Interesting interview with Carolyn Wright the "photo attorney" from this blog:
http://blog.kenkaminesky.com/photography-copyright-and-the-law/The question posed:
"Q: What happens when a copyrighted photo is used without permission?"
and a snippet of her answer:
"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."
and
"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, such as who, what, why, when and where – see my blog entry here for more information. 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. You may get subsequent work from the infringer or others."
(for some reason I don't see PhotoAttorneycom Carolyn Wright doing this..another case of "do as i say, not as I do")
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. So
you may want to think 2x before you send the 3x letter.( or just go balls to the walls and demand 100x or more right out of the gate!)
"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.”
... this last bolded sentence is interesting and could possibly be used by recipients of letters. The complaint against Timothy B McCormack comes to mind, the recipient clearly had permission to use the image from the wholesaler ( although they may not have owned the image in question) she could have fired first and forced Getty / McCormack to come to her (Alabama) and fight on her terms..
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