Photo Used Without Consent

coldclimb

So the other day Kelsey (Prezwoodz here on dgrin) stumbled across one of my photos being used in a membership ad in the store at REI. Kind of surprised me, since I've never had any contact. The best I can figure is that the guy IN the picture may have submitted it, but I no longer have his contact information, so I haven't been able to get ahold of him and ask. I've contacted REI and am waiting to hear back, but having never run into this before I figured I'd post up here and ask what everyone else would do? I'm not the kind of guy to explode over something like this, but since it is being used for commercial purposes for a pretty giant company, I feel like I could use a little compensation!

My photo is top-center on their poster, and is on my website here, so you can see that I'm not mistaken. :rofl
http://www.morffed.com/2006/Smith-Rock-OR/6913626_gWhWks#!i=442401535&k=B9LSJNw&lb=1&s=L

David_S85

Nice poster, but not great for you. I wonder where they picked up the other five photos? At least, in this case, the company is US-based, and is fairly responsible in other ways. My bet is that you hear back from them. In the mean time, are you able to watermark your photos at Smugmug?

ian408

Might have submitted the image via their website.

Good luck getting this resolved. And don't forget, that poster is probably in every REI. So if you ask for something, keep that in mind. They may also have used it in other advertising.

joshhuntnm

really cool photo. does seem they should have asked.

ian408

Josh, I think they took the info from who ever submitted it and accepted it at face value.

coldclimb

David: Yeah I can watermark, but I don't like to. I don't make a big point of selling my photos, I just like to take and show them, so I like them displayed without marks. And like Ian said, I don't think they went and got this from my website or anything sinister, although some people have in the past.

AceCo55

I just went to your website and for every gallery that I went into, I was able to right click and save any of the images. You may be aware of that ... I don't know.

coldclimb

AceCo: Yeah I don't bother with right-click protection because it's annoying to me when I want to use right click to copy or save parts of pages on the net and get dinged. I learned several ways to get around right-click protection when I was twelve, and I'm certain that anybody who actually wants to steal photos also knows how.

Montec

Even if the photo was submitted by the person in the photo they usually need to give the end user permission to use it in advertising. Most of the time they ask if you own the rights to the image etc.
I think REI probably did this if they are even a little bit marketing savvy.

I am not sure of just asking someone holds them harmless in this case though. They are clearly using your copyrighted property for commercial purposes.

ian408

In order to submit a photo, you need to give them your REI membership number as well as the rest of your contact details. Then you must execute what I'd call a "click through" licensing agreement.

Here is their click through agreement:

rei.com wrote:

This Document Affects Your Legal Rights, Read It Carefully

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, I hereby agree as follows:

I irrevocably grant to Recreational Equipment, Inc., its affiliates, agents, representatives, licensees and assigns (“REI”) in perpetuity, the rights to use the still photographs (including, but not limited to, transparencies, negatives, prints, digital data, or other photographic images), and/or moving pictures I submit to REI (“Pictures”) an unlimited number of times in any manner REI deems fit, in whole or in part, or composite or distorted in character or form, without restriction as to changes or alterations, or reproductions thereof in color or otherwise, throughout the universe, in any and all media now known (including, but not limited to, film, video, dvd, electronic downloads, posts and/or streams, and all forms of print) or hereafter devised. I also consent to the use of printed matter in conjunction therewith.

I understand that upon my submission and/or delivery of any Pictures to REI, the Pictures may be used by REI for any purpose whatsoever. I represent that I independently created the Pictures I submitted to REI and/or that I have all rights, permissions (including, but not limited to, the rights to use locations and the likenesses of people, if any, appearing in the Pictures), consents and/or entitlements to use and license such Pictures to REI. I agree to take any actions (including execution of documents) reasonably requested by REI to effect, perfect or evidence the foregoing representation and/or the license set forth herein.

I hereby waive: (i) any right that I may have to inspect or approve the finished product, the advertising copy, or any printed matter that may be used in connection therewith or the use to which it may be applied; (ii) any rights to injunctive relief I may have in connection with this Release; and (iii) the right to revoke this Release. For the purpose of clarification, and not as a limitation of REI’s rights in this Agreement, I understand that REI may publish information about, and pictures (still and motion) of, me on social networks.

To the fullest extent allowed by law, I agree to release, discharge, indemnify and hold harmless REI, and all persons acting under its permission or authority, from any liability, claim, damage, judgment, cost, loss, expense (including reasonable attorneys’ fees), by virtue of any publication or use of the Pictures as previously described. I agree that in the event of a dispute arising out of the use of the Pictures, my damages shall not exceed Fifty Dollars ($51.00) and in no instance shall I be entitled to seek an injunction against REI’s use of the Pictures.

