Article

Section 01

Why documentation comes before the first message

The moment a rights holder notices one of their photographs on a website they did not license is also the moment the evidence is most fragile. A page can be edited, an image replaced or a whole site taken offline within hours of a first e-mail. If nothing was preserved beforehand, the use may become difficult to establish, even though it happened.

Documenting first is not a tactic to surprise anyone. It protects both sides. A file built on precise, verifiable captures allows the recipient to see exactly what is being raised, check it against their own records and answer on facts rather than impressions. It also prevents the rights holder from relying on memory, partial screenshots or assumptions that the other side can easily challenge.

There is a legal reason as well. In most systems, the party that asserts an infringement carries the burden of showing that the protected work was reproduced or made available to the public without authorisation. Under US law, the exclusive rights in 17 U.S.C. § 106 include reproduction and public display; in the European Union, Directive 2001/29/EC covers reproduction (art. 2) and communication to the public (art. 3). Each of these acts has to be shown, not asserted. Documentation is how that showing begins.

References17 U.S.C. § 106 · Dir. 2001/29/EC

Section 02

What a complete occurrence record contains

Each time an image is found on a page, the use should be recorded as a separate occurrence. One website may contain several occurrences: the same photograph in an article, in a category thumbnail and in a social-sharing preview are three uses, sometimes with different files. Recording them separately avoids confusion later about what exactly is being discussed.

A complete occurrence record contains at least the following:

• The full address of the page where the image is displayed, exactly as it appears in the browser, including any parameters that change the content.
• The direct address of the image file itself, which often sits on a different server or a content-delivery network.
• The date and time of the capture, with the time zone.
• A full-page screenshot showing the image in its surroundings: header, navigation, the text around it, and the footer where the operator usually identifies itself.
• A copy of the image file as served by the website, without any modification.
• A record of visible context: the page title, any credit line, caption, watermark, or mention of a stock agency.
• A fingerprint of each evidence file, so that its integrity can be checked later.

Each element answers a different question. The page address shows where the use occurred; the image address shows what was actually served; the screenshot shows how the public saw it; the date fixes when; the file copy allows comparison with the original; the fingerprint shows that none of the above has been changed since.

Section 03

Capturing the page: what a screenshot proves and what it does not

A screenshot is the most intuitive piece of evidence and also the most frequently contested. A cropped image of a photograph on a white background proves very little: it does not show which site it came from, when, or in what context. The other side can reasonably reply that it could have been taken anywhere.

A useful capture therefore shows the whole page, from top to bottom, with the browser address bar or an equivalent record of the address. It should make the commercial or editorial nature of the page visible: a product being sold, an advertisement, a booking form, a news article. That context matters later, for example when a licence fee is assessed or when a fair use argument under 17 U.S.C. § 107 is raised, since the purpose and character of the use is one of the four factors decided case by case.

References17 U.S.C. § 107

Some practical points improve the reliability of a page capture:

• Capture the page in its normal state, without browser extensions that alter content or block elements.
• Where the layout changes between screen sizes, record the version where the image is clearly visible, and note if the image only appears on mobile or only on desktop.
• If the image appears in a slideshow, a gallery or behind a click, capture the state in which it is shown and note the action needed to reach it.
• Do not annotate the original capture. If arrows or highlights help explain the file, add them to a separate copy and keep the original untouched.

A screenshot alone does not prove who published the page, whether the use was licensed, or how long it lasted. It proves what was displayed at a given moment at a given address. Presenting it for exactly what it is, and nothing more, makes it harder to dismiss.

Section 04

The image file, its address and its visible information

The page capture shows the use as the public saw it; the image file shows what was actually reproduced. Saving the file exactly as served (same format, same dimensions, same name) allows a direct comparison with the original. It often reveals useful facts: the image was copied at full resolution, it was cropped to remove a signature, it was mirrored or recoloured, or it was resized for a banner.

