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SportsShooter.com: Member Message Board

Photographer's nasty fight with rock radio station
Robert Hanashiro, Photographer
Los Angeles | CA | | Posted: 11:20 AM on 03.06.13
->> http://www.petapixel.com/2013/03/05/photog-gets-into-nasty-tussle-with-radi.../
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Jeff Stanton, Photographer
Atlanta | Ga | USA | Posted: 4:26 PM on 03.06.13
->> why the back and forth with the radio station? Once it became evident they were not going to compensate her for unauthorized use of the work, she should have sued them in court.
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David Heasley, Photographer, Photo Editor
Columbus | Oh | U.S.A | Posted: 5:52 PM on 03.06.13
->> I was reading through that on Facebook a few days ago. Nasty is an understatement for parts of it. She was getting blasted by people who didn't really understand what was going on.
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Wesley R. Bush, Photographer
Murfreesboro | TN | U.S. | Posted: 6:08 PM on 03.06.13
->> Does anyone use the phone anymore? Why would you have that many back-and-forths without speaking to the person?
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Dave Prelosky, Photographer
Lower Burrell | Pa | US | Posted: 7:49 PM on 03.06.13
->> Wesley - From the Grain of Salt Department:
From the photographer's POV, if there is no documentation that a conversation occurred, the whole event could turn into a he said/she said proceeding.
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Eric Francis, Photographer
Omaha | NE | United States | Posted: 10:34 PM on 03.06.13
->> After reading through this, it's pretty clear the photographer is the one who escalated the tone of the discussion. I certainly don't thing this is a slam dunk issue for the courts and would most likely cost her more in legal fees. IMHO, she could have played this better and maybe parlayed it into some free advertising and air time for her business. There's a time to fight for your rights and a time for a business opportunity. Opportunity missed.
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Mark Peters, Photographer
Highland | IL | USA | Posted: 9:02 AM on 03.07.13
->> Does Canada have similar laws as the US regarding commercial use of one's likeness without a release? Seems they may have more than just the photographer to deal with.
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Jon Wright, Photographer
Wayzata | MN | USA | Posted: 11:19 AM on 03.07.13
->> Eric, yes she escalated the conversation when she had the audacity to actually ask to be paid. That did seem to amp things up. Where she probably went wrong was to not let the station have a chance to counter her offer. She boxed them into a corner, which is not a really smart idea when negotiating.
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Austin Dowd, Photographer, Assistant
Cary | NC | USA | Posted: 3:31 PM on 03.07.13
->> I read this article a day or so ago before the update, and was under the impression that this was the case of a big company bullying an individual out of what is rightfully theirs.

After having a chance to read the e-mail exchange though, my opinion has shifted in the other direction.

While the photographer in this case is clearly in the right, and the radio station is in the wrong, I think the photographer handled this with with no tact or business sense. She may ultimately win in the short run and recover the money she's owed, but she's burnt some bridges here and has probably gained a reputation that will work against her in the future.

It always amazes me when I see photographers who are in business for themselves and have spent decades developing their talents to become some of the best in their field, yet have put so little effort into understanding good business practices and etiquette.

It must be a side effect of growing up in the south, because I've always felt my Ps and Qs tend to open more doors for me than anything else.
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Chuck Steenburgh, Photographer
Lexington | VA | USA | Posted: 7:15 AM on 03.10.13
->> It seems to me the photographer, though clearly in the right, is going out of her way to be a jackass (jenny-ass?).
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TD Paulius, Photographer
Orland Park | IL | USA | Posted: 12:26 PM on 03.10.13
->> Wow, this is a very interesting set of facts. A set from which perhaps many of us could learn a thing or two.

So I understand the basis of this dispute clearly: photographer takes an image and posts it on her website (or a website) without a copyright notice or other watermark. Radio station, by happenstance, comes across it via a google search.

No doubt, the search consisted of the following string “black and white image, bride and groom, bride’s head on groom’s lap” and lo and behold the image appears. It was probably the only image that appeared as the FB discourse by the radio station did not indicate or imply that it was chosen from a number of images locate din the search.

Radio station employees watch the copyright infringement version of the Allstate commerical where the perky blonde says, “It’s free if its on the Internet.” Guy working the insurance app says, “Where’d you hear that?”. Blonde and guy in unison; “On the Internet.”

