News of stolen nude photos are not new news. The photos got out onto Web from a disgruntled lover, or even having your icloud account hacked. Even if you are not Jennifer Laurence, if your photos are put up on the web and can be found by a Google Search, most people want them taken down. Here are a few things you can do to get them down:
Bottom line: You will be writing or hire a lawyer to write a take down letter. The letter will go to the person who posted your photo, without your permission OR a website that has a link to the photo. You may be writing to Google or Youtube. To get them to take the photo or link down you need leverage. One smart way to get leverage is to obtain a registered copyright. You can do this yourself, by following the below steps BUT as you will see there are some hurdles.
1) One photo or many? If you have a bunch of personal photos – even if only one of them is online without permission, consider registering them as a compilation or group.
2) Who owns the photo. If the answer is you, this is easy but if the answer is someone else, you will need to get them to assign you the copyright for the photo. If they are an ex or an adverse party, this may not be an easy negotiation. What is the leverage you have to get them to agree? They may ask you for money. Be prepared.
3) If you took the photos or you have obtained an assignment from the person who did take the photo (and owns the photo), register the photos with the US Copyright office. You will need to fill out a form – form VA, pay a fee and wait. If you file under normal procedures, you can expect to wait up to 8 months.
4) The alternative is preregistration of a copyright – if your photos had not been published, which as a minimum step can help you get into Federal Court, if the party who posted your photo won’t take it down with a letter. This can only be done electronically and costs $140.
5) Consider filing as a compilation of published photos. This is appropriate if all of your photos that you seek to protect have been available to the public on the same date. The government fee for this is $55, if done online.
6) File under Expedited Procedures under the argument that you are about to start litigation about an infringer. It is not always granted but if it is, you can get registration within 5-10 working days. Expect to pay an additional fee. The government fee for this is $800! and is in addition to the applicable recordation fee – for example $55 for a group of photos. If the application is already being processed when the need for special handling arises, please contact the Office for guidance in how to request a change in requested service level.
7) Once you get your certificate of registration, you are in a much stronger position to get the infringer to take down your photos because they could now be sued in Federal Court. While you can now file a suit in Federal Court without a registration, there will be a fight over this issue so be prepared. See, Reed Elsevier, Inc. v. Muchnick, No. 08-103 (U.S. Mar. 2, 2010) for more info. The United States Supreme Court found that a Court could hear an infringement case even without registration but there are exceptions and your case could be dismissed if you do not fall into the specific exceptions, so consult a lawyer.
8) If you do write a take down letter to Google or Youtube or a website, become familiar with the take down requirements. Your notice to them must specifically identify that you own the copyright, the specific link to the infringing photo etc. The take down notice rules are called the DMCA – and give the website protection from liability so long as they follow the rules. They have a certain number of days to respond.
If you would like to consult with me – I offer a one hour free consultation. Do not hesitate to pick my brain on this process and approach. 310-570-2399.
