Can I Stop a Website From Using a Photo of My Dog?

Question

I took a photograph of my dog and published it on my personal website. As I was surfing the Web, I noticed that the same photo was stolen and used on another website without my permission, on a dog food company's website. The photo is not officially "copyrighted." But the company refuses to take the photo down and its Internet service provider (ISP) says it doesn't want to "take sides" until I get a court order. Do I have any legal recourse?

Answer

When you took a photo of your pet, you might not have expected to profit from it or even show it publicly to a very broad audience. You certainly probably did not think to formally register a copyright with the U.S. Copyright Office.

Regardless, however, if you created the photo, you own the copyright automatically. It does not matter whether or not you filed a copyright application. The infringer, the dog food company, cannot put the photo on its website without your permission.

Moreover, under the Digital Millennium Copyright Act ("DMCA"), the ISP should respond to your concerns. It is true that the DMCA provides ISPs with a "safe harbor" from liability for infringing content, but that would not apply if they refuse to take action after being given explicit notice. The ISP would be wise to contact the dog food user and instruct them to remove the photo.

As to your legal recourse: You could sue the infringer, the uncooperative ISP, or both.

The basis of either suit would be copyright infringement. Although the ISP wasn't the one who first stole your work, the DMCA makes it similarly responsible, particularly if it knew about the infringement and didn't do anything about it. No matter who (if anyone) you decide to sue, you will probably want the help of a lawyer who's an expert on copyright law.

Given the interest in the photo, this might be a good time to register it with the U.S. Copyright Office. Registration will enhance the value of your copyright and will be required if you decide to file a lawsuit. For registration forms and instructions, go to the Copyright Office website (www.copyright.gov). The fee is currently $45 (as of early 2017). Unfortunately, it may take nine months or more for the registration to go through (unless you want to pay several hundred dollars more for an expedited registration).

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