Radio station decides to forego passing the image past their rights and clearances department, and photographer sees image and gets irritated. Radio station says “oops sorry, we normally pay a small fee for use of images such as that”. Photographer represents her standard licensing fee of 16-18 times the offer.

Radio station guy in email even affirms the photographer’s talent, “you’re obviously a very talented photographer”.

Radio station realizes it has been caught and admits same but takes umbrage to the photographer’s fee request. A number of SS.com readers take the side of the infringer. Why?

1. It is clear that this is an infringement.
2. Canadian copyright law is very similar to US copyright law in that it permits an author to elect to recover either statutory damages, $100 to $5000 for non-commercial use, and $500 to $20,000 (Cnd) for commercial use or actual damages, which are whatever the photographer can prove. It does not require registration as a precursor to litigation but does require a non-registered author to prove knowledge and intent on the part of the infringer.
3. It is not clear if the photographer registered the image, but it can be assumed that she did not as she hasn't pursued this legally. Although registration is not required in Canada, it will defeat a defense of unintentional infringement.

Are you taking the side of the infringer because of the amount she requested?

What amount would you have asked for in this matter? The photographer could bring a lawsuit and elect statutory damages and let the court decide between the $500 -$20,000 figure or elect actual damages and introduce evidence of her income derived from prior licensing of similar photographs.

Would you have been satisfied with the radio station response of “Here’s $140.” if it were your image?

If you have an amount that you would have asked for, does it represent actual past license income for commercial use of a similar photograph?

Or are you taking the side of the infringer because of the manner in which she requested her $2000 fee?

Had she used a more mellow tone in her request for a $2000 license fee, would it change your mind and would you then support he photographer? More importantly, would the sugar and spice that some of you complained about the request lacking, have changed the radio station’s response of would it have still called it “EXTORTION?

Would you have retained an attorney in this matter, or handled it your self as she did?. It is assumed that the Canadian photographer did not as the amount of damages would have been eaten entirely or largely up by the attorney’s fee.

More importantly, as a learning experience:

1. How many of you register your images regularly? Either all on a monthly or bi-monthly basis, or even when you have a shoot and you just know you have gotten some really good images that someone could use for stock or other purposes someday?

2. How many of you place a digital watermark or copyright notice on the images you post on your or others’ websites? And I mean not just placing one in the corner that can easily be cropped out, but in repeated areas that forces a potential infringer to noticeably alter the image or deter same from bootlegging your image. This creates its own liability for the infringer in terms of a DMCA (Digital Millenium Copyright Act) violation that opens the door to a separate fee award for the removal of that information.

3. How many of you regularly do a search on the Internet for your images to police the unauthorized use of them?

4. How many of you that freelance for newspapers and magazines read the contracts you sign? A number of freelance agreements now recite that you grant the publication an exclusive license to the images for a certain time, say 30 days. That contract has just now given a value to a license for the use of your image in terms of actual damages. So if you were dilatory in registering images and filed a lawsuit, the defendant would be able to use your freelance fee of $105, 125, 135, 150 against you when it comes to you proving actual damages. Unless, of course, you were able to license the images from the shoot to others for more once the sale moratorium expired.

I take the side of the photographer. Too often I have seen infringers when confronted, come up with the excuse that “it’s a mediocre image for which we would have only paid $50", or “or standard fee for use of images if this type is $100" to try to make an photographer go away. Is that type of response sincere, or is it a veiled “oops we got caught so FY and take some token money?” The fact that an infringer states “we normally pay $ for that type of photo” proves they know about copyright.

Given her standard wedding package fees, she was within her rights to request the fee she did for a commercial use. Any wedding shooters care to chime in here with any support?

Certainly her e-mails were inartfully worded, but were they that to a point were she doesn’t deserve payment?

Those of you that took against her, what do you think the radio station should pay her, and why?

Lastly, I see that many of our colleagues use music as a background for their websites. If you do so, have you obtained a license from the artist/publisher? Just curious.

Time to get off the Sunday morning soapbox before I slip and fall. Thanks for taking the time to read this if you have gotten this far.
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Eric Francis, Photographer
Omaha | NE | United States | Posted: 2:01 PM on 03.10.13
->> Geesh, somebody had some good coffee this morning. ;-)
I don't think anyone here is taking the side of the infringer. I think I/we are simply saying she could have handled it better and maybe gotten something for it. I still maintain this was a missed opportunity.
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Ian L. Sitren, Photographer
Palm Springs | CA | USA | Posted: 2:09 PM on 03.10.13
->> TD said...

