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Copyright infringement?
Afton Almaraz, Student/Intern, Photographer
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Ventura | CA | USA | Posted: 2:56 AM on 06.22.07 |
| ->> I need some advice. I never thought that I would be in this situation. I'm a student at Brooks and am still learning the ropes of the business and law side of photography. I opened up the local VC Reporter today and saw three of my photographs used in a story. One was a double truck. The images are registered. Some advice on the steps I need to take to confront them and get things set straight would be great. Thanks! |
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Clark Brooks, Photo Editor, Photographer
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Urbana | IL | USA | Posted: 3:07 AM on 06.22.07 |
| ->> If they are registered with the copyright office you need only contact an local IP attorney. He'll likely take your case on contingency and you will be right as rain in no time. |
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Jason Chan, Photographer, Student/Intern
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Temple City | CA | USA | Posted: 5:17 AM on 06.22.07 |
->> 1. I agree with Mr Brooks' advice. For those who don't know (I'm pretty sure I didn't before law school) "IP" is "intellectual property", the legal area under which copyright law falls.
2. For someone getting started in this field it is a good idea to understand some of the legal issues involved. Though reading a book on law (which is ever-changing by the way) is no substitute for a lawyer's advice, this book might help cover some questions:
http://www.amazon.com/gp/product/1581152256/sr=1-1/qid=1139209214/ref=sr_1_...
There are also other books recommended on that page that may be helpful.
Good luck. |
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Wesley R. Bush, Photographer
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Nashville | TN | U.S. | Posted: 7:00 AM on 06.22.07 |
| ->> How did they get the images? |
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Brad Mangin, Photographer
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Pleasanton | CA | USA | Posted: 11:02 AM on 06.22.07 |
->> Afton- Wesley is asking the question that many of us want to know. If you can tell us what really happened here- from you taking the photographs through them being published- with everything in between- then we might be able to offer you some more advice. There is a big gap in your current story- how did your pictures get into their possession, etc? If you could please elaborate on this then we can come back with more advice.
Thanks. |
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Tom Davenport, Photographer
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Hayden | ID | USA | Posted: 2:09 PM on 06.22.07 |
->> Confront them? Can you give them a call? Most likely that would straighten things out. Have a number in your mind and any chips off your shoulders. Heaven only knows, but you might become a regular contributor. Or, you could burn a bridge. As valuable as those images are, you probably won't retire off them. Use this as an opportunity.
td |
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Afton Almaraz, Student/Intern, Photographer
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Ventura | CA | USA | Posted: 2:28 PM on 06.22.07 |
| ->> Hi all, thanks for the great advice so far. As our teachers at Brooks encourage us to do, we give copies to the people we promise images to. I photographed for a portrait assignment an owner of a night club and various random images of the inside. I provided a copy of the work for the owner, but for his own personal use, I.E to use on as a background for his computer, or to frame shots and hang at his house if he so desired too. Needless to say that I was shocked to find the images in print and in circulation as well as stupid for not protecting the images more as I should have. I learned a big lesson and I definitely do not wish to burn any bridges, but I do not have any respect for the publication after they gave no credit to the photographer, me. That was a slap in the face. But crap happens, I'm not butt hurt, just want it straightened out and to move on as quickly as possible. I do not expect to make money off of the images that I can retire off of. Trust me. :) I hope this clears up the confusion! Thanks everyone for the input! |
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Clark Brooks, Photo Editor, Photographer
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Urbana | IL | USA | Posted: 3:23 PM on 06.22.07 |
->> "I provided a copy of the work for the owner, but for his own personal use, I.E to use on as a background for his computer, or to frame shots and hang at his house if he so desired too."
