So annoyed right now- stealing pictures, is this legal?

[KarenAylwood]

Will try to make a long story short.

I'm not a professional photog, just love photography. I take a lot of pictures when I travel and whenever I can locally. I don't sell any of them, mostly take them for personal use or for/of friends.

I have a smugmug website that I use as another backup for my pictures and to share pictures with friends and family. In July a friend started as a realtor (made a career change) in a city not far from here. I love that city so I have a good amount of really nice pictures of it on my smugmug. She wrote an email to a bunch of friends and family telling us and sent out her new website (it's kind of like a blog about the city and with info on houses on the market there). She then immediately wrote me an email that said "PS I "borrowed" some of your pictures for my website off your smugmug, Thanks " It really angered me when I saw it. This friend used to be very close to me but we've grown apart over the past few years. We haven't been nearly as close as we used to. I decided to let it go and try to just let it slide (not a usual occurrence for me). I never replied to either email. We've talked since but never about that (and not often, last time was about a month ago).

Then today she posted an update to her site about fall and put up a really pretty picture I took two years ago near my house (not her city). It's just a tree with fall leaves. It really struck a nerve. I immediately changed my smugmug website address/nickname and sent it out to the people I'm closest to.

Do I have a right to be so angry? I don't have a copywright on the images but it hurts to have these taken off my site and put on her business site (and her business facebook page) without so much as a mention of my name or asking my permission.

Sorry this is more of a vent than anything. I have no idea how to actually deal with the situation (or know if I'm prepared to).

 

[rmattman]

Similar situation happened to me where someone posted one of my Disney pics from my Flickr site on their photography blog. I think what would bother me most if I were in your situation would be the lack of communication from your friend. When a total stranger uses one of my pics without permission, this does not surprise me. I would expect a friend to at least ask permission and/or give credit to me for the pics. The other factor in your situation is that she is using your pics for a commercial purpose. If she doesn't use your pics, would she have to purchase rights to some similar pics from a commercial source?

Hopefully, you have taken care of the situation by changing your Smugmug info. Having done that, I think I would let the situation die without confrontation at this point. If she ever asks about the change to your Smugmug account, feel free to blast away.

 

[mytripsandraces]

Will try to make a long story short.

I'm not a professional photog, just love photography. I take a lot of pictures when I travel and whenever I can locally. I don't sell any of them, mostly take them for personal use or for/of friends.

I have a smugmug website that I use as another backup for my pictures and to share pictures with friends and family. In July a friend started as a realtor (made a career change) in a city not far from here. I love that city so I have a good amount of really nice pictures of it on my smugmug. She wrote an email to a bunch of friends and family telling us and sent out her new website (it's kind of like a blog about the city and with info on houses on the market there). She then immediately wrote me an email that said "PS I "borrowed" some of your pictures for my website off your smugmug, Thanks " It really angered me when I saw it. This friend used to be very close to me but we've grown apart over the past few years. We haven't been nearly as close as we used to. I decided to let it go and try to just let it slide (not a usual occurrence for me). I never replied to either email. We've talked since but never about that (and not often, last time was about a month ago).

Then today she posted an update to her site about fall and put up a really pretty picture I took two years ago near my house (not her city). It's just a tree with fall leaves. It really struck a nerve. I immediately changed my smugmug website address/nickname and sent it out to the people I'm closest to.

Do I have a right to be so angry? I don't have a copywright on the images but it hurts to have these taken off my site and put on her business site (and her business facebook page) without so much as a mention of my name or asking my permission.

Sorry this is more of a vent than anything. I have no idea how to actually deal with the situation (or know if I'm prepared to).

Actually, you do have a copyright in your photos and what your friend did is copyright infringement. I would start by sending her a license and an invoice.

 

[wbeem]

Welcome to online photo-sharing. If you post nice photos, someone is going to take them without your permission. Technically, it is illegal as it's a violation of copyright law. In practice, it's much more confusing.

By law, you own copyright to anything you create. However, you can only sue for a copyright violation in Federal court if you have a valid ad timely registration of your copyrighted works. If you publish a work without a registration and someone uses it, you can't go back and register it and THEN sue them.

