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Someone Ripped Off My Photos Three Years Ago. Can I Still Sue?

Posted By Carolyn E. Wright On September 27, 2010 @ 12:02 am In Legal Matters | 7 Comments

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A Black Star Rising reader sent us the following question:

I recently found a photo of mine on the blog of a small business. The blog post that included my photo was published in 2007. Is there any “statute of limitations” on copyright violators, or can I pursue this issue whenever I come across one of my photos?

When someone infringes your copyright, the time that you have to make your claim is limited. This is indeed based, as you suggest, on the legal principle called “statute of limitations.”

Statutes of limitation, in general, are laws that prescribe the time limits during which you can file lawsuits. The deadlines vary with the type of claim and — at times — they depend on the state where you live.

The purpose of such statutes is to reduce the unfairness of defending actions after a substantial period of time has elapsed. They allow people to go on with their lives, regardless of guilt, after a certain time.

The “Last Act” of Infringement

Because copyrights are governed by federal law, there is only one statute of limitations for copyright-related claims. Copyright infringement claims have a three-year statute of limitations from the date of the “last act” of the infringement.

What constitutes the last act can vary. If your image is published in a newspaper without your permission, for example, you have at least three years from the date that the newspaper was distributed to file your claim in court.

However, if the infringement continues, such as when the photograph remains on the newspaper’s website, the “last act” has not occurred until your photo is removed from the site.

In your case, since the photo is still displayed on the small business’ blog, you should be able to take legal action against the infringement, assuming the usage is not protected by “fair use [2].”

Handling Past Infringements

Often, photographers don’t find out about an infringement until after it has occurred — well after a photo has been pulled down from a billboard, distributed in a magazine, or removed from a website.

In these cases, it’s important to understand exactly when the three years starts.

Some courts follow the “injury rule” for starting the clock for statute of limitations. This means that the three years begins at the time of the last act of infringement, regardless of whether you know about it. Therefore, if you don’t learn about the infringement until three years and a day after it occurred, then you can’t make a claim against the infringer.

Most courts, however, follow the “discovery rule” for the statute of limitations for copyright infringement. In other words, the time starts when you actually discover the infringement — or when you should have discovered it, if you had been diligent.

The latter situation also is known as “constructive notice.” An example of this “constructive notice” is when your photo is published in a nationally distributed magazine, but you didn’t see a copy of it.

Currently, the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Circuits have held that the “discovery rule” applies to claims under the U.S. Copyright Act. That leaves only the Tenth and Eleventh Circuit courts with the more restrictive “injury rule.”

States in the Tenth and Eleventh Circuits include Alabama, Colorado, Florida, Georgia, New Mexico, Oklahoma, Kansas, Utah and Wyoming.

Collecting Damages

After you file your lawsuit within the statute of limitations, some courts limit your damages for the infringement to the last three years. But others, such as those in the Ninth Circuit, allow a copyright owner to recover all damages accrued, even if they occurred outside of the three-year window for the statute of limitations.

The bottom line is, if someone uses your photo without your permission, don’t sit on your copyright claim. Check with an attorney to discuss your options as soon as you realize you’ve been infringed.

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7 Comments (Open | Close)

7 Comments To "Someone Ripped Off My Photos Three Years Ago. Can I Still Sue?"

#1 Comment By Sara On September 29, 2010 @ 3:11 pm

So what if it was an ex-boyfriend who ripped off your photos and claimed them as his own? How would I even prove that they were indeed my photos?

#2 Comment By Bobby Johnson On October 5, 2010 @ 3:23 pm

Okay, here is the real world 'poop'. I had a local limo service not only steal one of my photos, they also altered it for their ad. Since i had not registered this particular image with the U.S. Copyright Office, my lawsuit did not have the 'teeth' it would have otherwise. The truth is that the image would need to be registered within 90 days of capture. As it turned out, I only received a $300 settlement when I had actually sued for $4000. (Local newspaper ad)

Going forward, any image that I deem 'worthy' of someone heisting for an ad will be registered with the Copyright Office ... $35 fee ... but worth every penny.

Live and learn.

#3 Comment By Rick On October 5, 2010 @ 7:57 pm

you could prove they are yours if the images were shot digitally by using the meta data contained in the image. The meta data will have the type of camera/lens and possibly the serial# all you would need to do is prove you own the camera the images were made with. You can find the meta data in Adobe Bridge and I would guess in Lightroom too. Other programs can display it too, I just don't know which ones.

#4 Comment By Gail On October 6, 2010 @ 11:28 am

APERTURE also has the metadata capability- you can also add your name and date. I think it is important for all of us to make it part of our daily ritual when downloading and placing our images into our image banks.

#5 Comment By Carlos Gomez On October 9, 2010 @ 3:36 pm

Meta Data, can be removed by editing and re-outputting. Some programs allow you to remove EXIF Meta Data, some will remove them automatically. Also posting on some websites will remove all EXIF info as they resample the images. You can always point a local file or online image to Jefferey's Exif Viewer (search on google in case the link I'm posting doesn't show on the comment) [3] this allows you to see everything including the XMP portion which has a Create Date, and Creator tag. Your camera or Photoshop Copyright MetaData settings should have all this populated for it to show up. Lightroom and similar apps also do this. Beyond this, Adobe and other applications allow the use of embedded certificates of ownership or Digimarc. This is an imperative for high profile photos in your port. The embedded certificate communicates ownership, usage , and contact information of you the owner. The basic service is $49 / year for 1000 images, $99 for the pro service of 2000 images and has an added feature that lets Digimarc track down your photos and tell you where they are being used. This is a feature that stays with the photo even after edits, and would irrevocably show in court an infringement has happened. If you time license photos, it would allow for such photos to be tracked after the term of license. They have a small business service for up to 5000 images with over the phone support for $499 per year, which means that for 10cents you can protect your high impact content, or content you have licensensed already ..... yes expensive at first glance, but:

1.- quarterly registration online for $35 of all your content

2.- digimarc protection of your images with commercial potential, or licensed to shady customers

will save a lot of time and money at litigation time and guarantee you can leverage a handsome settlement.

#6 Comment By Nancy Delain, Esq. On April 12, 2011 @ 1:12 pm

Metadata isn't the issue when it comes to whether a copyright infringement case has "teeth." The issue is whether the copyright holder thought enough of the work to spring for the $35 online filing fee (in the US; other countries have their own copyright laws, rules and regulations that govern registration fees and what is covered by the registration) and register the work with the Copyright Office.

Metadata doesn't register copyright; metadata doesn't prove ownership of rights. Only a registration with the Copyright Office provides the copyright holder with prima facie evidence of an enforceable set of rights.

#7 Comment By Paul Wright On September 7, 2011 @ 8:48 am

Why is most of the text on this brilliant website black on dark gray? It's almost impossible to read. What a waste of such great information!

Paul Wright


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