*Disclaimer: This article is for informational purposes only and does not contain legal advice. Products On White Photography, LLC, it’s authors or those interviewed accept no liability resulting from following the steps in this article. Find a copyright lawyer in the Tools Section of the article for official advice on your particular situation.
Product photography is an important investment for any ecommerce business. And it’s important to do everything you can to maximize the return on that investment: hire a high-quality professional product photography studio, optimize your product shots for SEO, and make sure they’re Amazon-ready.
But what happens when someone else tries to cash in on your investment by way of stealing your photos for their own use? Photo copyright infringement is a real problem, and it’s important to be aware of your rights so you don’t fall victim to content theft. On the flip side, you want to stay educated so you don’t unintentionally steal someone else’s photos.
In this article, we’ll walk you through the steps you can take against image theft and photo copyright infringement.
What is copyright law?
Copyright law is a creator’s legal right to use their intellectual property and creations, as well as give others permission to do the same. The law protects creators’ rights to incentivize them to keep creating.
When a photographer creates a photo they own the copyright, even if they’re commissioned by a brand to do so. So if you hire a photographer for your product shots, they are the copyright owner. However, you may have usage and license rights which allow you to use the photos you paid for. This should be clearly outlined in your contract.
Copyright vs. creative licensing and usage
Copyright is different from license and usage. The copyright owner grants usage rights, or permissions, to others who want to use the creation (or photos, in this case). So if you commission a photographer or studio to shoot your product photos, they own the copyright while you have usage and license rights.
Essentially, you have a “license” to use the image. This is typically stipulated to a certain use. For example, you may have a license to use the product photos on online selling channels and your website but not in a nationwide TV commercial.
You could also request royalty-free usage, which grants unlimited usage for an unlimited amount of time. This is the usage and license POW provides when you hire us for your product photos. Royalty-free usage is the best option, though you still don’t own the copyright.
Individual photographers often have more specific usages, so it’s important to be aware of the restrictions.
Bottom line: You don’t need to own the copyright to make full use of the product photos, but you do need the proper usage and license terms.
Owning copyright vs. registering copyright
The final key to understanding the basics of copyright is the difference between owning the copyright and registering the copyright with the US copyright office. “For a photographer, you own the copyright in a photo the moment you snap the shutter and the image is created on the film or digital file,” says Mx. Ruth B. Carter, Esq. who practices in the areas of Intellectual Property, Internet Law, Business Law, and Litigation. And the same applies if you’re a business hiring the photographer—they own the copyright.
“You don’t have to register your copyright in order to get your copyright rights; however, you need to register your copyright in order to sue for copyright infringement,” she says. “Registering a work can increase the value of the work if you’re licensing or selling your copyright.” Registering the copyright before an infringement happens is beneficial to receive statutory damages in the lawsuit phase.
The CASE Act and the Copyright Claims Board
The Copyright Alternative in Small-Claims Enforcement Act of 2020 (CASE Act) passed in December 2020, ordering the U.S. Copyright Office to create the Copyright Claims Board (CCB), a three-member group dedicated to resolving small claims copyright disputes up to $30,000.
This has made dealing with any type of copyright infringement easier and more accessible to businesses and photographers of all sizes. Now, you don’t have to go to federal court to fight photo copyright infringement. You can file claims online.
What is photo copyright infringement?
Photo copyright infringement is when you use images for which you’ve not been granted usage rights, either individually, as a business, or via a Creative Commons license for royalty-free images. This act is considered content theft.
Copyright infringement and photo theft from another country
The copyright laws we discuss in this article are specific to the US. Copyright laws vary internationally, and other countries have no obligation to recognize or uphold US copyright law. So if you find yourself the victim of international photo theft, it can be significantly more difficult to fight, and you have pretty much no legal recourse.
Photo copyright infringement penalties
Committing copyright infringement doesn’t always come with penalties, but when you get caught you may be subjected to paying for it. The maximum penalty is 5 years imprisonment plus a $25,000 payout per incident. So 10 photos could be 50 years and $250,000 at its worst.
“§ 506(a) by the unauthorized reproduction or distribution, during any 180-day period, of at least 10 copies or phonorecords, or 1 or more copyrighted works, with a retail value of more than $2,500 can be imprisoned for up to 5 years and fined up to $250,000, or both.”
You could also face civil penalties, being required to pay damages ranging from $750 to $30,000 per photo. Willful infringement could be as much as $150,000 per photo.
Steps to take if someone steals your photos
It’s important to note if someone steals your photos, the copyright owner is technically the victim of theft. So you’ll have an easier time fighting the infringement if you can collaborate with your photographer on the case and let them know your plan.
Some photographers will offer a discounted copyright buyout, which transfers the ownership to you so you have better odds of winning. We offer this to our clients should they need it, but not every photographer will.
We also do whatever else we can to help. We’re more than happy to provide any documentation, and we’ve even gone as far as being an expert witness on a client’s behalf.
While pursuing a legal copyright infringement case requires the copyright owner, there are other steps you can take—that don’t involve filing a lawsuit—to combat theft:
- Document the offense
- Contact the offender
- Send a cease and desist letter
- File a DMCA
- Report on the platform
- Request photo credit
- Consult a lawyer about legal steps
Step 1. Document the offense
First and foremost, compile evidence. Take screenshots and recordings of each instance where you see your photos being used. Organize everything in a dedicated folder and annotate with URLs, social profiles, and dates.
You can also use The Wayback Machine to see how long the photos have been used. The website shows your archived, old versions of pages on the web. So you can go back in time and see how long it’s been there. Add this information to your notes.
You’ll also want to gather any licensing agreements, contracts, or receipts to prove you commissioned the photos.
