Old 08-15-2009, 09:49 PM   #1
Joe the Photog
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Default My photo. Used. Withour Permission.

Imagine my surprise when I opened the local weekly newspaper and saw one of my favorite photographs I have taken. It was a definite surprise since I had not granted them permission to use it. In fact, they used the same picture past year and never paid me.

Short story long. Last year I entered a photo contest in a lo cal weekly paper. I did not win, but the editor e-mailed me and said they wanted to use one f the shots for an ad by a beer company. It was around Christmas and the ad would say "Merry Christmas Columbia" or something similar from the beer company, the local distributor from a large, national company.

I said I was willing to let them, but times were tough, I had just been laid off. The editor said that was doable. The paper used the picture and i was pleased enough with it. I never got any payment for it and admittedly I did not pursue it because, well, being unemployed, I had all the money I needed from my unemployment checks. (Dripping with sarcasm.)

Skip to this year. My sister gets an e-mail from a friend who works at this paper saying they could not find a way to reach me (even though I use the same e-mail address I was using last year when we were in touch and even though when you Google my full name, which they have, I'm all over the first page.)

The e-mail to my sister said they were trying to reach me to ask if they could use my shot, adding these words exactly, "We need his permission." My sister forwarded me the e-mail and CC:ed her friend. I replied back to both of them -- double checked, yes, both of them -- with my phone number and, of course, the e-mail address.

That was the last I heard from them from last Saturday. Interestingly, my Flickr account has been coming up with a lot of hits of "Columbia skyline" and other variations of the shot they wanted to use. My guess was that they were trying to find another picture, but mine is the only one I have found remotely like it.

So today I picked up the latest copy and it occur ed to me that since they didn't use mine, I should find what shot they did use. And what a surprise to find they actually did use mine. Even credited me as Joseph C. Hinson as they did last year.

When I called my sister, she couldn't believe they did this and we wondered why they were clearly infringe upon a copyright. (Last years agreement was for a one time use.) She then said she had gotten an e-mail from her friend that said the publication wanted to BUY (her caps) the picture so that the beer company could have unlimited use of it. She then added "Joe can name his price."

And that's where we stand right now. I'm waiting on e-mailing the person and should probably handle it over the phone on Monday. This is what I am no Good at. I'm afraid that when I do, I'll agree to something stupid when, in theory, my bargaining position seems very strong at this point.

Any tips?
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Old 08-16-2009, 01:08 AM   #2
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If you don't get the satisfaction your looking for, threaten to take them to small claims court. Or better yet, if you know a lawyer, have him/her send them a letter on his/her letterhead. That usually settles the problem.
Good luck
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Old 08-16-2009, 01:42 AM   #3
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Violating a copyright law it theft. Pure and simple. For a publishing house to vioate copyright laws is almost comical. How would they feel if you took their paper, photocopied it, and handed it out to friends for free?

I really can't believe that someone at a paper would do such a thing. Incredible!

I'm not sure you realize how much barganing power you have there Joe. There are civil and criminal penalties for violating copyright laws. If I had to make a guess, someone at the paper did this without the full knowledge of those who's job it is to make sure that all of the T's are crossed and all of the I's are dotted. This could be EXTREMELY embarrasing to them as a company and they should pay for their poor judgement.

In my opinion, you should take whatever you would normally charge for photo rights and move the decimal point one spot to the right. At least!
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Old 08-16-2009, 04:05 AM   #4
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I am so with BurghMan on this.

What is a fair price? $1000 before they stole it to $3000+ after they stole it.
This is not editorial, this is an ADVERTISEMENT for BEER!!!. Ads pay the most!

I realize the local market is small and the going rate might only be a $300. Still, THEY SCREWED YOU!

Repeat what BurghMan said to these guys.

Name your price. Then shut up. Don't rush in with "But if that's too high..."

Let it hang in the air. Let them think, squirm, whatever.

Suggest doing it without court and lawyers.

Be firm and calm.

Good luck. Get 'em tiger.
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Old 08-16-2009, 05:07 AM   #5
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Thanks for the advice, guys. In some ways, I am glad I found this on a Saturday where I will have the weekend to think about what I will do on Monday. I was angry at first and it maybe good I was in my car at the time stopped in a parking lot somewhere. Not near a computer. It gave me time to let me anger simmer, then cool down and decide to take it slow and get some good advice as well as do some online research, which has been eye opening. I think it was Bert Krages site that said three times the going price is a good starting point which seems to be what you were thhinking too, Dennis.

Her e-mails to my sister are telling, the one where she sayd "We need Joe's permission" to use the image and then the one where she said they wanted to buy the image and I could "name my price." I'm printing those off on my resume grade paper, not the cheap stuff.
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Old 08-16-2009, 06:15 PM   #6
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Joe,

Sounds like you have a good case. Just make sure at no point did your sister ever e-mail back and said that you gave your permission. Otherwise, enjoy a nice vacation thanks to those clowns!
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Old 08-16-2009, 07:20 PM   #7
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I watched a video on Kelby Training about copyrighting your photos, and one of the things that they stressed is that if you have not registered your photo with the U.S. Copyright office, you can not go to small claims court because without that piece of paper from the Copyright office, there's nothing the judge can do. Also, if the image is published (including posting it on a publicly viewable website) there is a limit on how long after you have published it that you can still get it copyrighted. Since I'm not a lawyer, so I may not have all of that correct, so it would be best to check with your lawyer if it comes down to taking them to court. Anyway, good luck with it. Hopefully it will all work out.
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Old 08-16-2009, 07:34 PM   #8
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Joe:

There's an ongoing column in Photoshopuser magazine called The Copyright Zone. It's very much about what happened to you. It may be helpful to get June or July/August Issue (which should still be in book stores).

