Word of Warning About Photographing in Public Places

printergirl · April 19, 2010

Okay, I think I am in trouble! I guess my fault for not knowing copyright laws, but figured I better post so others don't find themselves in the same position of not knowing. I guess maybe some of you seasoned photogs already know this, but I sure didn't!

I received a letter today from an attorney demanding damages for photographs I took. Here is the backstory:

I went to an Art Festival in early 2009 with my kids. It was a nice way to spend the day, and I took my camera along to document the event. Well, during the course of the day we saw many great pieces of artwork and sculptures, as well as interesting people. I photographed a lot of things at the event and we talked to several of the artists, who didn't seem to mind me, and tons of other people, taking pictures of their work. The only ones who seemed to care where other photographers, who clearly posted signs about not taking pictures of their work. I can understand that, because I can see how a picture of a picture could be duplicated in an underhanded way. None of the people with three dimensional artwork, or even any of the painters there, seemed to have problems with people taking pictures. The artist in question even spoke with me and saw me take pictures of her work. She never said I couldn't or seemed upset about it in any way.

After the event, I uploaded them in the events section of my SmugMug website, so I could share the pics with family and friends. Event photography is not really my genre of work, as I am trying to break into portrait photography, which is why I am using SmugMug in the first place, but since I had the space and a section for events, it seemed okay to go ahead and post them. Personally, I didn't feel the photos were that great, but they were good enough to share with friends. Since that time, I have discovered Flickr and will be using that to share pics with friends instead of SM.

Under the photos I gave credit to the artist and a link to their website. They all had given me business cards. I figured at the least it would help draw business to their websites for purchase, if someone saw the pics. Free advertising in a way, not that my site is a big draw for eyes at this point, but what the heck right.

Well, one lady who does some very interesting sculptures, who we talked to at the event, she saw me take pictures and she gave me a business card, has hired a law firm and they sent me a letter today (certified) saying that I am infringing her copyright and I owe damages for any sales made on these pictures, as well as $1000 in legal fees! WTH! And, of course, that I needed to take them down (which I did in about 60 seconds flat).

Um, the pictures were not even "quality" work, or something I would consider selling, but they were uploaded into a gallery that had the SmugMug "buy" button turned on, which I think is set by default, along with my standard copyright blurb in the description section, which is also a default. They are accusing me of "selling" her work. Heck, I have never sold even ONE item off my SmugMug website in the year I have had it! Not of her work, or even my own!

I never in a million years thought that posting a photo taken in a public venue, and even giving the artist credit and a link back, would cause such a stir. I imagine if I had just posted then without credit to her, the name of the pieces, or her website link, no one would have ever found them and this would all be mute, as they would never even know they were out there online, but I was trying to help HER boost her sales and eyes on her work, as I thought it was some pretty interesting stuff.

I am beside myself, as they are saying I need to pay them $1000 (the law firm) and release all sales records regarding these photographs, and remit any money made off them. THERE ARE NO SALES RECORDS! I never sold any. I have spent the last two hours in a state of disbelief (a good portion of it crying) over this, as I don't know what to do.

I, of course, IMMEDIATELY took down all of the photographs I had done of this particular artists sculptures, along with any photos done of other artists work, so I don't run into problems with anyone else, as they requested.

Their second request is to release all negatives to them. Of course there are none. This was digital.

They want all digital references deleted. I took them off my website and deleted them from my hard drive, as requested.

They want sales records. Well, there have never been any sales off my SmugMug account, AT ALL, so how can I provide such records? Is there a way for me to get proof from SmugMug regarding this, since obviously all sales would be processed through them? I don't know what other way I can prove I never sold any.

They want all prints destroyed. I never made any prints so nothing to destroy.

And, lastly they want a certified check for $1000 made payable to the law firm! What the heck. I don't have $1000, and have yet to actually make a dime in photography, and had someone picked up a phone and called me saying I needed to take them down, I would have done so in about 60 seconds flat. The first communication I got was in the form of this certified letter. And my phone number is right there on my website. I had no idea that I was doing anything wrong.

