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Copyright Infringing

Has anybody out there ever had to deal with copyright infringement of your work? Where a person has downloaded multiple images from a website (even though low res) and used them in a publication without any authorization? Or payment/renumeration for the licensing of that image?

Just curious, as I have had this happen recently, and would like to get some suitable opinions on an action to take. And frankly, I could live with maybe one, even two pics appearing on some website about whatever that gets two hits a year, but this is much more drastic, and frankly pisses me off as the guys attitude is pretty flippant. He doesn’t take it seriously, but I do.

Anyway, any thoughts on this would be great!

by [a former member] at 2005-07-29 21:45:53 UTC (ed. Mar 12 2008 ) Toronto , Canada | Bookmark | | Report spam→

hey mr. weber- did anyone pm you an answer? i am very cusrious as to what your course of action should/will be…good luck!

by [former member] | 30 Jul 2005 06:07 | chicago, United States | | Report spam→
From the way you posed your question, it doesn’t sound like the images are registered with the Copyright Office. This may be of help:
http://www.editorialphoto.com/copyright/
But you really want to find the Canadian equivalent.

I might add that if the "publication" you’re referring to is a website, and if the website is based in the U.S., then you have a legal hammer called the Digital Millenium Copyright Act. Read the "Notice and take down" section of this: http://www.arl.org/info/frn/copy/osp.html

good luck



by Dang Ngo | 30 Jul 2005 07:07 (ed. Jul 30 2005) | Los Angeles, United States | | Report spam→
I had a situation recently with a large university (not local).  I’d done a contract with a small weekly publication featuring something at one of the museums at the university.  The rights I sold to the weekly were one-time rights - I retained the copyright.  The weekly was also granted rights to publish the photos with credit on their web site along with the article text.

Someone at the university went to the web site of the weekly and copied the entire set of photos and put them on their site in their PR section.  No photo credit, they just placed them there.  Subsequently, a large-circulation publication did a story about the museum at the university.  The university "gave" them copies of my photos, and the photos ran with the credit "courtesy xxx university" instead of my photo credit.

I found out about it when I saw one of my really nice photos on the front page of the features section of the large circ publication with the university photo credit.  I went back to the original publication and asked them if they’d given copies to the university or the other publication.  They said no and offered to assist me with any infringement actions I might want to take.  They were pretty upset as well, because the large publication that used the photo was a competitor.  We did some checking and figured out that the university had stolen the photos from the web site.  The resolution wasn’t super-high, but it was good enough for newspaper work.

I documented everything…I printed screen shots from the university web site, made copies of the article in the large publication, etc.  Then I put together a nice letter to the museum describing the copyright violation, how we need to rectify it, and my charge for the current usage (which was several thousand dollars).  I explained that the license fee currently due would make us right with the current usage and offered to work with them if they wanted additional rights.  I told them that the licensing fee was still due regardless of whether they chose to continue to display the images or not.  I specifically avoided doing a heavy-handed "pay-me-or-else" letter…this was the "be nice" letter.  I bundled all of this up and sent it, along with an invoice, to the person in charge of the museum.  

I didn’t hear anything for about a month.  Then I received a phone call from an assistant at the university.  She said she had my invoice and wanted to get it paid in this quarter, but the quarter ended this week and since they did not have me set up in their vendor system they needed to pay with credit card.  I asked her what amount she had on the invoice.  The amount was every penny I’d asked for in the letter.  I took down the credit card info, sent them a license for the usage, and that was that.

Had I pursued it legally I probably could have made more money, but to me this was a fair resolution.  Chances are someone at the university – an intern, a student, etc. – made the mistake without the knowledge of the powers that be.  The university acknowledged the mistake and did the right thing.

