Shippensburg, PA asked in Intellectual Property for Montana

Q: I have a more detailed question in regards to legalities to copyrighted photo use.

I'm involved with a company that has a large community of 41,000 members on a social site. The original founder Janet has passed away recently, and someone named Melissa who is involved with a person named Dave who would take photographs specifically for the social page has threatened to sue us if we don't take the photos off from 4-5 years ago. Dave has had a stroke recently and cannot speak for himself. Without his consent, his representative Melissa wants us to take all of his photos down that Janet posted for him on the site, from the site postings 4-5 years ago. Does Melissa have the right to do so?

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1 Lawyer Answer

Griffin Klema

Answered

A: This is a difficult situation. The start of the analysis is that the original photographer owns the copyright unless transferred by agreement to someone else. Based on the facts you provide, there might be an implied contract between the photographer and the group, either by the conduct of the parties, or perhaps in emails or other messages that could establish an enforceable license that the group owns from the photographer. Because copyright infringement has significant penalties, both as to direct damages as well as the possibility for prevailing party attorney's fees, it is often best to remove the photographs while resolving the dispute. A written agreement providing a license would be ideal. If there are assets at risk of loss (either the group's or individuals), it might be a wise investment to seek the assistance of an experienced intellectual property attorney. Good luck!

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