Help with legal!!!!!

RWilliamson

Hello everyone!!! I have kind of a toughy for you. I did some pics for a rock n roll band several months ago. Once I had the pics done, I sent them a cd of the pics along with a bill. They decided they did not want to use the pics and returned the cd to me. They also stated via email that no pics were not copied. I still have not recieved payment....but now the plot thickens....I have found my pics in a national published magazine...what can or should I do next????? Any help would be great~~~~

Angelo

RWilliamson wrote:

Hello everyone!!! I have kind of a toughy for you. I did some pics for a rock n roll band several months ago. Once I had the pics done, I sent them a cd of the pics along with a bill. They decided they did not want to use the pics and returned the cd to me. They also stated via email that no pics were not copied. I still have not recieved payment....but now the plot thickens....I have found my pics in a national published magazine...what can or should I do next????? Any help would be great~~~~

First and foremost; can you prove authorship (copyright) of the photos in question?

Do you have the original RAW files (for digital) or film negatives?

If your answer is no, every subsequent step will prove difficult and complicated.

Halliday

1) Your avatar is only half-loaded
2) I'd go talk to a lawyer and also send them a letter explaining what happened and include a price. Make it a nice fat fee for you.

urbanaries

RWilliamson wrote:

. Once I had the pics done, I sent them a cd of the pics along with a bill.

If you receive nothing else from this transaction, consider the priceless lesson that payment comes before product will save you money and heartache in the future.

If you had watermarked the photos on the CD, or made them extremely low resolution, the publication would be liable, too. Not sure if they are in this case, since having hi-res images on hand is a reasonable assumption of ownership.

RogersDA

See this thread, too:

http://www.dgrin.com/showthread.php?t=54152

Sam

RWilliamson wrote:

Hello everyone!!! I have kind of a toughy for you. I did some pics for a rock n roll band several months ago. Once I had the pics done, I sent them a cd of the pics along with a bill. They decided they did not want to use the pics and returned the cd to me. They also stated via email that no pics were not copied. I still have not recieved payment....but now the plot thickens....I have found my pics in a national published magazine...what can or should I do next????? Any help would be great~~~~

First, lets look at getting paid for taking the photos. What did your written contract say? Don’t answer, that’s a rhetorical question. I feel confident you didn’t have a written contract. Verbal contracts are every bit as enforceable as a written contract, but the problem is proving what the verbal contact was.

I would say anytime you work with without a written contract you should be willing to shrug your shoulders and walk away if you don’t get paid. Assuming the client doesn’t keep or use the photos of course.

Now as to the copyright violation. As Angelo stated, first make sure you can prove the image is yours. You don’t need a RAW file for this, but it would help. An original jpg. With EXIF data should do it.

If you are positive the image is yours I would contact both the band, and the publication, and inform them of the copyright violation to see what their reaction is. Give them a chance to do the right thing. If on the other hand they try to blow you off, and you wish to peruse the matter I would register all the photos, and contact a lawyer. If the photos are registered you can receive punitive damages, as well as attorney fees, which can be substantial.

If however the band, and the quote, “national publication”, have no money, don’t bother, chalk it up to a learning experience.

Sam

RWilliamson

Angelo wrote:

First and foremost; can you prove authorship (copyright) of the photos in question?

Do you have the original RAW files (for digital) or film negatives?

If your answer is no, every subsequent step will prove difficult and complicated.

I took the photos and put them on cd, to keep as original. I have several emails from the record label about payment and them sending my pics back to me with out copying them. I have attempted to make contact with them but have had no luck. Not to mention all the pics and all the witnesses that were there. The thing that kills me is I was only charging 700 for all the pics and I had 20 hours in working on them....If all goes well, I may just buy a new camera........I am hoping the emails from them will serve as good evidence.

dragon300zx

RWilliamson wrote:

I took the photos and put them on cd, to keep as original. I have several emails from the record label about payment and them sending my pics back to me with out copying them. I have attempted to make contact with them but have had no luck. Not to mention all the pics and all the witnesses that were there. The thing that kills me is I was only charging 700 for all the pics and I had 20 hours in working on them....If all goes well, I may just buy a new camera........I am hoping the emails from them will serve as good evidence.

