Protecting Yourself on the Web, Part 2
by Victor S. Perlman, Esq.
May 01, 2012 —
Last month I discussed some steps that you could take to 1) try to deter thieves from stealing your images on the Internet, 2) be able to prove that the work was actually yours, and 3) be able to demonstrate that anyone who stole your work was doing so with full knowledge that your images were copyrighted. One such step, and a crucial one, that I did not mention but consider something that all photographers should routinely do is to register your copyright claims on any images to which others have access as early as possible, ideally before anyone else even sees them.
This month, I will turn to the next part of the process of protecting yourself: detecting when your images have been stolen, finding out who the thief is, and considering the various options available to you. Beginning with detecting infringement, technology has provided a valuable tool for photographers in recent years—image-recognition software. These are computer programs that can analyze any image and then use a robot to go crawling through the Web looking for matching images.
The first company to make commercial use of image-recognition software was PicScout (www.picscout.com, recently acquired by Getty Images), but it is no longer the only game in town. There are other services available to photographers who want to find infringers, including TinEye (www.tineye.com), owned by Idée, Inc. TinEye has the advantage, at press time anyway, of being a free service. In addition, Google Image Search can sometimes be of help. PicScout and TinEye perform basically similar functions: analyzing your images, searching the Web for matches, and informing you of every match that they find. Once those matches have been found, it is up to you to determine whether those uses were authorized or whether they are infringements.
Let’s assume that you’ve discovered an infringement of one of your photographs. Before you can decide what to do, you have to figure out who the infringer is. Sometimes, that’s easy. More often, however, figuring out who is who on the Internet is something of a challenge. For example, if an unauthorized use appears on a company’s Web site, it’s easy to identify that company. Often, however, the identity of the user is far from clear. The ownership of many Web sites is often impossible to tell just from looking at the site. When you run into that situation, you may be able to do a bit of detective work and identify the owner by going to a site called www.whois.net.
Whether or not you can identify the infringer, you may want to consider sending the Web host something known as a DMCA Takedown Notice (DMCA stands for Digital Millennium Copyright Act). One of the provisions of the DMCA allows copyright owners to contact hosts of Web sites on which infringing material appears. You cannot get compensation from the Web host, but you might at least be able to stop the infringement.
Once again, I find myself running out of space before I have said everything that I want to. I will discuss some of the remedies available to you in a third installment. In the meantime, let me point you to an extraordinarily useful Web site: www.plagiarismtoday.com, in particular a section called “Stop Internet Plagiarism,” which you can find at www.plagiarismtoday.com/stopping-internet-plagiarism. It takes you through all of the steps that you need to pursue in protecting your rights.
The only area that I have an issue with on the Plagiarism Today Web site is where it provides a simple form letter to use in contacting an infringer. This sort of communication, typically referred to by copyright lawyers as a cease-and-desist letter, is something I don’t recommend using because such letters must be worded very carefully, preferably by a lawyer who is familiar with copyright law. A cease-and-desist letter that is worded incorrectly (from a legal perspective) can allow the other side to turn around and use that letter as the basis for filing a declaratory judgment action against you in a federal court located in a city of the other side’s choosing. This means that you can end up in a lawsuit that you never really wanted to happen. Worse, that unwanted lawsuit can be in a courthouse thousands of miles away from you. Even worse, if you decide not to contest the declaratory judgment action, you can end up with a default judgment by the court that takes away your copyright to the work at issue. That, my friends, is not a good thing.
Your safest bet in deciding what actions to take is to talk to a competent copyright attorney before actually taking any further steps. I will discuss the possible courses of action that may be available to you and your attorney in a future column.
Victor Perlman is General Counsel to the American Society of Media Photographers, Inc. (ASMP). He has also served on the Boards of Directors of the Media Photographers Copyright Agency, Inc., the Copyright Clearance Center (CCC), and the Philadelphia Volunteer Lawyers for the Arts. He has frequently appeared as an author in various publications and is co-author (with Richard Weisgrau) of the book Licensing Photography, published by Allworth Press.
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