Upon delivery of the images did you include any written documentation explaining the scope of his use of the images? Did the IPTC info contain your contact info, caption info and the license you granted the owner of the bar? |
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Afton Almaraz, Student/Intern, Photographer
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Ventura | CA | USA | Posted: 11:53 PM on 06.22.07 |
| ->> Hi Clark, the images are registered. In no way did I grant the owner of the bar to use the images except for his own personal use. It was all verbal. No matter what, the fact they are registered legally trumps the fact there was not IPTC info, correct me if I am wrong? |
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Jim Colburn, Photographer
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Omaha | NE | USA | Posted: 11:54 PM on 06.22.07 |
| ->> Have you thought of sending an invoice? |
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Afton Almaraz, Student/Intern, Photographer
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Ventura | CA | USA | Posted: 12:29 AM on 06.23.07 |
| ->> You read my mind Jim, I was just discussing that with my wife. I do not tend to pursue the matter any further then a simple invoice. Thanks for the confirmation Jim....:) |
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Afton Almaraz, Student/Intern, Photographer
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Ventura | CA | USA | Posted: 12:35 AM on 06.23.07 |
| ->> One last question to all, until I receive the registration certificate, what proof do I have as far as a serial number? Or proof that the images are protected? |
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Michael Myers, Photographer, Student/Intern
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Miami Beach | FL | USA | Posted: 8:09 AM on 06.23.07 |
->> You said: "I photographed for a portrait assignment an owner of a night club and various random images of the inside. I provided a copy of the work for the owner, but for his own personal use, I.E to use on as a background for his computer, or to frame shots and hang at his house if he so desired too."
"It was all verbal."
So, if the owner of the nightclub you photographed thought (in his mind) you gave him permission to send the photos to the newspaper, and he did so, who is at fault? The newspaper probably thought the photos were his (as it's his night club).
What if you send them a bill for using the photos, and he sends you an equal bill for using his nightclub?
Seems like a big misunderstanding, and a reminder that all these things should be in writing, so there's no misunderstanding. The nightclub owner may have no idea of "rights" and so on.... he just has a nice photo of his club, and figures it's his to do with as he wants, unless you're certain that he knew what you meant - and even then, it should have been written down.
"I do not have any respect for the publication after they gave no credit to the photographer, me." ....how would the newspaper have known who you were? Was your name, and possibly some copyright information, included in the image file? The newspaper might have assumed that the nightclub owner owned the photos, as they were of his nightclub. Lots of misunderstanding, or potential misunderstanding here, IHMO. |
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Samuel Lewis, Photographer
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Miami | FL | USA | Posted: 8:16 AM on 06.23.07 |
->> An old adage teaches that an oral agreement isn't worth the paper it's written on.
On a more serious note, did you mark the images so it should have been clear that the images were not for reproduction or publication without your consent? |
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John Harrington, Photographer
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Washington | DC | USA | Posted: 10:17 AM on 06.23.07 |
->> Afton --
Everyone's asking if you included paperwork, and as it pertains to your rights, unless the subject or the paper has been granted rights to use the photos (either in writing, or verbally), they do not have them. Since we can be sure you did not give them anything in writing granting that permission, and further, you state that you never granted them permission to have them published, they are infringing. You are not at a disadvantage because you didn't include anything written. However, had you included something, you would be at an advantage. In other words, your position remains neutral, and neutral is good.
You will loose much footing on that neutral position if you send an invoice. Doing so prejudices the final amount you will be due. Further, you don't know if the club owner has sent those images to a multitude of nightlife publications, has them on his website, or has them on the paper's website.
Most major newspapers have a "Notice to Contributors" form that requires the person making a photo available to the paper the s/he is the copyright holder and/or has the legal right to convey the image(s) to the paper for the purposes of publication. I am guessing that a smaller paper might not have this, but the large papers only adopted it because they'd gotten in trouble with in the past. By their having the submitter certify the aforementioned, when you sue the paper for infringement, jointly listing the submitter, the paper, who is the actual infringer will have to defend itself, but then, when all is said and done, will turn around and demand (or sue for) reimbursement of the costs of the trial (or settlement) of the club owner for the false certification. THEN, the paper will adopt a "Notice to Contributors".
As far as proof of registration -- you recieved a receipt from the LOC for the registration, and you should print out a second PDF of the Form VA you submitted, and, for the time being, that's proof enough to convince an attorney (and the attorney for the paper), that the work was registered. To finally get into Federal Court, you'll need the certified copy of the Form VA, but I highly doubt you'll make it that far, as you'll reach a reasonable settlement agreement -- one that your IP attorney will make on your behalf. I am guessing you'll spend between $500 and $1k on your attorney's time, and you'll get a gross of between $2k and $5k, less attorney's costs will leave you with $1k to $4k, but that is just a guess, and that attorney will know much more on this than I can tell you.
Lastly, the paper will not be able to claim "innocent infringement", because it's their responsibility to ascertain ownership/rights status to every photo they take, and further, innocent infringement is not a denfensible position in court, certainly not for a newspaper. |
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Clark Brooks, Photo Editor, Photographer
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Urbana | IL | USA | Posted: 12:52 PM on 06.23.07 |
->> Afton:
Both Mr. Harrington and Myers explained why I asked my question. Just handing a disk to someone and saying these are for your personal use is irresponsible in some regards because the lay person has no idea what that means.
