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|| SportsShooter.com: Member Message Board
Ripped off; advice on next steps
Martin McNeil, Photographer
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East Kilbride | Lanarkshire | United Kingdom | Posted: 7:05 PM on 04.28.10 |
->> Okay, I'll try to keep this brief.
I shot some athelete's portraits whilst on assignment. Being in communication with one of the athelete's managers, I sent her some low-res examples to her of what I was filing as a courtesy, since I didn't know what my editors would run.
The athelete's manager then forwards my low-res images to one of his sponsors as he's wearing a tee-shirt that they had designed.
Without asking, the sponsor used the low res image as part of a 300 x 250 click-through advert which, when clicked on, took users to their online store where they could purchase said tee-shirt for $48 apiece.
It was the athelete's manager whom informed me of this advert being there, asking me if I'd heard from the sponsor... she had passed them my contact details and (according to her) had gone so far to ask if they had gotten my permission to use my picture as a basis for their advert. Needless to say, they never initiated contact with me.
I started off by emailing the sponsor directly using addresses on their website. This got no response. Several days later, contacted the athelete's manager and asked if she had contact details. A few hours later, I was emailed by the sponsor's 'General Counsel'
His initial offer was some merchandise by way of compensation. At this juncture, I should point out that this sponsor had revenue of $125 million in 2008 and enjoys web traffic of around 60,000 unique visitors per day.
Needless to say I refused and sent an invoice appropriate to their usage which also contained an unauthorised use penalty fee.
The general counsel has practically flat-out refused this, saying that Getty Images offer web-sized images for licensing at $49 for three months. His last offer (and last email) said that he would pay no more than $100.
Now: ignoring the fact that *I* am not Getty Images, not to mention their $49 images would not be cleared for such a use... I'm now in a situation where I'll likely have to go through legal channels.
So: I know I'll need representation; I'm just wondering whether this is best done in US courts (the sponsor company is located in California) or UK courts - if anyone else has ever faced such a 'David vs. Goliath' battle and/or has suggestions or recommendations?
Thanks in advance. |
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Nic Coury, Photographer
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Monterey | CA | | Posted: 7:14 PM on 04.28.10 |
->> Although I've never dealt with a similar situation personally, I hear the NPPA lawyers and law info online are a great resource.
May want to check them out for a good starting point. |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 8:05 PM on 04.28.10 |
->> Have you registered the images with the Copyright Office?
--Mark |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 8:07 PM on 04.28.10 |
->> I just noticed that you are in the UK. If you pursue this in U.S. courts, you will, for all practical purposes, have to register the images. Without registration, you have nearly zero leverage.
--Mark |
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Martin McNeil, Photographer
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East Kilbride | Lanarkshire | United Kingdom | Posted: 8:22 PM on 04.28.10 |
->> Mark,
The images were infringed upon before I could even *think* about registering them with the US Copyright Office... they hadn't even been published at the time they were used by the sponsor.
As I said, the athelete's manager forwarded the low-res courtesy images to the sponsor - *they* decided to create an online ad featuring one of my shots in what must have been record time.
The shot in question was actually published on April 8 and we're not even one calendar month down from that date.
I know that I could submit an electronic filing with the US Copyright Office now (although I have never done so before) - but wouldn't that be a case of "closing the stable door after the horse has bolted"? |
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Nick Doan, Photographer, Assistant
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Scottsdale | AZ | USA | Posted: 9:25 PM on 04.28.10 |
->> Martin,
you have 90 days from date of publication to register an image with the copyright office.
I'd contact an attorney in the US that deals with copyright infringement and see if you can get some advice. |
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Delane B. Rouse, Photographer, Photo Editor
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Jim Colburn, Photo Editor, Photographer
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McAllen | TX | USA | Posted: 12:01 AM on 04.29.10 |
| ->> You're not Getty images and you charge by the pixel so they owe you (300x250) $75,000 or 1562 t-shirts. |
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Mark Peters, Photographer
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Highland | IL | USA | Posted: 12:32 AM on 04.29.10 |
->> If you have any thoughts of filing in the US, you should register immediately.
http://www.copyright.gov/title17/92chap4.html#411
"§ 412. Registration as prerequisite to certain remedies for infringement12
In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(c), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for —
(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work." |
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Sam Morris, Photographer
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Henderson (Las Vegas) | NV | USA | Posted: 12:34 AM on 04.29.10 |
->> Martin, I have a second cousin who knows a guy named Nigel who is pretty good with a cricket bat and lives, under circumstances I can't discuss here, somewhere in California who owes me a "favor."
Joking aside (or am I?), I think you have a pretty good foot to stand if you get the images copyrighted in the US, and there are some good resources that have been mentioned here that will be of great help.
Good luck and hopefully you can teach a couple more people about property rights. |
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Martin McNeil, Photographer
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East Kilbride | Lanarkshire | United Kingdom | Posted: 4:31 AM on 04.29.10 |
->> Nick,
I've taken your advice and filed using the eCO service, paying the $35 fee. I think I'll have to factor the fee as a CODB every time I shoot work on a freelance basis which I know will be published.
Delane,
Thanks for the info on PhotoAttorney; I recall seing Carolyn's information on this board before and will contact her firm post-haste.
Jim,
I loved your "charging by the pixel" method... saves a lot of hassle vs. FotoQuote or other RM pricing methods :)
Mark,
Thanks for wading through the legal-ese for me. The one area I'm fuzzy on is what the "effective date of registration" will be for my claim... as of this morning, my claim status was showing as 'pending' - I'm wondering whether the date of the claim will be 28 April (when I filed and paid) or whenever the eCO service get around to approving it??
Sam,
Never mind the details, how on earth does someone in California know how to use a cricket bat?!?! :) |
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Mark Peters, Photographer
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Highland | IL | USA | Posted: 9:12 AM on 04.29.10 |
->> http://www.copyright.gov/register/
"Whatever time is needed to issue a certificate, the effective date of registration is the day the Copyright Office receives a complete submission in acceptable form." |
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Martin McNeil, Photographer
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East Kilbride | Lanarkshire | United Kingdom | Posted: 10:20 AM on 04.29.10 |
->> Mark,
Thanks for that info. Since I filed online yesterday, I assume that means that my the date of registration will be April 28 - whenever I actually receive the certificate.
Now it's just up to whomever I find that's willing to represent me to take care of the rest. |
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Martin McNeil, Photographer
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East Kilbride | Lanarkshire | United Kingdom | Posted: 6:59 AM on 06.11.10 |
->> Just a brief update;
I've got representation and it looks like this will likely end up going to litigation. Beyond that, I can't say more as I don't want to breach attorney-client privilege.
Once there's a definitive outcome I'll post another update. |
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James Broome, Photographer
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Tampa | FL | US | Posted: 9:44 AM on 06.11.10 |
| ->> Yes, please keep us updated. We're obviously pulling for you in this. |
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Manuello Paganelli, Photographer
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Los Angeles | CA | USA | Posted: 2:12 PM on 06.14.10 |
->> Martin I read fast what you wrote... keep a track of all the emails/communications you been having with everybody involved on this specially the arrogant pompous prick who thinks that your model is Getty. Then why didnt they go to nasty low price Getty instead.
Keep a paper trail including a screen shot with your photo in there. Also why it has to end in litigation? YOu maybe able to work something out of court and still make good $$$.
YOu got good footing specially after getting your © done. Too bad your goalie Robert Green, good for the USA, didnt have great hands or footing. YOU guys had the win... Italy plays sooooonn..
www.ManuelloPaganelli.com |
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