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What To Do If You Find Someone Using Your Image On A Website Without Your Permission?

In: 
Published: 09/05/2016
By: larry

DMCAPierre asks:

I have a question regarding the internet blog "Curbed". They are using my photos regularly to write articles about the Los Angeles Real Estate Market. They comment on various listings that I shot getting their information and images from the MLS.
They have no way to know those are my photos because the MLS requires no watermarks, however, I am wondering how to go about informing them that I own those images and that at the very least I would like to be credited for the images.
There is a very straightforward process provided by the Digital Millennium Copyright Act (DMCA) called a DMCA takedown notice. Carolyn Wright of Photoattorney.com explains the process over at the nppa.org site. As Carolyn explains, your photo does not have to be registered to send a DMCA takedown notice.
By the way, Carolyn's site is a great resource for photographers. She is an attorney that specializes in photographic issues. She has a couple of great Lynda.com classes on Photography and the Law.

16 comments on “What To Do If You Find Someone Using Your Image On A Website Without Your Permission?”

  1. Like to see the url for this "Curbed" site. Is it just another form of Tulia, Redfin, etc? Also, while we the creators are not allowed to watermark our own images for the mls, the mls does.....watermark them. Is that showing up on the images?, if not, that indicates they are getting them from your client.

  2. It has been my experience that the realtor (or sometimes homeowner) submits his listing to the "send us a tip" link on the Curbed.com website and curbed will make a feature around it. Using whatever photos are available, without any sort of thought about the photographer.

    When I notice this has happened, I confer the agent, who, in every case so far, has considered it part of his marketing plan. I tell him that next time I expect to be credited at least and send a message to whomever I can find at curbed to provide me credit or take down the article.

    Twice they have just removed the article. The realtor was not happy with me, but I really tire of explaining my requirements of copyright to people who consider the Internet free game for use of anything they find. Curbed.com should know better. Same with Houzzz. Check that place out and see all the uncredited real estate photos.

  3. Actually, Jerry, Curbed.com is not like Trulia, Zillow or Redfin. Curbed.com is a curated site. It is not just a service provider accepting uploads from the public (or pulling them in via IDX from MLS's). Therefore, Curbed.com is NOT entitled to DMCA immunity in my opinion and a DMCA takedown, while it might be effective in getting the photos removed, would not protect Curbed.com from infringement liability in my view.

    That is the reason we filed suit against Curbed.com, LLC on behalf of RE photographer Joshua Johnson recently in Colorado for copyright infringement. See: https://www.scribd.com/doc/311982356/Josh-Johnson-Complaint-for-Copyright-Infringement-and-Providing-False-Copyright-Management-Information. Curbed.com published an article on the ski mansion purchased by Oprah Winfrey that Josh photographed and it used Josh's photos without his permission.

    Also, Jerry, not every MLS watermarks images. If Curbed.com had published its article with the cooperation of the agent/broker with Josh's photographs before the home was even considered for purchase by Oprah than Curbed.com might have an argument that the photos were used to sell the home and therefore fell within the license Josh issued to his agent/broker client. However, publishing the article and photos AFTER the sale was obviously just for gossip/publicity purposes, a commercial use without a defense in our view.

    Joel

  4. Reed, You might want to add terms to your license agreement to cover this situation in future. I have a free sample license agreement you can use on my website: http://www.sriplaw.com/wp-content/uploads/2014/01/RE-Photography-License.pdf

    You could add a new provision on the first page called "Additional Rights" and then next to it say "Use on promotional websites (e.g. Curbed.com, Houzzz.com, etc.) with attribution" and then add an additional price for this use if you want.

  5. This seems to be different than the usual someone is using my photos thread. In this case the agent is using the photos to advertise the property, just in a manner that was not expected. I find it very counter-productive to tell your client that they can't use your photos to advertise a property except in a limited way or unless they contact you first. They paid for marketing photos and expect to use those photo for marketing.

  6. Good morning,
    I'm brand new to this industry and just returned from a real estate photography workshop with Tony Roseland where I learned about a service called Image Rights. For a nominal fee, they register your images with the copyright office for you and provide you with a weekly report of every outlet that is using any of your images online for you to review. If there is a licensing issue, their attorneys contact the people regarding the misuse. If that doesn't work, they'll send a cease and desist letter and at your guidance even sue the offenders. I believe the web site is http://www.imagerights.com

  7. If such an article is in a real estate publication (or in the real estate section of a publication), identifies the property address and listing agent and is solely about properties for sale in the market, and my client is still marketing the property on behalf of their seller, then I would consider that to be valid publicity usage under my standard real estate terms of usage.

  8. I looked at the Curbed site and agree Joel, it is nothing short of another gossip site that is using mined internet information and photos to promote themselves. There are some articles that do credit the photographer, so they must understand the legalities and have the opinion that those mined from the mls are fair game (not that I agree). This site also looks like they are trying to be the digital equivalent of the RE mags like “Homes and Land”, etc. and are marketing to realtors the opportunity to be “Published”

    Good to know that not every Mls watermarks the photos and while a case could be made that the “article” was used to promote the sale of the property, I agree that after the fact is suspicious. Then again, I allow the agents the use of the images to promote themselves for future listings.