Because of this, I doubt I will ever take my camera to an art show again, which is a shame because I love art shows. I doubt I will even go to one any time soon I am so upset about this.

Just wanted others to be aware, so they hopefully don't run into this same situation. I had no idea that posting pics taken in a public place would cause such an issue. Isn't there something about "editorial" copyright vs. "commercial" copyright that may play into this? I don't know much about copyright law, so correct me if I am wrong here. Is all this because they were in a gallery with the "buy" button turned on, which I didn't even realize, rather than say posted in a blog or something? Would they have been okay posted on Flickr or is it just a bad idea to take pictures at all at art shows?

Oh, and if anyone knows how I can get proof from SM that I haven't sold anything please let me know. I would think it would be easy enough, since they don't have to nail it down to just that picture, since I have never actually sold ANYTHING at all. Not sure if I will need it, but want to cover myself just in case.

takeflightphoto · April 19, 2010

Sorry this has happened to you, but you might want to get a lawyer. If all they've done is write you ONE letter, $1000 is outrageous.

You should write directly to SM and ask them to send a certified letter to the lawyer stating that there have been NO sales made of any pictures from your site, let alone of those pictures. I assume that they identified the pictures by file name or by SM url?

If they didn't, in their letter to you, specifically identify which were the offending images, they really don't have much of a case, I'd think. But your lawyer may guide you on that. I would think that a phone call from your attorney to them would quash the whole thing, especially if you have verification from SM that you've made no sales.

Best of luck.

jon

printergirl · April 19, 2010

Thanks Jon. Wow, I was hoping to avoid the attorney route, since I am pretty broke right now. But, yes, all they did was write me this one letter, which looks pretty much like a form letter to me. They did identify each picture by name of the sculpture, but not by specific URL or file name, but because I had captioned each pic with the artists sculpture name, I knew exactly which ones they were speaking about, which made it easy to delete them.

I thought $1000 for one letter was crazy too -- almost extortion. It couldn't have taken more than 15 minutes to draft it and mail it. This law firm appears to specialize in intellectual property rights, from what I can tell from their website. As I said, a simple one minute phone call from either the sculptor herself, or the lawyer, would have gotten them taken down right away. I had no idea I couldn't put them up in the first place!

I guess I will try to figure out how to get a hold of SM and ask for a letter from them stating that there have been no sales from my site. I can't send SM to a particular set of photos, as I was told to take them down immediately, but that should matter anyway, since, as I said, I have not made any sales at all.

I have written a letter back to them letting them know the situation and that I complied with taking them down right away. I also let them know that there are no sales records to speak of, because there have been no sales, but I guess if they need further proof I will have to try to get SM to send something, since any sales would obviously flow through them, as they are the payment collector. Proof should be easy enough for them, because if they pull my account up they can see I have NEVER made a sale at all through them. I think I bought some of my nature pics, as 4 x 6's through SM personally, but that would have been before this particular art show even took place, and would have been for me personally, not as an end user buying them through my website or anything.

This whole thing has zapped my joy for photography right now. I hope it doesn't turn me off altogether from it, because I was really beginning to love it a lot, but if this kind of thing is what I have to look forward to forget about it.

I have only recently learned about model releases because of a local model/photography group I have gotten involved with and have learned a lot from. All of the model work I have done has been for free, since getting involved in that group, but I do have model releases for all of them, so I am covered on my people pictures. The only other people work I have done is for family members. I am sure, as time goes on, I will learn more, but this law firm's letter is making it sound like I am some sort of "copyright" expert and should know all this because I have copyright watermarks on my photos and the no-right click on them with copyright verbage (which again, are SmugMug default settings on my account). SmugMug does those things for me automatically when I upload pictures. Doesn't make me an expert -- although I promise to read more and learn more now!

I am also checking each and every gallery on my website to see what has "buy" buttons turned on and what doesn't. I need to make sure there isn't a "buy" button turned on any gallery that could possibly be considered even remotely a problem. Quick question? If I take pics of a public area, or event in a public area, can I sell them? Not that I think any of them are "sellable" material really. But, for instance, I took a bunch of pics in St. Augustine, Florida (landmarks and such), while visiting there. Would it be a good idea to turn the "buy" button off on those galleries?

