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SportsShooter.com: Member Message Board

Another stolen photo story with a twist
Dave Collyer, Photographer
Haleiwa | HI | USA | Posted: 7:13 PM on 07.30.09
->> While perusing a well known surf magazine last month I was shocked to see one of my photos being used with no photo credit and no authorization. I called and talked to the photo editor. He was remorseful and apologized and we started to work out a payment including penalty for unauthorized use. We had different ideas of what the amount should be and decided to chat after lunch.

When he called back he said, 'I just found out that the photo came from our web forums submitted by a user...and part of the user agreement gives us authorization to use the photo...' He followed up with 'I'll find out who submitted it and you can take it up with them.' What?! 'Hold on there, I said...I don't think that works for me.' I pointed out that:

a. They own the forum and are responsible for the illegal use of images therein
b. They printed a photo that was obviously professional with no photo credit (it is a water shot of a surfer riding in the tube).
c. They published a photo without verifying the source.

I am looking up the copyright info and my agent may have a field day with this one. What do you think? Does the magazine have exposure on this one? Is it just plain wrong or does he have a point? I think it is inexcusable. Sad to see that some publications are stooping to this level to find low cost sources for their images.
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Chuck Liddy, Photographer
Durham | NC | USA | Posted: 9:21 PM on 07.30.09
->> L-A-W-Y-E-R.
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Daniel Celvi, Photographer
Schaumburg | IL | United States | Posted: 9:27 PM on 07.30.09
->> I'm not an expert, but here is one thing to note: Tucker Max, minor internet celeb and general guy offending people, was sued by someone (we'll call him A) for what a person on Max's forum (we'll call him B) wrote, claiming that Max was responsible for what B wrote because it was his forum, therefor he was responsible for it. A lost the case, as the judge said that the owner of the forum, in this case Mr. Max, was not in fact responsible for what B wrote.

If you followed that, basically it set up a precedent, and I'm sure there have been cases since, that forum owners are NOT always responsible for what forum posters do. So I wouldn't necessarily count on that argument. And saying the photo looks professional may be a bit too subjective of criteria. Not to knock your photos, I've never seen them, just saying it probably wouldn't hold too much weight. Your best bet is the source was not verified. But it might be in their forum guidelines that, if you post a photo, you submit that you had the right to publish said photo in that capacity.

I dunno, sounds like a crappy situation that I doubt will end well. That sucks.
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Mitchell Clinton, Photographer
Carlsbad | CA | USA | Posted: 9:38 PM on 07.30.09
->> Sounds to me like the beef is going to be with the person that submitted it as their own. Hopefully the copyright has been registered.
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Chris Mackler, Student/Intern, Photographer
Cedar Rapids | IA | United States | Posted: 9:42 PM on 07.30.09
->> Daniel,

Making the argument that the owner of a forum can not be held legally accountable for the forum's content while it's online is one thing, but when the owner of the forum uses the content in another medium (print), he, in my opinion, must clarify the ownership of the content before going any further. The responsibility lies in the magazine, it's their name and reputation on the line. Good luck with the situation Dave.
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Ian L. Sitren, Photographer
Palm Springs | CA | USA | Posted: 10:03 PM on 07.30.09
->> Photo editors of surf magazines should not play attorney.
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Clark Brooks, Photo Editor, Photographer
Urbana | IL | USA | Posted: 10:55 PM on 07.30.09
->> Dave,
Is the image registered with the copyright office? If so, follow Mr. Liddy's advice. If not registered, when was it first published (or posted to a website where it could be obtained)?
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Phil Hawkins, Photographer
Fresno | ca | usa | Posted: 10:55 PM on 07.30.09
->> So, if someone gives me a TV obtained from a private party and find out later it was stolen, as long as I explain to the cops how I came to own it, and that I did not steal it, I still get to keep it and have no liability? Hmmm....
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Brian Dowling, Photographer
Charlotte | NC | USA | Posted: 11:39 PM on 07.30.09
->> I'm not a lawyer...

I would go after the magazine of course. After you win, its up to the magazine to go after the forum submitter to recoup their losses.

