Grrrr...unlicensed use of my photos by former client - professional advice please
Nicci
Registered Users Posts: 436 Major grins
I did some freelance work for one of the local newspapers. They hired me to do a number of night life photo galleries for their website.
We had nothing in writing pertaining to the photos, but the agreement was that I was to be paid a set fee per gallery for that specific site.
Now they started a new, separate nightlife site and are using my galleries and my name on that site as well as the original site. The new site is HORRIBLE. I would have never agreed for my photos and name to appear on the second site. Additionally, they are using some of my photos to make fun of people (with my name on the photo caption :cry).
AND, I found out they are using a couple of my photos in a print ad campaign for the new website.
All of this was done without my permission and without additional compensation.
Short of paying a lot of money for an attorney, is there anything I can do?
We had nothing in writing pertaining to the photos, but the agreement was that I was to be paid a set fee per gallery for that specific site.
Now they started a new, separate nightlife site and are using my galleries and my name on that site as well as the original site. The new site is HORRIBLE. I would have never agreed for my photos and name to appear on the second site. Additionally, they are using some of my photos to make fun of people (with my name on the photo caption :cry).
AND, I found out they are using a couple of my photos in a print ad campaign for the new website.
All of this was done without my permission and without additional compensation.
Short of paying a lot of money for an attorney, is there anything I can do?
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Comments
To be honest, that's probably the best you can do. The paper's defense is:
1) We are protected by the 1st Amendment (which they are: and
2) We have paid you for those images ... therefore the images belong to the paper (which they have and which they do).
You are basically, what we call in the news industry as SOL, unless, you have a ton of disposable cash or you have a family member/best friend who is a Constitutional Lawyer. You may have a slight case against them for using images which are an inaccurate reflection of the facts/truth ... (but it is hard to make that case for an unaltered/manipulated photography). As to your name ... it was you who took the photos (truth defense) ... if you thought the image would reflect badly against you ... then should not have released the shutter (back to it was you who took the photos).
You may have a case in the advertising arena as that is outside of the 1st Amendment. But again the paper paid you for the images and you have nothing in writing pertaining to any restrictive usage of said images. If you can show actual harm to you, per the images being used in advertisi, then you have an outside chance at winning (those chances can be characterized as No, Slim and Fat).
In either case, only courts can force the paper to do anything ... so you're back to attorney fees.
What's left is for you to talk, mano-y-mano, to the owner/managing editor, hat-in-hand and humbly request that they remove your name from the images ... and hope that groveling works. You can also write a letter to the editor describing your plight and apologizing to all who may have been hurt by the misuse of your images and disavowing any knowledge of their ultimate usage. (The paper will probably print it because if they're small and the paper doesn't get many op-ed letters to the editor and your letter may spur more interest in the photos ... giving the story 'legs'.) You can also defend yourself vis-a-vis the internet on blogs and such and/or take out an ad in the paper or its rival and tell your story.
Disclaimer:
While I am not an attorney, rendering the above info marginal at best ... I used to be a news photog and I am well aware of press rights.
Sorry Man,
Gary
PS- Hopefully there are some lawyers on this site who can rip my limited knowledge of law and give you hope and direction.
G
Unsharp at any Speed
Also, the new site is not a news site. It is strictly a club photo website with no news being reported.
The new site is very tacky and cheesy. I have been approached by sites like that before, and refused to work with them. I do not think that simply because I worked with the online version of their newspaper, that entitles them to use my photos and name to endorse any future domain name they choose, does it?
If they have nothing in writing from me allowing them to use those photos that way, then how can they get away with it? You say they paid me for the photos, but I did not sell them full rights to the photos. I also did not give them permission to use my name to endorse this new web site.
I do not want to give them any traffic here, so the following names are fake. But for instance, I agreed to work with "The Miami Tribune". Then the company that owns the Miami Tribune decides to start a new site called "Club Cooties". Are you really telling me that they are legally allowed to use my name and photos on "Club Cooties" - a site I knew nothing about and never agreed to work with?