The direct image address is just as important. It may show that the file is stored on the website’s own server, on a separate hosting account or on a content-delivery network. That distinction helps later in identifying the hosting provider of the content, which is not always the provider that hosts the page. Where an image is embedded from another site rather than copied, the legal analysis becomes more nuanced and depends on the facts and the jurisdiction. Recording the image address from the start allows that question to be examined properly rather than guessed.

Visible information around the image deserves a precise note. If the photograph originally carried a credit, a watermark or metadata identifying the author and these are absent from the copy, that is a fact worth recording without drawing conclusions too early. Under 17 U.S.C. § 1202, removing or altering copyright management information can create liability when it is done knowingly and with the required intent; art. 7 of Directive 2001/29/EC protects rights-management information in the European Union. Whether those conditions are met is a matter for later analysis. At the documentation stage, the task is only to record what is present and what is missing.

References17 U.S.C. § 1202 · Dir. 2001/29/EC

Conversely, a credit line naming a stock agency, or a caption suggesting editorial use, should be recorded with the same care. It may point to a licence, and a file that hides such signs would be both unfair and fragile.

Section 05

Fingerprinting and preservation

Digital files are easy to modify, and the other side knows it. An objection that a screenshot “could have been edited” is common and, in the absence of any safeguard, not unreasonable. The answer is a cryptographic fingerprint.

A SHA-256 fingerprint is a fixed-length string calculated from the exact content of a file. Changing a single pixel or a single byte produces a completely different fingerprint. When the fingerprint of each evidence file is calculated at the time of capture and recorded with the date, anyone can later recalculate it and confirm that the file presented today is identical to the file captured then. The fingerprint does not prove that the page said what the file shows; it proves that the file has not been altered since it was fingerprinted. Combined with a capture made at a precise time from a recorded address, it closes off a whole category of doubt.

Preservation also means keeping the files in a way that does not change them. A few rules apply:

• Store originals in a location where they are not edited, compressed or renamed by automatic tools.
• Work only on copies when preparing a report or a letter.
• Keep a written log of who accessed or exported the files and when.
• Do not replace a capture with a “better” one taken later. Add the new one as a separate occurrence with its own date.

This log of actions is what is usually called a chain of custody: a record showing, step by step, what happened to each piece of evidence from its capture to its use. In the European Union, Directive 2004/48/EC provides for measures to preserve evidence in intellectual-property matters, and courts generally give more weight to evidence whose handling can be traced. A file prepared with this discipline from the start is easier for counsel to use if the matter ever reaches that stage.

ReferencesDir. 2004/48/EC

Section 06

Building the chronology

A chronology is a dated list of events, kept in order, without commentary. It is easy to neglect and difficult to rebuild afterwards. It answers questions that often decide how a matter is assessed: when the photograph was created and first published, when the use was first observed, whether the use was still visible weeks later, when the operator was contacted, and what happened next.

A good chronology distinguishes between three kinds of dates:

• Dates relating to the work: creation, first publication, registration where it exists, licences granted to others.
• Dates relating to the use: first capture, later captures confirming continued use, any change to the page, removal if observed.
• Dates relating to correspondence: each message sent, each reply received, each deadline given and each period during which the matter was put on hold.

Dates should be recorded as facts and attributed to their source. “Page captured on 14 March at 10:42 UTC” is a fact supported by a file. “The site has used the image since 2019” is an inference unless an archived capture or a date on the page supports it. Where an earlier date is suggested by an article’s publication date or a public web archive, it should be recorded as such, with its source, and not presented as more certain than it is.

The chronology also matters because removal of an image after notice ends the ongoing display but does not erase the earlier use. A clear record of when the use was observed, and for how long, keeps that distinction visible.

Section 07

Connecting the use to the work and to the responsible party

A complete file links three elements: the protected work, the use, and the party responsible for publishing it. The previous sections deal with the use. The other two links deserve a brief word here, while neighbouring pages treat source files, metadata and contributor records in detail.

