Using Internet Tools to Gather Evidence of an Infringement
It’s always startling to find an infringing use of your photograph. After the initial shock, there are several things to do to gather evidence regarding the infringement.
First, make copies of the infringement, both in electronic and print forms. Once the infringer realizes that the infringement has been discovered, the infringer will try to get rid of the evidence of the infringement. But you may need that information later.
If the infringement is in print, then take a photograph of it, scan it, photocopy it, and/or show it to another person who would be willing to testify about it. If the infringement is on the Internet and/or in electronic form, make a paper print of it and/or copy a screen capture of it; both are better! (Snagit by TechSmith is a great program to copy web pages.)
Second, determine whether your copyright management information (CMI) is included in or has been removed from the infringing use. In Internet Explorer, you may “right click” on my wolf photo in my prior blog post to “save image as….” When you open the image in a viewer, such as the Windows Photo Viewer, you may see the File/Properties for the photo, as shown below:
If the infringer has stripped your metadata/copyright management information, then the copyright, author, and contact information will be blank so that you may have a DMCA claim against the infringer. If your copyright notice is still intact, then you may have a willful infringement claim and/or the infringer may not be able to claim that the infringement was innocent.
An important element to your infringement claim is the length of time that the infringer has used your photo. Hopefully, the Wayback Machine at archive.org has archived the infringer’s web page where your image was posted (get more information about the Wayback Machine here). For example, the Wayback Machine has saved screen shots of www.photoattorney.com since 2004 (we’ve come a long way since those early days)!
From there, you can see what photos were being displayed on a certain date. You then know the approximate date that the infringer began to display your photo. Unfortunately, the WayBack Machine doesn’t have copies of all webpages.
The “Firefox” web browser also has great tools for viewing information about a photo. For example, for my photos used for my 2010 workshop to photograph “grizzly bears,” you can “right click” on any image in Safari and select the last choice: “View Image Info.” When you select the “General” tab, you can see that I last updated the photo in February 2010, so it’s been displayed on that webpage at least since that time.
When you have an infringement claim, use all of the tools available to you to gather evidence of the infringement so that it will be easier to recover what is due to you.
Update: See how you can request that the WayBack machine capture a webpage at https://www.photoattorney.com/save-infringement-evidence/Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!