Copyright Evidence

Section 01

What the evidence file has to establish

Before anyone sends a notice, proposes a licence or passes a matter to counsel, three questions need clear answers: which work is concerned, who holds the rights to it, and what exactly was done with it, where and when. An evidence file is the organised answer to those three questions. If one of them is answered weakly, everything built on it is weak as well.

Atlantic builds that file first and decides on any action afterwards. The file serves the rights holder, who can see how solid the matter really is. It also serves the recipient, the hosting provider and, if the matter goes that far, counsel on both sides, because each of them should be able to check the same material and reach the same understanding of the facts.

The standard we apply is simple to state: a reader who has never heard of the case should be able to open the file, follow it from the original photograph to the use found online, and verify every step without having to take our word for anything.

Section 02

Preserving each occurrence

Web pages change, images are swapped and whole sites disappear. For that reason each use found is preserved as an occurrence at the moment it is detected, before any contact with the website operator. An occurrence is a fixed set of records, captured together:

• the full URL of the page on which the image appears;
• the direct URL of the image file itself, which often points to a different server or a content delivery network;
• the date and time of the capture;
• a full-page screenshot showing the image in its context (headings, surrounding text, branding, advertising);
• a copy of the image file as it was served;
• a SHA-256 fingerprint of each of these evidence files.

The SHA-256 fingerprint is a value calculated from the exact content of a file. Changing a single pixel or a single byte produces a completely different value. Recording the fingerprint at the time of capture means that, months later, anyone can recalculate it and confirm that the screenshot or image file presented is the one collected on that date, unchanged.

Preservation also answers a common objection in advance. A recipient who removes the image after receiving a notice ends the ongoing use, which is welcome, but the earlier use remains documented. The occurrence records what was publicly displayed, not what the page shows today.

Section 03

Verifying the protected work and the rights holder

The second part of the file concerns the photograph itself. Photographs are original works of authorship within the meaning of 17 U.S.C. § 102 in most cases, and the exclusive rights under § 106 (reproduction, derivative works, distribution, public display) belong to whoever holds them. That person must be identified with care.

References17 U.S.C. §§ 102, 106

Under § 201, ownership vests initially in the author, which for a photograph is usually the photographer. The exception is a work made for hire, where the employer or, in defined circumstances, the commissioning party is considered the author. Under § 204, a transfer of copyright ownership is not valid without a written instrument signed by the owner of the rights conveyed. In practice, this means Atlantic looks for documents rather than statements:

References17 U.S.C. §§ 201, 204

• original files, raw files or contact sheets from the session, with their embedded metadata;
• employment or commissioning agreements, where the photograph was taken in that setting;
• signed assignments, where the rights have changed hands;
• agency or stock-library agreements, which usually grant a licence or a mandate rather than ownership, and whose exact scope matters;
• earlier publications under the photographer’s name.

Once the chain of rights is established, the mandate given to Atlantic is verified as well (identity, ownership or licence chain, scope of authority). Each mandate produces an authority certificate with a public verification address, so a recipient who doubts that Atlantic acts on behalf of the rights holder can check it independently.

Section 04

Publication chronology and registration

A dated chronology places the photograph and the disputed use on one timeline: creation, first publication, any registration, licences granted, the first known appearance of the use, each capture, and later changes to the page. The chronology often settles objections such as “the photo is old” or “we have used it for years”. Age does not remove protection while the copyright term runs, and a long use without a licence is a longer use, not a licensed one.

Registration is recorded where it exists. Under 17 U.S.C. § 410(c), a certificate of registration made before or within five years after first publication constitutes prima facie evidence of the validity of the copyright and of the facts stated in the certificate. That is a presumption the other side can try to rebut, not a final finding.

References17 U.S.C. § 410(c)

Registration matters for remedies and procedure, not for the existence of the right. Under the Berne Convention, art. 5(2), the enjoyment and exercise of rights are not subject to any formality. Under § 411(a), registration is generally required before suing for infringement of a United States work, while foreign works are exempt from that requirement. Under § 412, statutory damages and attorney’s fees generally depend on timely registration. The file states plainly which of these points apply, so that “you have no registration” receives an accurate answer instead of a defensive one.

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

Section 05

Comparing the original and the copy found

Showing that the image online is the rights holder’s photograph is a technical exercise, and the file describes how the comparison was made. Two situations must be kept apart.

