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Make Copies of the Infringement
If you think that the use is likely an infringement, make copies of it – both in electronic and print forms. Once the infringer realizes that she is caught, she will do what she can to get rid of the evidence of the infringement. You may need that evidence later.

Make Sure That the Use Is an Infringement
Not all uses of your photographs are infringements. Do you use a licensing agency that may have authorized the use? Could the user be related to an entity to which you authorized the use? Is the use a fair use? While only a court can ultimately decide what fair use is, the law gives us guidelines as to what may qualify and an attorney can help you with the analysis.  You also may check Stanford’s Copyright and Fair Use website for explanation and examples.  While some uses by newspapers are fair use, others are not.  The NPPA reports on a case where CBS’ use of Christopher Fitzgerald’s photo was not fair use.

Research the Infringer
Next, find out what you can about the infringer. Research the infringer’s website to find his name and contact information. If the infringer is a corporation based in the United States, you can find information about it on the website of the Secretary of State for the state where the infringer is based.  You also may be able to find a contact name by searching the website’s “who is” information.

Option #1 – Do Nothing
Now that you’ve documented the infringement and have some information about the infringer, you always have the option of doing nothing. If the infringer is in a foreign country where infringements are rampant and difficult to enforce or is a small website with little traffic, you may decide that it’s not worth your time and effort to fight the infringement.

Option # 2 – Request a Photo Credit
If the website would provide a marketing outlet for you, you may only want the infringer to give you proper credit. If so, write the infringer a letter officially giving her the right to use the image. Be sure to designate the parameters of that use and include the condition that the infringer post a photo credit with a copyright notice on or adjacent to the use. You may also require the infringer to add a link to your website.

Option #3 – Prepare a DMCA Take-Down Notice
Pursuant to the U.S. Digital Millennium Copyright Act (”DMCA”) enacted in 1998, the Internet Service Provider (”ISP”) that hosts a website is not liable for transmitting information that infringes a copyright only if the ISP removes the infringing materials from a user’s website after receiving proper notice of the violation. The notice must: be in writing, be signed by the copyright owner or the owner’s agent, identify the copyrighted work claimed to be infringed (or list of infringements from the same site) and identify the material that is infringing the work. Additionally, the notice must include the complaining party’s contact information, a statement that the complaint is made in “good faith,” and a statement, under penalty of perjury, that the information contained in the notification is accurate and that the complainer has the right to proceed (because he is the copyright owner or agent). Use this great tool to stop an infringer whose ISP is in the U.S. from using your work.

Option #4 – Prepare a Cease and Desist/Demand Letter Yourself
When you don’t want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer), you may want to contact the infringer to explain that the use is not authorized and either request payment of an appropriate license fee, a photo credit with a link to your website (as discussed above), or that the infringer cease use of the image. It’s best to do this in writing – a letter by surface mail seems to have more clout than email correspondence.
Photographers sometimes send an infringer an invoice for three times their normal license fee in an attempt to resolve the infringement issue. While the 3x fee may be an industry standard and some courts have used it, is not a legal right given by any court of law or statute. Instead, U.S. law states that you are entitled to actual or statutory damages for infringement as provided by 17 U.S.C. Chapter 5, specifically section 504. The damages that you can receive from infringement – especially if you timely register your photographs – sometimes can amount to a lot more than three times your normal license fee.

There are some risks in sending the letter yourself. First, the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don’t want to litigate. Second, your demand for payment may be admissible against you if an infringement case is filed. If you demand too little, then it may limit your ultimate recovery. To avoid this possibility, include in your demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”

Option #5 – Hire a Lawyer to Send a Demand Letter
When an attorney gets involved, the matter is escalated and tensions rise. While the infringer may be more defensive, the weight of your demand letter is dramatically increased if it comes from an attorney and the infringer generally takes the matter more seriously. Some attorneys charge a flat fee to send a letter; others may charge a “contingency fee” which is based on the percentage of recovery. Or the fee may be a combination of both.

