Business + Marketing

What To Do If Someone Has Stolen Your Photograph

December 19, 2019

By Aaron M. Arce Stark

Photo © Ethan Yang Photography

We all know that the photographs we take are valuable products. In a purely legal sense, they are valuable because both the physical copies of a photo and the copyright are literal pieces of property that you can buy and sell. In a more real sense, photos are valuable as objects of beauty and vehicles for storytelling, and if you are a wedding or event photographer, photos are valuable to the people who hire you to photograph them, not just as a memorial of their special day but because the photos are a tangible capture of their own likeness. 

The value of a photo is a complex thing with many facets, worth far more than the sum of its parts. And just as there are many ways of approaching the value of a photograph, so are there many ways to steal one.

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If you photograph a wedding and the bride prints off copies of the watermarked sample image rather than buy copies from you, in violation of your contract, that’s a kind of theft. If you photograph an event and the planner uses the photos in an advertisement without negotiating a license, that’s a kind of theft too. But these examples are just otherwise good clients who overreach. 

On the other hand, let’s say you’re trolling through some photographers’ Instagram pages, and you see a photo of a wedding that you took. You take a look back through this photographer’s page and you see dozens of your photographs, and of your clients, all presented as though they were this photographer’s own work. You look at his vendor pages on Yelp and WeddingWire and there are even more of your pictures, and even more in his personal portfolio on his website. You see countless images from other photographers you know, not just you. The photographer claims to have taken them all. 

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You are furious. Not only have your copyrighted images been infringed, but your reputation has been harmed. What if your clients see their likenesses on this photographer’s page and think that you sold some sham a license without their permission, so he could defraud more innocent victims into thinking he was a competent photographer? 

You call your lawyer. She rattles off a list of possible claims to bring against this guy—not just copyright infringement but false designation of origin, too—and tallies up a list of possible damages. Each of your photographs used is a separate infringement. The damages would start at the cost of a fairly negotiated license for each and would only go up from there because of the fact that you do not normally offer such a license (as well as the egregious and willful nature of the infringement). If you registered your copyrights before he infringed, you’re eligible for statutory damages of up to $150,000 because of that willfulness. 

But your lawyer also points out that while you can get a judgment from the perpetrator, if you can even find him, can you also collect? Does he have that much money? Litigation is expensive. What if you pour thousands of dollars into proving your case only to find that the defendant is bankrupt? Still, you are determined to stop him from doing this to anyone else in the future. 

Unfortunately, this may be a case where your ability to acquire a remedy for your harm through the legal system is limited. It’s more than possible that a shady character willing to pass off another photographer’s work as his own has little available cash and may even be insolvent. Lawyers are sometimes magicians, but they can’t squeeze blood from a stone, so even with such tricks as wage garnishments and property attachments, what he has is what you get. 

You can get injunctive relief, to stop him from ever infringing your work again, but you can’t stop him from infringing other people. Only those people whose work he infringed can sue him for those infringements; you lack standing to sue on someone else’s copyright. You can report him to consumer fraud bureaus and there may even be criminal penalties for such blatant commercial fraud, but such steps are beyond the scope of most copyright attorneys. You can contact local newspapers and other photographers injured by him and expose him, but that doesn’t get you any money. 

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No one avenue is likely to fully repair your injury; the best course may be a combination. Settle for whatever you can get but don’t waste your money on litigation if you know he doesn’t have deep pockets, and retain the right to tell other photographers whose work he’s infringed about him. 

It can be hard to stop someone from harming third parties the same way they harmed you. A lawyer can help you minimize your injury. 

Aaron M. Arce Stark is a lawyer for artists and entrepreneurs. Learn more about his law firm, Stark.Law LLC.

This article is for informational purposes only.