Copyright has been violated - best course of action?

[DanPower]

Hi guys,

Please excuse my vagueness when it comes to names and stuff, but I'm trying to protect myself in case something actually comes from this. Please do no ask who the companies or individuals are, what the photos are of or to see them, as I will not oblige.

The basic story is I licensed a bunch of images to a company who then sent the images as samples to several publications. The copyright conditions I placed on the images when I sent them to the company were as follows:

As the owner of these images I retain full copyright but I give *insert company name* free, unlimited use in any and all media including websites, written publications, advertisements, or promotional videos on the condition that the photographer credit is given to 'Dan Power Photography,' athlete credits are given to the individual in the shot and that *insert company name* doesn't distribute the original image files to anyone without my prior written consent.

Now I gave explicit permission for the company to send the images to publications as samples which they did, and they included a similar copyright clause stating that they were to be consulted before use and given proof copies so I could check athlete names. One publication asked to use them, we said yes, got proofs, etc etc. No others expressed an interest.

Today I get an email saying another publication has printed my image as a full 2-page headline image for an article about the company I licensed the images to, without our consent, without my proofing the article, and without crediting the rider. The colour cast in the image is HORRIBLE enough that I would have requested they change it or re-edited it for them (although reading the article it may have been done on purpose to illustrate a point) and they even got the location wrong. The company I licensed the images to is concerned and apologetic although it's still publicity for them so I don't know how worried they really are about it. I'm waiting on a response from the first publication who we actually gave license to use the images about how they feel about being poached as their issue is coming out soon and this one has already hit the shelves.

I imagine someone here has been in a similar situation before, can you suggest a course of action and whether this is worth chasing? I gave the images to the company for free for my own reasons however if a publication has poached them for their own use then I want to be compensated as any other photographer would. Should I be taking it up with the publication directly, or should the company I licensed the images to be taking it up with them? And yes I plan to discuss this with a lawyer once I have collected all the evidence and information, I just want to know what the forum thinks of the situation.

Finally could someone give me a very rough estimate on what a 2-page image in an A4 publication with a reach of 100,000-150,000 would generally be worth?

Thanks very much.

 

[bratkinson]

Hi guys,

The copyright conditions I placed on the images when I sent them to the company were as follows:

As the owner of these images I retain full copyright but I give *insert company name* free, unlimited use in any and all media including websites, written publications, advertisements, or promotional videos on the condition that the photographer credit is given to 'Dan Power Photography,' athlete credits are given to the individual in the shot and that *insert company name* doesn't distribute the original image files to anyone without my prior written consent.

Disclaimer: I am NOT a lawyer, I have NEVER studied law, and laws regarding copyright infringements vary from country to country. Anything expressed here is strictly personal opinion without any known legal basis.

As I read/interpret your quoted copyright info, you gave them complete, free, unlimited use anywhere they choose. So, financially, I don't think you have a leg to stand on. Additionally, the fact that they altered the picture in some way (color cast), technically, may void any rights you have to the original. Lastly, the 'distribute without your consent' is contradictory to the first line, "complete, free, unlimited use".

I'm guessing that "insert company name" may have run it past their legal department, and the response was 'screw him, let him sue us'. Why? Because you'd have to sue them in the country/state/province/locale where they are located according to the laws in that location. It would be very expensive for you to 'take them on'. And I'm guessing they have deep pockets and good lawyers, too.

For what it's worth, some years back as a one-man consulting corporation, an out of state client I did work for (800 miles from home) didn't/wouldn't/couldn't pay me over $150,000 I had legitimately billed their 20-person corporation. The response was 'come and sue'...in Virginia! He was right. I'd probably have paid that much in Virginia lawyer fees and travel,etc, that there'd be no gain. My company quietly closed about 3 months later as a result.

Consider the costs of going after them. Consider, too, the lesson(s) learned...the hard way. Consider, too getting a lawyer knowledgeable in international copyright laws and how to protect yourself.

 

[Buckster]

You need an attorney, not advice from a photography forum.

 

[DanPower]

Yeah I figured as much Buckster, just wondered if someone might have had a similar situation.

The 'free' use applied to the COMPANY, not the publication. The company did not not authorise the use of the photo in the publication. They are as angry as I am, it seems, as is the publication who actually went to the trouble of getting license and were then told they had exclusive use of the image...

But yeah Buckster's probably right, I just hoped someone here would have been in my shoes and could give me a steer in the right direction

 

[gsgary]

Yeah I figured as much Buckster, just wondered if someone might have had a similar situation.

