Legal question

BBones · April 29, 2005

Back in February a club held an event in which they used one of my pictures without my permission as part of their promotional material (playbills, website(s), handouts). The picture was also altered to remove my watermark from the bottom of it.

I made them aware that the image was one of my images and never recieved a word from them even as an apology for using the image without my permission much less compensation. They did offer to let me work there as the club photog for a while, which I did.

Does this sound like I have a leg to stand on to take them to something like small claims court? If so, what would you say is fair for payment? Either if we go to court or settle out of court? They really yanked me around as far as not paying me for the time that I worked there so I am really in no mood to be nice to them. I have a copy of my original image and a color copy of the handout they were using with the obvious cropping out of my logo.

gus · April 29, 2005

I would skin 'em alive !! Removing a water mark is going a bit far.

Personally if it was me i would like to have been asked & then we work an agreement..not so much money but as you mentioned, some access to what ever you are shooting.

The settlement...well for me just enough to cover a nice L lens of resonable value.

dragon300zx · April 29, 2005

I am not a lawyer. That said. To me it sounds like you would have a case, I mean it was clearly labeled as your photo, they didn't pay you for the work you did for them that they were supposed to. I say take em to court as you have lost money on it. How much

.

mercphoto · April 29, 2005

BBones wrote:

Back in February a club held an event in which they used one of my pictures without my permission as part of their promotional material (playbills, website(s), handouts). The picture was also altered to remove my watermark from the bottom of it.

I made them aware that the image was one of my images and never recieved a word from them even as an apology for using the image without my permission much less compensation. They did offer to let me work there as the club photog for a while, which I did.

Does this sound like I have a leg to stand on to take them to something like small claims court? If so, what would you say is fair for payment? Either if we go to court or settle out of court? They really yanked me around as far as not paying me for the time that I worked there so I am really in no mood to be nice to them. I have a copy of my original image and a color copy of the handout they were using with the obvious cropping out of my logo.

Screw 'em. You have a lot of legal legs to stand on. As per what you should get for fair payment, there are books on this subject, as per what a photograph should get based on its use. Search Amazon for "pricing photography" and see what comes up. I'm going to guess several hundred dollars, minimum. The fact that the picture was altered to remove a watermark, to me, adds more on top of that as it proves intent. They didn't accidentally use this image, and they certainly didn't ask you for a clean copy either.

I had a very messy go around with a kart operation about two months ago over the very same type of problem. Amazing how arrogant those people were. I'm still pissed over it.

Angelo · April 29, 2005

here's an idea:

go to www.gettyone.com

go through the image selection and contract stages of the website to determine how they assess fees for licensed photographs (you can stop just short of completing the transaction) - use those numbers as a basis for your small claims filing.

wxwax · April 29, 2005

Yes, you have a case.

Not sure how much you should ask for.

Small claims court?

How about spending a bit on an attorney, and firing off a few very threatening letters. Include the cost of your legal representation in your demand for compensation. I suspect they're ignorant about the law. Their own attorneys will tell them they made a mistake. Hopefully they'd rather pay, than go through legal proceedings.

Shay Stephens · April 29, 2005

Before you do anything
First add up what all the usage fees would have been. Write up a nice invoice and send it to them describing why they are getting this bill. If they pay it, you are miles ahead, have not burned any bridges, and justice has been done.

If instead you jump right to legal proceedings, you will spend money, time, and aggravation on an unknown outcome, burn bridges, and justice may still no be done.

Create a paper trail, build your case, you may not ever have to go to court, and it is wise not to.

Let the courts be your last line of defense, not the first ;-)

dragon300zx · April 29, 2005

Shays level head is right. I always seem to think right past this step. It is important to show you have found that they used your product, can prove its yours, that you have asked for compensation, and that they have refused.

gus · April 29, 2005

dragon300zx wrote:

Shays level head is right. I always seem to think right past this step. It is important to show you have found that they used your product, can prove its yours, that you have asked for compensation, and that they have refused.