I've had a few colleges steal my photos and they blame it on their students not knowing about copyrights. Seems like the perfect excuse. Like any business, they are still responsible for their employees. This is why you hear about corporations paying big bucks in sexual harassment issues, etc...
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Mark Loundy, Photo Editor
San Jose | CA | USA | Posted: 12:56 AM on 07.31.09
->> Get the image registered immediately. Then explore your options. There is a legal clock ticking on your rights. Without registration, you have no practical options at all.

That said, there is no way that the mag can point to the submitter as a way of ducking responsibility. The magazine published it. There is no way that a user of their forums can give up rights that they do no possess to begin with. This is why publishing companies have insurance -- to pay for screw-ups like these.

Talk to an experienced intellectual property attorney.

--Mark
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John OHara, Photographer
Petaluma | Ca | United States | Posted: 1:28 AM on 07.31.09
->> Get even ! Think about it. If they do not play fair why should you ? Use your imagination. What was the financial worth of that image ? What will feel better a few dollars in your pocket, or.............................................................................
I have made a few large collections on blatant illegal use with insults. And in some cases, I have gotten even. While there is no financial reward for this. I enjoyed watching that person squirm.
Vengance is a waist of time.
Set them up, give them a bone. Then after they bite , send a documented flow to the CEO of the company. This is food for thought. There are so many ways to skin this cat.
Let's have a get even contest ! I have been working to many hours today and let out some thoughts.
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Harrison Shull, Photographer
Fayetteville, WV | Asheville, NC | | Posted: 7:45 AM on 07.31.09
->> That PE is a fool and will learn copyright regs the hard way if you have the image registered.

Another pertinent question is how did one of YOUR images get posted online by someone else at a high enough resolution to then be printed in a mag.
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Stanley Leary, Photographer
Roswell | GA | USA | Posted: 10:38 AM on 07.31.09
->> Contact Carolyn Wright http://www.photoattorney.com
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Dave Collyer, Photographer
Haleiwa | HI | USA | Posted: 7:07 PM on 07.31.09
->> Thanks for the replies.

To answer Harrison's question.

"Another pertinent question is how did one of YOUR images get posted online by someone else at a high enough resolution to then be printed in a mag."

The image appeared on my website. It was printed small enough (1/8 of a page size) to hide the fact that it was relatively low res. I like Phil's analogy above- although they didn't steal a 'big screen TV' they still stole a television. Me not happy.

We are searching for the certificate now and hope to pursue this. Thanks for Carolyn Wright's contact info Stanley.

Two things I learned from this so far. Watermark everything and keep files organized!

I'll keep you posted...
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Dave Collyer, Photographer
Haleiwa | HI | USA | Posted: 5:13 PM on 10.22.09
->> Well here it is late October and I have an update:

After my agent sent a letter to the publisher, Surfer magazine changed their tune and agreed to pay 3x editorial rate ($350- I know it's low, but this is the surf industry). We also included a stipulation that they contribute at minimum the same amount to our charity (
http://SurfAidInternational.org). They agreed. The only problem was they dragged their feet on the payment.

I did not have the image registered prior to the unauthorized use, but registered it immediately after seeing it in the magazine. Learned a lesson there.

I know a lot of unexperienced photographers would have walked away. That's not the right thing to do. Shame on you Surfer Magazine. oh well...moving on with my life.
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Robert Benson, Photographer
San Diego | Ca | USA | Posted: 6:46 PM on 10.22.09
->> Twist or "swist"?
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Yamil Sued, Photographer, Photo Editor
Peoria | AZ | USA | Posted: 6:54 PM on 10.22.09
->> Guys,

This is one of the many reasons shy joining a Professional Organization like ASMP (Yes, I'm biased as I am a Board Member of our local Chapter). ASMP helps it's members in situations like this.

Dave, IMHO and Non Legal Knowledge, you are 100% Correct!! The Magazine is at fault and they owe you!! If you haven't registered the Image, DO SO ASAP!!
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Thread Title: Another stolen photo story with a twist
Thread Started By: Dave Collyer
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