"Certainly her e-mails were inartfully worded, but were they that to a point were she doesn’t deserve payment?"

No, but it is sure the reason she is not going to get payment.

The problem is she acted like she has a real upper hand and she does not. There are no substantial damages so no attorney is going to take the case on a contingency basis. So if she wants to pursue it, she is going have to pay the many many thousands of dollars it would take to for her to prosecute the case. Then her actual financial damages are minimal and are never going to exceed the costs even if she did file and pursue a case and one day down the line win.

She wants justice! Yeah we all do, but how much do you think she can afford to pay for?

She threatened somebody who just knows better and is a little smarter than her.
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Phil Hawkins, Photographer
Fresno | ca | usa | Posted: 3:49 PM on 03.10.13
->> It doesn't take a 12-guage shotgun to kill a housefly.

Clearly, the radio station goofed. Unfortunately this sort of thing happens regularly. But when it does, one has to step back and gauge the situation.

If she's going to become this enraged, as an outsider, and as someone who might be looking for a photographer, wedding or otherwise, what am I seeing? I'm seeing a photographer going way beyond reasonableness in dealing with the situation. There is no tact, no diplomacy, no business acumen... She just closes her eyes and begins blasting her shotgun in the direction of the encroachment.

Christ, if she takes it this seriously, she should hire an attorney, let him or her write a serious but respectful letter explaining her position, give the station time to respond and go from there. Nothing will get the attention of a radio station's management quicker than the veiled threat of a lawsuit. But a fool running down the street with her eyes closed screaming at the rain just elicits laughter and disrespect. I guarantee you station management is gathered around the computer screen laughing at this woman's ranting.

The point is, no one in business can take seriously anyone who comes off the hinges so easily. The station admitted it's violation, offered an financial settlement (and in their misinformed eyes thought it was fair) and she just elevates the rage.

Yeeeaahh.... I'm a bride or commercial client looking for a photog. No way am I going to even consider this freak given her uncontrolled outbursts. She might win the battle, but surely she will lose the war. She's taking one step forward and 20 backward with this nonsense.
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Thomas E. Witte, Photographer, Photo Editor
Cincinnati | OH | USA | Posted: 4:24 PM on 03.10.13
->> For starters why is there so much concern about who "escalated" it and the tone they used? That doesn't [profanity]ing matter one iota. I've never heard of a case going one way or the other because the plaintif decided to fire their first volley wrapped in a dog turd versus on potpouri infused Vatican letterhead.

For all we know this isn't her first rodeo either. I know the first few times I demanded restitution I was polite and patient but that strategy lowers your expectations while raising the other parties. "Well they are clearly a pushover, this will be a quick settlement for us."

What she did was actually what I do... Goad them in to losing their temper and making a misake on record - which they did by insulting her, downplaying the infringment, admitting guilt and demonstrating their lack of understanding of the law. At this point I then package everything up in a nice tidy package and pass it along to my attorney. Barbara has elected to stop persuing it which irritates me to no end.

As for Eric's comment about "missed opportunity"; I know you didn't intend it this way, but I had a photographer ask me once about why I was so militantly persuing a copyright infringement saying "why don't you use it as a way to get your foot in the door?" A: Because that's still not addressing the fact that they willfully violated my copyright and B: why would I want to work with a bunch of people who have already demonstrated they don't know or don't care about rights? Those are the only two options in this situation and neither is good for the infringer in my opinion. Plus I would much rather get five figures now for 50 hours of work, than five figures over five years. Considering that current market share of this particular company, I made a good decision.

One thing most people don't realize is how few infringments ever make it to mediation/court in the first place. That's because by the time you get to that point, the defendant will usually agree to settle to save face publicly. I'm basing this soley off my own experience (TD, you've probably got better stats with your law firm) but I'd say that 99% of the time you're going to settle in this back and forth negotiating phase, and you're ONLY going to GET what you FIGHT for. If your negotiating tactic is to be polite you're setting low expectations for yourself. If your tactic is to send in an airstrike, you're setting your sights a little higher.

Neither tactic is wrong, but one will get you closer to your demands.
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Thread Title: Photographer's nasty fight with rock radio station
Thread Started By: Robert Hanashiro
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