My next step would have been to get an attorney involved.  Had the original letter come from an attorney the entire matter would have probably been shipped over to the university legal department and litigated for years, so I think this approach worked well.  I try to operate from the premise that most people really do want to be honest…and given the chance they will generally do the right thing.  But you always need to be ready with the stick if the carrot doesn’t work.

by David Harpe | 30 Jul 2005 08:07 | Louisville, United States | | Report spam→
Hey All,

Great responses, much appreciated. This is why I’m glad I stumbled on Lightstalkers! Anyway, my situation is not that dissimilar from David Harpe’s, although I offered a friendly letter but still to no avail. Part of the problem is that A) the guy’s just a plain dick, and B) he runs/works for a small publishing company that used some photos I took for the national newspaper here in Canada, then they ended up on a website, then ended upon the cover of a bad book (you know, if it was at least good I may have been okay! – It’s one of those trashy tell-all type publishing houses) then the cover photo was given to another newspaper, just so happens to be the OTHER rival national, and of course there’s no byline and no permission. And I’ve got my editor barking at me saying I crossed the line. (I am the copyright owner of all images produced for the paper, they just ask for first time rights and to not sell it to the rival paper). So, it makes me look like a greedy fellow, and pisses me off – so I offered a fair market value plus a little upselling because he was a jerk, but nothing since, that was in April. So, now I would like to “proceed” down another path, but need to set monetary value.

Oh, in Canada, I believe it is like the UK system that the instant an image is conceived, then it automatically registers a copyright. So, he clearly crossed the boundaries- I’m more ticked at his attitude and the conflict it caused me with one of my major freelance clients – and it was a crap book!

Thanks,

Don.

by [former member] | 30 Jul 2005 20:07 | Toronto, Canada | | Report spam→
Well, it doesn’t sound like ‘fair use’ to me.

The guy has obviously used your pics to promote a commercial product (the book) and has then sent your pic to the rival paper – so that’s syndication without permission on top of copyright abuse.

If you have a syndiacting agent perhaps you should have a word with them to see if they can give the guy a hard time as well.

I’d send the guy an invoice with a cover letter explaining why you’re charging the amounts in the invoice.

You can argue his usage wasn’t editorial, but promotional – the pics were used to promote his company on the Web, used on the book and syndicated on as PR for his book, right?

If so, promotional and commercial photo usage commands higher fees than editorial – usually 50% more (minimum).

The guy doesn’t seem interested in any kind of amicable agreement or compromise (so far), so I’d send him an invoice with a cover letter explaining why you’re charging not editorial, but commercial rates in the invoice.

I can now only give you the situation in the UK, but maybe Canada has similar laws and regulations.

The rule of thumb in the UK would be to charge fees for these usages:

Promotional Web Use for 1 Year – editorial rate plus 50%
Book Cover Repro – usually commercial rate anyway.
Promotional/PR Use (in the newspaper) – editorial rate plus 50%

Then I’d double the overall total – a 100% increase – as a penalty, and to cover the syndication without permission.

As you’ve already ‘invoiced’ him already in April, with normal invoice terms usually being 30 days, you should say the new invoice is now payable within 7 or 10 days.

In the UK it’s also permissable under the Payment of Commercial Debts Act to charge the bank base rate of compound interest (currently 6% I think) on the total for every day he’s been overdue.

Since April thats about 120 days…with ANOTHER flat fee penalty of £40.00 on top.

If payment is not received, in the UK you can contact a solicitor (lawyer) and get them to write a ‘Letter Before Action’.

The letter is a final legal warning saying they should pay up immediately or you’ll be pursuing a legal claim.

If the bastard STILL doesn’t pay up, you go to the Small Claims Court, which covers small commercial disputes. You don’t need a lawyer, you just go to County Court and fill in a form stating your case.

Hand in the form, with supporting evidence – correspondence, invoices, website screengrab, book cover, newspaper page, along with possibly a statement from your editor saying how pissed off he was the pic appeared in a rival paper.

You’ll eventually get a letter giving you a date for a hearing – again, you don’t need a lawyer, but you can take one if you want.

The defendent is legally required to attend. If not, he loses by default, and if he still refuses to pay, the Court will issue a Garnishee Order and take the money off him…plus their costs.

If you have any evidence of the guys bank account details they’ll simply take it straight out.