Option #6 – File a Copyright Infringement Lawsuit
Your most aggressive option is to pursue your legal remedies by filing suit. Unless you created the work outside of the United States and in a country that is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, you must register your copyright with the U.S. Copyright Office, hopefully before but at least after the infringement. (If you created the photo in a country that is a signatory to the Berne Convention, you do not have to register in the U.S. to protect your copyright or to file an infringement lawsuit in the U.S. However, if you do, then you may be entitled to statutory damages and attorneys’ fees.) If your photo was not timely registered for this infringement, you may want to register the photo for future possible infringements, as well, to be eligible for statutory damages of up to $150,000 per willful infringing use for each photograph. See 17 USC Section 504(b) and (c). Legal fees and costs also may be recovered from the infringer. See 17 USC Section 505.

In most jurisdictions you need to have received your registration certificate to file a complaint. Unless you have a breach of contract or some other state claim, you must file your infringement claim in a federal district court. To file suit, it is best to hire an attorney to help you because the legal procedures are complicated. Note that you have three years from the date of infringement to sue for copyright infringement.

When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees.

Additional Claims
While many photographers place “watermarks” including their name and/or their copyright notice on their images or in the metadata of the file to prevent someone from infringing them, it’s fairly easy to crop or clone over the mark, or to remove metadata. Fortunately, the DMCA section of the Copyright Act provides a remedy in addition to the infringement claim when the infringer removes your CMI to hide the infringement.

Additionally, when you can prove that the infringement was done willfully, then you are entitled to enhanced statutory damages. “Willfulness” means that the infringer either had actual knowledge that it was infringing the owner’s copyrights or acted in reckless disregard of those rights. Evidence that the infringed works bore prominent copyright notices supports a finding of willfulness.

What You Can Do to Best Protect Your Images
To be eligible for maximum damages for copyright infringement and violation of your DMCA rights, put your copyright notice on each page of your website and put your copyright notice on or at least adjacent to each photo as well as in the metadata of your files.  Further, register your photos with the U.S. Copyright Office so that you will be eligible for statutory damages. It’s also important to put all of your licenses in writing, even if by email, and make the license contingent on payment of your invoice in full.

Where to Get Help
Legal help is expensive, but there are alternatives.  First, an attorney is more likely to be willing to help you on a contingency basis (for a share in the recovery) when you are eligible for statutory damages.  So be sure to register your copyrights timely.  Some photography organizations provide legal assistance, as well, with educational materials and/or personal assistance.

As mentioned, the Online Media Legal Network is an option.  In addition, most states have Volunteer Lawyers and/or Accountants for the Arts (”VLA” )organizations. As in New York, they serve “low-income artists and nonprofit arts organizations. VLA’s many other programs are more widely available to the entire arts community.”  Each VLA organization provides a variety of services, such as a lawyer referral service, free legal clinics, mediation and arbitration, wills drafting, and a speaker program in Georgia. St. Louis’ VLA’s website provides a list of helpful publications and other great links, including other states’ VLAs.  Find a VLA near you by searching on the Internet for “Volunteer Lawyers for the Arts” and your state. Some VLAs, such as those in Kansas City and Massachusetts also provide accounting services.

Also check with photographers in your area for recommendations for who they use.  Since infringements have increased, more photographers have retained legal assistance.

__________________________________________
NOTE: The information provided here is for educational purposes only. If you have legal concerns or need legal advice, be sure to consult with an attorney.

Copyright Carolyn E. Wright, Esq.
All Rights Reserved

Special thanks to Carolyn Wright for writing this. Make sure to check out her website for more information. www.photoattorney.com

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So can you tell us a little bit about yourself?
Relative to the company I have been taking images for about 12 years. About 7 years ago I started a magazine called Modest Bike, which featured a lot of my images and other generous photogs who believed in what the magazine was about. A few years later I began working for a large publication as an evil Editor, this was not the best experience and ironically all my experiences at that magazine were the original reasons I started Modest Bike. I guess money was behind my decision at the time. Now I work with F-Stop Gear developing product and keeping the company in touch with our customers. I am based in the Kita Alps in Japan although the company is located in St.Louis.

What do you photograph mostly?
Now a days I photograph snowboarding and the life that comes with it (as a hobby). Previously I mostly shot mountain biking.

What is your favorite thing to photograph? Skiing, snowboard, biking?
Snowboarding is an amazing sport to do and photograph, it is also what my life is revolves around, so it is natural for me to love shooting snowboarding. In the end any thing with style and creative riding gets me going.

