"Innocent Infringer" And What That Means to You

SamirD · September 8, 2012

This happened several months back, but I just remembered this now. Here's the story.

Shot photos for a trusted friend's wedding. Charged very little since he's my friend. Gave originals which I never do, but he's good with photo editing and understands copyrights so I thought I was safe.

Local magazine approaches his wife who is an author about publishing their wedding story. One of my photos as well as one of another photographer's is submitted by the wife to the magazine with copyright information.

Local magazine runs photos without credit and without any explicit license. Clearly in violation of US copyright laws. The magazine is for profit, so it's no charity case.

I contact an attorney I originally met here on dgrin and have conversed with several times about IP law. He let's me know that all the magazine has to do is claim that they're an 'innocent infringer', which is basically 'oh, we didn't know', and they don't have to pay any serious damages, if any. The burden of proving if it was innocent or not falls on the photographer, as well as all the legal bills.

So you work hard to take a photo, someone steals it, publishes it, makes money off of it, and it will cost you more time and money than it took to shot it to recover the money that should be yours. Oh yeah, and you have attorney's fees to pay up front, so be ready to front that cash.

My experience. It sucked. Hope this helps someone out there.

Chalk that up to being published like this 5 times now. :bash

wfeller · September 8, 2012

Some friends are better off being left as acquaintances.

adbsgicom · September 8, 2012

I'm curious how they get to be an innocent infringer if copyright information was supplied. I would understand the defense if the wife supplied images and they printed them assuming she had the right to send them on.

Angelo · September 9, 2012

I think you need a new attorney!

.

jww · September 9, 2012

I'm amazed the wife / author didn't think about copyrights or even a photo credit. Especially since her new husband's friend was the photographer. I assume she got paid?

Sad really..

Photogbiker · September 9, 2012

Magazine will claim they were given photos by the wife who clearly 'owned' them to the best of their knowledge, and as an author she is surely familiar with copyright laws. "gee, we just trusted this author (i.e. knowledgeable person in this area) that she owned the rights. Go sue her if you have a problem". At most you would get paid what their normal rate would be for submitted photos, but again they'll claim for articles like this they look to the person to provide photos at no fee.

I have run across this with a local arts magazine, but very small circulation and I would have given them free for a simple photo credit (which they typically do). This case a local drama teacher generously offered my photos to them (that I donated as a service to help the drama club), and then took credit with a "Photos courtesy of Mr. ......."

Sucks, but in most cases like this the potential winnings won't even cover the postage on the notice of claim.

SamirD · September 9, 2012

wfeller wrote: »

Some friends are better off being left as acquaintances.

He's still my very good friend. He doesn't care as much about copyrights as I do, but I know he did the best he could to respect my wishes. His wife knows all about IP since she's an author. I trust that she did the best she could as well.

adbsgicom wrote: »

I'm curious how they get to be an innocent infringer if copyright information was supplied. I would understand the defense if the wife supplied images and they printed them assuming she had the right to send them on.

They would claim that they assumed the wife that the right to send them in, even though the email would have had copyright information in it.

Angelo wrote: »

I think you need a new attorney!

Yeah, he wasn't able to really do anything. But I was able to learn about the caveat of innocent infringer.

SamirD · September 9, 2012

jww wrote: »

I'm amazed the wife / author didn't think about copyrights or even a photo credit. Especially since her new husband's friend was the photographer. I assume she got paid?

Sad really..

She did as that was the first thing I inquired about. She clearly stated who took both photographs and whom to credit the images. The magazine ignored it. She was not paid for the article since she didn't write it, the magazine did.

Photogbiker wrote: »

Magazine will claim they were given photos by the wife who clearly 'owned' them to the best of their knowledge, and as an author she is surely familiar with copyright laws. "gee, we just trusted this author (i.e. knowledgeable person in this area) that she owned the rights. Go sue her if you have a problem". At most you would get paid what their normal rate would be for submitted photos, but again they'll claim for articles like this they look to the person to provide photos at no fee.

I have run across this with a local arts magazine, but very small circulation and I would have given them free for a simple photo credit (which they typically do). This case a local drama teacher generously offered my photos to them (that I donated as a service to help the drama club), and then took credit with a "Photos courtesy of Mr. ......."

Sucks, but in most cases like this the potential winnings won't even cover the postage on the notice of claim.