It’s a long-winded process, but only requires filling in a few forms and maybe a one off modest payment to a lawyer.

There are several stages where the miscreant can roll over and pay up, and of course if they don’t, it adds to your case that you gave them every opportunity to settle amicably before you ended up in court.

Putting my union hat on (again…) I’d remind UK Lightstalkers ( or overseas LS members living in the UK) that the National Union of Journalists has a legal office which can advise on such disputes, along with an online  Freelance Fees Guide to help you calculate your fees:

http://www.londonfreelance.org/feesguide/photo.html

It also has extensive knowledge of copyright and licensing.

The journalists union in Canada is the TNG (?), so maybe they have similar facilties, or would be able to offer you a plan of action apllicable under Canadian law.


by [former member] | 31 Jul 2005 05:07 | London, United Kingdom | | Report spam→
i’m so glad for all these answeres! i am currently in a situation where i did a job and because i was working with/for someone i knew i din’t create the usual paper trail, everything was verbal? except now the person doesn’t want to uphold their end of the bargain and on top of that wants to take the rights for my photographs from me…so frustrating! but luckily there is a third party and i did what mr harpe did- i collected all the evidence that i could and wrote a nice letter to the art buyer for the job quoting my correct fees, licensing/usage fees,web usage,  terms, etc. i just sent it out last week? so we’ll see…

good luck to mr. weber- web theft is so hard to trace, at the very least you were able to catch this person using your images and make it public!





by [former member] | 02 Aug 2005 07:08 | chicago, United States | | Report spam→
One thing that might work would be to publish the URL so we can all go over and most complaints……if enough people react to this, it might get the message across that this is unacceptable.

by [former member] | 02 Aug 2005 07:08 | new orleans, United States | | Report spam→
you know what tho? i had forgotten to mention this, but…i took web design with a fairly well know, influential teacher here at columbia college chicago. he encoraged people to see the web as one big resource: that anything was up for grabs and that if you saw code, images, etc that you liked? snatch it! why not cuz art is theft anyway. a lot of people in the class were doing it, and i remember one girl who finally had to be reprimanded because she built her final site using photos from other photogs. there are a lot of people who don’t think that they have to pay for photos, or pay the photographers for their work, or credit them. i learned, to my chagrin, that to speak against this is to be a ‘moneygrubber’.

saddest part is that i was taking web design as part of the photo curriculum.



by [former member] | 04 Aug 2005 09:08 | chicago, United States | | Report spam→
I think we need zero tolerance on this…….

by [former member] | 04 Aug 2005 10:08 | new orleans, United States | | Report spam→
Then I suppose your influential teacher would be happy to give his salary back?

There’s an opinon prevalent on the Web in particular (because of its computer coding origins) that photography can be treated as ‘Open Source’ material, like the computer code which (for example) makes up the Linux operating system.

This has given rise to the growth of some people using ‘Creative Commons’ licenses for photographs, under the ‘Copyleft’ principle.

The Creative Commons / Copyleft principle in a nutshell, says that (like computer software code), the artifact can be considered free, and can be added to, amended or changed, as long as the originator (who holds copyright) is credited as the original author.

This works for software coding, in that anyone can incrementally improve the code over time, so the software is improved.

How does the author make any money? By selling the software in a neat boxed package, with the manual, technical support and regular bug updates.

The argument is that it’s those ‘added value’ elements which make the money.

The concept is also used in music – sampling several records into something new for example. The argument is that money is made on live performance and selling T-shirts.

It sounds good and altruistic in theory, and in software and music it can work.

But it doesn’t work for photography, or rather for photojournalistic photography, for several reasons.

1/ The Creative Commons/ Copyleft License is not backed by law, and essentially makes a mockery of the concept of copyright as an intellectual property right. The license essentially nullifies the copyright, in that I cannot license an object without owning it first, and if I license to give it away I’ve esentially given up ownership in all but name.

2/ Under existing copyright legislation, I already have the right to be credited as the author – it’s called the Moral Rights clause, and is enforcable by law.