    I myself, require credit for photos in magazines and would expect the same from these kind of sites as well. Looks like I will need to tweak my terms again…..

  9. Curbed does have a nasty habit of playing fast and loose with copyrighted works and simply waiting until someone calls them out on it—I have experience with them with that issue as well. Issuing a DMCA takedown notice would be an entirely valid way to proceed, but it really depends on the end result you seek. If you just want a photo credit, it's easiest to just email them. Their authors tend to be very apologetic and responsive to requests of that nature, and they would probably work in a prominent hat tip to the listing agent as well, potentially garnering additional appreciation from your client.

    Usual disclaimer, I am NOT an attorney and this should not be construed as legal advice, but I have had my work infringed before and do have some personal experience dealing with pursuing a claim. Depending on when the photos were first published (in the relevant context, this would generally mean when you first delivered them to your client), and assuming you have registered the work timely with the U.S. Copyright Office, you could potentially pursue an infringement claim for statutory damages of up to $150,000 per willful violation, plus attorney fees. However, if a certain amount of time has passed since original delivery to client, and you haven't yet registered, the most you would generally obtain is injunctive relief (judge orders the photos taken down from the site) and actual damages (basically how much money you missed out on or were cost as a result of the infringement—very difficult to prove most of the time). Even if you pursue statutory damages plus attorney fees, there is always the possibility that a judge will determine the infringer is an "innocent infringer" and the award can be as low as $200. So the stakes are extremely high in copyright cases, and even with a strong case, there is the possibility that you will face an uphill battle and actually lose money even if the decision is in your favor.

    At the end of the day, what I would really like to see is for the MLS boards to add a required field to their listing input forms, with a radio button option for the creator of the photos "1) Listing agent/broker, 2) Seller, or 3) Photographer" and a text field for a photo credit. Then all these syndication sites like Redfin, Trulia, etc. would have to display that credit. Most of the uses I see from Curbed, the Zillow blog, and other third-party publishers, seem to occur when they download the images from post-MLS sources such as Redfin that are available to the general public for search. I find that there is currently an uncomfortably common view that once an image hits the MLS, it becomes public domain, and the lack of attribution option on the MLS is part of the problem.

  10. @Robert Thomson, Registering images with the copyright office is very easy and there are tutorials that walk you through the process. Search for Ed Greenberg or Jack Reznicki on YouTube or go to their website at http://www.thecopyrightzone.com. Finding infringements online is a "needle in the haystack" operation. Unless your images are of a major news event or associated with a celebrity such as in this example, it will be hard for anybody to do more than a cursory search. The number of photos on the Web grows at a fantastic rate and there isn't a way to do a generic search with much success unless you are the NSA or GCHQ.

    Save your money and pursue the infringements you find with your own IP attorney. Most of the infringements of your work are going to be local or somewhat related to the work you do anyway. You will likely spot them faster than a generic bulk search. Also, make sure you register your images. Joel couldn't have filed his case if the images weren't registered. It's likely the court would throw the case out if the images weren't registered. Given that the defendants are media companies, they know better and in the case of Warner, are litigious in their own right when it comes to their productions (Game of Thrones, anybody). I wouldn't be surprised if the case settles before seeing a courtroom. A court will see that the defendants are sophisticated in copyright law and the awards will be commensurately high.

  11. To answer the question posed, I would, as usual, submit the information to my attorney for him to take action. I would not contact the infringer unless it was somebody I work with that overstepped their license. It's highly unlikely that one could contact the proper person in a large media company on their own. A letter from an attorney investigating a copyright infringement issue will land in the correct in-box quickly.

  12. I'm a frequent reader of the LA edition of Curbed, and I see alot of my images show up there, either because the real estate listing was that of a celeb, or a unique house, or of architectural significance. I can't speak for Curbed, but I believe they are often getting the images from various sources online (ie. an article on another real estate, or architecture, or urban planning blog / website, who also may not have credited the photographer, so I don't think Curbed is maliciously using the images and purposely not crediting the photographer. I personally have simply emailed the editor of the LA edition and CC'd the author of that specific article, and requested that they give me photo credit AND link to my own website, and they have always done so right away. I find this more beneficial, than telling them they can't use my images, as this give me name recognition, and also helps my SEO, given that Curbed is a very popular website, and by linking to mine, increases my search rankings! (Purchasing a photographer listing here on PFRE has helped very much, as well! 🙂

  13. @Luke Gibson, their use of your images is absolutely malicious. Curbed is part of a major media company and know that they should not use images without proper permission. They will also know that images that wind up on Zillow, Trulia and Realtor.com are often syndicated from MLS/IDX feeds and are those outlets are not in a position to grant a license to the images.

    Photo credits don't buy new lenses. Paid licenses do. This issue is smelling much like Lyft and Uber's attitude towards taxi licensing laws and AirBnB's disregard for innkeeper's regulations.

  14. The photographer owns the rights to the photo unless you worked "for hire" and signed over the rights to the person hiring you. This is not the case 99.9% of the time and the photographer holds the copyrights. Here is a good readhttps://info.legalzoom.com/photography-copyright-laws-20505.html.

    Personally, I would just ask for them to provide you with a link to your site. I am sure they don't have a high enough quality photo posted to use for commercial use, but you do.

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