Our intellectual property law firm can assist you with Photo Infringement cases in the United States (usually on a contingency fee basis)! Call Attorney Steve® The Photo Lawyer™. We handle both Plaintiff and Defendant license recovery and copyright infringement actions.
Our firm is a leader in the area of copyright infringement law, right of publicity, intellectual property and internet law. We have helped many companies, small to large, across the United States handle matters involving photo infringement, software audits, cable TV piracy, and movie piracy and file sharing torrent defense (and dealing with a wide variety of other content alleged to be infringing (jewelry, font, sunglasses, etc.). We represent both Plaintiffs and Defendants in photo infringement and other cases.
If you need an experienced IP firm, we can help. We offer low flat rate (predictable legal fees for defendants (those accused of infringement), and possible contingency fee arrangements for photo rights holders dealing with online copyright infringement (see criteria below). We have extensive federal court experience.
NOTE: Click here if you were looking for information on our Arizona photo and video copyright recovery program.
Representing a company accused of photo infringement
Client came to us with a legal demand for $15,000 for ONE infringing photo. Copyright holder hired a law firm and after tenacious negotiations we were able to settle the case for $2,000 with acceptable terms of settlement. NOTE: there are many different types of cases in the photo infringement world:
1. Cases where there is a registered copyright (which means they can file a lawsuit)
2. Cases where the image is NOT copyrighted (technically, they cannot recover statutory damages or attorney fees) in most cases, thus, the threat of "filing a lawsuit" is often a baseless scare tactic.
3. Fair use cases (where you have a legitimate right to use the photo at issue for purposes of commentary, criticism)
4. Cases where the photo was offered for use under a "creative commons" scheme, but when no attribution is given they come seeking thousands of dollars in a settlement. Some of these are really preposterous and can seek thousands upon thousands of dollars (dare I use the word SCAM)?
5. Claims that your company paid for an "editorial license" photo (for use for news and public affairs only) and your company use is outside the EULA.
Attorney Steve® discusses the photo "editorial license" and how it could lead to infringement charges
VIDEO: Watch the video on this very important photo infringement topic. Make sure to SUBSCRIBE to join over 14,000 folks that love our legal information videos.
We have defended cases where a Plaintiff photo troll is seeking over $50,000 in damages. WE HAVE HELPED MANY CLIENTS SETTLE THEIR CLAIMS. We offer a 1/2 hour case review for $225 per hour.
Click here to learn more about our $225 paid photo infringement consultations if you are facing a photo infringement demand. We know who files lawsuits and who doesn't. Naturally this can affect the settlement amount. Put yourself in the know with this valuable 25 minute phone consultation service. We accept credit cards.
Representing a Photo Rights holder
Using Tineye, professional commercial photographer found an infringing copyrighted photo on a commercial website to promote their business. Send legal demand and recovered thousands of dollars in damages and past licensing fees. We have many examples of photo infringement recovery for California clients. We have recovered thousands of dollars over the years where art, images, and photos have been used for commercial purposes without legal authority or a license.
We serve Orange County, San Diego, Los Angeles, San Francisco, Santa Monica and other areas.
Watch our Contingency Fee Photo Recovery Video
VIDEO: Click on the image above to hear Attorney Steve® explain our NO RECOVERY / NO FEE copyright infringement license recovery program for artists, designers, videographers, filmmakers, and musicians. Make sure to SUBSCRIBE to our intellectual property and entertainment law channel. We are now up over 7,700 subscribers.
Companies you may have received a photo infringement letter from
Here are just a handful of companies and IP law firms that you may have received a legal demand from due to alleged photo , vector, or image infringement:
- Getty Images
- Higbee and Associates
- Artist Defense
- Gafni & Levin LLP
- Sanders Law, PLLC
- BWP Media
- Image Rights International
- Fotohaus, LLC
- Liebowitz Law Firm
These are some of the main companies. Undoubtedly, there are others. Contact us to discuss your case at (877) 276-5084.
PODCAST: Can a Photographer file a copyright registration within ONE MONTH of learning of the infringement? Attorney Steve® dispels this MYTH.
Types of Photos that may be infringed
Here are some of the types of creative digital content that may be infringed:
- Camera photos
- Drone footage
- Digital images
- Aerial photos
- Real estate photography
- Photos of people or kids
- Sports photos
- Wildlife pictures
- Celebrity photos
- Building photo
- Food photo
- Landscape photos
- Fashion photos
- Animated characters
- Pet photos
- Fine art photography
- Beach and coastal images
How to use Tineye reverse image search to find infringing photos online
VIDEO: This video will show photographers how they can use Tineye to find other websites (both personal and commercial in nature) that are using photos with authorization or paying a licensing fee. Once you find these, call us and we can discuss whether sending a DMCA takedown letter, cease and desist demand letter, or even filing a federal copyright lawsuit makes sense or not.