Next step is to have a lawyer contact the record label.

Angelo

Sam wrote:

Now as to the copyright violation. As Angelo stated, first make sure you can prove the image is yours. You don’t need a RAW file for this, but it would help. An original jpg. With EXIF data should do it.

Yes BUT. Anyone can create a .jpg file and EXIF data can be hacked by knowledgeable computer geeks.

Only ONE person can own a RAW file, as is the case with film negatives.

Angelo

RWilliamson wrote:

I took the photos and put them on cd, to keep as original. I have several emails from the record label about payment and them sending my pics back to me with out copying them. I have attempted to make contact with them but have had no luck. Not to mention all the pics and all the witnesses that were there. The thing that kills me is I was only charging 700 for all the pics and I had 20 hours in working on them....If all goes well, I may just buy a new camera........I am hoping the emails from them will serve as good evidence.

You have a bit of a mess on your hands. I'm not a lawyer but here's what I would do...

1) Magazine:

If they are using your image(s) as editorial no copyright infringement exists so don't attempt to seek payment.

If they are using the image(s) in a manner contrary to copyright protection you simply have to put them on notice and ask that they retract, not re-use and or print a correction in a future issue that you were not properly credited as the photographer.

My guess is it will be difficult for you to prove the magazine is culpable as they will no doubt show they were provided the image(s) by a band member who claimed to own copyright. If true that information will be useful to you.

1) Band:

Prepare an invoice and mail it to the responsible party via registered mail. Enclose a letter explaining your knowledge of their failure to honor the terms of your agreement and include all documents substantiating your claim.

Specify a time frame in which you expect payment (10 days?). At that time send another letter informing them you will be filing a small claims action against them and then do so.

(You can probably download small claims forms from your County courthouse website. Make sure to follow all instructions properly)

wxwax

Contact the magazine's photo editor. Ask them who gave them rights to use the images. Demand compensation. After all, they're the ones who actually published the images and violated your copyright.

Set a price.

You don't know what kind of indemnification the record label gave them. It's very likely that the magazine will say they're covered by an agreement with the record label.

In which case, you have to go after the record label.

Sam

Angelo wrote:

Yes BUT. Anyone can create a .jpg file and EXIF data can be hacked by knowledgeable computer geeks.

Only ONE person can own a RAW file, as is the case with film negatives.

Angelo,

I'm gona quibble a little with you here. A RAW file is not exactly like a film negative. You can make as many RAW files copies as you like. I do admit that it would be impossible for someone to snatch it off the Internet, unless of course a RAW file was posted, or if the owner for some reason sent the RAW file to the client. Then you’re in the same boat as a JPG.

If the file, RWilliamson, sent to the band was cropped, or otherwise materially altered, (object cloned out, etc.) then it would be easy to show that he is the owner of the original image. Also showing the images taken before, and after the image in question would lend additional credibility to his claim of ownership.

Sam

Angelo

Sam wrote:

Angelo,

I'm gona quibble a little with you here. A RAW file is not exactly like a film negative. You can make as many RAW files copies as you like. I do admit that it would be impossible for someone to snatch it off the Internet, unless of course a RAW file was posted, or if the owner for some reason sent the RAW file to the client. Then you’re in the same boat as a JPG.

If the file, RWilliamson, sent to the band was cropped, or otherwise materially altered, (object cloned out, etc.) then it would be easy to show that he is the owner of the original image. Also showing the images taken before, and after the image in question would lend additional credibility to his claim of ownership.

Sam

There shall be no quibbling before its time!

Obviously, I was assuming one would NEVER give away their RAW file. I know I wouldn't.