If a court finds any provision of this Release to be unreasonable or unenforceable in any respect, it is my intention and understanding that this Release shall nonetheless be enforced to the maximum extent to which it is found by the court to be legally enforceable. This Release shall be governed by applicable federal law and the laws of the State of Washington, without reference to its choice of law rules. I agree to personal and subject matter jurisdiction in any state or federal court in the State of Washington and consent to Seattle, Washington, as the location for jurisdiction and venue for any dispute regarding this Release. Nothing herein shall be interpreted as a waiver of REI’s rights to the Pictures under federal and state common law and statutes (such as rights of public domain and fair use).

This Release constitutes the entire agreement between myself and REI with respect to the matters described herein, and supersedes any and all other agreements and communications, oral or written, between me and REI or any other released party with respect to such matters. This Release may not be amended or supplemented except by a writing signed by REI specifically referencing this Release.

I have read this Release prior to its execution, am familiar with the contents thereof, and have every right to contract in my own name in this matter.

If photographer is a minor, this Photo Release must be acknowledged and agreed to by a parent or responsible adult. If parent or responsible adult clicks "I Agree" below, in addition to the terms above in this Photo Release, Parent also agrees to RELEASE, HOLD HARMLESS and INDEMNIFY REI, any other sponsors/providers, and their employees, agents and contractors for any claims of the minor and any claims by any third party arising out of this Photo Release.

They also have an appearance release that you must complete if your photo is used:

rei.com wrote:

This Document Affects Your Legal Rights, Read It Carefully
For valuable consideration the sufficiency and receipt of which is hereby acknowledged and accepted, I:
(1) grant Recreational Equipment, Inc., its affiliates, agents, representatives, licensees and assigns (“REI”), the absolute and irrevocable right and permission to copyright and use, re-use, publish, and republish at any time any images, photographic portraits or pictures of me or in which I may be included, in whole or in part, or composite or distorted in character or form in all media now known or hereafter devised (“Photographs”) throughout the universe an unlimited number of times in perpetuity for all purposes REI deems appropriate including, without limitation, for promotional and publicity purposes. As between me and REI, REI shall have the sole ownership in the copyrights in any Photographs of me created under this Release.
(2) consent to the use of any printed matter in conjunction therewith.
(3) hereby waive: (i) any right that I may have to inspect or approve the Photographs, the advertising copy, or any
printed matter that may be used in connection therewith or the use to which it may be applied; (ii) the right to any
injunctive relief I might have in connection with this Release; and (iii) the right to revoke this Release.
(4) to the fullest extent allowed by law, agree to RELEASE, HOLD HARMLESS AND INDEMNIFY REI and all persons acting under its permission or authority, from any liability by virtue of any publication or use as previously
described, even though it may subject me to ridicule, scandal, reproach, scorn and indignity.
(5) agree that REI has no obligation to actually use the Photographs.
(6) agree that no sum shall be due to me for execution of this Release and REI shall not be obligated to pay me or
any third party any sum whatsoever, regardless of the time or method of any future use of the rights granted herein.
I am over the age of eighteen years of age/or my parent or legal guardian has also read and signed this Release below my signature. I have read the above authorization, release and agreement prior to its execution, am familiar with the contents thereof, and have every right to contract in my own name in this matter. I acknowledge that REI relies on this Release potentially at substantial cost to REI and hereby agree not to assert any claim of any nature whatsoever against anyone relating to the exercise of rights granted hereunder. Nothing herein shall be interpreted as a waiver of REI’s rights to the Photographs or other use of my likeness under the common law and state and federal statutes (such as rights of public domain and fair use). This Release shall be governed by applicable federal law and the laws of the State of Washington without regard to the conflict of law rules thereof. I agree to personal and subject matter jurisdiction in any state or federal court in Washington State and consent to Seattle, Washington as the location for jurisdiction and venue for any dispute regarding this Release.
THE TERMS OF THIS AGREEMENT SHALL BE BINDING ON MY HEIRS, ASSIGNS, EXECUTORS, ADMINISTRATORS, AND ALL MEMBERS OF MY FAMILY, INCLUDING ANY MINORS WHO ACCOMPANY ME. I UNDERSTAND THIS IS A BINDING CONTRACT THAT SUPERSEDES ANY OTHER AGREEMENTS OR REPRESENTATIONS AND IS INTENDED TO PROVIDE A COMPREHENSIVE RELEASE BUT IS NOT INTENDED TO ASSERT ANY DEFENSES WHICH ARE PROHIBITED BY LAW. IF ANY PART OF THIS RELEASE IS DEEMED UNENFORCEABLE, ALL OTHER PARTS SHALL BE GIVEN FULL FORCE AND EFFECT.
AGREED AND ACCEPTED:
Signature: Date:
Name Printed:
(Must also be signed by parent or responsible adult if signature above is that of minor:)
If parent or responsible adult (“Parent”) signs below, in addition to the terms above, Parent also agrees to RELEASE, HOLD HARMLESS and INDEMNIFY REI, any other sponsors/providers, and their employees, agents and contractors for any claims of the minor and any claims by any third party arising out of this Release.
Parent/Responsible Adult Signature:
Name Printed:
(relationship): Date:
Last Updated: 09/13/07

So clearly, REI has thought through the whole submission and use process.

