Picture Used in Advertisement Without Permission-- What Should I Do?

[Sleepy_Sentry]

Long story short, I have a picture of me that was up until today under the Creative Commons Attribution-ShareAlike license that includes commercial use. A friend of mine today asked why I was in an advertisement on Yahoo News: imgur: the simple image sharer

I understand the consequences of sharing my work under CC-- use of my photo with proper credit. This did not occur. My picture was shown to thousands of Web users without any credit given to me at all, a violation of Creative Commons. Most importantly, the license terminates upon any violation of its terms.

Now this is a case of copyright infringement and breach of privacy rights (commercial misappropriation of my likeness). I am sick of Internet companies thinking they can get away with misusing photos. If they didn't want to credit me, the firm running the advertisement should have bought a photo. I don't see this as an honest mistake and I don't think a polite "Don't do this again" email is appropriate.

I located the name of the company and have two options:
1. Send an invoice for use of the photo plus a fee for misuse and pressure them to pay up on my own. I have done this in the past.
2. Talk to a lawyer. This is a tougher option because I'm overseas for the next four months. I'm also afraid that any damages I receive won't justify the legal expenses.

I am not sure what to do because I have never dealt with copyright infringement claims involving use of likeness. What do photographers typically do when an infringement involves use of likeness for commercial purposes?

 

[Bitter Jeweler]

US copyright law is federal law - USC Title 17 (USC = United States Code) - U.S. Copyright Office - Copyright Law of the United States

Since copyright law is federal law, and copyright action has to be filed in federal court. Copyright law - 17 USC 411 - states in part b, "no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title." If you haven't at least started the copyright registration process you can't sue anyone for infringement.

If you have registered your copyright BEFORE an infringement occurs, your attorney then has the option of seeking statutory or actual damages. If the copyright is not registered prior to the infringement, or within 3 months of the 1st publication of the photo, only actual damages can be sought.

Actual damages - 17 USC 504b - have to be proven. The court may calculate actual damages from ordinary industry (or yours) standard licensing fees. Your attorney may be able to also recover any profits the infringer made from infringing your image if the profits aren't to speculative.

Statutory damages - 17 USC 504c -don't have to be proven. The court decides how much, between $750 - $30,000 per infringed image. However, if your attorney can prove the infringment was willful, the court is allowed to award up to $150,000 per infringed image, plus all of your court cots and attorney's fees.
Note: If the othe guy's attorney can prove the infringement was "innocent", you get $200 per infringed image and pay your on costs and attorney fees.

On another forum, Licensing an image for a LOGO.

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[KmH]

I located the name of the company and have two options:
1. Send an invoice for use of the photo plus a fee for misuse and pressure them to pay up on my own. I have done this in the past.
2. Talk to a lawyer. This is a tougher option because I'm overseas for the next four months. I'm also afraid that any damages I receive won't justify the legal expenses.

What do photographers typically do when an infringement involves use of likeness for commercial purposes?

Option #1 is a very common, and very costly, mistake many make when they discover an infringement. Don't do it. It tends to irretrivable lock in the amount you can sue for. What if the same company is infringing your image in other media types you haven't discovered yet?

If in #2 the attorney you talk to suggests you do #1 as your initial move, get up and walk out.

Help! I’ve Been Infringed! | Photo Attorney

As far as use of someone's likeness, that is a separate issue. Do you have a valid model release signed by the person (apparently you in this case) in the photo?

A person in a photo, who is not the copyright owner of the photo, can file suit against the publisher of an image of them that has been used without permission.

In other words you may have 2 separate suits. One for infringement, and another for using your likeness without your permission.

 

[Bossy]

Do you have that image posted anywhere else? Like on your facebook or something? I know that they pull images from social networking sites and by agreeing to the T&C you don't have much recourse.

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[KmH]

The point Bossy raises is why I posted the link to Photo Attorney. You first have to determine if it's actually an infringement.

Way to many people never read the fine print, and never realize all the ways they screw themselves by skipping that step.