3/ The most important right – by utilising existing copyright law, Moral Rights and issuing appropriate usage licenses, I can ensure that anyone amending, altering or manipulating my photographs can be prosecuted.

The Creative Commons / Copyleft license gives anyone the right to alter, manipulate or amend my photographs, to then use them – and to still credit me as the author.

As photojournalists, we should regard this as unacceptable. The overt manipulation of photographs is anathema to our business and in most cases when this has happened in some newspapers and agencies the photographer has been fired.

A while back I opened a magazine to find a photo-feature taken by an Italian photographer in India. The pictures were issued under a ‘Copyleft’ license.

So if I hosted say, a British neo-fascist website and wanted to put all her pictures up on it, under an article advocating the forced deportation of any ‘Non Aryan’ Briton…oh yeah, I might wanna Photoshop in a few AK-47’s (because of course, they’re all sucide bombers and terrorists) as well…she wouldn’t be able to do a damn thing about it, as her Copyright license gave me permission, and wasn’t backed by law anyway.

But don’t worry, under the terms of her license, I’d make sure she got a nice big photo-credit byline – so anyone looking for her on Google would figure she was a Nazi…

Apart from anything else, the other thing which niggles with me is that people issuing material under this license, more often than not, earn a living by other means.

Thats cool, and I have no objection to them giving their work away – except of course, it’s yet another obstacle preventing me – and all of you – from making a living as a photographer.

by [former member] | 04 Aug 2005 10:08 | London, United Kingdom | | Report spam→
i found a site with a link to the creative commons site:

http://creativecommons.org/licenses/by-nc-sa/2.0/

funny that i had looked at this site before, but never thought about what it meant.

i think that in addition to teachers tellin students that it’s all for grabs, a lot of people flat out don’t know that rules. and since the rules seem to shift with every job/photographer/publication…

right now i am standing up for my rights? but i do wish that i had just taken the $250.00 that they offered me in the first place. what if they just use someone else’s work and leave me hanging for creative fee, rights/usage and everything? who’s going to pay my rent, etc…

finding out all the rules just makes me even more weary/wary. there are so many photographers (and people that just like calling themselves that) looking for just a chance to shoot, that if you say oh no- i get paid this much! it seems as if you are being arbitrary. not to mention when you are stupid and don’t write up an invoice because the person doing the job is some kind of friend- then it gets even worse. 

oh- it is a very trying thing! 

*and YES i did want to get my money back! but instead took him for webdesign 2 where he completely devolved into flakedom and it was then that i found out that no one really liked or admired him to begin with. ;-D

by [former member] | 08 Aug 2005 10:08 | chicago, United States | | Report spam→
Yes!
In the May 9th Issue of the National Enquirer!
Two of my photo’s of Wayne Newton in Kuwait with the US soldiers and the photo credit read: copyright Wayne Newton.

I copyrighted the images from my USO/Wayne Newton Tour in 2003.
I went to WayneNewton.com and picked out 12 of my High resolution images displayed on his web site without my photo credit.
Having notified them of the unauthorized use of my images in the National Enquirer, Wayne Newton’s management acknowledged their misstake and promised to never use my images again,… but their still on his web site!

My Lawyer sent out legal letters to the parties involved!

I notified another former USO Photographer who, (Like me did not sign their Work For Hire Contract and no longer go on any more tours) found six of his copyrighted images on WayneNewton.com.

He has joined with my Lawyer and myself to go after these people!

After, twelve years and 35 tours all over the world, taking pictures for the NON-Profit USO, I was released for not signing the WFH Contract.
Two other photographers in the Washington, DC area signed their rights away and now go on the tours.

We will see how the US Copyright Law works … I’ll keep you posted!
Cheers!
Chester Simpson

by Chester Simpson | 08 Aug 2005 15:08 (ed. Aug 8 2005) | Washington, DC, United States | | Report spam→
Sue the prick big time,copy wright is copy wright,point BLANK,anyone thinking else needs to get there head checked,if you have taken the photo it is YOUR copywright. If he pays what you would of been commercially,I would accompany this with a letter from a solicitor, with a very stern warning what will happen if he tries this again, and leave it at that,but let people know WHO he is what site etc,people such as this need to be exposed.