LiquidAir · April 19, 2010

What you got was a form letter which sounds to me more like a shakedown than the beginning of any real legal action. Do not send any money.

I am not a lawyer, but I believe your photographs fall into that legal grey area called "Fair Use" which you can read about here:

http://www.copyright.gov/fls/fl102.html

In particular, a photograph of a sculpture definitely reproduces only part of original. In addition it would be extremely difficult to convice a court that your images have any negative impact on the value of or market for her work.

Write a letter back saying you believe your images were "Fair Use" of her copyrighted work. In addition say that, while you believe you have done nothing wrong (that part is important--you do not want to imply guilt), you have chosen to take the images down off your website as a courtesy to the artist. My guess is that, if you send that letter, you will never hear of it again.

printergirl · April 19, 2010

Thank you for taking your time to respond. This stuff is really helping.

I kind of thought of "fair use" myself, being that it was taken in a public place, at a public event. She had no signs saying I couldn't take photos and she watched as me and others were taking them.

However, they keep referencing the fact that my "buy" button was turned on in that gallery and the fact that I have my "standard" blurb in the gallery, about contacting me for commercial use, etc., etc.. They stated I am trying to SELL photos of her work, which I was not. Like I said, I have that 'buy' button and verbiage turned on by default for each new gallery I post, but will be checking each new gallery I post from now on to make sure nothing like this can happen again. All of my events galleries have it turned OFF now.

So, they are making it sound like I was INTENTIONALLY trying to profit from her work. Frankly my photos of her work were pretty crappy, so I can't imagine ANYONE would have ever bought my pictures as any type of artwork or for any type of commercial use! It was just pictures of her sculptures sitting on a display table. Nothing great, nothing spectacular. They certainly didn't do the work any justice by any means. They also reference in their letter that I have copyright on my photos, so I should know about copyright, etc. Of course I have copyright turned on. I thought I SHOULD have it tuned on to protect someone from swiping my actual work (photography) and calling it their own.

Again, I DID credit the sculptor under the photo and provide a link to her website. I thought perhaps it would bring her more buyers. Had I NEVER even put a reference to the work, the artist, or her website, and just posted the pics with no caption, I imagine none of this would have ever happened. So much for trying to be nice and draw a few more potential buyers her way.

It really does feel like a "shakedown" to me. Why on earth would you demand $1000 for a little letter and damages! What damages? I never made money off her sculptures. That's crazy. They are making it sound like if I don't pay they will sue me for anywhere between $900 and $150,000 per image for infringement. There were four images! Are you kidding me! For what?

What's even more ironic, is one of her images would be perfect for my adult son, who is in grad school right now, getting his PhD in Psychology. He loved it. He had stated he would like that for his office when he gets out. I kept the artist info so when that happens I could contact her to see if it was still available. Well forget about that now! :cry

Enitsugua · April 19, 2010

Check out http://www.krages.com/phoright.htm

Then get a copy from your library of his book, Legal Handbook for Photographers, and read it. Especially chapters 4 and 5.

BeachBill · April 19, 2010

First of all, you did nothing wrong. Second they have no right in forcing you to delete any of YOUR images from your hard drive or camera.

The best advice is to do some research on your rights FIRST before doing anything.

Fair Use
http://www.google.com/#hl=en&source=hp&q=fair+use

Photographer's Rights
http://www.google.com/#hl=en&source=hp&q=the+photographer's+rights

printergirl · April 19, 2010

Thanks. Okay, so I think I am getting this, however, no one has addressed the issue that my "buy" button WAS turned on, and my standard blurb about contacting me for use of any of my photos was also on the gallery page. Wouldn't that then make it more "commercial" in nature, rather than editorial or falling under "fair use?"

