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This goes way over and above the usual image pilfering from one web site to another -- a huge, multi-million dollar corporation stole *my* photo and printed it in who-knows-how-many catalogs for their clients.
A fairly bold move on their part - the images on my site are watermarked and I even went so far as to put my web site address in not-very-small text in the image. They've apparently doctored the image, as I can't see my web site name any more. But there's absolutely no denying that it's the exact same image as the one I serve on my web site, and exactly the same as the original digital camera image presently residing on my computer.
What's the best course of action here?
My "proof" of ownership is the original digital image, straight out of my camera and residing on my PC. The photos on my web site have been cropped and cleaned up a bit, plus they've had a DigiMarc digital watermark applied. So if I should somehow get lucky enough to find that this other company has a copy of that image on one of their PCs, it will still bear the watermark and I think it'd be a slam-dunk at that point.
As for proof of publication, I don't know - the photos have been on my web site since shortly after I created them, and the *only* way anyone else could have gained access to the photo is to have pulled it from my web site; it doesn't exist anywhere else.
This photo isn't the sort of thing someone else could have created independently - there are too many identifying characteristics, most notably the positions of the products in the photo.
I have calls in to a couple of local intellectual property attorneys and we'll see what they have to say.
Does WaybackMachine have an archived copy of your site showing the image, by any chance?
As for proof of publication, I don't know...
You will. I suspect that will make all the difference to a judge.
FWIW Disk space is cheap and so is back-up media. I always save my complete sets raw. If there's ever a question regarding authorship, I can produce the entire work.- uncropped, bad composition, whatever. Whoever infringes can only produce what they stole...
If they are a big company, I hope you have some decent money to fight it. They will stop the infringment easy enough, but getting money from them is another matter. I doubt if a contingent fee structure will happen here.
No, if they are a big company, they got that way by buying their way out of trouble when they are wrong and they know it.
It is extremely unlikely to get to court if the picture owner is interested in a reasonable settlement, and a reasonable settlement can include a lot of money and recognition, possibly within a couple of weeks.
Make sure any lawyer you talk with is highly qualified. Check with some of the professional associations you might belong to for their ideas.
If registered within 90 days of first publication, you are covered in asking for your lawyer's fees, and a statututory award which could go to $250,000 if this is a flagrent violation.
If not registered, it will be a very difficult decision if it is worth it to sue.
I have not heard of any lawyers taking on copyright on contingency, since they are so costly and the rewards subject to the judge's temprament. And, if for some reason you lose the case, the judge can award the other side its legal fees.
I know of two photographers who lost cases they thought were iron clad. Each photographer was held responsible for high six figure legal fees from the other side.
First and foremost, if the photographs had been registered with the US Copyright Office (they weren't but soon will be), I would have a much better case. Recall that my issue here is that my photo was stolen and used in PRINT media, not just on some competitor's web site.
Registration of copyright isn't required before copyright infringement protection is afforded, but registration *does* allow you to ask for certain statutory damages and to request payment of attorney's fees. And all cases have to be filed in federal court, which just sounds incredibly expensive.
Without registration, you're left trying to prove actual damages and can't ask the other side to be held liable for attorney's fees. In my case, there's not much "actual" damages -- I'm not losing business to the wholesaler who's using my image, and I'd be hard pressed to prove how much profit they're making from the image.
So about the only course of action left at this point is to draft a "Cease & Desist" letter, and include an invoice to bill them for the use of my photo. Maybe they'll pay, maybe not, but it's reasonable to expect them to stop using the photo. If they don't pay, there might be some recourse in small claims court, but even then it's not likely to be worth the effort and expense.
One attorney advised that I could start out by drafting my own C&D letter and enclose the invoice, then if they ignore it, to spend the money for an attorney to draft a more strongly worded letter on their letterhead.
The bottom line is this: If you have intellectual property that you want to protect, spend a couple hours and $30 to register it with the US Copyright Office, within 90 days of first publication or at least prior to anyone infringing your copyright. It's not entirely clear to me just yet, but I think you can register multiple items with one fee - so if you have a collection of product photos, for instance, you should be able to get the whole lot of them registered in one shot.
The other "remedial" action I'm taking is to emblazon all my photos with my web site address in semi-transparent but very visible text -- then if someone wants to steal the image, they've got a lot of editing work to do.
And finally, I'm going to make sure I continue to embed the DigiMarc digital watermark in all my images -- it's been quite handy in a few cases where scumbags have pilfered my images for their web site. The watermark is quite persistent, and will live through all sorts of image manipulation. And it's difficult for someone to argue with you when the watermark reader says it's my picture!
Thanks for the replies here - will update if I actually see any cash from the wholesaler, though I doubt I'm going to get anything. (Sure does suck being the little guy...)