Sorry there are no if,s or buts, people need to made aware what will happen to them if they breach a persons copywright.

Good luck with it all,hope things have been worked out.

Tony

by Tony Reddrop | 08 Aug 2005 18:08 | Melbourne Australia, Australia | | Report spam→
In the US you need to register your copyright with the Copyright office.

This means if you take someone to court and win, they’re liable to pay your court costs.

If you don’t register and win, the court costs will be borne by you…which may of course exceed the damages you got in the first place.

I would urge all LS members to study and understand the implications of their respective domestic copyright law before making any decisions concerning the impact of those laws on their work.

Chester, if you havent registered your work already – please, please do so before entering the legal arena to pursue a claim.




by [former member] | 08 Aug 2005 19:08 | London, United Kingdom | | Report spam→
Sion,good info,any Idea of the cost to register your copywright in America? And how you go about it? I hope that all photographic bodies in America, loby the American Government to have this law changed to automatically protect photographers copywright. This law is crap, you should be protected automaticailly. In Australia our Goverment is slowly being pushed to go down a simular path, by ( you guest it ) large U.S. media giants, and who benifits from those changes? Good luck to all U.S. ( particularly Chester ) photographers with there copywright, hope the law is changed soon to give you all a farer deal.

Tony.

by Tony Reddrop | 08 Aug 2005 20:08 | Melbourne Australia, Australia | | Report spam→
The US Copyright Office at the Library of Congress:

http://www.copyright.gov/

How to register your work:

http://www.copyright.gov/register/visual.html

The fee is $30.00 per work…don’t panic – you can register ‘batches’ of work taken between specific dates.

Apparently some photographers simply print out all their pictures taken between specific dates as contact sheets from iView, Photo Mechanic, Extensis Portfolio etc, then submit the printed image sheets with a copyright form at regular intervals.

I don’t know if you can just send in a huge bunch of image print-outs as ‘all images taken in 2004’ as apparently the Copyright Office get annoyed…but I’d register all your ‘keepers’ – both ‘created’ and ‘published’ with them at intervals, say every few months.

The question for non-US photographers is…if your work is used regularly in the US, should you register your work there?

I’d say probably yes – as your images are still protected by your domestic law of course, but will then also benefit from the full protection of US law  if your images are ripped off.


by [former member] | 09 Aug 2005 14:08 | London, United Kingdom | | Report spam→
Thanks Sion, a friend is just about to have his work published in the U.S.,I,ll let him know about this, would hate to see him have some one use his work with out permission or his copyright protected. Cheers, Tony.

by Tony Reddrop | 09 Aug 2005 17:08 | Melbourne Australia, Australia | | Report spam→
I did register the copyright of my USO/Wayne Newton Tour in 2003 and the violation happened in the National Enquirer on May 8th, 2005 and on Wayne Newton.com web site on 2004-2005.

I had to pay the Law Firm for the letters sent out to the violators, but now I only have to cover the expenses for filing court papers and serving the papers, because I copyrighted the work before the violation happened.

Wayne Newton still has my 12 images up on his web site > Photo Gallery, even thou he’s been requested by my lawyer to take them down.

My client the USO gave my images to Wayne Newton, so we’re asking for a full accounting of the use of ALL my images!

My advice to ALL Photographers who don’t do Work For Hire, is Copyright ALL of Your Photo.
Also, my advice to People who call themselves photographers and do do work for hire…. Don’t give away your images to a corporation that will continue to make money off your images. You should, being the creator, continue to make money off your past images and when you’re old you can publish a book of your work.

If you always do Work For Hire, you will have Nothing to retire on except for the money you saved!
Also, doing WFH has hurt All Photographers, there will always be someone out there who will do it cheaper then yourself, and one day when you’re dropped from your staff job or lose your main client ….. You’ll be left with Nothing!