Click here to learn more about 17 U.S.C. 1202 DMCA claims
If someone is stripping off, altering or removing your copyright symbols, metadata, watermarks or other copyright management information read this blog and call us if you believe there is an INTENTIONAL violation. This can trigger an award for monetary damages.
What is the penalty for ONE INFRINGING PHOTO?
Here is one case to keep in mind in photo infringement cases. In Davis v. Gap, Inc., 246 F.3d 152 (2d Cir. N.Y. 2001), a copyright infringement case, the Court noted two different approaches for calculating damages in an infringement case.
THE REASONABLE LICENSE FEE
“We recognize also that finding the fair market value of a reasonable license fee may involve some uncertainty. But that is not sufficient reason to refuse to consider this as an eligible measure of actual damages. Many of the accepted methods of calculating copyright damages require the court to make uncertain estimates in the realm of contrary to fact. See 4 Nimmer §14.02[A], at 14-9.
A classic element of the plaintiff's copyright damages is the profits the plaintiff would have earned from third parties, were it not for the infringement. See 4 Nimmer §14.02[A], at 14-9 to 10. This measure requires the court to explore the counterfactual hypothesis of the contracts and licenses the plaintiff would have made absent the infringement and the costs associated with them. See Fitzgerald Publ'g, 807 F.2d at 1118 (actual damages measured by “the profits which the plaintiff might have earned were it not for the infringement”); Stevens Linen Assocs. v. Mastercraft Corp., 656 F.2d 11, 15 (2d Cir. 1981) (same).
THE INFRINGER'S PROFITS
A second accepted method, focusing on the “infringer's profits,” similarly requires the court to explore circumstances that are counterfactual. The owner's entitlement to the infringer's profits is limited to the profits “attributable to the infringement.” 17 U.S.C. § 504(b). The court, therefore, must compare the defendant's actual profits to what they would have been without the infringement, awarding the plaintiff the difference.
Neither of these approaches is necessarily any less speculative than the approach that requires the court to find the market value of the license fee for what the infringer took. Indeed, it may be far less so. Many copyright owners are represented by agents who have established rates that are regularly paid by licensees. In such cases, establishing the fair market value of the license fee of which the owner was deprived is no more speculative than determining the damages in the case of a stolen cargo of lumber or potatoes.
Given our long-held view that in assessing copyright damages “courts must necessarily engage in some degree of speculation,” id. at 14, some difficulty in quantifying the damages attributable to infringement should not bar recovery. See 4 Nimmer §14.02[A], at 14-12 (“[U]ncertainty will not preclude a recovery of actual damages if the uncertainty is as to amount, but not as to the fact that actual damages are attributable to the infringement.”); II Paul Goldstein, Copyright § 12.1.1, at 12:6 (2d ed. 2000) (“Once the copyright owner shows a connection between infringement and damage, uncertainty about the amount of damages will not bar an award.”); Szekely, 242 F.2d at 269 (where “legal injury is certain… [w]e should not allow difficulty in ascertaining precisely the value of the right destroyed, which difficulty arises largely from the destruction, to enable the infringer to escape without compensating the owner of the right”).”
It is also important for all parties to understand that photo infringement damages can go as high as $150,000 for willful violations (ex. using a photo commercially on a product package or label) PLUS the recovery of Attorney Fees. For more information watch our copyright penalties video below.
PHOTO INFRINGEMENT SETTLEMENT CHEATSHEET
Here is one way to look at it:
1. Look at how the image was used (was it on the header or a home page or on a product)? That may end up costing your more to settle.
2. Did you immediately take down the photo once receiving a cease and desist letter (this helps negate a claim of "willfulness")
3. You may be required to pay a reasonable licensing fee (which depends on the number of years you used the photo and the fair market value of the photo in accordance with how the photo was used).
4. If there is evidence of willfulness, a multiplier of 2-6X the reasonable licensing fee could be tagged on.
5. If you can prove the infringement was completely innocent (see innocent infringement) there is case law that says the settlement could be as low as $200 (for example, your company always buys stock photos and thought this was a licensed stock photo).
6. If you made any profits, you may have to disgorge these profits
7. On top of everything else, you may be required to pay the reasonable costs and attorney fees of the Plaintiff.
Make sure you know whether or not a photo is REGISTERED (WITH THE UNITED STATES COPYRIGHT OFFICE). IF NOT, THE SETTLEMENT LEVERAGE WILL LIKELY BE REDUCED SINCE NO STATUTORY DAMAGES OR ATTORNEY FEES COULD BE RECOVERED.
Watch Attorney Steve® explain "Actual Damages" under Copyright law
VIDEO: Click here to watch this video. Make sure to SUBSCRIBE.
