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|| SportsShooter.com: Member Message Board
NFL using photo without permission
Diana Porter, Photographer
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Houston | TX | USA | Posted: 8:31 PM on 08.13.10 |
->> The NFL is placing a poster in all NFL locker rooms and making pamphlets for all players about concussions. One of the photos used on the poster is mine that was the winner of the Canon Photo Contest 2 years ago. My contract with Canon gives the NFL no rights to the photo and Canon can only use it in conjunction with advertising the photo contest. I was never contacted and never gave my permission for it's use, nor did the two children's parents who are in the photo. What should I do?
Here is the link from Yahoo about the poster:
http://sports.yahoo.com/nfl/blog/shutdown_corner/post/NFL-to-combat-concuss... |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 8:48 PM on 08.13.10 |
->> Is the image registered with the Copyright Office?
If no, then enjoy your "fame." You have essentially zero leverage.
If yes, then you should seek the advice of an experienced copyright litigator (not all lawyers are litigators.)
--Mark |
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Diana Porter, Photographer
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Houston | TX | USA | Posted: 9:13 PM on 08.13.10 |
| ->> The photo is registered. |
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Clark Brooks, Photo Editor, Photographer
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Urbana | IL | USA | Posted: 12:03 AM on 08.14.10 |
->> Just as important, where are the rules to the contest? The 'fine print' may have given Canon irrevocable, nonexclusive, transferable royalty-free worldwide right (including any moral rights) and license to use, copy, cache, modify, publish, display, distribute, translate, create derivative works from, and store, regardless of the medium, technology, or form in which it is used for any and all entries. The keyword being distribute. Without seeing the 'entry agreement' it is hard to get a feel if you are SOL or not.
Also, could the NFL have obtained the image from another source like one of the agencies that represents your work? |
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Diana Porter, Photographer
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Houston | TX | USA | Posted: 12:47 AM on 08.14.10 |
| ->> No the contract I signed ONLY gives Canon the right to use the photo in conjunction with the contest. I retain all rights to the photo and it has not been placed with any agencies. Canon has sent several people to me who wanted to use the photo so I don't think they got it from Canon. THE NFL was never a part of the contest in any way. The only thing Canon had rights to was the pictures of me taken after winning the contest. |
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Martin McNeil, Photographer
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East Kilbride | Lanarkshire | United Kingdom | Posted: 4:14 AM on 08.14.10 |
->> Diana: www.photoattorney.com
Highly recommended |
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Jeff Stanton, Photographer
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Indiana | IN | USA | Posted: 10:09 AM on 08.14.10 |
| ->> Diana, if that's the case, do as Mark suggested, hire an experienced litigator and have at it. |
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Yamil Sued, Photographer, Photo Editor
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Peoria | AZ | USA | Posted: 10:53 AM on 08.14.10 |
->> This is one more good reason to join ASMP!!
ASMP Legal Team is available to all members and they are great!!
They know the Photo Industry inside and out and fight for the Photographer.
I used them over 20 years ago, when I was an assistant member for a very minor thing, the attorney then, Robert Cavallo took my call personally and took care of my problem himself and I had a favorable result within one hour of my original call!!
Y |
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Michael Granse, Photographer
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Urbana | IL | USA | Posted: 11:58 AM on 08.14.10 |
| ->> Have you considered explaining the situation to the NFL and asking for payment? |
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Brian Blanco, Photographer
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Tampa / Sarasota | FL | USA | Posted: 12:37 PM on 08.14.10 |
->> Mark, I agree that her first step (now) should be to retain a lawyer with experience in copyright law, but do you really think that she has "zero leverage" just because the image may not have been previously registered with the copyright office? It's an honest question and I only ask because my attorney has had success when images of mine (some of which were admittedly not previously registered) were used without permission.
Diana, I'd say register the image, today, and then retain, as Mark suggests, an experienced litigator in your area. Gather every piece of paperwork you can find with regard to the image and this contest you're talking about and see what your attorney says. Also, don't overlook the possibility that the NFL published the image in good faith while under the impression that they had the right (via Canon) to use the it. Often these are just a case of lack of communication and can be cleared up fairly quickly.
