Now that you have a list of copyright infringers who you can actually find and collect from, its now time to gather evidence to support your copyright infringement claim. This chapter of Photo Repo outlines exactly what you will need to convince infringers to pay. Topics include:
- Organizing Evidence
- Required Evidence
- Dating an Infringement
- Documenting the Removal of Copyright Management Information
CHAPTER EXCERPT | ON THE COPYRIGHT CERTIFICATE OF REGISTRATION…
If you recall from the Copyright Registration chapter, it could take up to seven months for your application to be processed and for you to receive your Certificate of Registration. Do not send your demand letter until you get this certificate. If the infringer removes the photo before you send your letter, you still have a valid case as long as you document the infringement with the proper evidence.
In most cases you should include a copy of the certificate with your demand letter. Notice I said “in most cases,” and the exception is pre-registration violations. Why? Because most infringers are likely to do a little bit of research on copyright law before deciding to pay. If an infringer stumbles upon the concept of pre-registration, I don’t want to make it easy for him to figure out he published my photo long before I registered it with the Copyright Office all because I provided him with the document that gives the effective date of registration. Instead of including the certificate, I simply state in my letter that the photo is registered with the U. S. Copyright Office and give the Certificate of Registration number. If the infringer wants to know when the photo was registered, he can contact the Copyright Office.
CHAPTER EXCERPT | ON DATING A COPYRIGHT INFRINGEMENT USING THE WAYBACK MACHINE…
The Wayback Machine (archive.org/web/) has been archiving websites since 1996 and currently has a database of over 300 billion web pages. I don’t know how this is done, but it’s pretty neat. To use the service, type the infringing URL into the Search box. The results may return multiple snapshots of the page that were taken over time, so just keep going back through time until you find the date when your photo first appeared. As with ICANN’s Lookup, you cannot determine the exact date of an infringement using the Wayback Machine because there may be long periods of time between snapshots. You can, however, determine the general time frame of the infringement. For example, if your photo appears in a snapshot taken on May 10, 2018, but not in one from January 5, 2018, you know it appeared on the infringer’s website no earlier than January 6th, and it was certainly on the site after May 10th.
The Wayback Machine does not archive every page of a website, so while you might find the home page, you might not find the page where your photo appears. Furthermore, even if it did archive the page, it may not have archived the photos, so while the text is shown, spaces once occupied by photos are sometimes blank. It’s a hit or miss option, but worth checking out.
CHAPTER EXCERPT | ON THE REMOVAL OF COPYRIGHT MANAGEMENT INFORMATION…
In the Basics of Copyright Law, you learned that removal of Copyright Management Information (CMI)—which includes a copyright notice on a photograph—is a violation of §1202 of Title 17 and is subject to special statutory damages ranging from $2,500 to $25,000. While this sounds like a windfall in regard to court-awarded damages, there is a catch. A closer look at the wording of §1202(b)(1) reveals that it is illegal to “intentionally remove or alter any copyright management information,” and the key word is “intentionally.”
By the dictionary definition of “intentional,” anything a person does to remove a visible copyright notice has to be intentional. However, §1202(b)(3) adds the words “having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement…” This implies that the infringer must also realize that what he is doing is potentially illegal, and that requires knowing what he is thinking, which is difficult, if not impossible to do.
The removal of a copyright notice from a digital photograph can only be done with photo-manipulation software such as Photoshop, and the method used is dictated by the placement of the notice. One that takes up a significant amount of space on the photo or is placed as a watermark across key subject matter must be removed with touch-up tools that require a good amount of skill to use properly. On the other hand, anyone with rudimentary knowledge of the program can easily crop a copyright notice located along an edge of a photo.
It stands to reason that if someone uses touch-up tools to remove a watermark or logo placed across a photograph to prevent unauthorized use, he obviously knows that he is doing something contrary to the photographer’s intent. This reasoning was upheld in a lawsuit brought by Getty Images against an infringer who removed watermarks from six photographs. The court found the infringer guilty of willful copyright infringement and awarded Getty $48,000. However, proving that a copyright notice was intentionally removed gets a little trickier when it comes to cropping.