That doesn't make any sense to me.
There is no meeting of the minds or evidence to support ether version, hence no contract to enforce.
I think this is a learning experience.
Sam
Isn't the photographer always the owner of the photos unless they sign over the rights? (Which in this case, I did not.)
So if I say that the photos are not licensed for their use on the new site, wouldn't it be up to them to prove differently?
There's your first mistake and it's a doozy!!!
Can you do anything? Maybe, maybe not! Is it worth the fight?
If you want to pursue the matter, first make certain the images in question are registered immediately if not already.
Secondly, send a registered letter to the editor stating your objections and commitment to the belief they have violated your joint agreement. Rather than request compensation ask for the images to be removed as their use in the relevant media is contrary to your professional and artistic outlook.
That might possibly open a door to discussion and negotiation.
or not...
good luck
.
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
In my opinion (and it is just that an opinion I am not a lawyer nor do I play one on the Internet) you have two problems that make this lean more toward the newspaper's favor. Since they paid you to take the pictures that it could be considered a work for hire. That one is a hazy line as you also agreed to the idea of a limitation on usage. The fact that you do not have anything in writing is more problematic. It becomes a question of your word against theirs, and I would believe that the newspaper would simply say, "We have done this before we understand usage and copyright laws - we would not violate an agreement" So then what is the agreement? Unfortunately it would seem more likely that the judge would side with the newspaper as they have "history" with copyright.
Now that is not saying that you can't win just saying that it is a difficult case in my opinion. I would recommend just asking for them to remove the images politely and remind them of the verbal agreement. Something that simple might work.
Like I said, I am not an attorney - but sometimes just calling and talking with someone can solve these problems easily.
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You sold the paper the images without a contract ... Dude ... you also sold them all/any rights to those images.
You haven't any contract. So essentially it is your word against their word ... and they will probably say there is a blanket de facto understanding that all images the paper buys, the paper has a de facto copyright unless explicitly detailed in writing. Read the terms on this site ... the newspaper will not only claim that it has a copyright but probably has to have one in order to publish any image.
So it's your word against their word ... your word against the 1st Amendment and your word against legal precedence. With my years of experience as a photo journalist I'd bet dollars to doughnuts that you do not have any case against them if the photos are used editorially. A small chance if they are used commercially. You will need a Constitutional Lawyer to be able to to draw the legal line between editorial and commercial and explain to the judge how you have been harmed by the commercial usage.
I'd go see the managing editor with my hat in my hand. (Laws are written to protect individual rights ... but some institutions are given powers greater than individual's rights because society as a whole is more important than any one's individual rights. The 1st Amendment has granted those powers to the paper. The paper has more power than your individual rights ... besides you sold your rights and the paper has the cancelled check to prove it.
Gary
Unsharp at any Speed
I know now that they realized that they didn't own the rights to my photos and were trying to get me to sign the contract prior to the launch of the new site. The fact that they used the photos after I refused to agree to the contract may even demonstrate that they are committing willful copyright infringement. They attempted to get me sign away my rights, I refused, and they used the work in a way that was not agreed upon anyway.
I found some of the responses in this thread to be beyond belief, so I did some digging online and I found this about copyright:
(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.
http://www.copyright.gov/title17/92chap2.html#204
Therefore, it is not acceptable for a publisher to simply send you a check and then claim that certain rights have been "transferred" by your acceptance of that payment.
If you have not signed over the copyright to your work, you haven’t given up your copyright.