If I am reading it correctly, I had every right to take pictures at the Art Festival, however their point is that I had the "buy" button turned on, as if I was trying to PROFIT off her work. I never took credit for her sculptures, I even gave HER credit underneath the photo. I certainly wasn't looking to make money off the photos either. No one has ever bought a Smug Mug photo from me, EVER. I did have my copyright notice in the blurb as well. But, that is because I didn't want anyone else stealing my photos and claiming them as their own. Standard practice. I don't think I was in any way insinuating that I owned her work.

One of the links states, "If you're selling for profit, it's not fair use."

I certainly have not sold any pics of her work for profit, and I never intended to, but can't they come back on me and say that is what I was trying to do? Geez it was just a set of four pics taken in the scope of the whole freakin' Art Fair. There were many others as well, depicting the entire day, however I have now deleted most, except for those taken in the public areas. Anything that was of an artists work I took down. I don't need this kind of stress.

printergirl · April 19, 2010

Because I really don't have money for a lawyer at this point (I think if this goes further I will have to consider it though), and they are giving me only a few days to respond to their requests, I have drafted the following letter. Should I put something about fair use in it, or leave that for the next go round, if this goes any further? Any changes I should make?

I received notification regarding some photographs I took while visiting the 2009 XXXXX Art Festival with my children. I had taken some photos of the event and posted them on my website, under the events section, to show family and friends our day at the event. I had no idea I was doing anything wrong in doing this.

While visiting the show, we spoke with (sculptor's name), and she even gave us a business card, because we found her work so interesting. She watched as I, and many others, took pictures of her work. I had no idea posting them online was an issue, especially since I linked to her website underneath each photo, encouraging people to visit her site, and hopefully purchase one of her unique sculptures. I received your letter and immediately took the photos down, along with any other shots I took of other artists works that were also in that section, since
apparently this not allowed. I have only left event shots of public areas of the park itself.

The images have all been removed and there are no negatives, as these were digital files. No prints were ever made of any photos, not for me personally, or for anyone else, taken at the XXXXX Art Festival, at all.

I am just writing to let you know I have complied with pulling everything by her off my website, within 10 minutes of getting your letter requesting that I do so. Had someone called and told me I wasn’t allowed to post pictures taken at the event, I would have taken them down immediately. I had no idea that taking pictures in a public place I was visiting with my children, for a cheap way to have a day of fun
family time together, would cause such a problem. I would have thought that any pictures taken in a public place and event such as this would fall under "fair use" and would never be considered a copyright infringement. There was nothing posted saying we couldn't take pictures.

I put up a photography website for myself, as I am a mom, trying to break into portrait photography, because I like taking pictures of my kids. I have used the site to post pictures I have taken of friends and family, as well as places I visit, and events I attend, to share with others. I am hoping to one day turn it into a career, however I am far from a “professional” photographer, at this point. I have yet to make one single dime on any of my photographs, not even the portraits I have taken of people, which have all been done for fun up to this point for family and friends. I have never sold ANY photography from my website at all, so there are no “proceeds” to speak of with regards to XXXXX’s work, or even any of my own portrait photography thus far, for that matter.

printergirl · April 19, 2010

I am going to read up and fair use law, and my rights as a photographer, because of this. However, I could care less about her little sculpture pictures and don't care if I have to delete them or whatever. I just don't want to get sued for something I didn't do, or be blackmailed into paying $1000 extortion fee, if you know what I mean?

My husband says just send a letter letting them know I complied by pulling the photos off the website (above) and put the ball back in their court. I guess if they respond to that for the $1000 payment, I should consider a lawyer at that point.

This really, really stinks. My joy of photography is gone right now because of this. :cry

LiquidAir · April 19, 2010

printergirl wrote:

I am going to read up and fair use law, and my rights as a photographer, because of this. However, I could care less about her little sculpture pictures and don't care if I have to delete them or whatever. I just don't want to get sued for something I didn't do, or be blackmailed into paying $1000 extortion fee, if you know what I mean?

My husband says just send a letter letting them know I complied by pulling the photos off the website (above) and put the ball back in their court. I guess if they respond to that for the $1000 payment, I should consider a lawyer at that point.