If the copy found is byte-for-byte identical to the original file, the SHA-256 fingerprints match, and the identity is established in the most direct way possible. This is less common than people assume, because websites usually resize, compress or convert images.

When the copy has been processed, the comparison relies on several observations recorded side by side:

• composition, subject and framing, including any crop and the area retained;
• dimensions and aspect ratio relative to the original;
• distinctive details such as reflections, background elements or retouching;
• embedded metadata, where it has survived (camera data, creator name, copyright notice);
• signs of alteration, such as a removed watermark or a mirrored image.

Metadata deserves particular attention. Directive 2001/29/EC, art. 7 and 17 U.S.C. § 1202 protect rights-management information. Under § 1202, removing or altering it, or distributing a work knowing it was removed, can create liability when done knowingly and with the required intent. The file records what the original contained and what the copy contains. It does not assume the intent behind any difference, which is a question for a later stage, if one is reached.

ReferencesDir. 2001/29/EC · 17 U.S.C. § 1202

Section 06

Chain of custody

Evidence is only as reliable as its handling. Every capture, file and action in a case is entered in a chain-of-custody record: what was collected, when, by which process, its fingerprint, and every later step taken with it, including each letter sent and each document received.

This record answers the question a careful reviewer always asks: could anything have been added, replaced or edited between the capture and the moment it is shown? Because each evidence file keeps its original fingerprint and each action is logged in sequence, the answer can be checked rather than asserted.

The same discipline applies to material received from the other side. A licence, an invoice or a statement uploaded by a recipient is filed with its date of receipt and kept as received, so that it can be examined on the same footing as Atlantic’s own captures.

Section 07

The evidence PDF and the secure case portal

Each matter receives a Case File reference of the form AID-YYYY-NNNNN. Every letter to the website operator is accompanied by an evidence PDF, which gathers the essential material in a form that can be read without specialist tools:

• the case reference and the identity of the rights holder, with the verification address of the authority certificate;
• the protected work, with its reference image;
• each occurrence: page URL, image URL, date and time of capture, screenshot;
• the SHA-256 fingerprint of each evidence file;
• a short chronology;
• what is being requested, and the deadline for a reply.

The recipient also receives access to a secure case portal, where the evidence summary is visible and where they can reply, upload a licence, an invoice or any other proof, or settle. Replies sent by e-mail are filed in the Case File as well. The portal exists so that the recipient sees exactly what supports the request, in one place, and can answer on the merits.

This is also where the usual first replies are best dealt with. “Send me proof” is answered by material that is already there. “My web designer chose it” or “I found it on Google” can be stated on the portal and will be examined, but neither changes what the occurrence shows: finding an image through a search engine does not grant rights, and the site operator is generally the party that published it, even if the extent of its responsibility depends on the jurisdiction. When a recipient indicates a licence, the matter is put on hold until a stated date while the licence record is examined, and no letter is sent during that hold.

Section 08

What evidence cannot do on its own

A well-built file establishes facts. It does not decide the dispute, and the file is never presented as if it did.

• It is not a court decision. Atlantic’s assessment is a position, and a proposed licence fee or settlement is a proposal, not an established debt.
• It does not exclude a licence. Evidence of use is not evidence of the absence of permission, which is why signs of a licence are checked before any letter, and why uses that are clearly covered are closed without any claim.
• It does not settle fair use. Under § 107, fair use is decided case by case on four factors. The file records the context of the use (commercial or editorial, complete or partial, alongside what text) because that context is relevant, but the conclusion belongs to the parties and, failing agreement, to a court.
• It does not settle linking or embedding questions, which are nuanced and depend on the facts and the jurisdiction.
• A photographer credit on the page is recorded, but crediting the author is not a licence.
• It does not replace legal advice. Atlantic is not a law firm. When a matter requires legal action, the complete file (summary, evidence index with fingerprints, chronology, correspondence, authority documents) may be handed to qualified counsel chosen for the relevant jurisdiction, who decides how to use it. The decision to hand it over is taken by a person on the documented file, and the rights holder is informed first.

References17 U.S.C. § 107

Within those limits, the file has a precise job: it allows every party to discuss the same facts, verified in the same way, and it remains intact whatever the next step turns out to be.

Section 09

Starting an evidence file

To open a matter, submit the case through the Atlantic platform with the reference image, the URL where you found the use, and whatever you hold on authorship, rights and licences, even if it seems incomplete. Atlantic preserves the occurrence, reviews the rights material and the context of the use, and tells you what the file supports before any action is proposed.