Not putting your contact info, specifically what rights that were conveyed (which would strengthen you claim of infringement) to club owner, and copyright information in the IPTC and Metadata is a bad business practice. Not including a text document on the disc explaining the rights and limitations to the client or end user is equally the same.
Now possibly you will make an enemy of two business entities because now you will file a suit or claim against each, when both could have become good clients at some point in the future.
Yes, it does not matter that you did not do either and there was a lack of due diligence on the part of the paper. Yes, I believe infringement exist, but likely, and as no excuse, the owner of the establishment was under the impression he had the right to do what he wanted with the images for personal use of his bar and communicate such to the newspaper.
Verbally explaining what those rights clearly are given when you give or license a digital file, and even better, documenting what limitations are included will serve your business interests better in the future.
As Mr. Harrington suggest do not send an invoice to either party. Let the attorney you've retain handle all correspondence and negotiation here on out or you may end up limiting the amount of your judgment/settlement. |
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Jean Finley, Photo Editor, Photographer
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Iowa City | IA | USA | Posted: 1:26 PM on 06.23.07 |
| ->> How long have you been at Brooks? |
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Samuel Lewis, Photographer
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Miami | FL | USA | Posted: 2:22 PM on 06.23.07 |
->> John,
Respectfully, the innocent infringer defense is not only viable, I wouldn't be surprised if the newspaper absolutely prevails on the theory. The image wasn't marked, so there's no way to know what rights the club owner did or did not have. Indeed, one of the benefits to marking an image with an appropriate copyright statement is that it precludes an innocent infringer defense.
If the newspaper asked the club owner if the club owner had authorization to publish the image, and the club owner claimed to have authorization, then the newspaper will have established itself as an innocent infringer. Even if the club owner was wrong, unless there's ample evidence to establish that he was wrong at the time, the newspaper is still likely to prove it was an innocent infringer, and that it relied upon the club owner's representations.
With regard to proof of registration, the better course of action is to be up front and honest with the attorney regarding the status of registration. If the attorney knows anything about copyright law, the fact that a registration has not issued should not prevent the attorney from taking steps to enforce the rights short of filing an action in court. Likewise, the attorney handling the matter really shouldn't need anything when dealing with the paper's attorney other than the truth. |
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Clark Brooks, Photo Editor, Photographer
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Urbana | IL | USA | Posted: 3:36 PM on 06.23.07 |
->> Jean:
Me??? I've been with me since birth ;-) |
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Jean Finley, Photo Editor, Photographer
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Iowa City | IA | USA | Posted: 3:40 PM on 06.23.07 |
| ->> I was talking to Mr. Almaraz |
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Afton Almaraz, Student/Intern, Photographer
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Ventura | CA | USA | Posted: 4:22 PM on 06.23.07 |
| ->> I've been at Brooks for 2 years now. Still learning the ropes, especially when it comes to business practices. I know that I learned a big lesson with this one, and its to always from now on, no matter how small the situation may seem, to have everything in writing concerning the rights the person has to the photo's and to also fill out all IPTC data, even when the image to my eye is not a great one. And Mr. Harrington, wow, thats some great advice. Also, a little scary to me because going to court and all that is something I do not want to do unless I absolutely have too. I would like to work with the paper to come to some agreement because I personally am to nice of a guy to ruin relationships. If I got the feeling that the paper purposely used the images knowing that they were mine and copyrighted and registered, then I would for sure pursue further action. However at this time, I would like to again speak with the Editor and work something out behind closed doors.....thank you all for your great advice and helping me learn a truly valuable lesson. |
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Michael Myers, Photographer, Student/Intern
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Miami Beach | FL | USA | Posted: 12:03 AM on 06.25.07 |
->> Methinks it would be best to speak to the owner of the nightclub and find out what happened after you left the images with him, and what he said to the paper.
I'll bet that he thought (in his mind) that he could do anything he wanted with the photos, and he simply gave them to the newspaper under the understanding that this was OK.
Something's still fishy here.... you took the photos for an assignment, so you got what you were originally after. The owner of the club probably thought it was a great swap - you get photos for what you want, and he gets photos for what he wants. Since the agreement was verbal, there's no way to verify what anyone said or did....