This really, really stinks. My joy of photography is gone right now because of this. :cry

If you send her a letter, make sure you state that you believe you did nothing wrong and are only taking them down as a courtesy. Acting guilty gives them ammunition if they decide to persue this further. Standing up for your rights will protect you in the unlikely circumstance that they insist on taking you to small claims court.

Enitsugua · April 19, 2010

BeachBill wrote:

First of all, you did nothing wrong.

Actually, she probably did. Taking photos of sculptures or paintings that are for sale and then having those photos for sale (apparently by accident) on a Web site is certainly not fair use. Again, I would suggest getting Legal Handbook for Photographers by Bert Krages and reading it. Especially chapters 4 and 5.

Disco Stu · April 19, 2010

Since they took the time to send you a certified letter, I would suggest replying by certified letter. Stress that you believed your pictures on SM fell under the 'fair use' exception because you had no intention to sell the pictures, as the 'Buy' button was inadvertently displayed. Since you have corrected this matter by removing the pictures, and since there are no actual damages to the artist because you have had no sales of any images hosted on SM, you believe that this matter is completed.

Of course, they have every right to ask you to pay for her legals fees, just as you have every right to ask them to go suck on a lemon. But it's up to the intellectual property owner to protect their work, through paying her lawyer to draft such letters. It's not your responsibility or duty. Since there aren't any actual damages, they aren't going to spend any $ to take this to court, so there will never be an actual judgment, possibly requiring you to pay her legal fees.

du8die · April 19, 2010

Also, it may not have been a "public" event. For example, if you paid to get into the exhibit, it is likely a private event. Or - just because something is happening out "in public" doesn't necessarily mean it's a public event. Again, refer to the Photographer's Rights booklet - very helpful.

mdmelhus · April 20, 2010

First, I would doubt that this action is being brought by a law firm. To dispose of this quickly, I would call the law firm and confirm that this is indeed a valid letter.

This whole thing smells funny. Lawyers don’t just send people a bill for their client’s work. If there was a case against you they would have filed suit. Second, in order for there to be a copyright case the artist would have to have her work copyrighted (I also doubt this is the case). Third, the artist would have a heck of a time proving any damages were done by you having this posted on your website.

Bottom line is you would not owe a law firm for work they did on behalf of their client. They would have to bring suit, prove damages, and then argue that the court should assess attorney fees against you. This is rarely done.

Just think if this was the world we lived in… We would have lawyers going around demanding money from everyone they alleged had done a wrong without ever proving it in court… If this was the case why even have a court system?!?!

printergirl · April 20, 2010

du8die wrote:

Also, it may not have been a "public" event. For example, if you paid to get into the exhibit, it is likely a private event. Or - just because something is happening out "in public" doesn't necessarily mean it's a public event. Again, refer to the Photographer's Rights booklet - very helpful.

Definitely a public event. It happens every year in a local park here. Free and open to the public. No admission charge. It was an arts and crafts festival, not an exhibit.

printergirl · April 20, 2010

Enitsugua wrote:

Actually, she probably did. Taking photos of sculptures or paintings that are for sale and then having those photos for sale (apparently by accident) on a Web site is certainly not fair use. Again, I would suggest getting Legal Handbook for Photographers by Bert Krages and reading it. Especially chapters 4 and 5.

Just purchased it on Amazon as a kindle download to my computer. Just got done reading chapters 4 and 5. Not feeling any better after doing so.

Good info to have, but makes me feel like I was doing something I didn't even know was wrong.

ian408 · April 20, 2010

If you're not able to afford an attorney, consider speaking with the legal aid society or similar in your town. You should seek legal advice before responding to their request.

printergirl · April 20, 2010

mdmelhus wrote:

First, I would doubt that this action is being brought by a law firm. To dispose of this quickly, I would call the law firm and confirm that this is indeed a valid letter.

This whole thing smells funny. Lawyers don’t just send people a bill for their client’s work. If there was a case against you they would have filed suit. Second, in order for there to be a copyright case the artist would have to have her work copyrighted (I also doubt this is the case). Third, the artist would have a heck of a time proving any damages were done by you having this posted on your website.

