Copyright and fair use

I've got a question for the hive mind...

I run a mine exploration group called the Underground Explorers. It's more of a hobby than a business but we do charge for doing some work. Photography is central to what we do. There's a business in Utah that sells mining claims and the owner has a problem with us and other mine explorers because he thinks we give his business a bad name (which is ironic since his business already has a bad name and has been the subject of numerous state and federal investigations). Long story short, he attempted to get an informal event we ran last year shut down by making false complaints to the Bureau of Land Management. I filled a Freedom of Information Act request to find out the whole story and then published a page on our web site with the details...

http://www.underground​explorers.com/undergro​und_2014_gre.htm

The business in Utah responded by putting up a page on their own web site with pictures lifted from our web page and Facebook page...

http://www.goldrushexp​editions.com …exploration-future-mining

I sent a DMCA takedown notice to their ISP and they denied it saying it was Fair Use. I strongly disagree (as you might expect) and wanted to see what everyone thought.

Thanks in advance for any feedback and comments!

The company is using their website to promote their business therefore the use of the images is commercial in nature and fair use doesn't apply. You can respond to the ISP telling them that and threatening to include them in any lawsuit for infringement if they don't remove them, however if they don't agree then your only other option is to take legal action, which would be expensive unless.....

Copyright registration - if you registered the copyright on your images you would be eligible for statutory damages. This makes it far more interesting for an IP lawyer and some will be willing to take on the case without an upfront fee for a % of any settlement. Unfortunately to be eligible for statutory damages you need to register copyright before an infringement (too late for that) or within 90 days of first publishing the image on your website/facebook. So, if you published them less than 90 days ago you can still register, if it was longer than that you are out of luck.

Another thing to bare in mind is watermarks/copyright notices. If the images have a watermark/copyright notice and the infringing party removes it then that is a federal offence under Section 1202 of the U.S. Copyright Act, which makes it illegal for someone to remove the watermark from your photo to disguise an infringement. The fines start at $2500 and goes up to $25,000 in addition to attorneys' fees plus any damages for infringement.

The photos are a small part of a big dispute. If your DMCA Takedown request is disputed, then you need a lawyer to move forward. The lawyer may also be able to guide you through this ongoing conflict towards a better resolution.

Fair use is actually quite narrow in legal application--much narrower than most people think. It seems vague and broad as written, but once in court, it gets judged pretty strictly.

sspellman is totally correct--at this point, call in the legal beagles.