I found an article written about a freelance photographer in a similar situation, with the following statement:
"The Copyright Act provides that no transfer is valid (other than one that occurs by law) unless it is in writing and signed by the owner of the rights conveyed. The contract you were offered is a form of conveyance. The newspaper needed you to sign it to acquire all rights to any images you uploaded to the site. Otherwise, it could not legally acquire those rights under the Copyright Act. Once it owned the rights to the photographs, it could do anything it wanted with them without your permission, including sell them as prints or use them for marketing."
http://www.pdnonline.com/pdn/content_display/resources/is-it-legal/e3ibc30ab7d8da37db8e674625c1b47347c
While doing the research, I also found out that they made another HUGE mistake. They have no legal rights to use the photos I took for marketing purposes to endorse their brand because there were no model releases obtained for the subjects. (Not a violation of my rights, but of the subject's rights.) Obviously this company does not care about following the rules or the law.
So what can I do?
I already asked nicely, so the next step is to send a certified letter asking them to remove my photos and name from the new site.
If that does not work, I should register the copyrights (best to do this as soon as possible or within three months of first publication). Thankfully most of the photos are within the first three months of first publication. "Most copyright owners will choose statutory over actual damages because there is less to prove in order to obtain payment. Statutory damages are set by law at a minimum of $750 and a maximum of $30,000 per infringement, “as the court considers just.” If, for example, the court finds that a defendant infringed on ten photographs with registered copyrights, he may be facing a $300,000 judgment. If then you can prove the infringement was committed willfully, the court has the discretion to increase the damages up to $150,000 per work. Further, the court may determine that the losing party must pay the winner’s costs and attorneys’ fees, under Section 505."
asmp.org
Unfortunately, you can only sue for infringement in federal court which can get expensive. However, I read that many issues like this are resolved before it ever goes to court once you show you know your rights and assert them. What publication wants to take the chance that they might have to pay large sums as those stated above when they have nothing in writing to prove they have not willingly infringed upon someone's copyright? It would stand to reason that a publication such as this should be aware of the law, and they could likely be in big trouble if it went to court. (Hmmmm...maybe I should try to find an attorney willing to work on contingency?)
I can also take them to small claims court which will eliminate the need for expensive court and attorney's fees. If they will not take down the photos, they are at the very least obligated to pay me for the reuse of the photos. (Even in the crappy contract they offered me, they state they will pay for reuse.) I believe I can prove that they agreed to pay me for reuse of photos because they did so in the past. They used my photos on a website for a different region (with my permission), and paid me a reuse fee for doing so. I also have an email from the editor stating that I get X amount "per slideshow". They have slideshows on both of the sites, and I have not been compensated for the additional slideshows on the new site.
Additionally, "Under the Digital Millennium Copyright Act (DMCA), you can force the Internet Service Provider (ISP) hosting that site to remove or disable the site, so that it cannot be viewed. To do this, you need to send notice to the ISP, and in this notice you need to give the provider your name, address and electronic signature, the infringing materials and their Internet location or the link to the infringing materials. If you’re complaining to a search engine, give enough specific information to clearly identify the copyrighted images, a statement asserting a “good faith belief” that the offender has no legal right to use the material, and a statement that you are the copyright owner or are authorized to act on the copyright owner’s behalf. You must be 100 percent forthright and accurate on all these counts, because this is a serious charge you’re leveling, and if you fudge even a bit of it, you can open yourself up to perjury charges or monetary damages. Once the provider gets your notice, it has to quickly remove or disable the site or link. This being a just and equitable system, the ISP informs the alleged infringer that actions have been taken, giving the alleged infringer the chance to make a case that the site or material has been wrongly removed. If the ISP receives a proper counter-notice from the alleged infringer claiming that no infringement is taking place, the ISP tells you immediately. And that’s where it gets sticky, because if it gets to this point, your next step is a mandatory filing in district court of a copyright infringement lawsuit within 14 days. If you don’t file the suit, the images and the site can go right back up online."
asmp.org
Now I simply have to decide if it is worth the time and effort, but at least I know my rights.
I hope that if I (or an attorney) write a strong letter making it clear that I know my rights and will not be taken advantage of, that they will comply. It seems that they have a lot more to lose then I do at this point.
Apologies for the length, but I am sharing what I found in order to help others know their rights since it seems that those that responded believe that we have no rights without a contract. Without a contract, the use infringes on the rights of the copyright holder (the photographer). And we have a right to maintain our rights.