Yeah...i hate when sheriff sensible takes the saddles off the lynch mobs horses.

Shay Stephens · April 29, 2005

Kemp: A riot is an ugly sink. Unt, vonce you get vone schtarted, zere is little chance of schtoppink it, short of blootshet. I sink before ve go around killing people, ve had better make damn sure of our evidence, unt ve had better confirm de fact dat young Frankenschtein is indeed following in his grandfadder's footschtaps!
Townspeople: What?
Kemp: Following in his grandfadder's footschtaps. Footschtaps, footschtaps!
Townspeople: Oh, footsteps!
Kemp: I tink vat is in order is for me to pay a little visit on ze good doctor unt to have a nice, qviet chat.

Humungus wrote:

Yeah...i hate when sheriff sensible takes the saddles off the lynch mobs horses.

Sam · April 29, 2005

Ok, here come the devils advocate………………………..I see this differently. You informed club of their unauthorized use of your photo. Club, while not admitting to any wrongdoing, offers you the opportunity to work for club. You accept. You have accepted something of value for their use of your photograph. IE: You agreed to the opportunity to work there in lue of payment. Matter settled.

Now if they haven’t paid you for this work, that is a different matter.

Sam

Shay Stephens · April 29, 2005

Hmm, that is actually a good point. That could be viewed as acceptable compensation that was agreed to by both sides. Hmm.

Sam wrote:

Ok, here come the devils advocate………………………..I see this differently. You informed club of their unauthorized use of your photo. Club, while not admitting to any wrongdoing, offers you the opportunity to work for club. You accept. You have accepted something of value for their use of your photograph. IE: You agreed to the opportunity to work there in lue of payment. Matter settled.

Now if they haven’t paid you for this work, that is a different matter.

Sam

dragon300zx · April 29, 2005

But shay if they don't have it writing that that is the payment, and they assumed their offer would be taken that way well.. Sounds like a loophole to me cause TML didn't understand that they ment that would be the compensation.

ian408 · April 29, 2005

dragon300zx wrote:

But shay if they don't have it writing that that is the payment, and they assumed their offer would be taken that way well.. Sounds like a loophole to me cause TML didn't understand that they ment that would be the compensation.

A verbal contract is still a contract in most places.

I think the idea of starting with an initial invoice and documenting your
attempts to recover a resonable fee is the right approach. It's a paper
trail that's difficult to argue with.

What I'd be confused about is whether small claims is the place to go.
One could argue that your case is one of copyright infringement. There
might be damages but is small claims court the right place?

Do let us know how it works out.

Thanks,
ian

Shay Stephens · April 29, 2005

It's a sticky situation. It could be argued both ways in court. And they could argue out of court that they made restitution with the work offer. It's a weak argument, but none the less a possibility.

The problem it sounds like from the description given so far is that the unpaid usage was not billed right away, and with the passing time and job offer, they could think the matter is settled. And it just may work out that way. Hard knocks and learning the hard way if you will.

But if I am wrong about that, then I would still send a bill and see what happens. Maybe some other kind of formal arrangement could take place that would settle this for both sides.

dragon300zx wrote:

But shay if they don't have it writing that that is the payment, and they assumed their offer would be taken that way well.. Sounds like a loophole to me cause TML didn't understand that they ment that would be the compensation.

Sam · April 29, 2005

Shay Stephens wrote:

It's a sticky situation. It could be argued both ways in court. And they could argue out of court that they made restitution with the work offer. It's a weak argument, but none the less a possibility.

The problem it sounds like from the description given so far is that the unpaid usage was not billed right away, and with the passing time and job offer, they could think the matter is settled. And it just may work out that way. Hard knocks and learning the hard way if you will.

But if I am wrong about that, then I would still send a bill and see what happens. Maybe some other kind of formal arrangement could take place that would settle this for both sides.

I agree with some of what Shay is saying but I don't see this as sticky at all.

