Yay: First published pic. Boo: Stolen from my site

scottV

So this is bittersweet, my friend informed me that in the current issue of r/c car action they published a photo that I took. Unfortunately they never contacted me about using it and they even cropped off my watermark. :boid
argle bargle im more than a bit miffed, suggestions for a first step?

original:


scan:

anwmn1

Contact the magazine directly and tell them the photo was used without your consent, is an infringement on copyright laws, and demand $1.00 for every magazine printed.

If they fail to pay you for the copyright use you will sue the magazine and the person that wrote the article.

Shudderz

anwmn1 wrote:

Contact the magazine directly and tell them the photo was used without your consent, is an infringement on copyright laws, and demand $1.00 for every magazine printed.

If they fail to pay you for the copyright use you will sue the magazine and the person that wrote the article.

Here is a link to their circulation numbers:

http://209.196.57.98/ME2/Audiences/dirsect.asp?sid=84B344FBDA50433A9791EB71522DE46A&nm=Circulation%2FReadership&AudID=EB1F8E332F9944ABB21AA2859911C3A6

it claims 64,745 paid circulation with 324,000 readership

just fyi.....good luck!

Tee Why

Personally, I'd contact a lawyer and demand payment with punitive fines for copyright infringement. If they don't pay, sue. It's a slamdunk case if you have the original image in my view.

I'm continually surprised how stupid publications can be. You would think a magazine like this would know about copyright laws. Stealing images and publishing it in a magazine is just asking to be sued.

ArchiTexas

Foosion,
My advice is take a couple of days to let the anger abate a bit. You've got every reason to be mad but think this through with a cool mind. There is no doubt that you are the copyright holder, but before you can sue to demand any kind of payment from the magazine a lawyer is bound to demand some kind of payment from you. I'm not a legal expert but I've been around enough to know that compensation is awarded based on what sort of damages have been done to you. Since this is your first published image and the published version is buried inside of the magazine (not, say, on the cover) I'm not sure how you'll make the case that you've taken a serious financial hit. Would you settle for a correction in next months issue where you get proper credit? What if you can negotiate for them to feature some of your work in an upcoming issue? Would that sort of exposure make amends for this transgression? All I'm saying is, once the attorneys become involved it seems that they are the only ones that win. If you enjoy photographing RC buggies maybe the mag can compensate you with free advertising space - that could have value for you and would be easy for the publication to arrange.
ERF

Shudderz

you offer this image on your site as a commercial license download high resolution file for $400.

any chance they purchased the download? it would give them the rights to use it in their magazine. Have you checked your sales just to make sure before you contact them. If they did purchase the download, they wouldn't need to contact you any further before printing the photo in their magazine....the license (as I read it) really doesn't even state that they must give you credit for it.

If not, as I see it, you're only out the $400.

the commercial license reads:
License For Commercial Use
What you can do: Photographer grants you a perpetual, non-exclusive, non-transferable, worldwide license to use this image for permitted commercial purposes, defined as:

advertising, promotion, brochures, packaging
as part of a commercial website for promotional purposes (maximum 800x600pixels) use
prints, posters, flyers, tearsheets for promotional purposes (not for resale)
prints, posters, or other commercial display of image
magazines, books, newspapers, other printed publications
video, broadcast, theatrical

What you may not do: Buyer may not resell, relicense, redistribute without express written permission from photographer. Use as a derivative work, and reselling or redistributing such derivative work is prohibited. Images may not be used in a pornographic, obscene, illegal, immoral, libelous or defamatory manner. Images may not be incorporated into trademarks, logos, or service marks. Image may not be made available for download.

Photographer retains all rights, license, copyright, title and ownership of the image(s).

There is no warranty, express or implied, with the purchase of this digital image file. Neither photographer nor SmugMug will be liable for any claims, or incidental, consequential or other damages arising out of this license or buyer's use of the image(s).

rich56k

Scott,

Also if they didn't purchase thru your 'd. download' option they possibly did a screen grab of your 'x-large' as available to any viewer - try it, I did- it's approx 720 kb in size that would be close to your 'low res- commercial use d. download' at your clearly stated price of $300 ( which in my experience would prob. be more than a similar type mag. would pay [closer to $50-100] if neg. up front to run a pic that size [approx 1/6 page] in a 'news item' style piece)....since they didn't choose to neg. you should have a very valid demand (to be handled diplomatically) for the $300

rich56k

ps: what if any thing is their stated method of submission/compensation, try to research that first... there's no super rush as it's already in print - keep us posted...

pss: whether it's your first published or not is not in any way relevant to this matter, or any of their business.