Bottom line is you would not owe a law firm for work they did on behalf of their client. They would have to bring suit, prove damages, and then argue that the court should assess attorney fees against you. This is rarely done.

Just think if this was the world we lived in… We would have lawyers going around demanding money from everyone they alleged had done a wrong without ever proving it in court… If this was the case why even have a court system?!?!

Definitely a real local law firm. They appear to specialize in business law and intellectual copyright law. It's not an actual law suit, but they appear to be threatening one if I don't take down the pics (already done), destroy all negs (there are nine), destroy digital files, and send them a check for $1000 for their fees.

They do reference specific copyright numbers in the letter as well.

I can't imagine that there are any damages. I never made money off pics of her work. At the very least the most I could have done was DRIVE BUSINESS TO HER SITE with the link I had to it! I can't for the life of me imagine why someone would take this to court. I have no assets to speak of, i have never made any money off my photography...maybe one day, but nothing so far.

Why waste the time, unless they want publicity or something?

printergirl · April 20, 2010

ian408 wrote:

If you're not able to afford an attorney, consider speaking with the legal aid society or similar in your town. You should seek legal advice before responding to their request.

Not a bad idea. I just got the letter today (19th) and they want response and money by the 21st! WTH! Doesn't really leave a whole lot of time to consult any attorney now does it!

System · April 20, 2010

Nora...
First of all take a deep breath. Admit nothing, DO NOT send that letter to the law firm. I believe they are fishing for a sucker. Talk with the legal aid people and keep in mind that some lawyers will give you one free meeting or phone call. Either way you go, you do need legal guidance in this matter.

ChatKat · April 20, 2010

Not for sale
The issue is that they were for sale but even with smugmug you have some leverage.

As a pro you can have a gallery set for sale and you have the ability to approve the sale. An order doesn't consititute a sale.

If you don't have a property release for private property - her creation - even on public property, you may not have the right to sell it. That's where the problem lies.

I am guessing you don't have Professional insurance, nor do you belong to PPA.. Even if you haven''t made a dime from selling photography - you need to protect your clients, yourself and your product with the things that make you a real business. If you intend to be professional - then you need to act like a pro and do the right things toward being a real business. That includes insurance.

ian408 · April 20, 2010

printergirl wrote:

Not a bad idea. I just got the letter today (19th) and they want response and money by the 21st! WTH! Doesn't really leave a whole lot of time to consult any attorney now does it!

It sure doesn't leave much time.

But please remember, an attorney or law firm has made a demand of you and have threatened a lawsuit. It is important that you seek legal advice as soon as possible.

mdmelhus · April 20, 2010

ian408 wrote:

It sure doesn't leave much time.

But please remember, an attorney or law firm has made a demand of you and have threatened a lawsuit. It is important that you seek legal advice as soon as possible.

They would have a really really hard time proving damages. This was a sculpture correct? Your picture was a completely different form of expression, and I can’t see how it would have had an impact on her ability to sell that sculpture. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" /><o:p></o:p>
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First, I would still call and make sure they sent the letter. If they did I would try and seek legal aid. If you can’t afford it then I would send the letter and be very short and to the point. Don’t admit anything or put a lot of extra explanations in the letter. Give an answer to each of their requests, basically stating that you complied and no sales were made. I wouldn’t even address the 1,000 dollars. This is something a court would have to demand that you pay… and I don’t see that happening or do I see them taking this to court. <o:p></o:p>

Art Scott · April 20, 2010

printergirl wrote:

Not a bad idea. I just got the letter today (19th) and they want response and money by the 21st! WTH! Doesn't really leave a whole lot of time to consult any attorney now does it!

That is why they do it that way....scare you to death...collect a check (artist probably did not sell anything at the festival and needed some money ) and go to bank laughing.........it very well could be that the artist does this all the time to supplement the income that is not made at these festivals or the artist may be friends or family of the lawfirm......and yes consult at least the legal aid dept in your community..........is there a law school nearby you......the profs a lot of times will do pro bono work for class material or make their class do the work for grades while supervbising the whole thing...........

