Copyright infringement questions

Ambie61 · Dec 17, 2012

I recently had one of my photos used by a local newspaper without permission. I do not know how they obtained it, but my copyright information is clearly set in the metadata. This was a glamour shot photo shoot that I did for a lady. She was brought up on bank fraud charges that were later dismissed. Needless to say the article went viral online, so my photo was used nationwide. This article did real damage to her family. I contacted the newspaper about their use of my work on a front page article and they said they would look into it. They then removed the photo from the article but the damage was done on the front of the printed newspaper.

I contacted a lawyer and he wants me to come up with what I would normally be paid for a newspaper article, but I don't think that is the point. To me it feels like theft. My questions are, has anyone had to deal with this before and know what my rights are?, and what would someone usually charge for this?

i have done quite a bit of magazine work, but only one front cover that I was paid for and that was around 18k.

any feedback would be appreciated.

dewey · Dec 17, 2012

First off... I'm not a lawyer, although I did stay at a Holiday Inn Express last night.

That sounds like a long, winding, dead end street. The newspaper will already have sent a notice to the reporters/editors involved not to delete, edit, etc anything related to the story assuming your lawyer has contacted the newspaper. If not then the audit trails for the files in the editorial system are most likely are gone. Determining how the newspaper got ahold of the photo and the who/what/when after they got it is the real issue. If they have permission from someone who claimed the work as their own you'll end up going after that person. Either way you won't get much in the way of financial compensation IMO.

As far as how much you'd get for the photo that's impossible to guess accurately. Just because it was picked up by a news agency like the AP doesn't mean you'll be entitled to any more $$$$. The online aspect also rarely translates to addition money. Things that "go viral" usually do so under the fair use umbrella. Now obviously the photo should never have been "fair use" but that's the way it works. It also depends on the market. You might get several thousand for a shot in a major metro (unlikely) but the same story in Hayes Kansas will net you $25 and a 2 for 1 coupon to the Golden Corral. If you're talking Hawaii I couldn't even fathom a guess at what the going rate is. $500 is probably generous... again it's difficult to guess without the specifics.

If you don't ever need any sort of working relationship with the paper sure - go for the lawyer aspect and they'll send a scary letter to the paper trying to shake some money loose. The newspaper industry being what it is though... something about blood from a turnip. The other side of course is you would never be doing business with that paper again.

unpopular · Dec 17, 2012

Hmm. IDK. I think your legal expertise is a little lacking.

As far as I know, and I'm not an attorney either, but I don't think it matters if they had some guy saying that they had rights to reproduce the image. The newspaper is the one who copied the image. They could sue the person who gave them permission, but it would seem to me that they are responsible for the copyright.

Fair use though might be an issue, and the laws regarding fair use in editorial news settings are very complicated, and newspapers are very well-versed in their rights here, and defend them vehemently.

I'd suggest following your attorney's advice, buut bear in mind, unless you've got this case on some sort of contingency rate he gets paid no matter how unlikely the outcome, so proceed with some degree of caution.

One thing I can agree with you on though, I can certainly "Hayes" Daily News paying photographers in coupons. They'll probably pull them right out from the insert room!

KmH · Dec 17, 2012

I Am Not A Lawyer.

Did you register your copyright with the US copyright office before the infringement occured?
Because if you didn't, the attorney can only file an infringement action for actual damages.
Industry standard pricing is often used to determine actual damages. Assignment and stock pricing software, like fotoQuote Pro 6, may be used as reference.

Help! I’ve Been Infringed! | Photo Attorney
Option #6 – File a Copyright Infringement Lawsuit
........If you created the photo in a country that is a signatory to the Berne Convention, you do not have to register in the U.S. to protect your copyright or to file an infringement lawsuit in the U.S. However, if you do, then you may be entitled to statutory damages and attorneys’ fees, as noted here.) If your photo was not timely registered for this infringement, you may want to register the photo for future possible infringements, as well, to be eligible for statutory damages of up to $150,000 per willful infringing use for each photograph. See 17 USC Section 504(b) and (c). Legal fees and costs also may be recovered from the infringer. See 17 USC Section 505.

US copyright law is federal law, so infringement actions are heard in federal court.
According to USC 17 Section 411 the federal courts won't even accept the filing of an infringement action unless the copyright has been registered.

http://www.copyright.gov/title17/92chap4.pdf
§411 · Registration and civil infringement(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

If you want to learn more about the 'slippery because it's not law' 'Fair Use' doctrine see this- U.S. Copyright Office - Fair Use

manicmike · Dec 17, 2012

My wife will be a lawyer in 3 years. I'll get back to you then.

Ambie61 · Dec 17, 2012

Thanks for the advice. I just know it is not fair and it is theft. There has to be something to protect theft of art. The damage that was done to the family also weighs heavily on me. The photos were intended for personal use. While they were in no way pornographic, they were intended to build self esteem. I don't know how they obtained a high res photo. I am led to believe perhaps a computer was hacked by someone.

orljustin · Dec 17, 2012

Your picture is incidental to 'damage' ( from truth? ) from the news article.

KmH · Dec 17, 2012

Ambie61 said:
There has to be something to protect theft of art.

There is something to protect against the theft of just about all intellectual property (art, books, music, stc.). It's called copyright.

There is civil copyright law - USC Title 17 - which I have provided you several links to.
If you want to explore criminal copyright statutes, that is USC Title 18. See §2319 - http://www.copyright.gov/title17/92apph.pdf