Step 2. Contact the offender
Sometimes, a simple message is all it takes to stop the infringement—no need to escalate the situation. So it’s best to approach gently and contact the individual or organization directly. You can do this via email. Try writing something like this:
“Hi [NAME],
I noticed you have this photo on your [WEBSITE, SOCIAL MEDIA, ETC]. Can you please take it down? You don’t own the copyright or having license and usage rights. Thanks!”
Remember, they may not be aware they’re committing copyright infringement. You don’t need to be threatening or mention legal action at this point. Your message should be non-threatening, accurate, and focused on a positive resolution.
Tip: Avoid making false statements about the law. For example, don’t say they infringed on your copyright if you don’t own the copyright.
Step 3. Request payment or a credit
You can also consider asking for payment to use the photo. If they’re unwilling to pay, you could also compromise by requesting they add photo credit and a link to your website.
Step 4. Send a cease and desist letter
A formal cease and desist letter is a formal written request to inform the individual or company they’re stealing content and demand they put an end to it by a certain date. “A cease and desist is a ‘stop it’ letter,” explains Carter. It also outlines your plan of action should they not comply. The tone should be professional and firm but non-threatening.
It’s important to ensure everything in your letter is accurate. You may want to work with an attorney to draft your cease and desist letter. They can not only help you draft your letter but also advise whether it’s worth pursuing in the first place.
“I have clients who regularly send me links to websites where they believe their intellectual property rights are being infringed, I analyze the situation, and if I believe there is infringement, I draft a letter for my client to send to the suspected infringer so they can try to resolve the matter business owner to business owner,” says Carter. “If that doesn’t work, I send a follow-up letter on law firm letterhead.”
A cease and desist letter should:
- Include a header with your name and address, and begin the letter by stating the person or company you're confronting
- Cite where the theft is taking place and identify the work being used
- State that the work is being used without authorization, or if it is violating your copyright
- State a deadline they must stop using the image by
- Include a consequence; typically that you will “seek legal advice on how to proceed.”
- Consider offering a licensing agreement if you hold the copyright
You can use these templates to help you get started:
- Free Copyright Infringement Cease and Desist Letter
- Professional Photographers Of America Certified Infringement Letter
You can send the cease and desist letter via email or physical mail—the latter is better, with certified delivery if possible.
Step 5. File a DMCA takedown
Filing a DMCA (Digital Millennium Copyright Act) takedown is similar to a cease and desist letter. The difference is this is specific to digital or online use, and the DMCA goes directly to the internet service provider (ISP) instead of the infringer. Webs hosts in the US have legal incentive to take down images from their platforms that violate copyright laws. In many cases, you would use both a cease and desist letter and a DMCA takedown notice.
Your DMCA takedown notice needs to include three key things:
- The infringing URL you want removed
- The source URL where the content was stolen from
- A description of how you own the content and how it was stolen from you
You can file the takedown yourself or use DMCA.com’s takedown service. If you’re not sure what to write, you can use this post from the Copyright Alliance as guidance.
In addition to filing with DMCA.com, you’ll want to file directly with the infringing website and its web host or ISP. To find the web host, you can use a tool like Who Is Hosting This?—it’s free.
Send your DMCA takedown letter to the host’s copyright agent, which you may be able to find under their legal information page or by Googling it.
Remember: if you’re not the copyright owner, you’ll need authorization from your photographer before you send a takedown request.
Step 6. Report the incident to the platform
If theft persists, report it on the platform where the stolen images or ecommerce photos are being used. This could be a third-party marketplace like Amazon or Etsy or a website builder like Shopify or WordPress. These platforms often take copyright claims seriously. We’ve outlined what to do if your stolen photos are used on Amazon, and other platforms likely have similar processes.
You don’t need to own the copyright to pursue this avenue. If you outsourced the photos, provide your receipts and contracts to prove your usage rights.
Step 7. Consult a lawyer about next steps
If you’ve taken these steps and still haven’t reached a solution, you may want to consider enlisting professional legal advice. Consult an attorney that specializes in copyright law specifically, and they’ll be able to advise on your rights and best legal course of action.
To pursue legal steps in a copyright infringement case, you need to own the copyright. Remember, if you don’t own it, you might be able to purchase it from the photographer after an infringement, or make a joint copyright ownership arrangement. If it’s likely you’ll end up in court, this is an investment you’ll want to make.
A good copyright lawyer will aim for the best outcome for you, which doesn’t always involve a lawsuit, which can take years and hundreds of thousands of dollars. The ideal scenario is the image is taken down, though next-best solutions are apologies, credit, payment, or retroactive licensing. The last resort should be heading to court.
How to protect yourself from copyright infringement
Protect your photos from being stolen
You can protect your photos from being stolen by registering copyright if and when you’re able. You can also use copyright protection tools, like Pixsy. These tools monitor the internet for unauthorized use of your photos and offer resources for images that have been stolen internationally.
Here are some helpful links:
How to avoid committing copyright infringement
If you want to avoid accidentally stealing someone else’s photos, make sure you always source content from reputable places. Hire a photographer to shoot for you specifically, and use stock photo sites where you can download Creative Commons images for free or pay for the rights to use them.
If you’re unsure, do a reverse Google image search to try to find the image owner. Reach out and request permission. In many cases, you’ll find a line of photo credit or a backlink is all you need to offer in exchange for being able to use the photo.
Final thoughts / Conclusion
The best time to protect yourself from copyright infringement is now—not after the incident occurs. “It’s not if, but when, someone violates your IP rights,” says Carter. “Decide in advance how you want to respond when someone steals your work, and do your homework in advance, so that when the infringement happens, you already have a plan of action and it’s a straightforward process to follow through with your strategy for responding to the suspected infringement.”
