Breach of Commecial License Agreement

NathanL

I found one of my photos in a very large publication magazine without permission or credit. I've sold only one digital copy of that photo with a commercial license, so I know that the organization I sold it to breached the contract by giving it to this publication. Where should I go from here?

Do I contact the publication, the organization who purchased the photo, or both? Do I ask for compensation from one or both?

If I seek compensation from the publication, how do I best come to a dollar figure? Is it based on their publication size?

I have 0 interest in contacting a lawyer as I'm sure the expense of money and time on my behalf would not make it worth it. And I'm not looking to bully anybody with a nasty email. I simply want to know how to handle this professionally and insure that I am compensated. I'm assuming the publication will be more than willing to compensate. My main concern is that I ask for the correct amount from the publication and that I deal correctly with the organization who purchased the photo and breached the license.

Thanks for your help.

NathanL

FYI

220,000 Print Circulation
350 Digital Subscriptions
And the photo is on their website

Ferguson

I am not a lawyer, and just in the personal opinion basis, I would contact the publication and ignore the fact you sold one digital copy.

if the publication says "we got it from X" and X is who you sold it to, that's a different matter. But digitial media is so easily stolen and copied and hacked, while you THINK that organization breached your license... could you really prove it?

But the publication clearly lacks a license to use it from the copyright holder. I would write them a nice letter explaining you hold the rights, had not given any rights over to them, and ask that they reach out to you to negotiate a suitable license for its prior use. You may find out then you want to do something about organization X, depending on what they say.

But... almost regardless, it is that publication who has a claim against X, not so much you, as (if in fact they resold it) X has defrauded the publication. The publication would still owe you license fees, and them sue X. You actually have no direct case against X until the publication denies you a settlement as only then do you have actual damages. (I am not a lawyer, but damages are always the key - no damages, generally no case).

David_S85

I moved this thread over to the "Mind Your Own Business" forum since this issue seems more of a photographer/photography business related concern.

NathanL

Ferguson wrote: »

I am not a lawyer, and just in the personal opinion basis, I would contact the publication and ignore the fact you sold one digital copy.

if the publication says "we got it from X" and X is who you sold it to, that's a different matter. But digitial media is so easily stolen and copied and hacked, while you THINK that organization breached your license... could you really prove it?

But the publication clearly lacks a license to use it from the copyright holder. I would write them a nice letter explaining you hold the rights, had not given any rights over to them, and ask that they reach out to you to negotiate a suitable license for its prior use. You may find out then you want to do something about organization X, depending on what they say.

But... almost regardless, it is that publication who has a claim against X, not so much you, as (if in fact they resold it) X has defrauded the publication. The publication would still owe you license fees, and them sue X. You actually have no direct case against X until the publication denies you a settlement as only then do you have actual damages. (I am not a lawyer, but damages are always the key - no damages, generally no case).

Thanks.

I've confirmed that the organization did indeed give the photo to the publication, so I know there was breach of contract.

I've contacted the publication and they've agreed to pay, so now I'm trying to figure out what to charge them. I've never sold anything to a publication this big.

Ferguson

NathanL wrote: »

I've contacted the publication and they've agreed to pay, so now I'm trying to figure out what to charge them. I've never sold anything to a publication this big.

If there's a chance for repeat business, handling them nicely (with their bit of burden of guilt from knowing the circumstances to help them remember you) may lead to further business. Not saying be cheap, just maybe there's some extra good that might come from it if handled well.

Darn shame but I suspect you have little you can do in terms of retribution for the other group. Maybe, but if this company makes you whole, the damage claim is pretty slim unless your license had some automatic, pre-agreed penalties (highly unlikely).

Glad it appears to be working out.

jonh68

Ferguson wrote: »

If there's a chance for repeat business, handling them nicely (with their bit of burden of guilt from knowing the circumstances to help them remember you) may lead to further business. Not saying be cheap, just maybe there's some extra good that might come from it if handled well.

Darn shame but I suspect you have little you can do in terms of retribution for the other group. Maybe, but if this company makes you whole, the damage claim is pretty slim unless your license had some automatic, pre-agreed penalties (highly unlikely).

Glad it appears to be working out.

Retribution is the worst thing to do unless you want to burn bridges. Politely send a note to the first group explaining they cannot give the picture out and why.

The only penalties would be if the first group benefited financially from giving the picture away. Other than that, use this situation for educational purposes.