OT: A Personal Case of Copyright Infringement

Discussion in '35mm Cameras' started by Eric Miller, Jun 9, 2005.

  1. Eric Miller

    Eric Miller Guest

    Back in 2003, I photographed a local 10K race. I did it for free for the
    non-profit organization that holds the race and gave them a couple of CD's
    with all the images and specifically gave the organizers permission to use
    the photos however they wanted and they didn't even have to give me credit.
    They have so far used the photos on their website, graciously crediting me
    for work and giving a link to my website. I also posted all the photographs
    on my website.

    Skip forward a little over two years . . .

    Today, I got a call from one of the organizers of the 10K who informed me
    that the local newspaper (owned by a national chain of papers) had published
    part of one of my photos in their newspaper advertising an insert that is
    going to be in this Sunday's edition. I bought a newspaper, which I seldom
    read, and sure enough, it's a crop of one of my photos of the race, plain as
    day.

    I called the newpaper publisher's office and the secretary who answered the
    phone courteously and knowingly intimaged to me, "You know, we do cover
    those local races." To which I answered, "Ma'am, its my photograph." I was
    told that the editor of the responsible department would give me a call. At
    that point, I was only seeking an explanation of how the image got into the
    paper (I'm pretty sure they downloaded it from my website). Now, most of the
    day has passed and I haven't received a call back.

    Now, I know its my photo. It's a small town and I even know where the local
    newspaper's photographer was at the time that I snapped the photo (she was
    at the finish line, two miles away, across town). I traveled around the
    course and the photographer for the newspaper stayed at the start/finish
    area. So I know that no-one else was even in the right area to have taken
    this photo of an identifiable runner.

    The question is, what should I do? On the one hand, I really had no profit
    motive in taking the photo so I'm not really out anything. On the other
    hand, it was never my intention with making these photos available that
    someone else would steal them for use for profit. Further, it just sort of
    angers me that someone stole my image and published it without my permission
    and even more so that its a newspaper that doesn't even cover these sorts of
    local events very well and that they are using it to advertise a future
    issue of their paper, i.e., not to benefit the organization to which I gave
    permission to use images or for any other deserving group.

    I'm thinking about writing a demand letter. In any event, now that I've
    rambled on, has anyone here had experience with this sort of situation.

    BTW: I still have the negative.

    Eric Miller
     
    Eric Miller, Jun 9, 2005
    #1
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  2. Eric Miller

    Eric Miller Guest

    Oh yes, I should add that the organizers of the 10K did not give permission
    to the local paper to use the image. The guy was pretty perturbed about the
    images use since he can't get decent coverage of the event out of the local
    paper.

    Eric Miller
     
    Eric Miller, Jun 9, 2005
    #2
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  3. I only have one question: Why are you telling us about it, and not the
    District Attorney?
     
    James Of Tucson, Jun 9, 2005
    #3
  4. Eric Miller

    Alan Browne Guest

    Eric Miller wrote:
    Keep calling once/twice a day. Sometimes people just have things they
    need to do before they can call back. Also, people put off replies to
    what may be perceived as an adversarial situation.

    That's 90% of it right there.
    Your web page is additional evidence.

    Can we see your webpage and the image in question?

    I'll give you the whole banana bunch right here as I would proceed.

    ROUND I: You've already done what will probably work. But...

    If you don't get through or get a return call in a few days, then:

    ROUND II:
    Simply write them a "Without Prejudice" letter, informing them of the
    facts, stating your claim to the image, posession of the negative, image
    on website and request fair compensation for it. Include a photocopy of
    the image as it appeared in the paper. State a price that's higher than
    you believe they will pay and accept any reasonable amount less than
    that. Acquire further copies of that edition, if you can for future use.

    Use phrases like " ... used my photography without my permission." But
    don't threaten legal action or punitive compensation. (Save for later).
    Do request a reply in writing. Send it registered to signal you're
    serious.

    That will probably result in a negotiation and $25 (or whatever amount).
    It probably won't go further. But...

    ROUND III
    If they then phone you and the result is still negative, tell them to
    reply in writing within 10 days. If they don't, then repeat the
    registered letter exercise. In the 2nd round you CC: (not registered,
    but include the CC: list on the letter) to your lawyer, the publisher
    (if not the editor), local CoC, the BBB and whoever else you can think
    of. If the photo was used to advertise for a local business or agency,
    CC to them to. This time add the threat of court, punitive damages,
    legal/court costs.

    No result then ...

    ROUND IV: If you're intent on resolution: go to your lawyer with the
    whole ball of wax.