Are you just a monkey with a camera or a talented artist?
Stand up for your rights and show people that you take pride in your work and you will succeed!

I have now copyrighted ALL my past work from 1973- present!
It’s the best $30 Investment that you can make!

My Rock-N-Roll Photographer friend Jim Marshall had his copyrighted picture of Jimi Hendrix published in the Washington Times – August 2, 2005 with no photo credit.
I called him to let him know, so he made one phone call to a photo editor at the Times and they are sending him a check for the violation.
No problem when it’s a copyrighted image!

I just received word that the National Enquirer is sending me a check!

Copyright Your Work Now!
Chester

by Chester Simpson | 10 Aug 2005 06:08 (ed. Aug 10 2005) | Washington, DC, United States | | Report spam→
Chester, you the man.

Your post sums up the whole ethos we should be pursuing.

Work For Hire is ‘a mug’s game’ as we say here in the UK, and of course skews the market against your photographic peers…and ultimately back on the Work For Hire photographer themselves.

As photographers we really need to get over this idea that the relationship between us and our clients is that they’re like a Renaissance prince commissioning an artist to paint a fresco.

If you want to look on it in business terms – we are independent vendors and service providers, they are the customer – and we should behave accordingly with that mindset, in a professional manner.

This ‘On the Waterfront’ kowtowing to the foreman for a days work mentality has got to stop.

You don’t hire a plumber and then tell them how much you’re going to pay – THEY tell YOU.

I know its hard, but if you aim high you can always negotiate downwards.

You can virtually never negotiate upwards.

It’s not called copyRIGHT for nothing – it is your legal right and entitlement as a citizen under law, and you should insist on keeping it.


by [former member] | 10 Aug 2005 10:08 | London, United Kingdom | | Report spam→
Donald,
If you’re not alreadya member of EP, this is a question you should also put to that forum. If you’re not alreadya member of CAPIC, it is a specific area of concern to them They can provide you with the names of lawyers who specialize in this stuff. Above posters are correct that position is much stronger if your work has been registered with the LOC, but this is more the case in the US If the infringer is also in Canada the it would only be auxilary evidence. For the future, the formal government registration process here in Canada is iffy and of questionable utility… certainly not as powerful as the US models and workflow. However as court evidence of copyright ownership, I’ve been given to understand that the old-fashioned way of mailing yourself the work (CD) ASAP after it is done so that the REGISTERED letter is dated officially can be taken as evidence up here. NB don’t open the letter once you’ve received it. The courts would do that. But first and foremost you really need to chat with a lawyer. Usually a first call is cheap or free. Its afterwards it gets expensive… but by then you’ll know whether you have a case, the likelyhood of a win, the amount of work and costs you’ll likely incur and potential for an award. Whatever you do inthe interim, try to get as much of your communication withthe abuser in print rather than over the phone, because if the judge gets a whiff of the abuser’s bad attitude, he may even award punitive damages (higher $ for you). SOunds like this guy is arrogant enough that he might just offer you enough bs to hang himself.

-Peter

by Peter Sibbald | 10 Aug 2005 13:08 | Toronto, Canada | | Report spam→
Maybe it,s time to work together to try to set up,loby, to protect copyright internationally,by the number of responses on this subject,this issue will only get bigger much bigger,copyright conditions are changing internationally, each year.

Food for thought?

Tony Reddrop.

by Tony Reddrop | 10 Aug 2005 18:08 | Melbourne Australia, Australia | | Report spam→

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Participants

Dang Ngo, Photographer Dang Ngo
Photographer
Baltimore, Md , United States
David Harpe, Photographer David Harpe
Photographer
Louisville , United States
Chester Simpson, Photographer Chester Simpson
Photographer
(Chester Simpson Photography)
Washington Dc , United States
Tony Reddrop, Photographer Tony Reddrop
Photographer
New Zealand , New Zealand
Peter Sibbald, Documentary Photographer Peter Sibbald
Documentary Photographer
Toronto , Canada ( YYZ )


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