The 'free' use applied to the COMPANY, not the publication. The company did not not authorise the use of the photo in the publication. They are as angry as I am, it seems, as is the publication who actually went to the trouble of getting license and were then told they had exclusive use of the image...

But yeah Buckster's probably right, I just hoped someone here would have been in my shoes and could give me a steer in the right direction

You should never have given them free use, just forget about it and move on and learn from your mistake

 

[DanPower]

Ok I'm not sure I'm being clear here. There are four players in this scenario:

Me - the photographer
Company - landowner where the photos were shot
Publication 1
Publication 2

I am good friends with the company directors and staff, so I (the photographer) gave the company (landowner) permission to publish the files as they like at no cost. They gave samples to Publications 1 and 2, and included copyright statements that required both publications to seek written permission from both me and the company before publishing the photos. Publication 1 complied with this request, publication 2 did not. The company is very upset about this, as am I.

But really what I was asking - is the issue between me and publication 2, or is the issue between the company and publication 2?

My beef is not with the company. My beef is with publication 2, who took sample images which came with a copyright notice and published them in violation of said copyright notice. However because the company is the 'middle man' I'm wondering if I have to let them handle the legal things instead of go after publication 2 myself.

I hope that clears it up. Giving 'the company' free license is not the issue, the issue is publication 2 was not given any license.

If you completely understand what I am saying and have some real world experience in this area then by all means please respond, otherwise ignore this thread as it seems to be outside the scope of this forum.

Thankyou all for your input, I'll discuss it with my lawyer tomorrow.

 

[gsgary]

I would say your friend probably is not that bothered, i have had similar happen but the image was not free so got money from one party i was not worth going after the other

 

[orljustin]

"As the owner of these images I retain full copyright but I give *insert company name* free, unlimited use in any and all media including websites, written publications, advertisements, or promotional videos on the condition that the photographer credit is given to 'Dan Power Photography,' athlete credits are given to the individual in the shot and that *insert company name* doesn't distribute the original image files to anyone without my prior written consent."

How are they supposed to have free, unlimited use and any and all media (including publications) if they have to ask you first to send the people the image files? Obviously they need to send the image files to other entities to be able to execute their right to free and unlimited use. "Free" doesn't just mean "no need to pay me"...

 

[tirediron]

You need an attorney, not advice from a photography forum.

^^ This.

 

[2WheelPhoto]

Don't handle it as some may.......

 

[Buckster]

Don't handle it as some may.......

That joke's getting old. You should reshoot it. Here's what I envision:

Night. Hole in the ground with a pile of dirt next to it and the shovel sticking up out of the pile, or even better, showing someone from about just below the shoulders down, so that they remain anonymous and mysterious and ominous to the viewer, throwing a spadeful of dirt into the hole, with the dirt is in mid-flight. Gun lying in an open pistol hard-shell case on the ground with a couple of clips. The pants-legs and boots, arms, hands and shirt have plenty of dirt and sweat from the work digging the hole (and getting the body into it), all dramatically and interestingly well lit, of course.

:thumbup:

 

[KmH]

IANAL, but I study US copyright law.

Each country has their own copyright laws. What applies here in the USA may not have any meaning in NZ or AU. However, there is the Berne convention.

But, what you call 'copyright conditions' is legally known as a 'use license', and the use license language you posted is highly contradictory, essentially making it useless.

Language like ".....free, unlimited use in any and all media......" pretty much eliminates any legal traction you may have had.

You needed an attorney's help way back when the use license language was being written.

But, for what it's worth to you and others, look at this even though it pertains to US copyright law - Help! I’ve Been Infringed! | Photo Attorney

As far as "what a 2-page image in an A4 publication with a reach of 100,000-150,000 would generally be worth?"
If the use is advertising, here in the US the low would be about $1000, median about $1500, and high about $2000
If used for editorial, the low would be about $275, median aboout $415, high about $550. http://photographersindex.com/stockprice.htm

 

[Buckster]

IANAL

LOL! No, you didn't! LOL!

 

[2WheelPhoto]

hah!

 

[gsgary]

He's not happy, actually he's at least as angry about this as I am. Which makes me hope that if we can screw this cheeky publication out of money but it has to come from him, then he'll do it.

Anyways I should stop replying as I intend to let this thread die, as Buckster pointed out it is well outside the scope of this forum and I can't give out enough information for even a lawyer to give proper advice, so I'm going to have a little pow-wow with my lawyer tomorrow and get it sorted.

Thanks anyways guys, sorry for posting a virtually unanswerable question. I should have realised when I was typing the first paragraph of the post that it was a bad call to put it here

I wouldn't give those parasites any of my money, because i can't see you getting anything out of it but a big bill