Where we disagree is on the making of RAW file copies. I'd like to know how you've ever been able to create a RAW file outside of your camera?

Sam

Angelo wrote:

There shall be no quibbling before its time!

Obviously, I was assuming one would NEVER give away their RAW file. I know I wouldn't.

Where we disagree is on the making of RAW file copies. I'd like to know how you've ever been able to create a RAW file outside of your camera?

Angelo,

You want a war of semantics! HUH HUH?

We don't disagree on the making of a RAW file, but once copied I don't think there is any way to tell which is the original.

As for giving away the RAW, it wouldn't be on the top of my list, but I understand, (please correct me if I am wrong) some magazines will ask for the RAW file so their graphic artists can process them. The justification being their in-house people are more familiar with the technical requirements to out put the best image for the intended use.

Sam

dogwood

wxwax wrote:

Contact the magazine's photo editor. Ask them who gave them rights to use the images. Demand compensation. After all, they're the ones who actually published the images and violated your copyright.

This is not necessarily true. It's generally the person who provided the image to the magazine who is at fault-- there is NO way a magazine could track down releases and all that other stuff for every image they publish. This is why stock agencies are so careful about making sure you have signed releases-- it's their fault if they provide the image and there's not a release-- not the publisher who uses the image they purchased from the stock agency.

wxwax

dogwood wrote:

This is not necessarily true. It's generally the person who provided the image to the magazine who is at fault-- there is NO way a magazine could track down releases and all that other stuff for every image they publish. This is why stock agencies are so careful about making sure you have signed releases-- it's their fault if they provide the image and there's not a release-- not the publisher who uses the image they purchased from the stock agency.

The reason stock agencies are careful, is because they sign contracts which indemnify their clients.

No magazine should print an image without copyright clearance. To do so is a violation. They know this. If they don't have a signed release, then they are liable. Simple as that.

Contracts with stock agencies protect them. Ditto with wire services. Works from individual photographers require releases.

We don't know if the magazine in question is sophisticated enough to have a handle on all of this. If they don't, that's their problem. They're still on the hook for violating the copyright.

If the magazine has a contract of some kind with the record label, then it's the record label that's on the hook for this image being printed.

But the trail starts with the company that actually puiblished the image.

StevenV

wxwax wrote:

No magazine should print an image without copyright clearance. To do so is a violation. They know this. If they don't have a signed release, then they are liable. Simple as that. ...
But the trail starts with the company that actually puiblished the image.

agreed. start with the publisher, then work backwards.

http://www.danheller.com/model-release-primer

the publisher of an image that carries all the liability. Yes, whoever it is that puts the image into use needs to have the photo released. Who put the photo into use? The publisher.

slapshot

I'm not trying to be a jerk, and with all due respect to everyone who is trying to help out here, there are various incorrect statements and implications about copyright law in this thread.

The best advice here is to a) speak to an attorney (one who specializes in intellectual property) and b) contact the publisher of the magazine. You should also go on-line and read the current copy-right law yourself.

I became involved in a similar situation recently. A relative had written a children's book more than twenty years ago which sold for a year, then went out of publication. Two years ago, she found the book in current publication on the shelves of a Barnes & Noble. Needless to say, she had not received a royalty check in twenty years. I contacted an attorney on her behalf, who advised that we should contact the publisher directly as it was a large and well known firm.

Good advice. The publisher was as surprised as we were. After some research on their part, and us faxing them the contract with the original publisher, they promptly sent a check for back-royalties and now she receives a check every 6 months.

If the magazine which published the pictures is truly a national magazine, they may do the same.

Goodluck.

Angelo

Sam wrote:

Angelo,

You want a war of semantics! HUH HUH?

We don't disagree on the making of a RAW file, but once copied I don't think there is any way to tell which is the original.

As for giving away the RAW, it wouldn't be on the top of my list, but I understand, (please correct me if I am wrong) some magazines will ask for the RAW file so their graphic artists can process them. The justification being their in-house people are more familiar with the technical requirements to out put the best image for the intended use.