Exactly my situtation. Really sucks. This is how publications hide behind 'innocent infringer' and steal images and get away with it.

Blaker · September 9, 2012

SamirD wrote: »

She did as that was the first thing I inquired about. She clearly stated who took both photographs and whom to credit the images. The magazine ignored it. She was not paid for the article since she didn't write it, the magazine did.
Exactly my situtation. Really sucks. This is how publications hide behind 'innocent infringer' and steal images and get away with it.

I agree with the PP who suggested you get a new lawyer. You got some bad info and bad advice.

SamirD · September 9, 2012

Blaker wrote: »

I agree with the PP who suggested you get a new lawyer. You got some bad info and bad advice.

I'm definitely not using the attorney again and considering not even pursuing legal action ever again since there's no point. As far as the bad info, feel free to correct what you think is incorrect.

kdog · September 10, 2012

I'm sure I will be in the minority here. The way I see it is that you took the pictures for a friend, got paid for them and gave him the images. In absence of any other agreements, I don't see why they wouldn't use them in any way they see fit. Yes, maybe there are some copyright issues with this -- or maybe not. But we're talking about a friend here. Why not just be happy for them and let it go? You can still put the publication on your resume, so you even get something out of it as well.

I had something similar to me happen recently. Maybe I'll post about it.

Glort · September 10, 2012

kdog wrote: »

I'm sure I will be in the minority here. The way I see it is that you took the pictures for a friend, got paid for them and gave him the images. In absence of any other agreements, I don't see why they wouldn't use them in any way they see fit. Yes, maybe there are some copyright issues with this -- or maybe not. But we're talking about a friend here. Why not just be happy for them and let it go? You can still put the publication on your resume, so you even get something out of it as well.

I agree entirely.

So they used a pic without putting on your info .
BFD!

Do people really think that because they get their name on a pic it's going to bring a flood of people knocking the door down and throwing fortunes in cash at you to shoot them?
Does anyone think that not having a copyright on a pic will cost them thousands in lost work?
Are people really so insecure that they need to see their name on every pic they took that actually got published??

FFS!

I couldn't count how many of my pics have been published but I could probably count on one hand the times I have been credited. I couldn't give a hoot about seeing my name on something, I'm interested in the cash and if there is none, why would you think that your names has to be on anything?

Seems people think that having their name on pics means something. Do they also think that having Fred bloggs 2099 is going to have people looking them up to find who took what really is a run of the mill unspectacular pic that every stock agency in the world probably has 100 just like them.

I suspect this is just another Cyberspace/ forum mentality because no working pro I know of would really give a damn about this type of situation.
I think people need to harden the hell up and take a reality check on some things like this.

jww · September 10, 2012

SamirD wrote: »

She did as that was the first thing I inquired about. She clearly stated who took both photographs and whom to credit the images. The magazine ignored it. She was not paid for the article since she didn't write it, the magazine did.

Wow... now that is truly crappy that they ignored her request. At least she had you in mind, though should have had the magazine contact you rather than sending them herself.

If it were me, I would think about calling the editor about photo use, what they normally pay, photo credits, and what they might be need in the future for upcoming articles etc. Since your photo was already used, maybe this could be the door they opened for you doing some freelance work for them. Turn the problem into a plus and possibly end up listed as a contributing photographer. Sort of a "you got the first one for free... what else can I do for you?".

kdog wrote: »

I'm sure I will be in the minority here. The way I see it is that you took the pictures for a friend, got paid for them and gave him the images. In absence of any other agreements, I don't see why they wouldn't use them in any way they see fit. Yes, maybe there are some copyright issues with this -- or maybe not. But we're talking about a friend here. Why not just be happy for them and let it go? You can still put the publication on your resume, so you even get something out of it as well.

Well.. the problem is that a personal license for photos is strictly for their own private and non commercial use. i.e. Not to also send in to magazines or used in marketing ads etc. So she is in violation for sending those in, but considering she is a good friends wife (though should have been a bit more on the ball as an author as well as it being her husbands friend) I think it was said it is a regional magazine without a huge circulation. So I doubt we are talking much money to even be worth legal action. ...more of a AAAARGH NOT AGAIN issue for the OP.