On the side of the work, the file should contain the original image or a high-resolution version, and enough information to show who holds the rights and who is entitled to act. Under 17 U.S.C. § 201, ownership vests initially in the author, subject to the rules on works made for hire; transfers of ownership require a signed writing under § 204. In most countries, across Europe, Asia, Africa and the Americas, the author’s right arises from creation itself, and some national laws also protect simple photographs that are not original enough to qualify as works. Under art. 5(2) of the Berne Convention, the enjoyment and exercise of these rights are not subject to any formality.

References17 U.S.C. §§ 201, 204 · Berne Convention

On the side of the user, the file should identify the operator of the website as precisely as the public information allows: the legal notice or imprint page, the terms of use, the contact page, the company name shown in the footer. Domain registration data is often hidden or incomplete and identifies the registrant, who is not always the operator. A content-delivery network or a proxy service is not the host of the content. Identifying the actual hosting provider requires technical verification, and recording the results of that verification with their date avoids sending a complaint to the wrong party later.

Section 08

Mistakes that weaken a file

Most weak files are not weak because the use was lawful. They are weak because the documentation leaves room for doubt that a careful capture would have removed. The following mistakes come up repeatedly:

• A screenshot cropped to the image alone, without the address or the surrounding page.
• No date, or a date added later from memory.
• Only one capture, taken after the first contact, when the page may already have changed.
• Annotated or compressed originals, which invite the objection that the evidence was edited.
• Several distinct uses merged into a single claim, so that the recipient cannot tell which page or which file is concerned.
• Signs of a possible licence (a stock agency credit, an editorial caption) left out of the file.
• The domain registrar or a content-delivery network named as the host.
• A first message sent before the file exists, often an informal e-mail or a social-media comment that alerts the user and leads to removal before anything was preserved.
• Statements in the first message that go beyond what the documents show, such as a firm amount described as owed or a claim that the use was intentional.

Each of these can be avoided with a short checklist applied before anything is sent. The last two are particularly costly, because they cannot be undone: a premature contact cannot be withdrawn, and an overstatement in writing will be quoted back.

Section 09

How a well-built file answers the usual objections

Recipients of a notice often reply with the same arguments. A file documented with care already contains the facts needed to answer most of them calmly.

“I found it on Google” or “it was on a free wallpaper site”: the capture shows where the image was used, and the rights record shows who holds the rights. Finding an image through a search engine or on a site that redistributes images without authority does not grant any rights to reuse it.

“I credited the photographer”: the capture records the credit, which is relevant and fair to mention, but a credit is not a licence. Permission to reproduce comes from the rights holder, not from attribution.

“I removed it”: the chronology shows when the use was observed and for how long. Removal ends the ongoing use, which is welcome, but it does not erase the use already made. The file preserves the facts of that earlier period.

“My web designer chose it”: the capture identifies the website and its operator. Whether and how far a contractor shares responsibility depends on the jurisdiction and the contract between them, but the operator is generally the party that published the image on its site.

“It is fair use”: the documented context (commercial page, decorative use, full-resolution copy) allows the four factors of 17 U.S.C. § 107 to be examined on facts. Fair use is decided case by case and is genuinely fact-specific. A good file does not pretend the answer is obvious; it makes the relevant facts available. Outside the United States, fair use as such generally does not apply; exceptions usually take the form of specific cases defined by statute.

References17 U.S.C. § 107

“The photo is old”: age does not remove protection while the copyright term runs, and the chronology records the publication history of the work.

“You have no registration”: under the Berne Convention, protection does not depend on formalities. In the United States, registration is required before a lawsuit concerning a United States work under 17 U.S.C. § 411(a), with foreign works exempt; timely registration matters for statutory damages and attorney’s fees under § 412, and registration within five years of publication is prima facie evidence of validity under § 410(c). These rules concern court proceedings, not the question of whether the use was authorised.

ReferencesBerne Convention · 17 U.S.C. §§ 411(a), 412, 410(c)

“Send me a court order” or “you are not a law firm”: Atlantic is not a law firm and says so. At the amicable stage, the file is the basis for a discussion, not a judgment. If the matter is still unresolved and needs legal action, the complete file may be handed to qualified counsel in the relevant jurisdiction; that decision is taken by a person on the documented file, and the rights holder is informed first. Legal documents are then exchanged between lawyers.