On the other hand, online photo sharing generally isn't recognized as publication.

You can send invoices, write letters, etc. Most of that does no good because there's no binding contract between you and the infringer. If you get paid this way, it's extremely rare.

Another option is to contact the hosting provider of the offender's web site (if the stuff is shared online) and file a Digital Millennium Copyright Act (DMCA) Takedown Notice. You can find templates online. Most reputable hosting companies will honor these requests, as they don't want to be held liable for their user's infringement.

In some cases, what seems to be infringement is actually Fair Use. That's typically the first defense someone makes if you sue them, too.

I register all of my photos with the US Copyright Office. It only costs $35, but you can register them in bulk. As I mentioned, this is a requirement to file suit for infringement.

Having been through an infringement case before, I can tell you that it's not fun, costs money, and takes time. Even if you're represented by an attorney on a contingency basis (as I was), you still have to pay for the court filing fee and other costs that are beyond the attorney's time. When the settlement comes (and it will if you have a valid registration), they attorney takes a percentage and you get the rest. Settlements can range from a few thousand to $35K, typically. The max that you can sue for is $150K, but virtually nobody gets that much. A five-figure result isn't unheard of in these cases, but it's also important to know that the defendant can actually pay or has assets you can seize.

I suggest reading the PhotoAttorney.com site by Carolyn E. Wright. Another good resource is the Photographer's Survival Manual: A Legal Guide for Artists in the Digital Age by Attorney Ed Greenberg and Commercial Photographer Jack Reznicki - http://amzn.to/QajzzB

One more thing. I don't care if someone uses my photos for a non-commercial project. If they want a wallpaper or a blog post, that's fine with me. In fact, I prefer blog posts with a credit and link back to my Web site because that helps build Google authority for me, puts me higher in search results, etc. That's why I have nearly 20K backlinks to my site.

So, I release my photos under a Creative Commons License Attribution-NonCommercial CC BY-NC. That means they can uses it for non-commercial reasons, provided I get attribution (and the link I mentioned). If a commercial use takes my photo, I can still sue if I desire.

 

[mytripsandraces]

Welcome to online photo-sharing. If you post nice photos, someone is going to take them without your permission. Technically, it is illegal as it's a violation of copyright law. In practice, it's much more confusing.

By law, you own copyright to anything you create. However, you can only sue for a copyright violation in Federal court if you have a valid ad timely registration of your copyrighted works. If you publish a work without a registration and someone uses it, you can't go back and register it and THEN sue them.

On the other hand, online photo sharing generally isn't recognized as publication.

You can send invoices, write letters, etc. Most of that does no good because there's no binding contract between you and the infringer. If you get paid this way, it's extremely rare.

Another option is to contact the hosting provider of the offender's web site (if the stuff is shared online) and file a Digital Millennium Copyright Act (DMCA) Takedown Notice. You can find templates online. Most reputable hosting companies will honor these requests, as they don't want to be held liable for their user's infringement.

In some cases, what seems to be infringement is actually Fair Use. That's typically the first defense someone makes if you sue them, too.

I register all of my photos with the US Copyright Office. It only costs $35, but you can register them in bulk. As I mentioned, this is a requirement to file suit for infringement.

Having been through an infringement case before, I can tell you that it's not fun, costs money, and takes time. Even if you're represented by an attorney on a contingency basis (as I was), you still have to pay for the court filing fee and other costs that are beyond the attorney's time. When the settlement comes (and it will if you have a valid registration), they attorney takes a percentage and you get the rest. Settlements can range from a few thousand to $35K, typically. The max that you can sue for is $150K, but virtually nobody gets that much. A five-figure result isn't unheard of in these cases, but it's also important to know that the defendant can actually pay or has assets you can seize.

I suggest reading the PhotoAttorney.com site by Carolyn E. Wright. Another good resource is the Photographer's Survival Manual: A Legal Guide for Artists in the Digital Age by Attorney Ed Greenberg and Commercial Photographer Jack Reznicki - http://amzn.to/QajzzB

One more thing. I don't care if someone uses my photos for a non-commercial project. If they want a wallpaper or a blog post, that's fine with me. In fact, I prefer blog posts with a credit and link back to my Web site because that helps build Google authority for me, puts me higher in search results, etc. That's why I have nearly 20K backlinks to my site.