Actually, mano-y-mano is Spanish for "hand and hand", not "man to man." Many people make that mistake. "Mana-a-mano" is also used commonly used in this context, incorrectly; it's a slight mispronunciation of "mano en mano", which means "hand to hand."
"Man to man" would be more like "de hombre a hombre," but my Spanish isn't terribly strong, so maybe someone else will come along and correct that if it's wrong.
Well, if all of that is true, then it sounds like you have a case.
However, having a case merely means that you are, or believe yourself to be, in the right. But, as a wise man once said, "Being right is not a bullet-proof vest!"
If you want the photos taken down, or to have your name taken off of them, or to be paid additional compensation for the additional (unauthorized) usage, and the paper has already refused, then you are at a stalemate unless you wish to escalate the situation.
Your options for escalation have already been listed. You can get an attorney to send a cease and desist letter. If that is ignored, then you can file a suit. Or, you can skip the letter and go straight to the suit. Either way, you're going to be paying a lawyer.
If you actually file suit, you may have a case, and if you win the case, you may be able to get compensation for your attorney fees as part of the settlement. Or you might lose. It's a risk. It's your choice whether to take the risk or not.
www.fastcatstudio.com
www.fastcatstudio.net - blog
Now you may be thinking of "fair use" for a newspaper. "Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as for commentary, criticism, news reporting, research, teaching or scholarship." But remember that even though the publisher also distributes a local paper, my work was not for the newspaper and was not used editorially. My original photo galleries were a separate section of their website. The infringing galleries are on a new, non-news related website. Again, I do not want to give my infringers any traffic, so I will not link to them. But this is an example of what the new, infringing site looks like: http://overnightmiami.com/dev/gallery.php Clearly not a news site and does not fall under fair use.
Tecnicole, if you think you have a case on the copyright end ... then go for it ... the first thing I'd ask an attorney is "Do copyright laws apply to Editorial Content?" Copyright law certainly applies to "Commercial Usage".
As stated earlier you may have a case on the commercial usage end ... but no case on the editorial usage end.
Once again the bottom line is $$$. Is it worth the fight ... will it be worth the time and energy and money for an event which has been forgotten by most people.
Small claims is the cheapest way to go ... if the paper puts up any kind of fight ... it will probably use the 1st Amendment as a defense.
Gary
Unsharp at any Speed
www.fastcatstudio.com
www.fastcatstudio.net - blog
Then wait for them to pay up.
Alternatively you ask humbly for a fee to compensate you for their stretching your original agreement.
Probably I would just write it off as "experience".
Kudos on well executed research into the matter. Please keep in mind the difference between "transfer of rights" and "usage". Assuming there was never an argument about ownership, the offending party could, and possibly successfully, argue that you provided the images for their legal use on the new website. Absent a written licensing agreement the variances in the dispute could, or could not be seen as mutually exclusive based on perspective. The unfortunate aspect of this situation is you are left to prove intent in your original transaction.
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
I know this is completely off topic to the rest of the thread, but I had to jump in...
Yes, mano-a-mano does mean "hand to hand", but it also is relevant, even if often misunderstood/misused. It came from bullfighting, but has now grown to include any kind of competition between two people where they are both trying to outdo each other. It's comparable to English phrases such as head-to-head or one-on-one.
In the future, please label sites with scantily clad women as NSFW... Following that link gave me a scare.
I'm generally happy, tall, and fuzzy on the inside.www.NickensPhotography.com
A simple clik on any photo and you can have that photo emailed to you.....I presume for free......so they have your photos and GIVE them away?? That is scary.............
The second site that they have allows people to right click and save as well. They don't email it to you. I was simply showing that site as similar in design and content.
There are so many cheesy club photo sites that will email the photo for free. The catch is that they turn around and sell their email list to the clubs so they can spam people with promotions.
