Takedown notice or invoice

<p>I am a professional photographer and I was wondering why do I have to submit a takedown notice to someone who is using one of my images on a web page without licensing it? This is a hypothetical situation at this time but could I not just send them an invoice? It seems that they have already gotten value from my work. They can not claim ignorance, at least they could not when I took my business law courses last century. It just seems odd to me to track down offenders, have a takedown notice drafted, give them days to comply with the notice, and not get paid. The image is on their web site and can be found at a web archive for proof of use. Am I missing something as to why I can not bill them for one years web usage?</p>

<p>George:<br /><br />Digital Millennium Act is, from my understanding, what says a take-down notice should be sent first. I send an invoice when it's a business, publisher etc but if it's "just" an individual I'll send a request to immediately take down the image(s). I'd freely admit I don't deal with this often though as my photos are hardly what you'd call pretty or with any form of mass-market appeal...</p>

<p>Well, you can bill a ham sandwich, too. The question is, what are your expectations? Do you actually expect the infringing party to pay, or do you mostly just want them to stop using the image? People who rip off images for web decoration frequently do so because they're on a shoestring budget, and have other priorities. Doesn't mean they shouldn't get spanked, of course ... but sometimes the take down notice is more likely to actually result in some action (because, using DCMA, you can get their web hosting company to shut them down entirely if they don't play ball). <br /><br />But if you want to turn them into customers (or think that's even possible), then ... sure, why not send an invoice?</p>

<p>It depends a lot on who it is and what you want to do-effort. Most reputable companies will pay you and if you have filed a copyright registration before the violation, you actually have some pretty sharp teeth to your demands. Sometimes it is worth pursuing and others it isn't.</p>

<p>When I find a violation, I generally contact the person/company violating my copyright and let them know I have seen it and tell them I will be sending them an invoice for the use plus. I ask if they will be wanting to continue to use the image and then negotiate a fee--probably overall lower than otherwise if they aren't jerks about it--never piss off a future client. I try to do this in a very professional and courteous manner, as they may not be (the person in charge) aware of the violation and want to work with you. (One such violation was with a government who lifted an image from a magazine article I had shot, they blamed it on an overzealous web person) In that case, it had only been up for a week or so and they took it right down--I didn't pursue it any further since it was right after 911 and this was one of our primary allies in the region)</p>

<p>Any course of action you take is just a business decision really.</p>

<p>George: </p>

<p>I just wrote the following in response to another thread, but it fits equally well with your question, so I'm just gonna paste en masse my response:</p>

<p>Start:<br>

...you could have required some $$$, even if it's just listed as a retroactive use and license permission fee, which I'll sometimes reference as a minimum use and research fee, ranging from $50.00 - $75.00 - $$125.00 - $175.00, depending on size & use. I explain that fee is to cover my time to track and license the image, and handle the invoice & bookkeeping.</p>

<p>Furthermore, you'd still be entitled to a fee, even if you want them to take it down. The way I write it is as follows:</p>

<p>"This retro-active use license covers usage already made, and is payable, regardless of any further use, or removal of image(s). Simply removing the image(s) from the offending web page(s) is not considered a full remedy for any unauthorized use, or use(s) made without a proper written license issued in advance of publication."</p>

<p>I also tell them they're welcome to agree to the retro-active use license, or I can bill them on a net 30 day invoice for the unauthorized use at 400% of the standard industry rate. Usually they're quite agreeable to pay the lower use fee, and still have permission to use the photo as a result.</p>

<p>Hope that helps,</p>

<p>- Gary.</p>

<p>Having discovered the misuse of your property after the fact you now want to offer the other party the opportunity to either stop using it altogether or to pay to continue. An invoice alone does not explain the basis for the transaction in the first place. It does not answer simple reasonable questions such as, "Who are you?" and "Why do I owe you anything at all?" You cannot simply invoice someone out of the blue to demand money from them. </p>

<p>In short, you will have to write at least a business letter to explain who you are, what you own, its illegal appropriation and what you're willing to do about it. You must be serious about this. A letter from your attorney could carry a lot more weight that one you send on your own. The takedown notice alerts the other party to the fact that you have discovered them and want action on the matter. An invoice alone does not do this.</p>

<p>Gary is probably within his rights to demand retroactive payment, but if I were the other party I would through my inaction force him to resort to the courts to prove his case to collect anything. A tiresome and frustrating experience for all over a few dollars. His best hope is that I would simply pay him to make the nuisance of his presence go away. Being in the right doesn't always make you a winner.</p>

<p>As to the "why do I " part, why do you believe you have to "do" anything? In the scenario that has not happened you categorize the user only as a "someone who is using one of my images on a web page" so I've concluded this is not a business appropriating an image to use in an ad. You omitted the nature the web site (i.e. a personal blog, news, commercial) and how your image was presented (i.e. used in an ad for a third party product, as random art, as an example) and it all boils down to how the image is being used and no truly viable response can be provided without that information.<br>

Everyone from dead guys Ritts, Ansel Adams and Avedon to working artists such as Leibowitz and Weber have published images repurposed all over the internet usually as a start page image or within a collection of favored images on some blog. Images are culled from other websites, books and magazines. Facebook and YouTube as well as Flick'r, MySpace and others are also mined minute by minute for images which suit the needs of various bloggers. Even on sites such as Flick'r members present collections of other artisits work collected from Flick'r itself. <br>

I personally have clients whose images from both advertising campaigns and from their agencies' websites are repurposed and show up in places and in context that would turn their grandmothers ashen. You just have to get over it.<br>

A business using your image to promote itself- an institutional ad, or a product- is a defined illegal act and you simply turn it over to your lawyer, but it is virtually impossible to prove in court damages from an image just being displayed randomly. Obtaining a higher profile from having your work seen-even without your permission- theoretically enhances your value and lawsuits are about proving damages.<br>

I am not inferring that usage without permission under any circumstances is right or just, only suggesting what many have already learned, and that is to pick your battles carefully and choose with consideration what unpublished images you want to post online and make available to potential thieves. <br>

Personally I do not post images online that I have not already been paid for so any image that makes an appearance in a personal blog collection is pretty much a non issue.</p>

<p>Gary's approach is excellent (as always). If you don't partner with a lawyer, there isn't much more you can do.</p>

<p>My situation is not hypothetical as I've recently discovered my images have been used without my authorisation. But it gets a little complicated and I'm not sure how to pursue this.<br>

A professional photography couple has taken photos, without my knowledge, from my website for an event I attended in Paris. In taking them, they made a photo montage, removing watermarks. Once posted on their website, whilst they did credit me in small text for the images, they did not provide a link to the original source (me) but did include a link to the NY Times who also ran a feature.<br>

The montage they made is now on additional websites and on Pinterest with credit given to the other photographer. It's up to me to contact all the sites for this and prove to Pinterest the images are mine!<br>

I don't want to go into this aggresively with the photographers, but they of all people should have known better, right? They are extremely well known in their photographic expertise/part of the world, and whilst they made no money from my photos, they infringed so many areas and are are being credited for my photos. <br>

I'd be interested to hear from those of you with more experience as to what might be a civilised way to tackle this.</p>