So what can you do when someone uses an image of you without your permission? We’ve written about whether a brand can use an image of you wearing their product without permission, and only briefly addressed the different ways of handling the situation. This article will explore some of the ways you might handle an unauthorized use of an image of you either in print or online.
When you participate in a photo shoot, the photographer generally owns the copyright for the image. You, as an identifiable subject, will still have publicity rights over that image – unless you have signed a contract and/or model release that provides a license or release of those publicity rights. If you don’t sign that model release, then they won’t be able to use your images in advertising or promotion, however, what this likely means is that the photographer won’t extend any licenses to you for you to use the image on your website or social media. It’s a give and take world.
It might happen innocently enough, maybe one of the guys you work out with or compete with sends you a link to a website where they’ve seen an image of you, or hand you a copy of a magazine and there you are looking fit. But wait a minute, you don’t remember giving them permission to publish this?
You might a) look and realize that yes, you did sign a model release for the photographer, or b) you twig to the idea that someone has copied the image from your social media channels or website or in some other way establish that this was published without your permission and/or the permission of the copyright owner.
Once you’ve established that you did not authorize the use of the image – whether personally, or by virtue of a model release you have signed, the first step is to collect examples of the use of the image: whether screenshots or copies of the publication, then you will need to decide whether you are going to do anything at all.
There are many different options for responding, from sending a polite email educating the infringer all the way through to filing a copyright infringement suit on the grounds of either infringement of your own copyright or your right of publicity.
You may want to call your lawyer as soon as you identify the infringement – and of course, we firmly believe that an attorney is the best person to evaluate your situation and advise how to move forward in ways that are appropriate to both your situation and your desired outcomes. However, if you are not ready to contact an attorney, let’s talk about steps you might take as a beginning:
1. Reach out to the infringer
Choosing legal action straight away is likely to be detrimental to any relationship you may have, or hope to have, with the infringer. In fact, it is almost always better to send a kind note (as an initial form of contact), especially if you’re in a situation where you believe that the individual is unaware of their actions and/or you are attempting to preserve your relationship or reputation. Note, this approach isn’t always recommended when you are dealing with a large-scale infringement or an infringement by a multi-national company. This step is more appropriate in the situation of a smaller scale and non-malicious infringer such as another fitness athlete or non-commercial entity.
You need to be aware of the practical reality that in many larger corporations, the individual publishing the image or placing the order for a marketing material may be unaware of the licenses provided to their company, or it may be a small company who simply doesn’t know better. Ignorance is not a defense against copyright infringement. However, by reaching out and providing information about your intellectual property and a willingness to discuss – you might be able to preserve your relationship and reputation.
For a website or blog, where you believe that the use was out of ignorance rather than intentional misuse and you would be happy for credit alone, start by sending a letter or email.
2. Send a takedown notice
Consider sending a DMCA takedown notice, or filling out the applicable website infringement form – all social media channels have these available. A DMCA can be used to have the intellectual property removed from the infringer’s site through the Internet Service Provider that hosts their website. You can search for information about the ISP through whois. Be aware that Instagram sometimes dismisses the first notice out of hand for publicity rights situations; be patient and submit it a second time clearly explaining that the identifiable person in the image is you and providing a link to your website or to the image in question.
You could also consider sending a cease and desist letter to the infringer directly. A cease and desist letter (C&D) is sent directly to the individual improperly using the images. Note: You don’t necessarily need a lawyer to send a C&D.
3. Engage an attorney to send a demand letter
The next step is often to engage an attorney to send a letter of demand. Now, you could have an attorney send the Cease and Desist and/or a DMCA takedown notice for you, but often it is the next stage where an attorney yields the best return on investment.
Often an attorney may recommend sending a demand letter explaining options for settling the matter prior to litigation if a C&D and DCMA takedown notice have already been sent. Some attorneys will charge a flat fee for this kind of letter. You should know that contingency fee schedules are rare in cases of copyright infringement.
4. Engage an attorney to file suit for copyright infringement
While it is true that you hold copyright in an image regardless of registration, registration can impact your rights to file a complaint and the amount of damages you can claim/receive. If you are filing on the basis of the right of publicity, you may want to involve the copyright owner as this may help your case considerably – especially if you already have a positive working relationship.
You generally have three years from the date of infringement to file suit for copyright infringement. Infringement claims are generally filed in federal district court unless there is a claim for a breach of contract or some other claim that can be filed in State court. Unless the images have been registered with the US Copyright Office, only actual, rather than statutory damages, can be claimed.
Actual damages are generally calculated based on usual license fees or standard licensing fees for the industry. If the infringement has resulted in profits for the infringer, these may be recovered by the copyright owner.