Grecco Productions Lawsuit Defense
Another agressive photopgrapher is Grecco Productions. They will threaten a lawsuit if they do not receive a settlement payment they deem adequate. In one case from the Central District of California, Grecco obtained a $60,000 judgment for use of two photos:
Allegations (lawsuit filed by Higbee & Associates, Santa Ana
MICHAEL GRECCO PRODUCTIONS, INC, d/b/a MICHAEL GRECCO PHOTOGRAPHY, INC. (hereinafter “Plaintiff”), by counsel, brings this action to challenge the actions of WrapMarket, LLC., (hereinafter “Defendant”), with regard to the unlawful use of two of Plaintiff's copyrighted Images (hereinafter “Images”) owned by Plaintiff, and this conduct caused Plaintiff damages.
Judgment for $60,000 (for two photos)
JUDGMENT IS HEREBY ENTERED in favor of Plaintiff Michael Grecco Productions, Inc. d/b/a/ Michael Grecco Photography, Inc. against Defendant Wrapmarket, LLC in accordance with the terms of the Court's Order granting Plaintiff's motion for default judgment. The Court AWARDS Plaintiff $60,000 in statutory damages, $1,719.95 in attorneys' fees and costs, and post judgment interest, if necessary, to the extent permitted by 28 U.S.C. § 1961. IT IS FURTHER ORDERED that Plaintiff's request for a permanent injunction is GRANTED, and Defendant and its agents, servants, employees and all persons acting under its permission or authority shall be permanently enjoined and restrained from infringing or inducing the infringement of any of Plaintiff's copyrighted material.
Here is another Grecco case (over 71k following a default judgment)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Michael Grecco Productions, Inc. d/b/a Michael Grecco Photography, Inc., Plaintiff,
vs, Function(X) Inc.; and Does 1-10, inclusive, Defendants
Plaintiff, a media and photography company run by celebrity photographer Michael Grecco (hereinafter “Grecco”), sued defendant Function(X) Inc., a website operator, alleging that the defendant (and several fictitiously-named individuals believed to be associated with it) committed copyright infringement by displaying two of Grecco's original photographs -- one of Sonny Bono and one of Johnny Depp -- in a commercial context without license or attribution.
Grecco alleges that the defendant's infringing conduct included two violations of the Digital Millennium Copyright Act (“DMCA”) pertaining to the manipulation of copyright management information. See 17 U.S.C. § 1202. As compensation, he requests statutory damages of $5,000 per violation, for a total damages award of $10,000. See id. § 1203(c)(3)(B) (“[A] complaining party may [seek] to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000.”).
PROOF OF PRIOR LICENSING
Grecco alleges in his complaint -- and the Court accepts as true -- that “[d]ue to the high quality and limited availability of [his] work,” he “routinely licenses . . . individual photographs to media outlets for thousands of dollars.” ECF No. 1 at 4. To substantiate (and elaborate on) that allegation, he submits a sworn declaration, see ECF No. 19, and documentary exhibits, see ECF No. 18, Ex. A.4 The declaration attests that the defendant's infringing use of the Bono photograph lasted for approximately four years and that the defendant's infringing use of the Depp photograph lasted for approximately three years. See ECF No. 19 at 2; accord ECF No. 1 at 9. The documentary exhibits then reflect that Grecco licenses his photographs -- including the two at issue -- for $13,296 for three years of use and $17,436 for five years of use. See ECF No. 18, Ex. A; accord ECF No. 1 at 9; cf. Romanowicz, 2018 WL 4762980, at *4. Consequently, under a legitimate licensing agreement, the defendant would have had to pay Grecco approximately $15,366 for its use of the Bono photograph and approximately $13,296 for its use of the Depp photograph. In seeking damages of $75,000 per infringement,
Photo infringement multiplier (for willful infringement)
Grecco thus requests a multiplier of roughly 4.9 for the Bono photograph and a multiplier of roughly 5.6 for the Depp photograph.
