a photographer recently used my name and pictures without my consent on the web-site and also a photograph copyrighted by me to promote his/her business. i spoke with my attorney,but i still don't know what to do. small claims? it's free for me and fast. but i was told that i can only sue in federal court for copyright infringement. so federal court? or a cease and desist letter? from the economical point of view, what would be the best solution to this problem and would require minimum amount of expenses and maximum result? i qualify for a fee waiver based on my income in case of a court action.
Given your admitted limited finances, the first step, as indicated by my colleague, is to register your copyright. The next step, given your finances, would be a cease and desist letter. You need to give real consideration to your damages, whether you are just requesting a "take down" off the web site and nominal damages, or whether you think you are famous enough or have been damaged enough in ways that can be proven to warrant larger damages.
The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.
A cease-and-desist letter is likely to be your most economical alternative. While there is some discussion of something like a small claims court for copyright infringement at the Copyright Office, for now there is still only federal court for copyright infringement claims. A cease-and-desist letter would be much cheaper, and may get you the same results compared to a full blown lawsuit. Further, while it is technically not a requirement, courts and juries usually expect some attempt like a cease-and-desist letter.
One thing to check: have you registered your copyright? Registration is required before you file a copyright infringement lawsuit, and evidence of registration is often a strong indicator of your intent to enforce your rights.
I agree that registering your copyright and sending a cease and desist letter is probably the way to start.
However, given that the infringement is occurring online, it may also be possible for you to file a DMCA takedown notice with the website hosting company, which often is a very quick and inexpensive solution that gives results.
Assuming that you timely filed a copyright registration for your photograph, this is a case which must be brought in Federal Court, which has exclusive jurisdiction over copyright claims. Ordinarily, before bringing such a claim, an attorney writes a cease and desist letter, but the letter usually makes clear that the copyright owner is prepared to initiate litigation if necessary. Most importantly, you question does not have sufficient information to evaluate the value of your case. If you are entitled to statutory damages, and if the infringement was willful, you can claim up to $150,000 for each work (photograph) that was infringed, That is not just pocket change. Thus, you need to work with counsel to pursue this matter. I also cannot evaluate your claim that you qualify for fee waiver,
Now let's be practical here. While you can shoot for the moon, in most cases like this, what matters is how much harm you truly suffered. If you are a famous celebrity and your name was used without your consent, you might have a substantial claim for breach of your right of publicity. But if you are just an average guy (like me----one of thousands of attorneys), your right of publicity may not be worth very much. Unless there is a significant market among companies to use your name to hawk their products (think Eli Manning of the Giants), you won't be able to show a lot of harm here. Your copyright claim might be a little stronger, but these are expensive claims to litigate and the cost of litigating may outweigh the benefits. Certainly these are not the type of claims that easily lend themselves to contingency litigation---there doesn't seem to be enough money involved to justify the time and costs necessary to pursue the case.
A photograph copyrighted by you? Generally it is the photographer, not the subject of the photograph, who owns the copyright to a photograph. So, the question becomes, how did the photographer obtain the photographs. If the photographer took them, the photographer almost certainly owns the copyright.
J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.
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