psss: here's a direct link to their media kit page... it will say how much a 1/6 page(see b/w 1x) ad sells for -how many ads are in the issue you have? at 60,000 circ. they've got the resources to compensate for content with $$ -not that you'll get that much, but just but to demonstrate the perceived value to space on a page...

http://209.196.57.98/ME2/Audiences/dirmod.asp?sid=&type=gen&mod=Core+Pages&gid=1F349D8D16C1460E83AC11C770D62614&AudID=EB1F8E332F9944ABB21AA2859911C3A6

Furono

I'm with ArchiTexas on this one. I would see how to turn this into a positive for yourself first. Make them an offer. Ask for the money on the picture, a retraction with credit to you and hopefully an apology from the guy who did it (I hope that he gets fired). Also, try and get some work out of it. If they are smart (this is a big IF) they will see your a level headed guy in addition to being a great photographer and want you for more work. Just remember, some photographers would love for something like this to happen and open a door for them so take advantage of it. You just have to catch them, which you did.

If after all that they ignore you and don't even pay for the picture go see a lawyer. Even go see one if you in any way don't feel good about what they offer you. If anything just to see what they have to say. I've worked for lawyers all my life and I still haven't figured it all out But I have learned its best first to try and turn it into a positive first. Thats all the lawyer is going to do first and take some money from you in the mean time.

Steve

scottV

thanks for the input everybody. I would definitely prefer not to get a lawyer invovled. I went to the bookstore last night to pick up a few copies of the mag and then perused some photo business books looking for advice. they also suggested trying to turn it into a positive before going the legal route. One had a simple letter: "you published my photo. normally i would charge $xxx for this work, I have included an invoice for $xxx".
Now the question is how much do I ask for. I would've been so incredibly thrilled if they had purchased the commercial use license from my site to begin with, but that is not the case. Because of all this should I up the fee? In their editorial submission guidelines it says materials published become the exclusive property of air age publishing... should I base the price off of an exclusive license?

There is no shortage of ads, in the first 33 pages there are 28 full page full color.

Tommyboy

They won't give you more than you ask for. If you start high (though within reason) you can always negotiate down.

You have them by the short ones. Go get your money.

Shudderz

f00sion wrote:

thanks for the input everybody. I would definitely prefer not to get a lawyer invovled. I went to the bookstore last night to pick up a few copies of the mag and then perused some photo business books looking for advice. they also suggested trying to turn it into a positive before going the legal route. One had a simple letter: "you published my photo. normally i would charge $xxx for this work, I have included an invoice for $xxx".
Now the question is how much do I ask for. I would've been so incredibly thrilled if they had purchased the commercial use license from my site to begin with, but that is not the case. Because of all this should I up the fee? In their editorial submission guidelines it says materials published become the exclusive property of air age publishing... should I base the price off of an exclusive license?

There is no shortage of ads, in the first 33 pages there are 28 full page full color.

As I see it, editorial submissions are not the same as someone purchasing a commercial use license for a stock photo.

You also have some photos at iStockphoto? is this one of them as well? If so those offer the same license option to purchasers of the photos, but for only $10-$15 and you only make about 20%. So after looking into things a bit more, if it's one of those images...then you're only out $2-$3. They then have commercial use license and can publish your photos royalty free. Doesn't matter how big their circulation is.

Make sure before you look into "legal" type actions that you seek. A lawyer could take much more than you are truly out. And you may have now spent more on copies of the magazine than you are "truly" out as the law might see it.

If these terms aren't acceptable to you, then I'd reconsider your download prices/availability on smugmug and whether or not you submit things to iStockphoto.

Sam

I think between Heather, and Archtexas you have some great advice, and info.

Note: If you have registered your work, and prevail in court, you can be awarded punitive damages, and attorney fees in addition to actual damages.

That said if your offering a high res commercial download for a dollar or two, go directly to the nearest brick wall, and bang your head against it until you have knocked some sense into yourself.

If this is the case I would recommend forgetting the whole thing.

However if thats not the case I would follow Archtexas advice. Calm down, send them an e-mail, and explain that your image was used without your permission, and you would like to discuss, and resolve this issue with them. Do not be accusatory, be professional.

This leaves the door wide open for both you and the magazine to come out on top.

Now if they don't want to play nice, register the image, and contact an attorney.

Sam

scottV

nope, none of those are available on istock

xris

I'm no lawyer, but...
Good thread here.

Don't forget. If the pic was published without a credit it could now be considered public domain if you don't apply your rights.

And let's not forget there is theft involved here! Theft should not be tolerated. The invoice, if that's the route you take, should include at least a 50 percent surcharge for damages.