Good luck |
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Diana Porter, Photographer
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Houston | TX | USA | Posted: 2:40 PM on 08.14.10 |
->> Even if it wasn't registered, I have 3 months from the time I learned of the infringement to actually register it. But I am still protected even if it wasn't registered, according to the government's web site. I did call the NFL and just left a message about who I was, that was it. I did not tell him which photo was mine. The Senior VP of NFL Communications actually called back (I wasn't home) and said that the actual poster in the locker rooms was different, but he didn't say how. I'm worried about the one that was presented to media and that millions of people have now seen and thousands of teams have now downloaded for their own use, thanks to the New York Times.
I am going to let the PPA attorneys actually call him back. I figure if someone that high up the ladder (according to the org chart) is calling me back within one hour I must have struck a cord somewhere. I did talk with someone at Canon last night and they said the photo was not given to the NFL. The Pro Football Hall of Fame also said they did not release the photo to anyone. |
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David Welker, Photographer, Student/Intern
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Springfield | MO | USA | Posted: 2:56 PM on 08.14.10 |
| ->> I know this is a bit off base, but with this discussion, I am interested in seeing said photo. Diana could that happen possibly? |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 3:07 PM on 08.14.10 |
->> Brian, Since it's the NFL, with their significant intellectual property orientation, yeah, I think so. Once they found out that the image wasn't registered, I think that they'd simply ignore her.
Diana,
I did see your posting that the image was registered (whew!)
--Mark |
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Joe Andras, Photographer
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Orange County | CA | USA | Posted: 3:21 PM on 08.14.10 |
->> Dianna said:
>>>Even if it wasn't registered, I have 3 months from the
>>>time I learned of the infringement to actually register
>>>it.
Just FYI, Dianna, you have 3 months from the time you first published the image to register it and still have the possibility of recovering statutory damages and attorneys fees, not 3 months from when you first learned of the infringement. |
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Diana Porter, Photographer
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Houston | TX | USA | Posted: 3:28 PM on 08.14.10 |
->> The photo is actually on my SS page of the the two small KYF Patriot players. The parents of the kids are furious they were not contacted and the lawyers for Katy Youth Football (The largest youth football program in Texas) are also about to fight this. Seems like I was the last one to find out about it.
Has anyone actually seen the poster up in any of the NFL locker rooms or could you find out? I am interested to see what the so-called final version looks like and if my photo is actually on the final version. It would really help the lawyers to know. |
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Jim Colburn, Photo Editor, Photographer
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McAllen | TX | USA | Posted: 8:28 PM on 08.14.10 |
->> "Is the image registered with the Copyright Office?
If no, then enjoy your "fame." You have essentially zero leverage."
The photographer owns the copyright to an image even if it isn't registered. It's just a little harder to sue, not impossible. |
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Chuck Steenburgh, Photographer
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Lexington | VA | USA | Posted: 1:19 AM on 08.17.10 |
| ->> Jim - Have you successfully sued for unauthorized use of an unregistered image? Or can you point us to a documented case where someone has? |
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Martin McNeil, Photographer
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Mike Braca, Photographer
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Providence | RI | USA | Posted: 1:37 PM on 08.17.10 |
->> Martin McNeil wrote: "Here's at least one example that I know of where someone successfully sued"
But the chronology there specifically states:
"I have the digital negative, other similar shots, proof of prior publication (web and print), and a certificate of copyright registration (#VA 1-333-149) from the US Copyright Office."
So... doesn't count! |
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Chuck Steenburgh, Photographer
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Lexington | VA | USA | Posted: 6:02 PM on 08.17.10 |
| ->> Exactly, Mike...but thanks for the link Marty...I had read about that case before and the update was interesting. |
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Martin McNeil, Photographer
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East Kilbride | Lanarkshire | United Kingdom | Posted: 6:35 AM on 08.18.10 |
->> Mike
Whoops! In my haste, I didn't notice that Chuck had said *unregistered*
On the point of unregistered images: it's easy enough to file suit... that's *always* the easy part.
