Do I have a case for infringement...
...or am I wasting my time?
Short story is I have shot for a non-profit for several years providing me and my teams finished processed images to both the participants and the non-profit. The agreed use for the participants was personal/non-commercial use and the non-profits use was limited to promotional activities of the entity. I worked directly with the Race Director (RD) to hammer out the expectations for this National non-profit. No formal contract was signed (yet i'm thinking there's an 'expectations' document floating around we signed) as this was gratis work with these expectations from both sides. (they expected a 'quality' product which was delivered by all accounts) All images were marked in some variation of "Copyright (non-profit name) / (photographer name)" or "Image photographer credit required for use. No commercial use without written permission" or "COPYRIGHT (photographer name) ALL RIGHTS RESERVED" in the EXIF.
I have recently learned the non-profit has entered into a partnership with a third party for-profit vendor of highly popular sports apparel. There is a slick marketing partnership video out now which uses multiple images of mine and my other shooters. There is a public Press Release with my images as well as that of my teams images. Both the non-profit and the third party vendor have this 'partnership' posted on their public web pages as well as their Facebook page.
The gallery link was shared with the participants and the non-profit when the job was complete about four days post-event. There is a download button on that page. In order to download the images, both the participant and non-profit would have to have read the gallery main front page to know how that download process works. Just above the instructions contains language of "Each of the images is available for your free personal download and use. Should you wish to use these images in a commercial application, please contact me first as that will require conversations with the Race Director/(non-profit)National"
My day rate is $600 to shoot this type of activity as are my other shooters. The event was four days of shooting and about the same number of days in cull/post/host/notifications.
I keep coming back to the expectation from the beginning as agreed was:
1) personal/non-commercial use for participants
2) internal and promotional use by the non-profit
3) all images were provided with the above in mind as well as being marked COPYRIGHT/written permission required or some variation in EXIF
4) no commercial use allowed without prior written permission after discussions between me and the RD
1) The non-profit has entered into a partnership with a for-profit third party entity using our images without written permission
2) A marketing video regarding the new partnership has been created and is being distributed on YouTube using our images without written permission
3) A Press Release has been issued by both entities and is public on their websites using our images without written permission
4) On the main page of the image galleries is clear language indicating if the images are to be used in a commercial setting, permission must first be secured.
There are no photo credits provided anywhere by the non-profit or the third party vendor in the videos, press releases, websites or Facebook.
The images contain only the Copyright/use text within the EXIF information - we did not watermark the high-res images pushed to the site for download
I believe this commercial use to be in violation of everything we've tried to accomplish regarding use of the images. As such, I'd like to be compensated my day rate as well as my teams day rate putting this job in the $7200 range for commercial use.
Do I have a leg to stand on, and if so what would be the steps? I'm not a member of PPA.
I sure would appreciate any input......