If your SM is a PRO SM then go into your pricing section and do a portfolio pricing of all ZERO DOLLARS.....then as you make more galleries you start off with everything as portfolio priced and items you want to sell put in a separate gallery and individually price them......that way this will not happen........I have been lucky as hell I guess....as I pop of shots of great peices and usually shoot the artists signs in front of displays which normally have their name and at least city where they are from.......Have been asked what I am going to do with and I always answer when I get enuff money to buy from you I will contact you, but I need to remeber what I liked and who created it and my other canned answer is I have friends that could not come and I want to show them what they missed.........................................................................

We are getting ready for our biggest festival of the year here - Wichita River Festival ............so I will be a little leery of what artsy stuff I shoot from now on.........................................................................................................................

RogersDA · April 20, 2010

You really, really, really need to think about the content of that letter and perhaps get an attorney to redraft it.

It's not a bad letter, but you are leaving out what could be some important details, including information that should not be there, and basically admitted to them that you infringed her copyright.

She has retained counsel for herself. You would be wise to do the same.

printergirl · April 20, 2010

Definitely be careful of what you shoot and post, Art. What really stings is I gave credit to the artist and a link to her website under each picture! Had I not given any credit to her at all and simply posted all the pics I took of the event, no one would be any the wiser, as my website isn't exactly a hotbed of activity with tons of visitors or anything! I thought it was a pretty cool thing to do, since she gave me a business card and I had all that info available. Figured if someone saw them and wanted to buy on of her sculptures they could link right over to her. Had I not done that, all this would be mute.

WillCAD · April 20, 2010

This is a sucky situation.

Nora, as others have said, you should find an attorney of your own. I know you said you can't afford one, but if you don't talk to one you may wind up having to pay ou a lot of money to these extortionists anyway, so what's the dif?

And to protect yourself against inadvertant self incrimination, do not reply, do not have any communication, do not contact either the artist or the law firm in any way - no email, no letter, no phone, no visit, nothing, until you have consulted an attorney of your own. Any contact you have can expose you to further damage.

And I hope you have some backups of those pics. Removing them from your Smugmug account may not have been a bad move, but if this does become some sort of legal battle, you must have those pics to submit in evidence. Deleting them could be portrayed as an admission of guilt, or as an attempt to destroy evidence, by the ambulance chasers who are representing the artist. Or as I like to think of her, the extortionist.

I'm not a legal expert, but I don't believe that you have violated any copyright laws by taking personal pics. Selling pics of a person or a copyrighted work without written permission is a no-no, but taking pics in public and keeping them for personal use is perfectly legal, as far as I know, so long as you don't use those pics for any commercial purpose or publication.

I know this is a tough situation, but you must consult with a lawyer of your own before taking any action. I believ that their letter to you is an attempt to extort money from you, no a true legal
action, which makes you the victim here. But you need your own lawyer to protect your rights and to advise you on your best course of action.

printergirl · April 20, 2010

Thank Will. I have sent an email to a lawyer that advised my mom on a real estate matter several years ago. I met him then, as I went with her to the appointment, and he seemed to know his stuff and was pretty reasonable. I think at the time he charged my mom $100 for an hour consultation. I see on his website that he also handles business law, so I used the link to send an email asking about rates and availability. Hopefully he gets back to me soon so I can meet with him.

I am stunned that they drafted the letter on the 14th, giving me one week to reply (the 21st) and I got it on the 19th by certified mail.