..and I suppose he could use the pic in his portfolio, but it's much much easier if the pic had photo credits.

orljustin · September 10, 2012

kdog wrote: »

I'm sure I will be in the minority here. The way I see it is that you took the pictures for a friend, got paid for them and gave him the images. In absence of any other agreements, I don't see why they wouldn't use them in any way they see fit. Yes, maybe there are some copyright issues with this -- or maybe not. But we're talking about a friend here. Why not just be happy for them and let it go? You can still put the publication on your resume, so you even get something out of it as well.

I had something similar to me happen recently. Maybe I'll post about it.

Agreed. And the article was about _their_ wedding story. It wasn't an article about weddings in general, or an ad or anything.

SamirD · September 10, 2012

kdog wrote: »

I'm sure I will be in the minority here. The way I see it is that you took the pictures for a friend, got paid for them and gave him the images. In absence of any other agreements, I don't see why they wouldn't use them in any way they see fit. Yes, maybe there are some copyright issues with this -- or maybe not. But we're talking about a friend here. Why not just be happy for them and let it go? You can still put the publication on your resume, so you even get something out of it as well.

I had something similar to me happen recently. Maybe I'll post about it.

Glort wrote: »

I agree entirely.

So they used a pic without putting on your info .
BFD!

Do people really think that because they get their name on a pic it's going to bring a flood of people knocking the door down and throwing fortunes in cash at you to shoot them?
Does anyone think that not having a copyright on a pic will cost them thousands in lost work?
Are people really so insecure that they need to see their name on every pic they took that actually got published??

FFS!

I couldn't count how many of my pics have been published but I could probably count on one hand the times I have been credited. I couldn't give a hoot about seeing my name on something, I'm interested in the cash and if there is none, why would you think that your names has to be on anything?

Seems people think that having their name on pics means something. Do they also think that having Fred bloggs 2099 is going to have people looking them up to find who took what really is a run of the mill unspectacular pic that every stock agency in the world probably has 100 just like them.

I suspect this is just another Cyberspace/ forum mentality because no working pro I know of would really give a damn about this type of situation.
I think people need to harden the hell up and take a reality check on some things like this.

Just shows how clueless some photographers are about where the money is.

Magazines make money by charging advertisers. They take this money and use it to create content that their readers will read (and possibly pay to read). They spend this money on staff who writes the articles, graphics designers who create the layout, and photographers who take pictures.

That's great that you're giving your work away for free.
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jww wrote: »

Wow... now that is truly crappy that they ignored her request. At least she had you in mind, though should have had the magazine contact you rather than sending them herself.

If it were me, I would think about calling the editor about photo use, what they normally pay, photo credits, and what they might be need in the future for upcoming articles etc. Since your photo was already used, maybe this could be the door they opened for you doing some freelance work for them. Turn the problem into a plus and possibly end up listed as a contributing photographer. Sort of a "you got the first one for free... what else can I do for you?".

I thought about the avenue about calling up the editor, but I wanted to have some legal backing in case that didn't work. I know myself and how angry I would've gotten if I would've just gotten a 'nah, thanks for the free photo though'. I've been there too many times with local publications (including newspapers) and know I'd go ballistic if this one led to that same result.

jww wrote: »

Well.. the problem is that a personal license for photos is strictly for their own private and non commercial use. i.e. Not to also send in to magazines or used in marketing ads etc. So she is in violation for sending those in, but considering she is a good friends wife (though should have been a bit more on the ball as an author as well as it being her husbands friend) I think it was said it is a regional magazine without a huge circulation. So I doubt we are talking much money to even be worth legal action. ...more of a AAAARGH NOT AGAIN issue for the OP.

..and I suppose he could use the pic in his portfolio, but it's much much easier if the pic had photo credits.

Exactly. And I'm sure the magazine just ignores copyright since most people are all 'ooo, I got my photo published! Look at me!'. I see a lot of media making bank this way now, firing full-time videography/photography staff and encouraging people to send in their stuff instead. Weather channel is doing a great job encouraging people to risk their lives to take photos of dangerous weather and send it in. 'Yay, that's my photo! Too bad my foot got hit by a tree.'

orljustin wrote: »

Agreed. And the article was about _their_ wedding story. It wasn't an article about weddings in general, or an ad or anything.

I'm not sure what you mean by this.

Who cares what the article was about? The Magazine is making money off my photo, so I want my cut.

kdog · September 10, 2012

SamirD wrote: »

Just shows how clueless some photographers are about where the money is.
[...]
The Magazine is making money off my photo, so I want my cut.