Thing is, I wonder if sending an invoice might signal acceptance of use? Perhaps you should at least talk with a lawyer. If I have it right, the product was offered for commercial sale and reasonably protected from theft but someone circumvented those controls. (Screen grab and crop watermark.) Sounds like someone that might practice this type of behavior on a regular basis? Who knows. Could even be a photo editor that steals the necessary material then bills the pub for the photos?

And from an industry stand-point I suggest this is an illegal practice and we don't want to promote it by not acting.

Perhaps criminal action is available? If so, it won't cost you a dime and might cause the publishers to pause and think about best practices.

jdryan3

f00sion wrote:

nope, none of those are available on istock

But is what Heather posted below correct? Excepting the part about having bought it previously online, it seems you can only invoice for the $400 you quote on your site. Especially if you are trying to take the positive high road as you stated earlier. :cool

Shudderz wrote:

you offer this image on your site as a commercial license download high resolution file for $400.

any chance they purchased the download? it would give them the rights to use it in their magazine. Have you checked your sales just to make sure before you contact them. If they did purchase the download, they wouldn't need to contact you any further before printing the photo in their magazine....the license (as I read it) really doesn't even state that they must give you credit for it.

If not, as I see it, you're only out the $400.

the commercial license reads:
License For Commercial Use
What you can do: Photographer grants you a perpetual, non-exclusive, non-transferable, worldwide license to use this image for permitted commercial purposes, defined as:

advertising, promotion, brochures, packaging
as part of a commercial website for promotional purposes (maximum 800x600pixels) use
prints, posters, flyers, tearsheets for promotional purposes (not for resale)
prints, posters, or other commercial display of image
magazines, books, newspapers, other printed publications
video, broadcast, theatrical

What you may not do: Buyer may not resell, relicense, redistribute without express written permission from photographer. Use as a derivative work, and reselling or redistributing such derivative work is prohibited. Images may not be used in a pornographic, obscene, illegal, immoral, libelous or defamatory manner. Images may not be incorporated into trademarks, logos, or service marks. Image may not be made available for download.

Photographer retains all rights, license, copyright, title and ownership of the image(s).

There is no warranty, express or implied, with the purchase of this digital image file. Neither photographer nor SmugMug will be liable for any claims, or incidental, consequential or other damages arising out of this license or buyer's use of the image(s).

MichaelKirk

Disagree.....
I disagree with ArchiTexan solution 100% - photo credit is meaningless. NOBODY cares about your name in a magazine except yourself and your parents.

I would contact the magazine (send a certified, return receipt letter) stating that they used your image in print without your permission, writen or verbal and enclose an invoice for use of your image. I would invoice them at a very high price, but within reason ($2500 or whatever you deam fit) and send it with terms Net 30 days. Advise them that if the invoice is not paid within the net 30 days you will contact your lawyer and start a copyright infingement suit wich will cost them 10 fold.

If they pay - great. If they do not pay, make sure you DO contact a Laywer and sue them for copyright theft. It is the ONLy way these idiots will learn. Magazines KNOW that they cannot use images without permission - this was "most likely" not unintention or a "Mistake" but blatent theft - not a magazine I would really care to do any business with...buy a few, steal a few......

and just because your website says $400 for a commercial images does not mean you cannot invoice for much more (and this is the exact reason I do not list any commercial prices on my SM site - I want commercial accounts to contact me directly so we can work out a fair price.
Aso FYI, but most magazines have a set rate they pay for images - nothing more or less. By pricing you commercial images you are probably shooting yourself in the foot by loosing business due to being over priced. The magazines I work with I just dump photos in a private gallery in my website for individual magazines and they download what they want and mail me a check later (at their set rates).

Michael

ArchiTexas wrote:

Foosion,
My advice is take a couple of days to let the anger abate a bit. You've got every reason to be mad but think this through with a cool mind. There is no doubt that you are the copyright holder, but before you can sue to demand any kind of payment from the magazine a lawyer is bound to demand some kind of payment from you. I'm not a legal expert but I've been around enough to know that compensation is awarded based on what sort of damages have been done to you. Since this is your first published image and the published version is buried inside of the magazine (not, say, on the cover) I'm not sure how you'll make the case that you've taken a serious financial hit. Would you settle for a correction in next months issue where you get proper credit? What if you can negotiate for them to feature some of your work in an upcoming issue? Would that sort of exposure make amends for this transgression? All I'm saying is, once the attorneys become involved it seems that they are the only ones that win. If you enjoy photographing RC buggies maybe the mag can compensate you with free advertising space - that could have value for you and would be easy for the publication to arrange.
ERF

~Jan~

I am the worst to offer advice here (way too passive ) but I am glued to this thread to see what happens! Let us know!

scottV

dang, every new post I read changes my mind back and forth, too much good advice
good point on the commercial pricing Michael, with the large variations that places are willing to pay you don't want to be pigeonholed.
As far as keeping things really friendly for prospect of future work I don't really see that happening. Looks like they mostly take their own photos, plus this isn't something I have shot before or plan to do regularly, just tagged along with a friend who makes parts... he paid me in beer.

