Entertainment Law

Oh, Snap: You’ve Posted an Infringing Photo

Getting a threatening letter and being accused of infringement can be intimidating. For better or for worse, even innocent infringement can result in liability.

Today, it’s common for photographers to register their images with a licensing agency that monitors the internet for unauthorized use. The agency often performs reverse image searches – using a picture, instead of key words, as a search term – to find websites using the photo without the photographer’s permission. If the agency finds infringement on a site, they may contact the website owner for payment to use the image or threaten some other action.

Often, people on the receiving end of these notices do nothing, either because they think they are not obligated to pay or think the emails are a scam.

If the licensing agency gets ignored, they may hire an attorney. That attorney may in turn send a letter demanding an amount of money and threaten to sue if you do not pay. What to do?

Ask to see a copy of the photo’s copyright registration. Very commonly, photographers will not register the copyright to their works in a timely fashion. This does not mean that they don’t have protection, but it does limit their legal remedies.
Look back at the letters/emails sent to you by the licensing agency. Does it say whether the amount of money requested is the typical amount the photographer usually charges for their work? Often, when there was no timely registration by the photographer, this is approximately what the infringement is worth, regardless of what the lawyer’s letter demands. Hint: if this language is not included, check the photographer’s website, and see what they charge to buy or license that work or similar works.

Note the lawyer’s location and licenses. Is the lawyer in a random area of the country where neither you nor the photographer are located? Some licensing agencies have an ongoing relationship with just a few lawyers around the country. Lawyers must be admitted to practice in any court they file a lawsuit (and, practically speaking, if the case is contested, they must physically show up there). Posting a photo on a website alone does not enable any court around the country to hear an infringement action brought against you. Often, the lawsuit must be filed in a jurisdiction where you or the photographer are located, placing extra burdens on a remote lawyer.