The first thing you should do is verify that the photograph is indeed yours, and that the use is not authorized. For instance, if you licensed your photo using a Creative Commons license, or posted it on social media, then others may be reposting it in accordance with the license. Even if the use was not approved by you, consider whether it may be fair use.
The second thing you should do is document the infringing use. If your photo appears on an unauthorized website, take screenshots. If the photo is later taken down but you still want to take action, you may need proof of infringement.
When you have verified and documented the infringement, you have a range of options to consider. The course of action will depend on the scale of the infringement, the outcome you want, and how much energy you are willing to invest in taking action. Here are some possibilities:
- Do nothing. Just because someone has used your photograph without permission does not necessarily mean that you want to do anything about it. You may choose to do nothing because the situation benefits you (for example, despite using your photo without permission, the infringer provided attribution and a link to your website, which is driving traffic and business to you) or because the infringement is minor and not worth your time (for example a tiny blog used your photo and you don’t feel like spending any time remedying the situation). Even though you did not affirmatively give permission for the use of your photo, you may nevertheless approve of the use.
- Contact the infringer to request changes in the use. You may feel that a certain unauthorized use of your photograph would be fine with you, if only the infringer had attributed the photo to you, included your copyright notice, or provided a link to your website. If this is the case, you may wish to contact the infringer and ask for these changes. A polite tone is appropriate. In many cases, the infringement is unintentional, and the infringer will be eager to make things right.
- Issue a DMCA takedown notice. The Digital Millennium Copyright Act (DMCA) protects online service providers from copyright liability, provided that they remove allegedly infringing material upon receiving proper notice. Visit this page to learn how to issue a DMCA takedown notice.
- Contact the infringer to demand that they stop using your photo. If you do not approve of the use, you can contact the infringer to demand that they cease infringing your copyright and state that you may take legal action. Such a letter carries more weight if it comes from an attorney.
- Contact the infringer to demand payment. If you would have approved of the use if only you had been paid, then you may want to send an invoice or other demand for payment. You should demand at least what you would have charged if you had been approached for permission beforehand, and possibly more, since the infringer may now be liable for damages. If you registered your copyright, then the infringer may be liable for statutory damages and attorney’s fees. However, if this is the case, you may want to speak to an attorney before demanding payment, as the value of the case will help determine how much you demand.
- Consult with an attorney. You may wish to speak with an intellectual property attorney before taking any of the above actions. An attorney can best advise you of the right course of action in your situation. If you registered your copyright before the infringement or within the three-month grace period after publication, then you may be able to recover statutory damages and attorney’s fees, making it more likely that a lawsuit will be an appropriate course of action.
- File a lawsuit. Your ultimate legal remedy is to file a federal copyright infringement lawsuit. While you have the right to represent yourself in such a lawsuit, it is highly recommended that you have an attorney represent you. An intellectual property attorney will be able to advise you as to the strength of your case, and pursue it appropriately. A key factor may be whether you registered your copyright before the infringement took place, as you can then recover attorney’s fees and statutory damages.