ArchiTexas

MichaelKirk wrote:

I disagree with ArchiTexan solution 100%

Michael

Michael, now you sound like my in-laws: they are always telling me they disagree with me 100%!

evoryware

They didn't negotiate with you on the front end. Don't negotiate with them on the back end. I'm with Michael, send an invoice, get your money. Then when you get your money you can tell your friends and family about your first published shot.

cmason

I agree with MichaelKirk. If they had followed the legal route, it would cost them $400. That is quite cheap, esp for a cover shot. If this was a small-time magazine, printed by a guy and his dog, I would feel bad. But if this is a full-color, ad loaded, distributed magazine like you say, then they should know much better, especially as I am sure they care alot about their own copyright.

You were wronged, they should pay. Simple. Be reasonable, but don't take your normal fee. $2500 sounds like a good negotiating position.

Don't accept 'free promotion', that is useless. Consider the readership of the Magazine. If this were "Sports Promoter Magazine' or maybe "Wedding Planning Magazine", then it may make sense. But readers of this magazine are more interested in a better RC car battery than a photographer.

xris

I agree with MichaelKirk too. 100% on the money in my opinion. But you must be 100% committed to seeing it through, too.

Try having the lawyer send the letter.

thenimirra

I'm so sorry that this has happened to you, but I'm glad so many knowledgeable people have responded to you. I wouldn't know the first thing to do either if something like this happened to me.

Good luck and hang in there! I'll be watching this thread to see how things turn out.

Rhuarc

Good Luck on getting this resolved! Looking forward to hearing how this gets resolved.

Angelo

here's a thought...

technically they stole from Smugmug

have you contacted the help desk for advice?

Shudderz

Angelo wrote:

here's a thought...

technically they stole from Smugmug

have you contacted the help desk for advice?

I would have to disagree. Smugmug does not own any of the copyrights to our images. It's simply a tool we use to get OUR images out to people. You still own the rights to the photo, not smugmug. You would be the victim, not smugmug.

just my .02......I'm sure there's something stating this in one way or another in terms/conditions. TERMS

That being the case they really would have no part in this.....but someone may be able to offer advice.

Hope all works out ok for you.....any updates?

scottV

I think I will go the route of sending a strongly worded letter and see what happens. I assume the letter should be addressed to the editor? Or is there someone more appropriate?
thanks for everyone's guidance, definitely helps.

DavidTO

I say send 'em an invoice.

cmason

DavidTO wrote:

I say send 'em an invoice.

Durn tootin'

DavidTO

cmason wrote:

Durn tootin'

Yup. The only thing they can do now is to reimburse you monetarily. Anything else is just talk.

Angelo

Shudderz wrote:

I would have to disagree. Smugmug does not own any of the copyrights to our images. It's simply a tool we use to get OUR images out to people. You still own the rights to the photo, not smugmug. You would be the victim, not smugmug.

just my .02......I'm sure there's something stating this in one way or another in terms/conditions. TERMS

That being the case they really would have no part in this.....but someone may be able to offer advice.

Hope all works out ok for you.....any updates?

I did not say anything about Smugmug owning the copyright.

Smugmug acts like a retailer selling images on behalf of its member photographers and it was Smugmug's site from which the image was stolen. It would have been Smugmug that would have conducted the sale of the image so it would seem appropriate they might have an interest in this.

And since you've linked to the "terms" why not read this?:

copyright complaints

SmugMug respects the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact SmugMug's agent for notice of claims of copyright or other intellectual property infringement ("Agent"), at copyrightagent@smugmug.com or Copyright Agent, SmugMug, 3347 Shady Spring, Mountain View, CA 94040. Please provide our Agent with the following Notice:

1. Identify the copyrighted work or other intellectual property that you claim has been infringed;
2. Identify the material on the SmugMug site that you claim is infringing, with enough detail so that we may locate it on the website;
3. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
4. A statement by you declaring under penalty of perjury that (a) the above information in your Notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
5. Your address, telephone number, and email address; and
6. Your physical or electronic signature.

SmugMug's Agent will forward this information to the alleged infringer.