In terms of innocent infringement, our patent guys said to look at Maverick vs. Harper but that was for songs, not for photos and the penalty ended up at $200 or something like that but that is a moot point.
Interesting example, and thanks for sharing it. And interesting too that the damages have gone up to $750 - according to this
link. Perhaps what is most telling is this statement;
The Fifth Circuit explained that it did not matter whether Harper knew her conduct was illegal. In other words, 'didn't know' was not accepted as defence. Whilst it is very risky to mix judgements and expect the same, it does give insight as to how the judges consider the law and interpretation thereof.
....Somehow I have given the impression that I am for stealing and infringement, I am not; but what do you do if you haven't registered your work and you send a bill and never hear?.....
Well there were times when I got the impression...but that may say more about me than how it was written...I think we are pretty much in agreement Bill...please read on...
........
In any case, I still don't understand what in a practical sense you can do if some small business owner uses a picture he got from somewhere on the internet if you haven't registered it and he refuses to return your emails.
In practical terms you are 100% right as I suspect there is nothing you can do, the horse has already gone so bolting the stable door will be of questionable benefit...things are a little easier here in the UK and its straightforward to demonstrate to a business they need to settle up quickly - and for more than the basic fee based on flagrancy, criminality, accounting for profit and consequential losses - that most, in my experience, do just that. In the US, I realise things are somewhat different and perhaps its not so easy...
Here's the steps I take:-
1. Register everything with the USCO
2. Embed metadata in every image that leaves the office PC.
3. Web use - metadata + visible watermarks. Not just a simple assertion of rights like "Image © Simon Brown. All rights reserved" but a big spoiler.
4. Assert my moral right to attribution on everything published.
None of this will prevent an infringement, but it does reduce the risk (good for creators and users alike) and if things have gone wrong a remedy may be available.
On point 3, occasionally people moan it ruins the image...but I do remind them they can see the image in a magazine if they care to buy a copy...or I can sell them a print. In both instances they will probably have to end up paying me, either directly or indirectly, but the choice of free is there too.
As a recommendation, I would encourage everyone to at least do step 1. I do tend to find that few one care about seeing their creative endeavours used for whatever purpose.....
until something goes wrong...and it invariably does.