There is truth to what both of you are saying. If you become aware that a advertisement is using an image of yours that infringes on your copyright and do nothing to notify them of the fact and do not pursue enforcement of your copyright that will most likely be viewed as a tacit permission for them to continue to use the image. If you decide down the road to go after them for infringement, and they can prove that you knew about infringement (say by a board posting mentioning it) and you can not prove that you attempted to enforce your copyright they will probably be able to limit the damages you are able to collect to the infringement that occurred prior to you becoming aware that they were infringing on your copyright. That does not make what they are doing any less illegal, it just affects what the legal system will allow you to recover.
Taking the time to register your images with the copyright office BEFORE they are infringed on (or within 3 months of initial publication, which in my mind would include publication even on a personal website) grants you additional rights. You images are protected by copyright even if you don't register, but you can only collect actual damages, not punitive/statutory damages. If someone infringes on your copyright and you then go out and register them with the copyright office (assuming it has been at least 3 months since initial publication) you are only going to be able to collect actual damages for that infringement.
This can even be extended back to the analogy of theft from a car that was brought up earlier. I have a separate insurance policy on my photography equipment that includes coverage for theft, however it (and most other insurance policies I've seen) specifically excludes "mysterious disappearance." What this means is that if there is no evidence, such as a broken window or damaged lock, or witness to the theft they do not have to reimburse me for the loss. It doesn't make the theft any less of a theft, but it does affect what I am able to recover.
Another example would be the use of No Trespassing signs. If someone is on property that you own that is not fenced in and that property is not properly marked with No Trespassing signs, or other legal indicators (such as particular color of paint on trees) your recourse is limited to asking them to leave, and until you do so you are not going to be able to bring any charges against them. If however your property is signed for no trespassing you will have a much better chance of being able to successfully bring charges against them for trespassing.
a photographer that fought a company illegally using his photo, and won..
Remember, too, that winning in court and actually collecting the awarded damages are two completely separate issues. That could be a whole different battle that could be (and oftentimes is) fought in court.
It will be interesting to see in vilana actually pays up. I would be surprised if he did without another long, protracted battle.
Also, is it possible to see a copy of the letter/invoice that was sent? I am interested in knowing what wording was used.
I am constantly seeing images taken by myself being used on local flyers for events/shows. This thread has definitely been a great source of information.
[my Resolution]
I filed for and submitted paperwork for a US Copyright, obtained the US Copyright, the paperwork is much easier these days electronically.
I also have a lawyer on retainer who I work with to negotiate contracts and send nasty grams and collection letters to not so nice people who use our pictures or post them without asking us first. I have posted almost on every single gallery a nice little warning, it bothers some, but it cuts down on a lot of issues to date, plus our picture sales are somewhat getting better, not great..
Also, is it possible to see a copy of the letter/invoice that was sent? I am interested in knowing what wording was used.
I am constantly seeing images taken by myself being used on local flyers for events/shows. This thread has definitely been a great source of information.
I filed for and submitted paperwork for a US Copyright, obtained the US Copyright, the paperwork is much easier these days electronically.
I also have a lawyer on retainer who I work with to negotiate contracts and send nasty grams and collection letters to not so nice people who use our pictures or post them without asking us first. I have posted almost on every single gallery a nice little warning, it bothers some, but it cuts down on a lot of issues to date, plus our picture sales are somewhat getting better, not great..
/mark
That is a great suggestion of posting a warning on each gallery. I have applied the warning to my template customization and it is now seen on every page of the gallery portion of my site.
[custom message]
The other item to fix is to raise your personal/commercial use license fees to something that you feel reasonable ok about.. I raised them to a point where if the person is really serious about using the picture for commercial purposes, they usually get me on the telephone or email, since the prices are steep, but that stops a majority of them, plus I use the stock 'PROOF" across the pics posted, it is removed when the picture is ordered, but the other big dollar item is purchasing a MyDigimarc license, via mydigimarc.com, it is bit pricey, but it also allows some visibility on where your pictures may end on the internet.
That is a great suggestion of posting a warning on each gallery. I have applied the warning to my template customization and it is now seen on every page of the gallery portion of my site.
FYI, just about every time I've seen Digimark mentioned, it has been about how useless it is. Before spending a bunch of money on it, I'd look into it & get feedback about it's actual effectiveness from third parties first.
So after I sent the letter they got in contact with me and we worked out a fair price. I was pleased and they were going to print a correction with proper credit in the may issue. May issue is out now and big surprise, no reprint. Email to them last week has gone unsanswered, my fault for trusting them I guess, what a pack of a-holes.
FYI, just about every time I've seen Digimark mentioned, it has been about how useless it is. Before spending a bunch of money on it, I'd look into it & get feedback about it's actual effectiveness from third parties first.