Also, most of the people working for the cheesy sites do so for free just so they can party for free and take pictures of girls. bleh
His shots were used by the Top Gear (yes, THE top gear, racing show), and not only did he get no credit, they edited his watermarks out..
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http://www.photoattorney.com/2007/07/watermarks-can-be-music-to-your-ears.html
http://www.copyright.gov/title17/92chap12.html
And I don't have the article on hand, but I read a few cases where the photographers represented themselves in infringement cases and won. However, I think it is always best to get an attorney when possible.
I accidentally picked up the editor's call when he called from a different number that was similar to my attorney's phone number.
He persistently tried to convince me to work something out so they could keep the photos on the site with little to no compensation, but I wouldn't budge. Everything was taken down within minutes of us hanging up after a loooong conversation. (Obviously they knew they were in the wrong because the site is virtually without content now and looks terrible. If they thought they had a leg to stand on, they likely wouldn't have removed them so fast.)
Anyway, a local attorney told me that even though they took them down, I have a strong case and the ability to collect statutory damages. PLUS he said that it would likely be shown as willful infringement which holds even bigger financial penalties.
This is what I was told by the attorney: even without something in writing, I retain all my rights. If I am the copyright owner and I claim infringement, the burden falls on the infringer to prove that they had the rights to use the photos. If they don't have something in writing from me, then they have no proof. (Even if I accepted money from them for the first use.)
I am going to sleep on it. Truth is, unless I can find an attorney willing to take the case on contingency, I don't know if I will pursue it. I can't afford attorney's fees, and I don't know if I have the time or energy to go it alone. [Although the minimum statutory damages would be $283,000. $750 per infringement X 378 photos = $283,000. And that is the MINIMUM (max is $300,000 a photo) AND willful infringement = additional damages up to $150,000 a photo!]
I am not a litigious person, and I didn't go into this caring about the money. I just wanted my photos and name off that horrid site. But those numbers are difficult to ignore.
It also goes to show you, what goes around comes around. They don't treat those that work for/with them very well. If they had handled this and other things in a more courteous and professional manner, I might have felt some sort of obligation to bend. And yes, I took the opportunity to let him know that was the case.
My suggestion as a lay-person to the law? Seek a settlement. Perhaps that's getting all your photos out of the newspaper's hands without having to refund any fees, or maybe that's asking for a flat $500 or $1000 to compensate for potential defamation.
A potential agreement is the newspaper removes all of your images from everything, you refund no fees, and you establish the right to sue later if you can prove you lost significant work because of an association with the "bad" website.
The concern I have is word of mouth. If you close the relationship and walk away, you probably won't get smeared too badly. Seek excessive damages and you'll almost certainly get bad publicity.
I'm generally happy, tall, and fuzzy on the inside.www.NickensPhotography.com
Unsharp at any Speed
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
Yeah, good luck with that. Sounds like your greed has got the better of you, and when you don't get anything in the end from a local paper, you'll just have come off with a bunch of burnt bridges.
Just because a publication is a "local paper" does not make it a good or reputable client/employer. I do not know one person who worked or works there that is happy with them. They slave people for little money. Most of their staffers are a good 10 years younger than me, and they take advantage of them. Again, they are an "alternative" paper, and their tone and approach in their journalism is primarily negative and snarky.
Remember, they stole from me.
I never went to them for work. They sought me out because of my work, and they knew I had established a reputation and contacts here in the nightlife and music event community. I primarily chose where I shot and I made my own arrangements for access 90% of the time. I have the ability to get photo access into some parties and places they can not. People know that I do not post ugly or compromising photos of people, so they trust me.
They took my work and made fun of people - while using a pseudonym for the writer of the negative remarks and placing my name big and bold under the photo. Some of the people in the photos were my friends who trusted me to take their photos. The slogan for my own personal site is "Connecting humans one photo at a time". They used my photos in direct opposition to my artistic intentions. When I told that to the editor, he stated that they would never make fun of my friends and that there is trust between the publication and their contributors. I asked him if stating that "it looks like someone jizzed all over her dress" isn't mean, and he laughed and said "Well, I guess some of them do have an element of sarcasm, but that is what we do here."