    I have written "Without Prejudice" letters in other situations (non
    photo related) where somebody was not responding to some needed action.
    Such a letter, being formal, is both informative to the reader, and
    carries the unstated threat of escalation. Usually works and gets
    prompt action.

    And fer cripes sake : Ask for money, not an explanation.

    Cheers,
    Alan
     
    Alan Browne, Jun 9, 2005
    #4
  5. 1. Because so far, it's a civil case, not a criminal case.
    2. If it was a Criminal Case, it would be a U.S. federal case.
    So going to your local DA would be a waste of time. Nor are
    Federal Prosecutors typically interested in persuing small-time
    copyright cases.

    Unless the work was already registered at the time of infringement,
    any judgment you get in court wouldn't be worth the cost.

    I would ask the local editor for a printed acknowledgement of the
    error in the paper, plus standard payment for the photo. If you
    don't get satisfaction at the local level, either bring it to
    corporate or take your story to another newspaper chain...
     
    Michael Benveniste, Jun 10, 2005
    #5
  6. Eric Miller

    Paul Furman Guest

    my 2 cents

    Send them an invoice politely asking for payment, probably at a much
    higher rate if you don't want to sell more to them.
     
    Paul Furman, Jun 10, 2005
    #6
  7. Eric Miller

    Eric Miller Guest

    Well, as the day wore on and no-one called, I got more and more irritated
    about this incident. I think that not returning my call is the plan at the
    'ol local paper. I'll see if they run the same ad tomorrow. But in the
    meantime, this is the plan, I will send them a demand letter on my lawfirm's
    letterhead (did I mention that I'm a lawyer?) requesting a total of $1,500
    ($750 for each day that they ran the image). I did a little research today
    and discovered that the minimum statutory damages provided for by the
    Copyright act is $750. To prove my certainty about the ownership of the
    image, I'll send them a nice inkjet print of the crop that they used along
    with the letter. If they print it tomorrow, the price will be $2,250. If
    they print it further, I'll just file my lawsuit. The way that damages are
    measured in these cases, according to my reading of the act, is disgorgement
    of profits. I simply have to prove up the total gross sales of the
    publication that contains my image and then they will have to prove the
    relative worth of my work as an addition in order to not have to pay the
    gross sales number. I know what their attorney charges, in fact, I know
    their attorney, and it'll be worth their while to pay me enough money for a
    20D.

    Eric Miller
     
    Eric Miller, Jun 10, 2005
    #7
  8. Well, since you turned over the photo to the event organizers, I would say
    that it's their call. IOW, if they want to give the newspaper a hard time,
    then so be it. But you effectively gave up your rights to the photo when you
    let them use it for any purpose they wanted.
     
    William Graham, Jun 10, 2005
    #8
  9. I thought the new copyright laws had turned that idea on its head.
     
    James Of Tucson, Jun 10, 2005
    #9
  10. Eric Miller

    Roxy d'Urban Guest

    Wrong, he gave them permission to use the photo, not own it. I've done
    this plenty of times.

    I would simply send them a nice big fat invoice. If they didn't pay up I
    would then sic a debt collector onto them. I recently did this to some
    dickhead who refused to pay me for services rendered last year (long
    story). I had actually forgotten about it when I got a cheque in the mail
    from the collections agency. Plus the dumbass who tried to screw me now
    has a black mark on his credit rating.
     
    Roxy d'Urban, Jun 10, 2005
    #10
  11. "I would simply send them a nice big fat invoice. If they didn't pay up
    I
    would then sic a debt collector onto them. "

    It gets complicated when it's someone you'd like to still have a
    relationship with after settling the one matter.
     
    James Of Tucson, Jun 10, 2005
    #11
  12. Eric Miller

    Alan Browne Guest

    No. He gave rights to the org to use them; he did not give rights to
    the newspaper to rip them from his sight and use them.
     
    Alan Browne, Jun 10, 2005
    #12
  13. Eric Miller

    Alan Browne Guest

    Nah, do it just right and you get their respect and added to their list
    of local photogs.
     
    Alan Browne, Jun 10, 2005
    #13
  14. You may be a lawyer, Eric but from where I sit, you gave the photos to the
    race organisers gratis as a gift knowing you had no further say in how the
    pictures were used. It is in the race organiser's interest to have this
    year's race promoted and isn't that why you gave them the pics in the first
    place?

    I'm assuming here the half a picture you claim is yours is to advertise this
    year's race or the festivities associated with it. What's the big deal? Are
    you like every other money hungry lawyer I've ever come across and see
    someone with a quid you can sue and start getting your rocks off on how much
    you can get? Good luck with your law suit, at least you won't have any costs
    until you lose. If you have described the events correctly, you don't have
    much of a case and of course, you do know what sort of person has himself
    for a lawyer?