So, I release my photos under a Creative Commons License Attribution-NonCommercial CC BY-NC. That means they can uses it for non-commercial reasons, provided I get attribution (and the link I mentioned). If a commercial use takes my photo, I can still sue if I desire.

As long as the application is filed prior to the filing of the law suit, you can register the copyright whenever you want, though protection is maximized if it occurs within 3 months of publication. A rush application costs nearly $800, though. OP - your friend might not respond to the license or invoice, but it gives her an opportunity to do the right thing and shows that you're trying to work with her.

 

[KAT4DISNEY]

Vent away!

But I am going to take a slightly different view from the others. Your previous friend did email you about it (albeit after the fact, but it was an opportunity for you to express your comfort level with this). Many people think a picture is a picture and if it's on the web and downloadable then it's good to go. Just part of the digital age IMO whereas before people would have to request a negative or some other such item to use a photo.

It obviously is bothering you so politely let the person know and what you would like for them to do - ie, stop using the picture, give credit or whatever is your choice.

You mentioned that you don't sell pictures so I doubt she's looking at it as stealing and may be thinking of it more as a compliment.

 

[havoc315]

Very briefly, you own the copyright in your photographs...... BUT...
Generally hyperlinking is not considered copyright infringement. Thus, someone can generally link to your publicly published online photos, and it generally would not be considered copyright infringement. If they downloaded the pics, and then re-uploaded them onto their own site, that would generally be considered infringement.

 

[wbeem]

Very briefly, you own the copyright in your photographs...... BUT...
Generally hyperlinking is not considered copyright infringement. Thus, someone can generally link to your publicly published online photos, and it generally would not be considered copyright infringement. If they downloaded the pics, and then re-uploaded them onto their own site, that would generally be considered infringement.

I'm not sure that's true anymore. A display on another site, even if hyperlinked, seems to be considered infringement these days.

Of course, much of this is all subject to circumstances and ever-evolving judgments. Some sites, like Flickr, make it easy to share your photos on another blog or forum. Then there's direct hotlinking which seems to be frowned upon. That's why we can't say for certain that anything is absolute.

I think it comes down to a judgment of reason based upon individual cases.

 

[handicap18]

If you can upgrade to the Pro account with smugmug then you can put on a right click protection on it and at least make it harder for people to download them, then you can have her buy the picture via print or download and put an very large price tag on them.

This way people can still view them, but have a very very hard time downloading them to their own computer.

You can also add a big huge watermark on them.

Now that I look at the pricing structure of smugmug, even the basic account has a Disable downloading/viewing larger sizes. Also the Power account will let you add right click protect. I don't know the different prices for each. Its changed a bunch since I started using it.

 

[BirdsOfPreyDave]

Considering that you have a relationship with this person, even if it isn't as close as it once was, I'd recommend that you discuss the situation with her to see if you can come to an agreement before you seek any type of legal intervention.

Personally, as another poster has indicated, I wouldn't mind my photos being used for personal, non-commercial use. I do want to receive credit for my work, though, which is why I overlay a signature and copyright notice on the photos I post on Flickr. I also ensure the copyright information is always up to date in the exif data.

In your friend's case, she's using your images on a commercial business site. You need to decide if you feel you should be compensated for the use of your work in this manner, or if getting proper credit would be sufficient. Or perhaps you're so insulted in how this was done that you simply want her to take your images down.

I'm betting your friend doesn't think she's done anything wrong, and doesn't realize that she's upset you. I recommend sending her an email and tell her how you feel. The worst she can do is ignore you, at which point you could consider some of the other options mentioned above.

Becky Sue,

I have to share with you that I've been a little distressed over your use of my photographs on your business web site. I so wish you had taken a minute to contact me to discuss this before you did so. While I'm not a professional photographer, I do take a lot of pride in my body of work. My images are copyrighted so I can control how they are used.