Additionally, while working together, I told the web editor that I never wanted my galleries to look similar to that of those cheesy web sites and he laughed. Two months later the new site launched and it was exactly like (if not worse than) the referenced sites. They used my photos as the primary content - without my permission or compensation. The head editor even told me he was not aware that we had no contract and that I was not aware of the new site. (Side note, the head editor is a good people person but known for telling people what they want to hear. I was being "handled" as he wanted to be able to keep my photos on the site for little or no compensation.)
I told the editor that it was my preference to have no association with the new site. I would have never worked with them if that site was presented to me from day one. I did not care about the money; I just wanted my name and photos off the site. I told him that I was willing to compromise for the sake of a possible miscommunication and let him use my photos if he paid me the reuse fee that they paid me in the past, removed the negatively commented photos, and took my name off the site. He told me that he could not afford to do that. He told me he didn't even think he could afford to pay me 50% of that (which was what was guaranteed in the crappy contract I was offered before I chose to leave).
(You don't think that is proof of their shadiness in itself? Why would they reuse so many of my photos on the new site if they could not afford to pay me what was promised in the contract he supposedly did not know I did not sign? Typically, they automatically send me the checks whenever my photos are published or reused. I was not sent anything for the new site.)
He asked me if I was willing to budge at all. I asked him, as someone who used to be a freelancer, to put himself in my position. I expressed all my concerns with how things were handled during the six months I worked with them. It was because of the "big picture" and then the infringement that I didn't feel at all obligated to bend further than I already had. And I believe he saw my side (at least he said so); he apologized for not being more aware of what was going on; and he told me he really didn't want to take the photos down but that he would. (And I feel confident that his attorney's told him that he had to do as I asked or he would not have complied - he admitted he took time to get back to me because he spoke with their attorneys first.)
As an attorney reminded me, they have been around long enough that they are well aware of copyright law and what they can and can not do. That makes what they did willful infringement - with even larger penalties. The reason statutory damages are steep is to dissuade infringers from continuing to break the law and STEAL.
Are you suggesting that photographers and writers should bend over and take it up the behind so they don't burn bridges with shady "local papers"?
Shouldn't someone at some point stand up for their rights and the rights of those that are getting screwed over?
I chose to stop working with them BEFORE they infringed upon my work because I could see the type of racket they were running. I would rather value my work and myself. I am SO not concerned about burning bridges with this type of client.
I remember reading somewhere that a successful business man didn't fret when a bridge was "burnt" with a bad client. When you weed out the bad and take control of your business, you will find that there are good clients out there who will keep you busy. Bad clients tend to be high maintenance and want everything "yesterday" for little pay. They drain your self-worth and energy.
Don't be so concerned with burning bridges. Go out and find people to work with that make you happy about doing what you do and you will likely find that your work improves when you can take pride in it.
(heh i tend to be wordy, hope i am at least mildly entertaining)
Thanks for sharing! This is good & interesting information.
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tonyp.smugmug.com
No problems. The photos are not that exciting!
Copyright is a very ancient concept and when you can prove that you took the images before anyone else you have your rights.
Enforcing your rights, however, is usually difficult and expensive. Even when you think you have registered or can prove you are in the right.
Here in Holland we have a well known saying about inscriptions on tombstones for victims of traffic accidents "When he turned to the right he was within his rights"
Fortunately, in our legalistic society, very few publishers look forward to copyright cases and almost all are prepared to pay a fair price for a fair cop. After all, defending a copyright case is expensive even when you win. Publishers have other fish to fry. It sounds like your publisher is willing to settle with you.
Be straightforward and fair. They may still tell you to f-off. Then you need to decide whether it is worth your while to fight to the death. When it is your copyright you will eventually win when you have a sufficiently thick wallet. It could become a Pyrrhic victory.