How to calculate damages for unauthorized photo use
Someone used your photo without permission. What do you invoice? The short answer: start with the fee you would normally have charged, then add a defensible surcharge for the missing permission, missing credit, and the time spent finding and documenting the infringement. The expanded answer is harder, and that's what this article is about.
The starting point: what you could reasonably have charged
Damages are commonly calculated based on the licence fee that could reasonably have been demanded. In the Netherlands, Article 27a of the Auteurswet provides for damages and, in some circumstances, profit disgorgement. The EU IP Enforcement Directive uses similar wording, and US case law on statutory damages references actual market rates. In plain language: what you could have charged if they had arranged it properly, plus possibly a surcharge for the surrounding harm and effort.
This is not the same as what a stock photo costs. Courts look at what a working photographer would normally charge for that type of work in that context. Subscription stock prices of a few dollars are not the reference point.
Industry tariffs as the reference
National photographers' associations publish tariff guidelines that courts accept as benchmarks. NVF (Netherlands), BFP (Germany), AOP (UK), ASMP (US). The numbers below are indicative ranges based on common professional rates. Always check the current guidelines from your professional body or your own historical pricing.
| Use | Base license |
|---|---|
| Editorial print, small format | €100 - €175 |
| Editorial print, large or cover | €250 - €600 |
| Editorial online | €150 - €400 |
| Commercial print, regional | €400 - €800 |
| Commercial online (banner, hero) | €500 - €1,500 |
| Commercial campaign | €1,500 and up |
These ranges are guidance. A specialised photo of a recognisable subject sits at the top, a generic mood shot at the bottom.
The three surcharges
Three surcharges commonly sit on top of the base fee. None are automatic rights; all are context-dependent and need to be substantiated.
Moral rights: surcharge for missing attribution
Most copyright statutes recognise the photographer's right to be credited. When the credit is missing, that's a separate violation alongside the infringement itself. Missing attribution can justify a separate surcharge. In practice this often runs from 25% to 100% of the base fee, depending on the context, the professionalism of the user, and the harm to the photographer.
Additional surcharge for missing permission and detection costs
This is the biggest lever. In demand-letter practice a surcharge on top of the licence fee is commonly requested. Sometimes 100%, sometimes 200%, especially when the photographer can substantiate:
- commercial use instead of what would normally have been agreed as editorial,
- missing permission and loss of negotiation room,
- loss of exclusivity,
- extra detection and documentation costs.
It isn't a penalty; it's a way to capture harm that doesn't fit neatly into a single licence fee. Courts ultimately look at reasonableness and substantiation. US case law applies a comparable logic to "wilful infringement" under 17 USC 504(c), but the multipliers there work differently.
Aggravating factors
Not automatic, but available:
- Re-use after a previous demand letter: extra 50 to 100% surcharge.
- Cropping or editing without permission: separate €100 to €300 added.
- Use in a context different from what was originally licensed (editorial photo in an advert): recalculation against the higher commercial tariff.
Three concrete examples
Example 1: regional news site uses your portrait
Photo: portrait of a local entrepreneur, originally shot for a trade magazine. A regional news site picks it up for a follow-up article without permission, no credit.
- Base (editorial online): €250
- Missing attribution: €125 to €250
- Surcharge for unauthorised use: €250 to €500
- Indicative total: €625 to €1,000
Example 2: e-commerce site uses your product photo in an ad
Photo: product shoot for a brand, you licensed it for one campaign. The e-commerce site reuses it in a Google Display ad six months later.
- Base (commercial online, reuse): €800
- Attribution present, no surcharge on that ground.
- Surcharge for unauthorised use: €800 to €1,600
- Indicative total: €1,600 to €2,400
Example 3: blogger uses four photos from your reportage
Four photos from a series, embedded in a blog post about an event. No credit, no permission, editorial context.
- Base per photo: €175 × 4 = €700
- Missing attribution: €175 to €700
- Surcharge for unauthorised use: €700 to €1,400
- Indicative total: €1,575 to €2,800
When courts adjust down
The court isn't a calculator. Judges look at reasonableness and proportionality. Claims often get reduced by 10 to 30% in cases like:
- Very small sites (a local blog with 50 visitors a month).
- Unintentional infringement where the user cooperated immediately after the demand letter.
- Stale infringement where you only complained three years later.
- Infringement of a photo the photographer themselves distributed for free (for example as a press photo).
The reverse rarely happens: courts almost never raise the claim above what you asked. What you put in the letter is effectively the ceiling.
What to do before invoicing
- Calculate concretely against published tariffs. No round numbers, no "a reasonable fee".
- Put the calculation in the demand letter. The recipient can see you've done your homework and the claim is defensible.
- Lock down evidence before sending. Screenshot, Wayback Machine archive, EXIF data of the original.
And if you don't know which photos are being used where?
The hardest step in calculating damages is usually not the math but the discovery. If you are still at the earlier stage of deciding what to do after discovering unauthorised use, read someone used my photo without permission: what now? first. The average photographer knows about a fraction of where their portfolio is being used. Accidental discoveries via Google or tips from others don't scale.
A systematic scan of the web for your portfolio gives you a list of likely unauthorised uses with the information you need for the calculation: where is the photo, since when, with or without credit, in what context (editorial or commercial). Our tool ImageTrace does this per scan for €5 in the Standard tier, less at higher tiers. You get a ranked list of likely unauthorised uses, so you can focus on the cases where the context and numbers justify the effort.