This article continues the conversation about image theft started in "Law and Order 101: Image theft examined and explained (Part one)" and "Law and Order 101: Image theft examined and explained (Part two)".
If you have not had a chance to read the first two parts, may we recommend it to your attention, as it might help to understand some parlance we use throughout this article.
In the first two installments, we went over the "persona" – the group traits of the people and companies that use your images for commercial purposes without asking for your permission, and over the most common prevention tactics, both technical and business-wise. In this part, we will talk about "waging the war" – taking the steps to assert your rights against an offender.
As you can probably see, I'm trying to dampen your appetite for chasing the "small fish" and channel your energy into assessing and preventing the future incidents. But if the fish you are about to fry is not so small and it is clearly the time to stand your own, then you need to start preparing for the battle. The next chapter goes over how to wage the war.
First, it gives you an equivalent of bazooka and chainsaw combined.It is exceedingly hard to argue with the federal certificate, you know…The second reason is that registering your work will allow you to pursue your case in the Federal Court and consequently demand damages, whereas in the case of unregistered work you may be forced to accept compensation for the costs related to creation of the image(s) (in other words, studio expenses) and your process will be much more cumbersome.One interesting tidbit that speaks in favor of registering your work: the majority of the cases involving registered work is settled outside of the court.In other words, when the offender faces the bulletproof evidence in the form of the copyright certificate, (s)he will often times concede and negotiate the payoff without even going to the court, because it is better to pay up than face the costly litigation and a very real prospect of having to pay not only the usage but also the damages and attorney fees.
Regardless of which route you take, your first step will be the same: collecting the evidence. Luckily, it is not that hard: you will need to take screenshots of the offender's website(s) and other available materials (preferably with the date/time stamp somehow visible or evident) and also gather the documentation on your side – corresponding images, copyright certificates (if you have them) etc.
Are we dealing with a "bottom feeder"? If so, it is probably not worth your while to take him to the court. Serve him a digital equivalent of "Cease and desist notice" (see "Take it down!" section).
Is our subject more than just a "bottom feeder" (i.e. does he fall into the "medium size" group)? If so, is he a US entity? If not, then in most cases you are better off with the "Take it down" route. If the offender is domiciled in the US, then you can pursue either route BUT not both at the same time! Again, don't jeopardize you case by taking hasty actions. Move steadily and with resolve.
Are we dealing with a "big guy"? In this case, you will need to consult a lawyer and very likely proceed with a lawsuit. See the "Taking the case to the court of law" section below.
No matter what you choose, the key thing is to stay calm and avoid any hasty actions. The last thing you want is to play into the hand of the criminal, so for the sake of all that's good – calm down and move slowly but steadily.
"Take down" request is a digital equivalent of "cease and desist" notice. It is directed at the web site owner AND at his hosting provider. As most of the small web sites are hosted by some provider or other, this tactic is quite effective against the "bottom feeders".
Just remember: if you are trying to take the guy to the court, then you need to hold off on any " take down" actions until you have discussed the matter with your lawyer. If you are not going down the lawsuit route, then the following steps will likely result in your images to be taken down from the offending site and may also cause the offender's hosting account suspension. It won't put any money in your pocket but it will certainly put the bad guys on alert.
First, find who is the ISP (internet service provider)/registrar in question. WhoIs service can tell you most of the information you need (see "Further reading" section below for the links). If you are not a technical person, ask your friends or their college kids.
Once you have figured out who hosts the site in question, go to the hosting company web site and file a copyright infringement notice. Link to the GoDaddy infringement form can be found here and most other providers will have a similar link.
Another useful resource is a sample "DMCA Takedown notice" provided by Carolyn E. Wright – you can find it here.
Once you have taken care of submitting the claim, you may want to let Google know of the bad guys at large. Google allows you to request site content removal from the index based on the copyright infringement or other illegal activities. The removal request page can be found here.
At this point, my only advice is to hire a competent lawyer and follow his recommendations. Based on my own experience, hiring a recent law school graduate for less is not a very bright idea – you need a person who is experienced in arguing the copyright cases and has a verifiable track record in the field.
I can't stress this enough – you need not just any lawyer, you need a person who focuses specifically on the copyright law and had worked with photographers in the past. What that means in plain English is that your friend's divorce attorney is a poor choice (even though he might be eager to take the case). Should everything else fail, your local APA/ASMP chapter should be able to suggest a couple of names.
Also worth remembering: the majority of the copyright cases settle before they hit the court system. Having a competent representation is crucial, don't you ever dream of navigating the maze of the arbitration and copyright law on your own!
A great Wikipedia article on "Online Copyright Infringement Liability Limitation Act" can be found here. Great resource on many copyright-related topics, including "take down" and "put back" provisions and procedures.
A very detailed illustrated step-by-step tutorial on the entire "take down" procedure can be found here (dpreview.com).