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Kendell Kelly, Esq
Kendell Kelly, Esq, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 578
Experience:  Lawyer practicing in all areas of intellectual property, including patents, trademarks, copyrights, trade secrets and new media.
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I am a photographer. I just found out that a photograph I

Customer Question

I am a photographer. I just found out that a photograph I took is being used on a newly released book, written by a local author.
I was not asked, and did not give permission to use the photograph.
I talked to the author and he claims that his daughter took the photograph and gave it to him.
The photograph has been published before with my permission, both online and in print.
I still have the electronic negatives.
Should I send him a letter demanding payment?
Submitted: 9 months ago.
Category: Intellectual Property Law
Expert:  Kendell Kelly, Esq replied 9 months ago.

Hello, my name is Kendell! Happy to help! Please remember that this is a tool for information only, we cannot give you legal advice and thus cannot tell you what to do or not (since that is prohibited).This should not be considered a attorney-client relationship. Also, please reserve your feedback until we have fully answered your question -- I will stick with you until we do.

Customer: replied 9 months ago.
Ok.
Expert:  Kendell Kelly, Esq replied 9 months ago.

Yes, you will want to send him a formal letter to 1) put him on notice of the infringement and 2) start a proper file for yourself. Additionally, if you have not federal registered your photograph, you will want do that -- there is a three month period that must lapse before you will be eligible for full damages from the time of registration.

Customer: replied 9 months ago.
But registration of an image in not required, as I'm aware. Unless under a contract at the time, the copyright belongs to the photographer automatically, correct?
Expert:  Kendell Kelly, Esq replied 9 months ago.

It does not have to be registered, but the damages are limited to actual losses rather than increased statutory damages. (see: https://www.law.cornell.edu/uscode/text/17/504).

Customer: replied 9 months ago.
Perfect, thank you.
Expert:  Kendell Kelly, Esq replied 9 months ago.

So yes, you are correct!! However, a $39 registration gives you way much more threatening power!

Expert:  Kendell Kelly, Esq replied 9 months ago.

No problem! Happy to help!! Please rate your answer so my time is credited -- should you feel your current rating would be anything less than Good, make sure to give me the opportunity to fix it!!

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