Section 10

How Atlantic captures and keeps the evidence

Atlantic applies the method described above to every case it handles. Before any detection work, it verifies the rights holder’s authority to act: identity, ownership or licence chain, and the mandate given to Atlantic. Each mandate produces an authority certificate with a public verification address that recipients can check themselves.

Detection relies on reverse image search and monitoring of the open web. Each finding is captured as an occurrence containing the full page URL, the image URL, the date and time, a full-page screenshot and the image file. A SHA-256 fingerprint is calculated for each evidence file at the time of capture. Captures and the history of every action taken on the matter are kept in a chain-of-custody record, so that it can later be shown what was captured, when, and that nothing has been altered since.

Before any letter is sent, each occurrence is reviewed for signs of a licence: an image-bank credit, contributor records, an editorial context. When a licence is plausible, Atlantic first asks for the licence record instead of escalating. Uses that are clearly covered are closed without any claim. The documentation therefore serves to rule matters out as much as to pursue them.

Each matter that goes forward receives a Case File reference of the form AID-YYYY-NNNNN. The recipient is given access to a secure case portal where the evidence summary is visible and where they can reply, upload a licence, an invoice or other proof, or settle. Replies by e-mail are filed in the same Case File, so that the chronology stays complete. Atlantic does not publish anything about recipients, does not contact a recipient’s clients and keeps settlement discussions confidential.

Section 11

What the documentation later makes possible

A file built in this way is not an end in itself. It is the common basis for every step that may follow, and each step draws on the same evidence without having to rebuild it.

The first step is correspondence with the website operator. Atlantic sends a graduated series of up to seven letters with dated deadlines, from a first notice to a final pre-contentious warning, each accompanied by an evidence PDF drawn from the captured occurrences. A reply, a licence claim or a request for time puts the matter on hold until a stated date, and nothing is sent during a hold. A proposed licence fee or settlement in these letters is a proposal, not an established debt.

When the operator does not respond, the same evidence supports a complaint to the actual hosting provider of the content, identified by technical verification. The complaint contains the elements listed in 17 U.S.C. § 512(c)(3) or those required by art. 16 of the Digital Services Act, which expects a notice precise enough for a diligent provider to identify the illegality. It is signed and accompanied by the evidence report; on request, a formal DMCA notice with a handwritten signature can be provided. Accuracy matters here in both directions: § 512(f) creates liability for knowing material misrepresentation in a notice or counter-notice, and § 512(g) allows the user to file a counter-notice, after which material may be restored within 10 to 14 business days unless the claimant files an action. The host decides what to do under its own policies, and removal by a host concerns future display only. It does not settle the use already made.

References17 U.S.C. §§ 512(c)(3), 512(f), 512(g) · DSA (Reg. 2022/2065)

The documentation also supports removal requests to search engines and notices to advertising networks that monetise the page. When a matter is resolved, Atlantic withdraws the notices it sent to hosts, search engines or networks.

Where none of this leads to a resolution, a last-resort letter informs the operator that the file is about to be transmitted to counsel. If the matter is still unresolved, the complete file (summary, evidence index with fingerprints, chronology, correspondence and authority documents) may be handed to qualified counsel in the relevant jurisdiction. That decision is taken by a person on the documented file, and the rights holder is informed first. Counsel then assesses the available options, which may include court proceedings or, in the United States, the Copyright Claims Board, a voluntary small-claims forum from which the respondent may opt out. Lawyers for the other side can communicate through the platform’s dedicated channel for counsel, where documents are exchanged between professionals. A Case File is closed only when a valid licence or other authorisation is shown or, failing that, when an amicable settlement is reached and recorded. A demonstrated identification error is corrected, not settled.

ReferencesCopyright Claims Board

Rights holders who want Atlantic to document and review a suspected use can submit their images and the addresses concerned through the platform. The authority check comes first; the capture, the review and any correspondence follow from it.