You agreed to accept the work opportunity as restitution. Now at a later date, for whatever reason your not happy with the deal, and you want to unilaterally rescind the agreement. I would argue the club performed on their end of the accepted agreement and you can not now set the clock back, and start over.

If there is non performance by club on this agreement, that would be a different story, and allow you to argue for club to perform, or reopen the original discusion with regard to reasonable compensation for use of your photograph.

Sam

BBones · April 30, 2005

Club, while not admitting to any wrongdoing, offers you the opportunity to work for club. You accept. You have accepted something of value for their use of your photograph.

I could understand this. However, not only have they not paid me for those times.

So, I have been robbed of a shot that was used commercially for the club all over Seattle and never paid for the 10 shoots I did after the image theft at the club.

Shay Stephens · April 30, 2005

Bill them! Start the paper trail.

BBones wrote:

I could understand this. However, not only have they not paid me for those times.

So, I have been robbed of a shot that was used commercially for the club all over Seattle and never paid for the 10 shoots I did after the image theft at the club.

DavidTO · April 30, 2005

I have a friend that is a pro photographer. He did a shoot for an actor at dress rehearsals for a play. Big name. Anyway, it was just for the actor. The show then used his images without his permission in the playbill. Big show. He tried to contact them for over a week, and never got a response beyond we're looking into it. His response was to send them an invoice for a huge sum of money. It's an f-you fee for stealing. He gave them the opportunity to pay a fair fee for it, and they put him off. I think he's right-on with charging far above market value given the situation.

I see this in my work, as well. I cut trailers for movies. Sometimes a cue won't be cleared/payed for properly. The composer will then charge an extra large fee for the use, since they were denied the opportunity to negotiate up front.

I'm not saying what you should do, because your situation seems to be more complicated, and is certainly beyond my meager understanding of the law. But I thought it might help to give you that perspective. Good luck!

bfjr · April 30, 2005

Shay Stephens wrote:

First add up what all the usage fees would have been. Write up a nice invoice and send it to them describing why they are getting this bill. If they pay it, you are miles ahead, have not burned any bridges, and justice has been done.

If instead you jump right to legal proceedings, you will spend money, time, and aggravation on an unknown outcome, burn bridges, and justice may still no be done.

Create a paper trail, build your case, you may not ever have to go to court, and it is wise not to.

Let the courts be your last line of defense, not the first ;-)

This is 100% correct as how to handle this situtation! Again cannot stress enough how correct this is !!!

Documentation (paper trail) very important!!

One other thing :
There maybe some implied constent by you (you can get around it).

Sam · April 30, 2005

BBones wrote:

I could understand this. However, not only have they not paid me for those times.

So, I have been robbed of a shot that was used commercially for the club all over Seattle and never paid for the 10 shoots I did after the image theft at the club.

Ah.....new important information! Now it gets a little sticky. I don't believe you can loose, but I'm not sure how much you can reasonably expect to win.

Did you agree on an amount / fee / terms for these 10 shoots? Anything in writting? (it doesn't have to be in writting). Any correspondance (e-mail etc) with regard to these shoots?

While I don't think you can get paid for both the unauthorized use of the photo and the agreed settlement (10 shoots) you sure can get paid for the 10 shoots.

Also wouldn't the 10 shoots be worth more than the one time use of the photo?

A thought just poped into my head. If they continued to use the photo after you started to shoot for them, and didn't say anything, that would be considered consent on your part.

YES! start the paper trail. Send them a letter of demand for (I think the 10 shoots).

Think about all the facts involved. Write them down in outline form. Write a simple letter of demand stating the facts, and the amount owed. Don't let emotion creep into this leter. Be clear but profesional. You can start this letter by writting, "This is a letter of demand". Most states will give them 30 days (I think) to respond. If the amout is under your states small claims limit I would take it there. If its over this, I wouldn't do anything myself at this point, I would get a lawyer.

Good luck,

Sam

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