but it wasn’t until my full-time move to photography that I understood just how obnoxious and difficult protecting my copyright could be.
Copyright issues are battled out in federal court. For most of us, fighting copyright infringement in federal court would mean spending far more money on lawyers than you could ever recover if you prevail. This year, the U.S. Copyright Office (USCO) opened a “small claims” version of court that helps combat this financial burden for small businesses, but it’s so new that we have yet to see how effective this branch of the office will be.
Because I’m not someone who has the time or the resources to battle out every infringement of my copyright in court, I created a system that helps me recover lost revenue without going through the court. Now, I’m sharing a big part of that system with you.
Someone Stole Your Image. Now What?
The first thing I did was create a “legal@annalisekaylor.com” email alias. If you own your own domain, most platforms allow you to create multiple email aliases for no additional charge, allowing you to send and receive emails from different addresses seamlessly.
My reason behind creating an alias email address is two-fold. First, I want to remove myself from the situation personally. Second, the “legal” part sounds more official, even if it’s just me sending and receiving the email attached to it. People who’ve infringed on my copyright generally could not care less that they’ve done so, but they tend to care more when they see an email coming from a “legal” address. My evidence on this is anecdotal, but I will say that when I started sending everything from my “legal@“ address, the response rate doubled almost immediately.
Then, I wrote the below letter as a template. Please feel free to use this as a base for your own letter, though I ask that you don’t copy it word for word because I don’t want repeat offenders thinking this is a generic email from either one of us. If it was a violation on social media or something else, I simply swap that to use in the letter instead of “website.”
Steal This Template and Make It Your Own
Dear NAME,
Image tracking software has alerted us to the use of Annalise Kaylor’s copyright-protected photo. The photograph can be seen on Annalise’s website (INSERT EXACT URL HERE) and is available for licensing via her online gallery at (INSERT URL HERE), or via her stock photography agency. Further, this image is registered with the U.S. Copyright Office (Registration No: INSERT NUMBER HERE).
It was seen on your website at: THE URL OF THE INFRINGEMENT. A screenshot has been attached to this email for reference.
Unfortunately, we do not show a license to publish the copyright-protected image and the image is without attribution, two key factors in our decision to contact you regarding its use. Respectfully, we ask that you produce a license (or reference to a license number) to assure us the image was indeed properly licensed as required under U.S. Copyright Law. Failure to do so, or even removing the photo, will be interpreted as affirmation that you do not have a license for its use.
As I am sure you are aware, the law is very clear; the publisher carries the full responsibility of securing the rights to copyrighted material prior to publication. We take copyright infringement seriously, as it deteriorates the protections afforded to Ms. Kaylor under federal law. Every infringement results in negatively impacting Ms. Kaylor’s ability to earn revenue from her photograph.
As a courtesy, we have not filed a DMCA notice to your internet service provider at this time, in the event that a license can be produced. If you can do so, please provide it promptly. Merely removing the photograph will not resolve the issue, as the licensing fees have already been lost. We certainly prefer to avoid any escalation of this matter and hope you have a license so that we can resolve this matter professionally and without any further action.
In the case that you are unable to produce a licensing agreement, an invoice for XX days for this use has been attached. This is, generously, the same fee we would have billed had we been contacted for proper licensing arrangement prior to publication as required by law (what the law refers to as "actual damages”). We also ask that you let us know if there are any other uses of the image (e.g., Facebook, Instagram, Twitter, blogs, or other media) so we can adjust the licensing accordingly. Upon payment, we will issue a retroactive license for this use and consider the matter of this particular infringement closed.
Again, it is our hope to resolve this matter professionally and expeditiously without litigation. If you choose to ignore this request or fail to respond, we will forward the matter to our contracted copyright law firm. And, since this work is registered with the U.S. Copyright Office, we will elect to pursue not the loss of revenue afforded to Ms. Kaylor under the law, but statutory damages of up to $150,000 per infringement under 17 U.S.C. § 504(c)(2).
Regards,
Legal Compliance Team
Annalise Kaylor Photography
There are a handful of things I’m communicating in this letter that are important. First of all, I’m alerting them to the fact that I know they infringed upon my copyright and have the screenshots to prove it.
Then, I’ve mentioned the U.S. Copyright Office registration number. I typically register my photography once a quarter. Registering work is a cumbersome process, and I don’t register 100% of my images. I do, however, register anything completely unique (e.g., a behavior that’s uncommon or a sighting of an animal that’s rare) and anything that I use on my social media channels or the web. If it’s published on any one of my channels or my personal archive, it will be registered. If the image is in my third-party stock image collection, I usually just leave it unregistered because it’s not something I’ve kept for my own clients or collection. Your needs may vary so your process may look different than mine.
The mention of copyright registration is key, as you can see from my last paragraph. In short, I own the copyright to my image as soon as I press the shutter button and make the photo. However, in the case of an infringement, I can only seek loss of revenue if I haven’t registered the image with the USCO. When the image is registered, I can elect to seek statutory damages instead of loss of revenue. If found to be a willful infringement, then I could be awarded as much as $150,000 (plus attorneys fees and everything else it cost me to defend my rights) per infringement. That, too, is important. It means that I could potentially be awarded monetary compensation for, say, the image on their website, another for the use of the image on their Facebook page, and yet a third award for using the image on Instagram, too.
You’ll note that I mention “willful” infringement in the preceding paragraph. This is a small, but important component. It’s also why my letter tells them that simply taking down the photograph isn’t a solution, and in fact, will be understood as them not having a license for the work. When someone KNOWS that an image is not theirs to use, and uses it anyway, they are willfully infringing on my rights. Being able to prove they willfully infringed is a key part of defending my rights and going after the statutory damages. In my case, as it is with most photographers, statutory damages are often much higher amounts of money than the revenue that photos could have generated via stock sales. Thus, I want that option at my disposal.
The other reason that I include the USCO registration number is for the benefit of the legal team on the side of the infringer. They know full well the stakes of using a copyright-registered image. Any time I’ve forwarded this email to a lawyer (usually one at the bigger companies who have infringed), I’ve been immediately paid for the retroactive license. The only exception is for infringers from outside the United States. It’s incredibly difficult to collect on non-U.S infringement.
The last thing I’m communicating is that I’m willing to work with them. I’ve made it easy for them to just pay me what it would have cost them by attaching an invoice for the days I can document the use of my work. I’m all too happy to issue the retroactive license (one time I even had them extend it!) because it’s money in my pocket and time back from monitoring their use of my photo.
Only you can decide which of the infringements are worth your time and effort, but they become a lot less tedious when you put in place even a basic email system like mine. I never realized how many infringements occur until I depended on my licensing revenue as part of my income stream. There was a point in my career when I used to spend an entire workday every month emailing copyright infringers and trying to settle their cases.
Taking time to register your work and understand the remedies afforded to you is important. The more we, collectively, defend our creative work as WORK, the more we all benefit in the long run.