A Copyright Infringement Claim Success Story

**This article is posted here courtesy of Canadian Birth Photographers where it originated.

A well-known birth photographer, Jaydene Freund of Cradled Creations filed a claim against Quebec media company Babygaga, and was awarded $3500 for her image.

Freund accused the company of using her photo without permission in an online blog article titled, "15 Ways You Can Damage Your Baby During Childbirth." Freund states she "won't stand by as they take advantage of the convenience to steal images in this digital age." 

The photo in question was an image of a husband and wife holding each other during labour. It was used in a negative article under the heading "Risky Home Births"

"As the photographer, I own the copyright of my work. When I publish images on my website or instagram, it doesn't mean they are available for other people to republish without my permission and compensation." 

Freund immediately contacted the company with a take down notice and invoice for use of her image. The image was removed but the damage had been done as it had already been shared across their social media platforms for longer than a 1 month period. The company refused to pay Freund's original invoice and ignored letters from Freund's attorney. This is when Freund filed a claim and was immediately contacted by Babygaga's legal department to settle the account. 

"Companies continue to think they can get away with stealing photographs. This continues to happen in our industry and these big media company's need to be held accountable for their ignorance to the law." Many people think anything found online is free for the taking, however, Canadian Copyright Act states the photographer is the owner of the image and thus has control over republications of that image. 


Information for Photographers Looking To Hold Companies to Account for Stolen Images:

As a photographer, you own the copyright to all your images taken for hire.

In Canada and the US, there is a doctrine of Fair use, which entitles others to republish your work, with credit, in fair use. These purposes include news, commentary, teaching, research, etc. The goal of "Fair Use" practices must benefit society.

Canada also allows anyone to use a published work to create a new work (through Bill c-11), such as a remix or a mashup, and to publish it in turn, on condition that this is done solely for non-commercial purposes and, in principle, that the source of the original work is credited.

As a photographer, if one of your images has been republished for commercial purpose, or is associated with add-revenue blog, document the discovery of the infringement by screenshots and photos. You are entitled to request a Cease and Desist. You are also able to invoice the website for their use. An acceptable bill for an unauthorized use is generally regarded as 3 times your regular licensing fee. If the company refuses to remove your image you may submit a DMCA takedown notice to their Internet service provider. 

If the company refuses to pay your bill you may take legal action against them. Unfortunately copyright infringement is the jurisdiction of the federal court and you would need to hire a lawyer to pursue a copyright infringement claim. However you may take another route and personally file in small claims up to $35,000 for the following (1) Punitive Damages to your brand (2) An accounting and payment of their add-revenue relating to the article (3) Costs and Expenses (court fees to be re-imbursed.) 

Good luck! Feel free to comment below with your own copyright infringement stories.

Leilani RogersComment