I checked out the Digimark and sure enough, it is far to expensive for me to use. $500 for protection of 5000 images. That would be 2 weeks of photos for me so it definitely it is not acceptable. Plus, I am unsure how the digimark will still ensure protection when someone hacks up my image into photoshop for use in a flyer since that is my main problem at the moment.
f00sion, well you did get paid though right? That has to be a good thing.
So after I sent the letter they got in contact with me and we worked out a fair price. I was pleased and they were going to print a correction with proper credit in the may issue. May issue is out now and big surprise, no reprint. Email to them last week has gone unsanswered, my fault for trusting them I guess, what a pack of a-holes.
Congrats! Not that you should stop pestering them about proper credit, but even if they don't come through you can still say on your website that you've been published!
Comments
There is truth to what both of you are saying. If you become aware that a advertisement is using an image of yours that infringes on your copyright and do nothing to notify them of the fact and do not pursue enforcement of your copyright that will most likely be viewed as a tacit permission for them to continue to use the image. If you decide down the road to go after them for infringement, and they can prove that you knew about infringement (say by a board posting mentioning it) and you can not prove that you attempted to enforce your copyright they will probably be able to limit the damages you are able to collect to the infringement that occurred prior to you becoming aware that they were infringing on your copyright. That does not make what they are doing any less illegal, it just affects what the legal system will allow you to recover.
Taking the time to register your images with the copyright office BEFORE they are infringed on (or within 3 months of initial publication, which in my mind would include publication even on a personal website) grants you additional rights. You images are protected by copyright even if you don't register, but you can only collect actual damages, not punitive/statutory damages. If someone infringes on your copyright and you then go out and register them with the copyright office (assuming it has been at least 3 months since initial publication) you are only going to be able to collect actual damages for that infringement.
This can even be extended back to the analogy of theft from a car that was brought up earlier. I have a separate insurance policy on my photography equipment that includes coverage for theft, however it (and most other insurance policies I've seen) specifically excludes "mysterious disappearance." What this means is that if there is no evidence, such as a broken window or damaged lock, or witness to the theft they do not have to reimburse me for the loss. It doesn't make the theft any less of a theft, but it does affect what I am able to recover.
Another example would be the use of No Trespassing signs. If someone is on property that you own that is not fenced in and that property is not properly marked with No Trespassing signs, or other legal indicators (such as particular color of paint on trees) your recourse is limited to asking them to leave, and until you do so you are not going to be able to bring any charges against them. If however your property is signed for no trespassing you will have a much better chance of being able to successfully bring charges against them for trespassing.
http://www.cgstock.com/essays/vilana
a photographer that fought a company illegally using his photo, and won..
Remember, too, that winning in court and actually collecting the awarded damages are two completely separate issues. That could be a whole different battle that could be (and oftentimes is) fought in court.
It will be interesting to see in vilana actually pays up. I would be surprised if he did without another long, protracted battle.
GreyLeaf PhotoGraphy
Also, is it possible to see a copy of the letter/invoice that was sent? I am interested in knowing what wording was used.
I am constantly seeing images taken by myself being used on local flyers for events/shows. This thread has definitely been a great source of information.
I filed for and submitted paperwork for a US Copyright, obtained the US Copyright, the paperwork is much easier these days electronically.
I also have a lawyer on retainer who I work with to negotiate contracts and send nasty grams and collection letters to not so nice people who use our pictures or post them without asking us first. I have posted almost on every single gallery a nice little warning, it bothers some, but it cuts down on a lot of issues to date, plus our picture sales are somewhat getting better, not great..
/mark
Principle Photographer/Co-Founder
Body Bumpers, LLC
PH: 717 918 1262
Fax: 831 480 5873
url: www.body-bumpers.com
email: mteicher@body-bumpers.com
That is a great suggestion of posting a warning on each gallery. I have applied the warning to my template customization and it is now seen on every page of the gallery portion of my site.
Thank you!
The other item to fix is to raise your personal/commercial use license fees to something that you feel reasonable ok about.. I raised them to a point where if the person is really serious about using the picture for commercial purposes, they usually get me on the telephone or email, since the prices are steep, but that stops a majority of them, plus I use the stock 'PROOF" across the pics posted, it is removed when the picture is ordered, but the other big dollar item is purchasing a MyDigimarc license, via mydigimarc.com, it is bit pricey, but it also allows some visibility on where your pictures may end on the internet.
Principle Photographer/Co-Founder
Body Bumpers, LLC
PH: 717 918 1262
Fax: 831 480 5873
url: www.body-bumpers.com
email: mteicher@body-bumpers.com
http://www.chrislaudermilkphoto.com/
I checked out the Digimark and sure enough, it is far to expensive for me to use. $500 for protection of 5000 images. That would be 2 weeks of photos for me so it definitely it is not acceptable. Plus, I am unsure how the digimark will still ensure protection when someone hacks up my image into photoshop for use in a flyer since that is my main problem at the moment.
f00sion, well you did get paid though right? That has to be a good thing.
Congrats! Not that you should stop pestering them about proper credit, but even if they don't come through you can still say on your website that you've been published!