Riiiiiiight. So call your lawyer, spend countless hours getting your fifty bucks from the magazine editor, and then lose the referral and a friend in the process. And I'm the clueless one!

SamirD · September 10, 2012

kdog wrote: »

Riiiiiiight. So call your lawyer, spend countless hours getting your fifty bucks from the magazine editor, and then lose the referral and a friend in the process. And I'm the clueless one!

Nope, called the attorney to find out what the process and possible outcomes are, and then we didn't take action since we'd have to fight the 'innocent infringer' plea. It was three emails. And if the magazine knows this, why bother calling them?

Bottom line is that Innocent Infringer can be used by publications to skirt around paying for anything.

kdog · September 10, 2012

Fair enough. So will you be changing your business practices to ensure this sort of thing doesn't happen to you again?

BTW, your lawyer called. Seems he's pissed that you blabbed his private advice to you all over the internet without getting paid for it.

Glort · September 11, 2012

SamirD wrote: »

Just shows how clueless some photographers are about where the money is.

Magazines make money by charging advertisers. They take this money and use it to create content that their readers will read (and possibly pay to read). They spend this money on staff who writes the articles, graphics designers who create the layout, and photographers who take pictures..

Sorry, but if you think the money is in magazine work, your about 10-20 years behind the times for the most part.

There WAS money in magazines years ago but not now.
I used to shoot for a popular girly magazine and the girl and I got $5K apiece. The last shoot I did for them I got $1500 and after that they were paying shooters and models $600, take it or leave it. Same with car mags. Back in the days when you actually had to know how to use a camera and a light meter and "film" was automatically known to be medium format Tranny, the mags paid enough for a person to make a good living from.
Now if they will give you the time of day for a pic, you have to chase what's owed for months through the excuse ,,,, err,,, accounts dept whom seem to work on the premise if they string you along enough with stupid excuses you'll give up and they don't have to pay.

I KNOW Where more money than I have ever known in my life is right now and I can guarantee you it sure as shavings Ain't in magazines or most areas of published work for that matter.

angevin1 · September 11, 2012

SamirD wrote: »

This happened several months back, but I just remembered this now. Here's the story.

Shot photos for a trusted friend's wedding. Charged very little since he's my friend. Gave originals which I never do, but he's good with photo editing and understands copyrights so I thought I was safe.

Local magazine approaches his wife who is an author about publishing their wedding story. One of my photos as well as one of another photographer's is submitted by the wife to the magazine with copyright information.

Local magazine runs photos without credit and without any explicit license. Clearly in violation of US copyright laws. The magazine is for profit, so it's no charity case.

I contact an attorney I originally met here on dgrin and have conversed with several times about IP law. He let's me know that all the magazine has to do is claim that they're an 'innocent infringer', which is basically 'oh, we didn't know', and they don't have to pay any serious damages, if any. The burden of proving if it was innocent or not falls on the photographer, as well as all the legal bills.

So you work hard to take a photo, someone steals it, publishes it, makes money off of it, and it will cost you more time and money than it took to shot it to recover the money that should be yours. Oh yeah, and you have attorney's fees to pay up front, so be ready to front that cash.

My experience. It sucked. Hope this helps someone out there.

Chalk that up to being published like this 5 times now. :bash

If you'd like to have a photo credit for your photo, you might consider calling or better yet stopping by the Mag and asking for one. They could easily place the photo on the editorial page with full credit.

SamirD · September 15, 2012

kdog wrote: »

Fair enough. So will you be changing your business practices to ensure this sort of thing doesn't happen to you again?

BTW, your lawyer called. Seems he's pissed that you blabbed his private advice to you all over the internet without getting paid for it.

My usual business policies prevent this issue.

If the attorney had said this was privileged information protected under copyright or IP law, it wouldn't have been posted.

Glort wrote: »

Sorry, but if you think the money is in magazine work, your about 10-20 years behind the times for the most part.

Oh, I completely understand that. But the $100 or so that they usually pay is still money lost, right? Why not get what I've earned?

angevin1 wrote: »

If you'd like to have a photo credit for your photo, you might consider calling or better yet stopping by the Mag and asking for one. They could easily place the photo on the editorial page with full credit.

I can easily do that, but that's not the point. If they pay for photo submissions, I should have gotten paid too.

"Innocent Infringer" And What That Means to You

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