The Court finds that Grecco has adequately alleged that the defendant's infringement was willful and that a meaningful multiplier is therefore warranted: Grecco alleges that (1) upon discovering the defendant's use of the infringing photographs, his counsel sent a cease and desist letter to the defendant on September 25, 2017, requesting that the defendant remove the images from its websites; (2) after the defendant neither responded nor removed the images, Grecco's counsel sent the defendant follow up correspondence of the same sort on November 6, 2017; and (3) after the defendant again failed to respond or remove the images, Grecco instituted the instant lawsuit on January 16, 2018, at which time the images remained published on the defendant's websites. See ECF No. 1 at 6. Courts regard such intransigence in the face of cease and desist requests as evidence that the defendant's infringement was willful ab initio. See, e.g., Broad. Music, Inc. v. Prana Hosp., Inc., 158 F. Supp. 3d 184, 198 (S.D.N.Y. 2016), Realsongs, Universal 13 Music Corp., 749 F. Supp. 2d at 85, 87; cf. Eastern Am. Trio Prods., Inc. v. Tang Elec. Corp., 97 F. Supp. 2d 395, 419 (S.D.N.Y.2000)
That said, the multipliers of 5.6 and 4.9 proposed by Grecco dramatically overstate the willfulness evident on this record. “Second Circuit case law . . . reflects that courts in this Circuit commonly award, in cases of non-innocent infringement, statutory damages of between three and five times the cost of the licensing fees the defendant would have paid.” Prana Hosp., Inc., 158 F. Supp. 3d at 199. Grecco has not provided a sufficient basis for an award at the “upper end,” let alone the very top, of this “customary” range.
“Second Circuit case law . . . reflects that courts in this Circuit commonly award, in cases of non-innocent infringement, statutory damages of between three and five times the cost of the licensing fees the defendant would have paid.” Prana Hosp., Inc., 158 F. Supp. 3d at 199.
Grecco has not provided a sufficient basis for an award at the “upper end,” let alone the very top, of this “customary” range. Id. In particular, the defendant's failure to respond to two cease and desist letters over a four-month period bears no relation to the failure of a defendant in a different case to take remedial action in response to “48 letters/emails, 42 phone calls[,] and four in-person visits” over a two-year period. Id. at 198. In that case, the court found that a multiplier of “approximately five times the sum of [the plaintiff's] unpaid licensing fees” -- and certainly not a multiplier “exceeding [the] customary norm” -- was “sufficient.” Id. at 198-99.
Criteria for our Photographer contingency fee recovery program
Our firm defends photo piracy cases but also helps Plaintiff's recover. In general, here is what we are looking for to be considered for contingency fee photo infringement recovery (these are not hard and fast rules, but generally what we are looking for, if you think there should be an exception in your case just let us know and call or email us at the address on the right side of this blog):
- You are a commercial photographer (you get paid for your photos. For example, you have a art gallery, fine art studio, or routinely license your photos for a free)
- It is helpful if you have won some awards or appeared in popular publications
- You have copyright registered your photos (not this is NOT a strict requirement but it is something that can affect our decision depending upon the facts of your case)
- There has been an infringement of your work (for example, someone has made a copy of your photo and is trying to use it commercially). Some common examples might be:
- Selling your photo acting as if it is theirs
- Someone has altered your work without your permission and is trying to commercialize it (wrongfully believing it is a “fair use”)
- Someone has used your photo or image in a youtube or vimeo channel (and the video is being monetized)
- Some has wrongfully used your photo and created a “derivative work” without paying any licensing fee. Some examples may include creating a bumper sticker, poster, wallpaper, wall art, outdoor furniture, cornhole game image, used it on a commercial blog, cover of a book, murals, coasters, t-shirts, etc.)
- The infringer is selling on Etsy, eBay, or Amazon store, Zazzle or some other online store (presumably making money off your work).
- You are prepared to file a lawsuit if necessary (ex. no skeletons in the closet and not afraid of any negative attention that might bring).
This is not an exclusive list of things we look for, but important factors for sure.
How can you find out if someone is stealing your photographs or images?
VIDEO: Watch Attorney Steve® explain how to use TinEye reverse image search (you can also use Google Reverse Image Search) to find potentially infringing artwork and digital photos online. Make sure to SUBSCRIBE to our legal channel. We are now up over 7,500 subscribers and over ONE MILLION VIDEO VIEWS and growing fast!.
Photo infringement resources
- Dealing with Artist Defense
- Getty Images cases
- Trump Organization hit with Copyright infringement lawsuit
- National Photo Group / BWP
- How to respond to Higbee & Associates photo infringement letters
- How to handle a photo infringement case WITHOUT a lawyer
- The single most important question to ask if you are being hounded by a photo infringement law firm
Overview of Copyright Infringement Damages
VIDEO: Click on the picture above to learn more about infringement damages possible in a copyright case. Make sure to SUBSCRIBE to our law channel.
Contact a photo copyright attorney
For more information or to discuss your case in confidence, please call (877) 276-5084. We can help against Higbee cases, Masterfile, Image Rights International, and other photo rights organizations.
We offer free initial consultations to copyright rights holders looking for license recovery services. We also offer low cost paid consultations to persons or companies that have received a notice of subpoena, infringement letter, cease and desist letter or summons / complaint for a federal lawsuit. For example, a letter from Higbee and Associations in Santa Ana, California.
We have appeared in over 130 federal copyright infringement cases, and have been practicing law since 2004.