    Douglas
     
    [email protected], Jun 10, 2005
    #14
  15. Eric Miller

    Alan Browne Guest

    SITE

    (Mornings...).
     
    Alan Browne, Jun 10, 2005
    #15
  16. There seems to be some confusion over ownership and copyright. This is not
    limited to such cases as this but also in the heads of wedding
    photographers. If there is the possibility he shot the pictures for the
    organisers of the event and they can prove he did it at their request,
    regardless of being paid or not, he does not own the copyright to the
    pictures, he only owns the negatives. The event organiser owns the copyright
    and it is the event organiser who must institute legal action.

    I recently went down this path myself and it cost me many dollars. I, like
    far too many photographers believed I owned the copyright to ANY images I
    shot when in fact, I did not. In the old days, copyright was not the issue
    so much as who had the negatives because without them, reasonable quality
    prints could not be made. The Photographer's who held on to the negatives,
    could hold clients to ransom for absurd amounts of money for prints ... and
    so the myth of a servant owning copyright was born.

    OK ...so if you shoot a wedding (or any sequence of photographs) for a
    client as a job or contract, a servant master relationship is created and
    you are the servant. The Master owns the goods and any intellectual property
    you create during the life of that relationship.

    Copyright was never yours unless you have a contract specifically
    bequeathing you ownership of the work and really... What person in their
    right mind is going to pay you $2000 for some work and then give you
    ownership of what you make? For that matter, how many Photographers (I do
    now) have contracts which specifically force the client to give up ownership
    of copyright?

    Like I said before. Not much of a case for a lawyer to take on in view of
    the likely costs when it backfires. The organiser needs the newspaper on
    their side more so than a feisty lawyer filling in for a Photographer. The
    OP ought to get some legal advise. His doesn't seem very good!

    Douglas
     
    [email protected], Jun 10, 2005
    #16
  17. Not at all. The RIAA still ends up suing people instead of filing
    criminal complaints.

    In order to get a criminal conviction on a copyright violation
    after the No Electronic Theft Act (NET), you still have to prove
    willfulness beyond a reasonable doubt. The DOJ holds the
    position that willfulness goes beyond mere intentional
    reproduction.

    In addition, to get even a misdemeanor conviction, the Feds would
    have to prove, again beyond a reasonable doubt, a retail value of
    $1000 or over. Without an established market for the photo, this
    too would be difficult.

    See: http://www.usdoj.gov/criminal/cybercrime/netsum.htm
     
    Michael Benveniste, Jun 10, 2005
    #17
  18. "Eric Miller" :
    While you were doing your research, did you notice 17 USC 412? Unless
    the infringement occurred within three months of publication or prior
    to registration, you can not recover statutory damages.
     
    Michael Benveniste, Jun 10, 2005
    #18
  19. Eric Miller

    Matt Clara Guest

    Hey, I'll answer for him. The big deal is a professional media company took
    his media without permission and used it to make a profit without offering
    him any compensation in return. That's not only unethical, it's illegal.
    No way should he just roll over on this one, and there's not a chance in
    hell he'll lose. He gave publication rights to one group, and they weren't
    the party in question who published it.
     
    Matt Clara, Jun 10, 2005
    #19
  20. Eric Miller

    Alan Browne Guest

    In the case as described by the OP, I don't agree.

    He offered the images to the organization for the organizations use. In
    this case the newspaper used the image w/o the permission of either the
    org. or the photog.

    1) He granted image use rights to the charitable org to use for the
    purposes of the charitable org. From his description, I interpret it as
    "non exclusive rights" akin to a licence. It is not clear if he gave
    up the rights to the image for other use, so depending on that, it may
    be up to the charitable org to take action if they are so inclined.
    OTOH, the charitable org alerted the photog, so they perhaps feel the
    photog has rights to the image.

    2) The newspaper (per the OP) took the image from the OP's website, not
    from the charitable org's copy of the image. In that case, the
    newspaper has violated the copyright of the website.

    3) The newspaper's use of the image (per the OP) was not connected to
    the charitable organization.

    Same in Canada, if you shoot for hire by a client, the client
    automatically owns the copyright, unless stated otherwise in writing.
    (As I learned from McLeod here some months ago, to my surprise). So
    wedding photogs have to make clear in their contract who is the owner.


    I agree that he should get legal advice if he does not get satisfaction
    in the course he has taken. As I stated, round II should begin with the
    usually effective "Without Prejudice" letter. A nice, polite way of
    saying "redress or else".

    Cheers,
    Alan
     
    Alan Browne, Jun 10, 2005
    #20
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