I use my Smugmug account as a method of backing up my images, and share that account with friends and family for their own personal enjoyment of my photography. It never crossed my mind that someone would extract my photos from that site to use commercially, as you have done.

(Select an ending)

(a) I ask that you please take my images down off your web site.

(b) As your friend, I want to be supportive of your new business venture, but I ask that you please extend me the courtesy of honoring my copyrights. I'd like to discuss with you the manner in which I'd like photo credits acknowledged on your web site if you'd like to continue to display my images. I also ask that you please coordinate with me first if you'd like to use any additional images in the future.

(c) As your friend, I want to be supportive of your new business venture, but I ask that you please extend me the courtesy of honoring my copyrights. Because you have chosen to use my images in a commercial manner, I ask that you either remove them from your site or contact me to discuss an appropriate compensation for their use. I also ask that you please coordinate with me first if you'd like to use any additional images in the future.

Karen

 

[Pea-n-Me]

I agree with what's been said. I think most people are clueless about it, and would guess that's the case with your friend. I put the right click protection on all of my SmugMug pics when I upload, so they are not downloadable (short of having my actual password or superior technology skills as I guess there's a way). I like this feature since I take a lot of sports pics and other parents can know pics of their kids won't be all over the internet from me. (I explain this ahead of time and give them an "out" if they don't want pics of their kids posted on SM.) A watermark is helpful, too. Any "layers" you can put on your pics will help. Regardless, you do own the copyright to your pics and can make her take them down or charge her for using them. I think a simple conversation would have gone a long way on her part, though. I would not be happy in the situation you've described. The other day I got an email from SmugMug that someone I'd given a link to a long time ago just ordered some pics from me. My only regret since getting the Pro account now is not going back in and setting the price of my pics. I've got some work to do there. Great letter above, btw.

 

[pjacobi]

Back in 2007, Virgin Austrailia used photo of 16 year old Texas girl from Flickr and posted it on billboards with the tag, "Free text virgin to virgin". See

http://www.smh.com.au/news/technology/virgin-sued-over-photo/2007/09/21/1189881735928.html


-Paul

 

[wkrider]

I password protect my SmugMug galleries that I don't want everyone to see. I then give out the password to those family members that I want to have access to that gallery. The galleries that I keep open I have all my pictures watermarked and the racer that I am taking them for gives me credit and leaves the watermark in place when she uses them. If my brother uses them for his business, he is her sponsor, he pays me.

 

[wbeem]

Folks, don't expect those watermarks to protect you. The business that I sued had also copied a number of watermarked images from other photographers I know. The only thing that mattered is that I had my images registered and they didn't.

If you want to use a watermark, look into Digimarc. It creates an invisible watermark that identifies your photograph, even if it's copied, printed, modified, etc.

Along with that, be sure to add metadata identifying you as the photographer and include a way to contact you. If a business wants to use your photo and license it from your, they need to be able to find you. If they can't identify the copyright holder, then they can create an argument that it's an orphaned work and available for use. That was an issue before Congress in the last couple of years, and will probably come up again in the future.

 

[Pea-n-Me]

Folks, don't expect those watermarks to protect you. The business that I sued had also copied a number of watermarked images from other photographers I know. The only thing that mattered is that I had my images registered and they didn't.

I've never thought of a watermark as complete protection, just something to help make someone else take pause to think "Maybe I shouldn't be using this", or to slow down those who don't care. I agree that proof of ownership comes in the metadata imbedded in the picture.

 

[photo_chick]

By law, you own copyright to anything you create. However, you can only sue for a copyright violation in Federal court if you have a valid ad timely registration of your copyrighted works. If you publish a work without a registration and someone uses it, you can't go back and register it and THEN sue them.

Generally you can go back and register your copyright after the infringement occurs but you have a very limited window to do so.

http://www.copyright.gov/title17/92chap4.html#412

In an Ed Greenberg interview on Scott Kelby's site from a few years ago (the very first time they had him on there) he said you have 90 days from the date the infringement occurs. But what I learned in a class on copyright and ethics is a little different, and goes with the code on the copyright.gov site that says you have 90 days from publication or 30 days from when you learn of the infringement. either way, you need to register your work and the best course of action is always to talk to an attorney who specializes in this.