If I were in your shoes (which I'm not) I'd write the whole thing up to a learning experience, and forget about it. Why make enemies....
...and if the newspaper technically does owe you any money for their "mistake", what if the nightclub sends you a bill for your taking the photos in the first place to use on your assignment? For a "contract" to be fair, both sides should benefit. Right now you're both roughly "equal". The whole agreement was verbal, and while we know what you thought, none of us here know what the nightclub owner though.
Also, if the nightclub owner provided the photos and an article about his club, to be published in the paper, why would the newspaper bother to check if he really had the rights to the photos of his club? It seems like the owner of the nightclub is the person who may owe you something, if anyone does. It's also real unlikely he's going to pay you, unless you also pay him for what he did for you. |
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Michael Myers, Photographer, Student/Intern
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Miami Beach | FL | USA | Posted: 5:08 AM on 06.25.07 |
->> I should add that if someone came to my house, and asked if they could take a photo of my custom-painted motorcycle for a project they were doing, and in "exchange" gave me a copy of the original high-res image, right from the camera, and there was nothing in writing specifically telling me otherwise, I too would feel that this was now "my" image to do with as I wished. (Unless of course for some reason I had already been reading up on these things....). If a magazine asked me if it was "my" photo, of course I'd say "yes" as in my mind, at that point it is, as the photographer gave it to me.
Now (after lots of discussions here) I do know and understand what the law says, but there needs to be some kind of agreement between the various parties.... it's not as if I would have taken someone's photo and copied it - it's quite different, as the photographer gave me the photo... and without knowing AND UNDERSTANDING the "rights" business, I too would probably assume it was now my photo to completely do with as I wished.
That the photographer said I could use it for my desktop is irrelevant - without being told otherwise, the photographer might well be saying "desktop", but I might be thinking of lots of other uses for the photo, such as sending it in to American Motorcycle Magazine.
This happens all the time - someone tries to sell or give me a product for a certain use, but I'm thinking of a completely different use for it. I'm not really paying attention to what the guy is saying, as I have my own use for it.
If the communication is all "verbal" and one person is thinking "limited" and the other person is thinking "full", without even understanding the difference, both parties are equally correct.
.......and for that matter, if American Motorcycle Magazine decided to use it for a $100,000 advertising campaign, who should get the money? Me, for sending the photograph? The photographer who took the photograph? The custom painter who did the paint job that has now been photographed? The manufacturer of the motorcycle? All of the above? None of the above? |
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Marie Hughes, Photographer
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Fremont | CA | USA | Posted: 2:02 AM on 06.26.07 |
->> If your professor is telling you to give high res images to the people you shoot on assignment, then he is giving out very bad advice. The average subject has no clue as to intellectual property rights and giving them an image that can be used professionally is an invitation to have your image used professionally without your knowledge and compensation. As you have discovered.
If you want to share your images with your subjects, give them a card with your web site url where you post a LOW res image with a clear copyright notice. If they want a print and you are so inclined, make it a small one and make sure the copyright notice and "do not duplicate" are all over it so that if they do duplicate it, you know it wasn't some innocent misunderstanding.
Save the disk of high res images for your actual clients -- who are hopefully paying you, if not in money then in college credits or some other currency that is worth something.