Nice way get get free photos too

Sam

I have no idea how any photographer would submit an image and agree to the terms posted here by Ian408.

Also an interesting sentance: "For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, I hereby agree as follows:"

What "good and valuable consideration?"

Since one agrees to this prior to submission, I would bet the ranch you don't actually receive anything.

The question remains: Is the agreement valid if you (photographer) actually receives no good and valuable consideration?

Sam

Montec

Since you own the copyright on this image and they were probably mislead by the poster there is really no harm done yet. What I would do is simply ask them for fair compensation for the usage rights of your property. Faced with the alternative of being forced to remove it from all marketing material I am sure they will gladly just pay up.

If they refuse and continue using the image then you have a case for compensation. But in the end would all the aggravation be worth it?

jachang

I'd be upset if that was my photo that was taken. I had something similar happen. I had a digital image that I had entered into a contest, and about a year later I looked online and found TONS of websites using it in their advertising! I almost fainted. Most of them were candle companies, using the image for "coconut lime" candles, room sprays, etc. I wrote to many of them, and they apologized and took them down. One guy sent me some free candles. The thing is that SmugMug watermarks won't show on small images, and if people want to steal your work for web use, they really don't need anything big at all. I think there are those people who are thieves, and then the rest of them who honestly don't even know that it's not okay to take things off the internet. I think most people think that if it's posted somewhere, it's okay to copy it. This is the image that went all over the world, and I'd be a millionaire now if I had been paid for every download. Sigh... I finally blew it up big enough so that I could watermark it here.

This is the image: http://www.jeanachang.com/Art/Digital-Art/i-ZJft5Q7/1/M/lime%20in%20coconut%20signedcopy-M.jpg

Hmmm...I tried using the link tool, but it doesn't work.

coldclimb

Holy cow that is a frightening agreement!

An update on this: They got back to me and gave me the information they received when the photo was submitted, which includes the contact info for the guy in the photo along with my name as photographer, so that tells me they got it from him, and he just didn't think it would be an issue. I've always said your worst enemies as a photographer are your friends! Now I'm just considering a reply, as I am obviously not okay with their agreement! I'm not really one for huge hassles either, but I certainly can't agree with terms like that and just go on with them using my photo in any way throughout the entire universe for eternity for free.

ian408

Good luck John!

WillCAD

Good luck with this, John. Sounds like an awkward situation, but understandable; the guy in the photo must have assumed erroneously that since it was a photo of him, he owned the rights to the photo and was free to sign those rights over to REI. Lots of people think that way about pro photos; they seem to forget that the photographer has rights, too, even if he's taking pics in someone else's employ, and those rights don't transfer unless the contract specifically says so. Did he pay you for it? Were you shooting as part of a paid gig, or were you shooting while you were having some fun climbing yourself?

I think you deserve compensation for the use of your photo without your permission, and although REI doesn't seem to have intentionally violated your rights, and the photo's subject probably did so accidentally, without malice, your rights are still vioalted and you deserve something for your work.

REI has two choices - remove the pic from all of their marketing materials, or pay up in some way. Because of the cost of removing the pic, they will likely offer you some compensation; they'll probably lowball at first, so negotiate up. You have the upper hand here. And remember that they have probably spent hundreds of thousands of dollars, at least, to print that pic on banners and flyers for REI stores all over the country, so a couple of grand for you is not out of the question and not unreasonable.

One thing to keep in mind, however - I think it's possible that REI might choose to go after the guy who gave them the pic and signed over legal rights that he didn't have. That would suck, but it's possible; after all, from REI's perspective, they did due dilligence before publishing (they didn't, really, they just made the submitter sign an agreement), so they may feel justified in trying to recoup the cost of your compensation from the guy who signed over a pic that he didn't own. REI will claim that he falsified the agreement, which stated that he took the pic and owned the rights; this is true, though he probably did it out of ignorance rather than mailce, so REI will have a legitimate claim against him.

Bad situation for everybody involved.

coldclimb

Well things seem to have a happy ending here. Long story short, everyone I got in touch with was quite helpful, and I will be paid for commercial licensing of the photo. Thanks for the words of advice everyone!

ian408

Glad to hear it!