Getting meaningful compensation where the cost of litigation doesn't outstrip the judgement awarded - that's the trick. |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 2:52 PM on 08.18.10 |
->> Yes, you can still sue over the infringement of an unregistered image. But in the real world, it becomes impractical.
Registration allows recovery of statutory damages. With an unregistered image, you are limited to recovering only ACTUAL damages and the burden is on the plaintiff to prove those damages.
Since most lawyers get paid according to how much they eventually recover for their clients, it becomes nearly impossible to retain an attorney in cases of unregistered images.
Register. Period.
--Mark |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 4:30 PM on 08.18.10 |
->> Martin,
The image in that case was registered with the Copyright Office.
--Mark |
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Harvey Dunn, Photographer
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Southlake (Dallas) | TX | USA | Posted: 6:16 PM on 08.18.10 |
->> Generally, one will be hard pressed to find any recordable decision where a lawsuit was filed without there being a copyright registration (or as allowed in some circuits, at least an application for a copyright registration), because registration (or an application for such) is a prerequisite for filing suit.
So, the question is not whether a copyright registration (or an application for such) exists - it will, by defintion, but whether or not the registration was obtained in time to allow for statutory damages.
And, even if you are not entitled to statutory damages, you are not limited to recovering your actual damages - if by that you mean only what income you have lost. The rule is rather that so long as there is not a double recovery, you can recover your actual damages, plus the defendant's profits attributable to the infringement. As a practical matter, the plaintiff has show the gross amount alegedly attibutable to the infringement and the burden then is on the defendant to prove the expenses and costs that should offset that amount. And, it is also possible (it is within the discretion of the court) to recover one's attorneys fees if one is the prevailing party.
The point to all of this is not to suggest that registration is not good - it is very, very good -- do it...it's that simple. But, instead to suggest that if one failed to get a timely registration, all may not be lost. If for example, an infringer uses a stolen image in a big ad campaign for a major product, you may indeed be able to recover significant damages. And under those facts you may be able to get an attorney to represent you.
In addition, there are groups in some states that provide free or very cheap legal services to "starving" artists (such as the Texas Accountants and Lawyers for the Arts http://www.talarts.org/ - there is an income requirement, one must be an individual artist with an annual household income less than $50,000 and a resident of the state of Texas). I believe that California also has such an organization. These organizations may be an option if you meet the income requirements.
--Harvey |
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Harvey Dunn, Photographer
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Southlake (Dallas) | TX | USA | Posted: 6:23 PM on 08.18.10 |
->> Whoops... a correction... no attorneys fees unless you have registered the copyright in the statutory period...
I'm typing this stuff way too fast... Sorry about that!
---Harvey |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 9:57 PM on 08.18.10 |
->> Everybody,
I agree with everything Harvey said.
Harvey,
I try to limit my advice to the practical world. The real-world reality is that a suit over an unregistered work leaves the plaintiff with very limited choices. In many cases, a knowledgeable infringer will simply ignore any complaints about it. Many attorneys who might have accepted a case on contingency (a percentage of the recovery) will either require the defendant to front all expenses and fees, or refuse to take the case.
There are about a zillion reasons to register. Not so many on the other side.
--Mark |
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Harvey Dunn, Photographer
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Southlake (Dallas) | TX | USA | Posted: 9:45 AM on 08.19.10 |
->> And for the record, I agree with everything that Mark has said - especially (and I quote) THERE ARE A MILLION REASONS TO REGISTER! And to borrow Nike's logo: JUST DO IT!
-- Harvey |
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Thomas Oed, Photographer
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San Diego | CA | USA | Posted: 8:57 PM on 08.19.10 |
->> Keep us posted on how this pans out, Diana... it'll be a very informative 'case study' that all of us can learn from.
Good luck!
-T- |
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