What’s your favorite photo you’ve taken?
There are a few that have heart and memories that I might prefer over the technically sound images. This image of Dave Basterachea is likely my favorite combo of both. Mostly because Dave is a good friend and this is an area that our friends rode as much as we could when the conditions were on. It is in the Whistler area and called Morning Glory. I have had some of the best runs in my life on this face and watched my friends do the same. I have seen it slide in to a giant class 3 avalanche while digging a pit, watched the sunrise light the face up at 5:30 in the morning and left it as sun went down snowmobiling my way through tight trees in darkness. I have shared a lot of good and crazy moments with friends here and this picture sums those times up for me. This was Dave’s 1st run of the day. I remember Dan Treadway saying something along the lines of “What? That was his warm up run?”.

Do you have any formal schooling for photography?
I did the 16 year program at the School of Whistler for my eduction in photography.

How did you get into the business?
I tried the snowboard photo route but knew that I also loved snowboarding too much to sit and watch. So eventually I figured I should shoot Mountain Biking so I can actually ride and not just watch other people have all the fun. So I started Modest Bike magazine. I then realized that I also love mountain biking and that maybe I should have started a golf magazine.

What bag do you carry usually?
I am using the Loka almost everyday now. It is a smaller pack that is in prototype phase. It is smaller around 28L and has a tapered ICU to keep the profile of the pack down while holding an avalanche shovel. At the same time it still carries a pro body with 70-200L mounted in the ICU and has room to spare (also caries a 16-35L and Fish). It is kind of my baby and is the base for a couple of new packs that are in the works. A lot of people are going to be happy when this one hits the market. From pro-sumers to working pro’s to just everyday riders. The bags we are working are going to be a pleasure for folks who love the snow.

Can you tell us a little about F-Stop?
F-Stop is company dedicated to making gear for adventure sport photographers. Our main product is backpacks but we also make lens cases and hip and shoulder bags, basically anything that makes a photographers day more enjoyable while carrying gear. Our product is simple and designed to carry your gear but also allows you to enjoy the day beyond taking the photograph. It is important to me that our users are part of the experience, sometimes this means an 8 hour ski tour. We(photogs) are already carrying more gear then our friends who are having all the fun and getting there good times documented. So the last thing we need is a non functional and heavy pack. We should not be limiting our experiences because we can’t get there with our gear. Our company is here to help make those missions a reality and to let photogs have there moment in the snow too.

When was F-Stop started?
F-Stop has been around for the last 4 years.

Why go into the camera bag business?
There is a bit of hole in the market, as action sports grow the need to document them also has. A canvas backpack designed to be driven around in car doesn’t cut it in the outdoors. Our idea is simple and it is strange to think it took this long for someone to get on it.

What’s it like competing with larger companies?
I really don’t think we are competing with them. We offer a product that is unique and basically sells it self. We are a small group of photographers trying to make our own experience in the mountains that much better. Going further and bringing flash cards home full of images that the average person will never experience. Most photographers that catch wind of our line also realize this and see that we’re making gear to make there day easier and ambitious goals possible. I am not sure the others are doing that in relation to the action/adventure sport niche. We don’t structure our business like a typical photo pack company, we are creating our own path. A path that reflects the real world of action sports photography.

Any advice for someone trying to start a company in the action sports industry?
Research, preparation, commitment, money and follow through. But first you should have a good product.

Any previews of upcoming gear?
There is not to much media on the new Loka yet.

Anything else you think we should know?
If you email F-Stop Gear you will likely here back from me personally. We like to hear feedback from everyone as every user has a different and tailored use for our packs, so if you have something on your mind don’t hesitate to contact us. We take our teams input in the design phase but also our customers. We’re building packs for a community of like minded individuals and your one of them so if you want to be part of the process please don’t be shy. We will also have a contest coming out soon that will allow you to play an even bigger part in the development phase of our bags, so stay tuned to www.fstopgear.com for more on that.

Here are some images of both mine and product testing:

Photo Marc Durand (F-Stop Tilopa User) Rider Ian Millar (wearing Loka)

Loka product testing (fun video wearing Loka)

The Powder Miracle from deeplikepow on Vimeo.

Rider: Nick Kowal Photo: Ian Millar (Tilopa)

Company
www.fstopgear.com

Personal
www.modestbike.com/handsome (portfolio site)
www.deeplikepow.com (blog)

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