And hyperlinking... the image linked to is the original file stored on the server where the copyright holder uploaded it. It is not a copyright violation.

 

[wbeem]

And hyperlinking... the image linked to is the original file stored on the server where the copyright holder uploaded it. It is not a copyright violation.

Free legal advice is often worth what you paid for it.

 

[havoc315]

Free legal advice is often worth what you paid for it.

I won't claim it is a fully settled area of law. But look at it this way -- If hyperlinking was forbidden, then google and all search engines would be out of business. They don't seek permission before hyperlinking search results. Including image search results.

Now, it is still a somewhat fluid area of law. The court would consider other factors, including whether the hyperlinker is purely trying to profit from the work of the creator.
For example --- Keeping it to photography -- Imagine a blogger, who profits from advertisements on his page, posts a library of stock photographs that he created for the benefit of his readers.
Now imagine a "copier" creates a paid-for subscription website, selling stock photographs. And instead of using his own stock photographs, simply hyperlinks to the blogger. That example would be much grayer. But even under that circumstance, it may not be infringement.

For example, I've used some topaz products. 1 topaz product allows you to search the internet and copy the "tone" from any picture you find. Is Topaz committing copyright infringement?

Comes down to this -- If you publish your pictures on the public square (as opposed to keeping them in a private password protected account), then you are inviting the public to look at the pictures. To the extent you have given the public permission to look at the pictures, you have also given them permission to make "fair use" of the pictures.
At the very least, "fair use" allows 1 person to tell other people where to find your webpage -- The most basic possible hyperlink. The "click here to see XYZ"

 

[mabas9395]

I'm probably in the minority here, but I don't think this is a big deal at all.

Is the OP right and the other lady wrong? Yep.

Do most people get their feelings hurt when we aren't asked permission or given credit? Unfortunately, yes.

Is that the extent of the damage here, hurt feelings? Sounds like it.

Are there ways to prevent this from happening? Yes.

Is this really worth worrying about? I doubt it.

Should I just keep my mouth shut? Probably.

 

[wbeem]

I won't claim it is a fully settled area of law. But look at it this way -- If hyperlinking was forbidden, then google and all search engines would be out of business. They don't seek permission before hyperlinking search results. Including image search results.

Now, it is still a somewhat fluid area of law. The court would consider other factors, including whether the hyperlinker is purely trying to profit from the work of the creator.
For example --- Keeping it to photography -- Imagine a blogger, who profits from advertisements on his page, posts a library of stock photographs that he created for the benefit of his readers.
Now imagine a "copier" creates a paid-for subscription website, selling stock photographs. And instead of using his own stock photographs, simply hyperlinks to the blogger. That example would be much grayer. But even under that circumstance, it may not be infringement.

For example, I've used some topaz products. 1 topaz product allows you to search the internet and copy the "tone" from any picture you find. Is Topaz committing copyright infringement?

Comes down to this -- If you publish your pictures on the public square (as opposed to keeping them in a private password protected account), then you are inviting the public to look at the pictures. To the extent you have given the public permission to look at the pictures, you have also given them permission to make "fair use" of the pictures.
At the very least, "fair use" allows 1 person to tell other people where to find your webpage -- The most basic possible hyperlink. The "click here to see XYZ"

I agree with you that it's not a settled area of law, but that's not really what matters. The biggest lesson I've learned with my own infringement suits is that we have a difference between what's written and what happens.

Only a rare few cases actually go to trial. Most cases are settled and that's generally good. The law favors a settlement. The courts could not actually try all of the cases that get filed.

Here's the key point between parties, though. Although you can file suit on a contingency basis, there is no such thing as a contingency defense. That means the defendant will spend an awful lot of money just to get to trial to see if the court will reject the hyperlink as an infringement or not. Most people and most businesses don't see that as a valid expense. It's less costly for them to settle and agree not to use a photo that isn't theirs - even if it was hyperlinked from another site.

We can debate all we want on this board, but it's irrelevant. I know IP attorney's who file suit against hyperlink infringers and come out with a favorable settlement.