High-Traffic Website Using My Photo W/O Permission

[dharvell]

What is the name of your state (only U.S. law)? Michigan, Ottawa County

I am a full time photographer specializing in portraiture and wedding photography. However, in my free time, I enjoy photographing landscapes and cityscapes.

As the complexity and beauty of city skylines can keep me fascinated for hours, I did a Google Images search for "city skylines". This search led me to a well known, high-traffic website that gives very useful detail on cities and their surrounding communities. This site also features a message board where registered members can post their own photography of all things city related.

One forum thread was purposed for members to post the top 3 skylines in their state. Being from Michigan, I was curious what members would post for the top 3 Michigan skylines. To my surprise, the author of that particular post used a photo of mine of the Grand Rapids, Michigan skyline. To verify that this photo was, indeed, mine and not a crazy coincidence, I looked at the properties of the image (the image was directly taken from my photo blog, as it turns out) and the EXIF data (which showed that the photo was scanned from film, using an EPSON scanner, the type of scanner that I used to scan directly from film negative). That nailed it, the image is, indeed, mine.

One piece of advice I was given was to simply change the name of that photo. That would work, but would be a very temporary fix, as the author could edit his post to reflect the change that I made - a never ending cycle. That said, I sent a notice to the website describing my claim to the photo and a request to either have the photo removed, or a credit added to the post with a link to my website. That request has gone ignored.

The next step I plan to take is to contact the website's host with a Cease and Desist.

Some other information that might be helpful: I have not registered the image with the trademark office (that could get expensive, quickly!). I have always heard that, by law, the image is trademarked as soon as it is recorded to media.

This brings up my questions:

1. Have I been misled to believe that a photograph is protected under trademark law, even if it is not registered? Or is it, indeed, protected?

2. If my requests to remove or credit my photo continues to go ignored, do I have legal recourse?

3. If the answer to #2 is "yes", what are my options?

4. If I have no legal recourse, is there any advice as to how to protect myself in this age of "free information" (which isn't always as free as the users would like to believe)?

Any help or information would be greatly appreciated.

 

[justalayman]

this taken directly from the copyright offices information pages (U.S. Copyright Office) regarding registration.

In general, copyright registration is a legal formality intended
to make a public record of the basic facts of a particular copyright.
However, registration is not a condition of copyright
protection. Even though registration is not a requirement for
protection, the copyright law provides several inducements
or advantages to encourage copyright owners to make registration.
Among these advantages are the following:
• Registration establishes a public record of the copyright
claim.
• Before an infringement suit may be filed in court, registration
is necessary for works of U. S. origin.
• If made before or within five years of publication, registration
will establish prima facie evidence in court of
the validity of the copyright and of the facts stated in
the certificate.
• If registration is made within three months after publication
of the work or prior to an infringement of the work,
statutory damages and attorney’s fees will be available to
the copyright owner in court actions. Otherwise, only an
award of actual damages and profits is available to the
copyright owner.
• Registration allows the owner of the copyright to record
the registration with the U. S. Customs Service for protection
against the importation of infringing copies. For
additional information, go to the U. S. Customs and
Border Protection website at www.cbp.gov/xp/cgov/import.
Click on “Intellectual Property Rights.”
Registration may be made at any time within the life of
the copyright. Unlike the law before 1978, when a work has
been registered in unpublished form, it is not necessary to
make another registration when the work becomes published,
although the copyright owner may register the published
edition, if desired.

1. Have I been misled to believe that a photograph is protected under trademark law, even if it is not registered? Or is it, indeed, protected?

You have not been misled. Your works have copyright protection as they are.

2. If my requests to remove or credit my photo continues to go ignored, do I have legal recourse?

Yes, you do but as you can see above, to sue, you must register the work first.

3. If the answer to #2 is "yes", what are my options?

I would consider starting with a scare letter from an attorney. After that, you are relegated to registering the work so you can sue or giving it up.

4. If I have no legal recourse, is there any advice as to how to protect myself in this age of "free information" (which isn't always as free as the users would like to believe)?

diligence and a lot of luck

 

[dharvell]

Thank You

@JUSTALAYMAN - Thank you for the excellent and detailed answer. VERY helpful. Though it definitely is flattering that my photo would be considered a good representation of the Grand Rapids, MI skyline, as I have always been told, flattery doesn't feed the kids! Sounds like I have some work to do. It also sounds like a great opportunity to learn a thing or two.

Thanks again!

 

[justalayman]

If you haven't visited copyright.gov, please do so. They have a wealth of information and much of it is written in a manner so that anybody can understand it. Of course they have access to the actual statutes involved which are a bit more challenging to read but even they are not bad to read.

 

[You Are Guilty]

If the offender is just linking to your photo from your own site (ie your host), the cheapest solution is to add a watermark to the photo along the lines of "This Photo Was Stolen From (Your Name Studios) Without Permission"*, and rename that the same as the original photo. Realistically, unless you poop money, a lawsuit over something like this is not economically viable.

Good luck.




*Alternatively, you can also:
1) Add your own watermark credit and website link to the photo
2) Find some awful/shocking photo instead, and rename that the same name, so it comes up when he links to it (probably the meanest thing you can do), or
3) Take a really lame, out of focus "skyline" picture and substitute in place of the original. (This is the most subtle of the responses.)

 

[swalsh411]

This person is image leeching from you. This is absolutely unacceptable. This is what I would do.

Go to google images and turn off the filter. Find a disgusting picture. If you need some suggestions I would try:

tubgirl
lemon party
goatse
2 girls 1 cup
rectal prolapse

Replace the picture on your blog that the user is leeching with this image, keeping the file name. Obviously you will need to edit any of your own blog posts as well so you show the skyline picture not the gross picture.

Go back to the forum with the offending image, register an account, and flag the post. This will almost certainly get this person banned.