Here is a portion of the letter:

We further demand that you, at your cost:

1. immediately remove from the website all images of the Copyrighted Sculptures; (DONE)
2. turn over all negatives to all photographs of the Copyrighted Sculptures; (UM, THERE ARE NONE!)
3. turn over all existing copies of the photographs of the Copyrighted Sculptures, in any size (AGAIN, THERE ARE NONE! I NEVER PRINTED ANY PHOTOS FROM THE ART SHOW)
4. destroy all digital files containing images of the Copyrighted Sculptures;
5. turn over all documentation relating to any attempt to register copyrights to photographs of the Copyrighted Sculptures; (HUH, I HAVE NEVER FORMALLY REGISTERED A COPYRIGHT IN MY LIFE!)
6. furnish a detailed record of all sales of licenses for commercial use of the photographs of the Copyrighted Sculptures, including the name of the purchasers, the date of the sale, and the specific commercial use(s) licensed; (AGAIN, I HAVE NEVER SOLD OR LICENSED A PHOTOGRAPH IN MY LIFE!)
7. furnish a complete account of (1) all sales to date of copies of photographs of the Copyrighted Sculptures and (2) all sales of licenses for commercial use of the photographs of the Copyrighted Sculptures; (UM, AGAIN THERE HAVE NEVER BEEN ANY. I DID PRINT OUT A COPY OF MY SMUGMUG CONTROL PANEL UNDER THE 'PROS' SECTION WHICH SHOWS MY SALES TO DATE OFF MY SITE HAVE BEEN $0.00)
8. disgorge all proceeds from (1) all sales to date of copies of photographs of the Copyrighted Sculptures and (2) all sales of licenses for commercial use of the photographs of the Copyrighted Sculptures, in a certified check payable to (artists name); (AGAIN, I HAVE NEVER SOLD ANY OF MY PHOTOGRAPHY IN MY LIFE!!!!)
9. remit a sum of $1000.00 in a certified check payable to XXXX Law Group, as satisfaction in full of attorney's fees and costs incurred enforcing (artist name) exclusive rights to the Copyrighted Sculptures against the infringing us of (my name);
10. execute a release confirming compliance with the foregoing demands and assuring cessation of all infringing activities.

they go on the state all this must be received by Friday, April 22nd. My bad, I thought it was the 21st. But still....

Unfortunately, I did already take them off SmugMug, as that was my first and gut reaction. I was upset after that, because I thought what do I do if I need to show them to someone. Then, last night I remembered that I still had those pics posted on my personal Facebook account. Was going to delete there too, but thought better of it, in case I needed them for some reason. It's not like they are selling from there. They are in a group of pics I took highlighting our day at the festival and everything we saw. I even commented on different things and said how much I liked her work, to which a friend commented back that she was at the show and liked it too.

wadesworld · April 20, 2010

As others have said, talk to a lawyer.

Though we like to think that they aren't, lawyers are people too. If you explain your situation to one, they might be willing to work out some sort of an arrangement, such as they'll write the initial letter for free, if you agree to use them (at normal rates) should it proceed into any kind of litigation.

My bet is, a response letter by your attorney will be met with nothing but silence.

Also, as others have said, your photos are your photos. Unless there was some illegality involved (taking pictures in a locker room for example) nobody can force you to delete your photos.

Additionally, even if an event isn't public, you're still free to take pictures unless there are signs or rules posted prohibiting it. The big difference is, at a private event, if someone asks you to stop, you have to stop (or they could be buttheads and kick you out). Now with that said, just because you're free to take pictures doesn't mean you're free to take pictures of copyrighted work without permission.

But as was said, this artist's tactic is to try to scare you into sending her some cash. Get some solid legal advice and I'll bet she'll go away.

wadesworld · April 20, 2010

Selling pics of a person or a copyrighted work without written permission is a no-no, but taking pics in public and keeping them for personal use is perfectly legal, as far as I know, so long as you don't use those pics for any commercial purpose or publication.

Will,

I'd disagree here, especially on the person part.

Selling pictures of a person is perfectly acceptable. Selling pictures of a person for a commercial purpose (i.e. used to promote a product or service) without a release is a no-no. I can go to the park and take a picture of someone and sell a billion copies of it. But if Ford buys a copy and uses it in one of their ads, then there's a problem.

As for copyrighted artwork, I'd definitely engage a lawyer on that. I suspect the OP did violate her copyright, but a little pushback may result in an amicable solution (such as take the pictures down and everyone drops it).

Word of Warning About Photographing in Public Places

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