And with all due respect, Michael Meyers, both parties are not equally correct if one decides they have rights they don't have. One of the parties is mistaken. It maybe an innocent mistake, but it's still a mistake. Otherwise, anyone could decide they had any rights in the world and you'd have no recourse unless there was a written contract -- but that's not how the law works. |
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Afton Almaraz, Student/Intern, Photographer
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Ventura | CA | USA | Posted: 4:23 AM on 06.26.07 |
| ->> Update: I have come to an agreement alone with the Editor of the newspaper. I did not use an attorney for communication, although I did have one for reserve if the paper did not come to my terms. I was very generous and very nice. But hey, thats just the person I am. Anyway, the images are going to be re-ran with credit to me, and I will be getting paid for the images, although not much which is ok with me since its not a major company/magazine/newspaper. At first the newspaper refused to pay or even give credit to me until they checked with the registration office to make sure my claim of copyright was true. I said whatever, do what you got to do. And of course a few hours later was contacted by the editor and was told they were going to pay me and re-run the images with credit to me. If they were to not do that, I would of had but no choice to of pursue the matter further with an attorney. And as far as the nightclub owner goes, he's next. However, just a BIG warning. And let me say that I learned a big lesson to always type in the IPTC info. And Marie, thanks for the contribution, however I like to give the people I photograph full res images as I feel, for it being assignments, its a good trade off. However this time all the IPTC info will be filled out and awhile ago I started filling out model release forms and property release forms. The images that I gave to the nightclub owner were over a year ago, first session at Brooks. So I was very new to everything. Today, I'm much more careful and I carry all the forms and a ready to go contract. I watch my back. And I am very thankful to all that gave great advice in this column and I am very thankful to my teachers for their help and advice as well. Brooks is a fantastic school that does teach us the right ways, and the business/law courses teach exactly about copyright and registration and they stress the importance. It was just a bumber that this misshap was the images from my first session at Brooks. I never went back to fill out the IPTC info. However, all is well now. I hope other's who stumble across this thread will be able to learn the importance of contracts and filling out IPTC info. But more important than both those combined, REGISTER YOUR IMAGES!!!!! The certificate trumps all!!! :)))) |
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Afton Almaraz, Student/Intern, Photographer
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Ventura | CA | USA | Posted: 4:38 AM on 06.26.07 |
| ->> Quick response to the latest thread from Michael Myers. Even though there is lack of knowledge from the person you give the images too, regardless of size, regardless if they "feel" they own the rights, they have no proof of ownership unless of course there was a written contract "work for hire" or something on the lines like that. It falls back onto the publication because they are the first to know that whatever images they publish must be legally copyrighted from who they get them from. If the owner says they are his/her's, copyrighted, then produce the certificate or contract stating so. If it's coming from the photographer directly, they are automatically copyrighted since that person is the sole publisher/creator of the photograph. Publishers should always check to make sure the images/graphic designs they are about to publish are copyrighted by the person they got the images from. Period. On the copyright.gov website is great FREE information and FAQ'S section where they touch on ALL of this and clear things up right away. Not to mention they state if copyright infringement has taken place and it can be proven that the party published the images illegally, the judge can award the copyright owner a maximum of $150,000, per copyright infringement. I don't know if that is up to date, so don't quote me on that. Enough for now, my head hurts..... |
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Michael Myers, Photographer, Student/Intern
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Miami Beach | FL | USA | Posted: 7:59 AM on 06.26.07 |
->> Afton, let's say John Smith takes a photo of his restaurant and gives it to the paper to print. There are no "certificate" saying anything, as John Smith knows nothing about any of this stuff.
Let's say John's friend snaps the photo. There are still no "certificates" or for that matter, any other kind of documentation, just an "original image".
I highly doubt if most of the images published around the world have this kind of documentation, especially so since nobody has ever asked me for anything of the kind when I submit my own images. Maybe I've just had a unique experience, and everyone else sees these things all the time. I dunno.
I think that if you were to submit an article you wrote to my test example up above, "American Motorcycles", and submit a photo of your motorcycle along with the article, nobody would ask anything...
I did read up on the copyright website listed up above. Here's the paragraph that caught my eye regarding "Transfer of Copyright":
Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. Transfer of a right on a nonexclusive basis does not require a written agreement.
For this particular discussion item, my question to someone who knows more about this than I do would be "since no written agreement is required, what if the person thought that by getting the original image, he was free to use it for a newspaper, while the photographer thought he was free to use it for a desktop image?" In other words, what if both parties thought they had a "verbal agreement", but they were not thinking the same? Nobody made a "mistake"; it was possibly a simple misunderstanding by both parties of what the other thought?
(((Translation into practical terms - to eliminate any misunderstanding, put all these things in writing, and clearly state this on the image.))) |
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Alicia Wagner Calzada, Photographer
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San Antonio | TX | USA | Posted: 10:20 AM on 06.27.07 |
->> Afton, I am surprised to find a photographer who has worked copyright registration into their workflow but not IPTC info. Congrats on learning registration early, that is really great, but IPTC is also an essential part of proper workflow.
In case you need advice on how to do it easily (my motto is life's too short to be complicated), most photo editing programs, like photo mechanic, have the ability to batch caption.
As soon as you load the pictures into your computer, open up PM and apply a generic caption with the date, location, our byline, etc., to the whole batch. You can save multiple basic caption formats so that all you have to do is load the basic caption, change a few minor details and you are home free.
Not only will this help you mark your pictures as yours, but for an extra 5 minutes per assignment, every picture has basic information on it. This will help you greatly in the long run find and use archive photos. |
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