Sam

No SIR!!! no war SIR!

I honestly did not know one could "copy" a RAW file and I'm not familiar with magazine requests.

When I prepare share files I convert a copy to TIFF, which retains just about all the original attributes of the file with total manipulation flexibility.

Angelo

wxwax wrote:

No magazine should print an image without copyright clearance. To do so is a violation. They know this. If they don't have a signed release, then they are liable. Simple as that.

We don't know if the magazine in question is sophisticated enough to have a handle on all of this. If they don't, that's their problem. They're still on the hook for violating the copyright.

Please keep in mind, if the image was used for editorial purposes copyright was not necessarily infringed. And if the image was given to the magazine by a band member claiming "ownership" then the editor would not have felt need to verify.

wxwax

Angelo wrote:

Please keep in mind, if the image was used for editorial purposes copyright was not necessarily infringed. And if the image was given to the magazine by a band member claiming "ownership" then the editor would not have felt need to verify.

I'm not a print guy.

But periodicals have a harder time proving "fair use" than do dailies. They are, by nature, more feature oriented than news oriented.

wxwax

slapshot wrote:

I'm not trying to be a jerk, and with all due respect to everyone who is trying to help out here, there are various incorrect statements and implications about copyright law in this thread.

The best advice here is to a) speak to an attorney (one who specializes in intellectual property) and b) contact the publisher of the magazine. You should also go on-line and read the current copy-right law yourself.

I became involved in a similar situation recently. A relative had written a children's book more than twenty years ago which sold for a year, then went out of publication. Two years ago, she found the book in current publication on the shelves of a Barnes & Noble. Needless to say, she had not received a royalty check in twenty years. I contacted an attorney on her behalf, who advised that we should contact the publisher directly as it was a large and well known firm.

Good advice. The publisher was as surprised as we were. After some research on their part, and us faxing them the contract with the original publisher, they promptly sent a check for back-royalties and now she receives a check every 6 months.

If the magazine which published the pictures is truly a national magazine, they may do the same.

Goodluck.

Good advice.

RWilliamson

blah
Ok...Today I hired an entertainment lawyer here in my home town who works on stuff like this. This looks very promising to me. It would have been much easier for them to pay me the 700 than what it is going to cost now.......THANKS AGAIN GUYS!!!!!!!!!!!!

wxwax

Hey Wills, if you can remember to, please update us when this is resolved.

It's a good education opportunity for us.

photodoug

RWilliamson wrote:

Ok...Today I hired an entertainment lawyer here in my home town who works on stuff like this. This looks very promising to me. It would have been much easier for them to pay me the 700 than what it is going to cost now.......THANKS AGAIN GUYS!!!!!!!!!!!!

Sounds like you'd have a pretty open and shut case by taking your proof to small claims court and winning up to $7500. Aren't you going to end up paying a lawyer most of the bucks you'll end up winning anyway?

cmason

photodoug wrote:

Sounds like you'd have a pretty open and shut case by taking your proof to small claims court and winning up to $7500. Aren't you going to end up paying a lawyer most of the bucks you'll end up winning anyway?

Another tip, put in the IPTC copyright and creator info. Not perfect, but even if there are crops and edits, it will stay with the photo, unless they know to change it. Many times the creator will change, as apps such as Picasa always fill it, but the copyright is never touched. You can also put in a url that links to your copyright statement, which you can put on smugmug.

RWilliamson

photodoug wrote:

Sounds like you'd have a pretty open and shut case by taking your proof to small claims court and winning up to $7500. Aren't you going to end up paying a lawyer most of the bucks you'll end up winning anyway?

Accordig to copyright law, the reord label is responsible for all my legal fees.

W.W. Webster

RWilliamson wrote:

Accordig to copyright law, the reord label is responsible for all my legal fees.

Have I missed something? What have you actually done about this? What was the outcome?