A lot of what they preach is registering your images with the Copyright office. If you did this, your golden (or at least your photo is). If not your still in the driver's seat. The kind of money they discuss that was settled upon for registered images, is way above what's been discussed here.

They also have an email address, but aren't very promising about a response. It's: Igotaquestion@thecopyrightzone.com
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Old 08-16-2009, 11:15 PM   #9
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Originally Posted by mSummers View Post
one of the things that they stressed is that if you have not registered your photo with the U.S. Copyright office, you can not go to small claims court because without that piece of paper from the Copyright office, there's nothing the judge can do. ... Since I'm not a lawyer, so I may not have all of that correct, so it would be best to check with your lawyer if it comes down to taking them to court.
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A lot of what they preach is registering your images with the Copyright office. If you did this, your golden (or at least your photo is). If not your still in the driver's seat.
I'm not a lawyer either! But I start here:
http://en.wikipedia.org/wiki/Copyright
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Old 08-16-2009, 11:55 PM   #10
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Joe:

A lot of what they preach is registering your images with the Copyright office. If you did this, your golden (or at least your photo is). If not your still in the driver's seat. The kind of money they discuss that was settled upon for registered images, is way above what's been discussed here.
I'm not an expert on this, but my understanding is that you have some period of time (perhaps 60 days?) to register the image with the copyright office after learning of the violation, which would still allow you to get statutory damages. Registration is not free, but I think you can submit a large number of photos at one time for a flat fee of ~$35.

If you decide to go after them, you would almost certainly want competent copyright legal assistance. As it is used in an advertisement (not an editorial story) it sounds like you are certainly entitled to serious compensation.
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Old 08-17-2009, 04:18 AM   #11
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I'm going to pay them a visit tomorrow. Will let you all know how it goes. Thanks for all the comments and encouragement.
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Old 08-17-2009, 05:14 AM   #12
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It's hard to judge how much $ you should get without seeing the ad and getting the specifics about the newspaper but I wouldn't let it go unless they give you a check for at least several hundred dollars. If I were you I would also register the series of photos that they are interested with the Library of Congress Copyright office just to be safe and if they do it again, you'll be gettin a lotta $$$! The Copyright Office has a beta version for an image/media uploader on their website so you don't have to send anything in. It works so you can upload however many images you want, but it times out after uploading for 30 minutes. It takes a couple of months to receive your certificate in the mail.

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Old 08-17-2009, 04:32 PM   #13
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First meeting today with the lady who ultimately chose to use the picture without my permission. Went well. We were both cordial. She admitted it was her fault. Still wants to buy rights to the photo. But her boss is out today and that's who can handle both issues. She understands that I believe both are seperate issues and we need "closure" on the copyright issue first.
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Old 08-17-2009, 08:46 PM   #14
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Atleast you are over the first hurdle in your perdicament, the at fault admitted fault.
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Old 08-17-2009, 09:56 PM   #15
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The At Fault Admission worker put me in touch with her We Tried To Contact You boss who doubles as the We've Never Paid That Much For A Photo worker.
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Old 08-17-2009, 11:26 PM   #16
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Joe,

Appreciate the updates. I love the drama!

I love it! We admit we stole from you, but you have no right to charge us that much for the photo. Wow. Talk about stones! I take it the "We've Never Paid That Much For A Photo" Boss said no to your price?

My wife works in a photo lab. They are regularly trained in copyright laws and they are always on the lookout for Joe and Jane Shopper who try to make illegal copies of professional photos. On a few occasions, the police have come in to take statements when Joe and Jane used the store's self-print kiosks to duplicate professional photos.

Remember that they are civil and criminal penalties for copyright violations. If the publisher doesn't want to play fair, you might want to consider an alternative to hiring a lawyer. File a theft complaint at the local PD. Perhaps a man in uniform asking questions will help them find their checkbook and pen!

I STILL can't believe a newspaper did something this dumb!!!
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Old 08-18-2009, 02:30 AM   #17
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In thinking over the conversation again, she didn't say "no" to my price, just that they had never paid that much for a photo before and she was going to have to turn it over to her publisher. I came straight home -- we were talking on the phone, but I was away from home at the time -- and e-mailed her publisher. My feeling is that the At Fault worker may have been slowly explaining herself to her We Tried To Contact You boss and maybe the boss was very slow in coming to realize the implications.

It is a newspaper, but not a daily.
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Old 08-18-2009, 02:49 AM   #18
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When you hear, "We've Never Paid That Much For A Photo...", cut them off there and ask, "...for a legally acquired and with permission photo, you mean?"
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Old 08-18-2009, 03:55 AM   #19
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Joe,

What were the terms of the photo contest you entered? Did the newspaper claim full or partial ownership of the copyright of the photos entered? If they didn't, pursue legal action.
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Old 08-18-2009, 07:14 AM   #20
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Joe,

What were the terms of the photo contest you entered? Did the newspaper claim full or partial ownership of the copyright of the photos entered? If they didn't, pursue legal action.
Good question. Might want to refresh your memory on that before you continue.

As for the pricing, what are you asking for as damages, in terms of x-times your 1-time usage fee for that image (based on sizing, placement, etc) for the illegal use? Then it sounds like they would still like to purchase rights to use it multiple times in the future, clearly they value this image so if they want unlimited non-exclusive use, that can be relatively pricey as well. Thanks for the updates!
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Old 08-18-2009, 03:37 PM   #21
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They took the out right purchase off the table. Part of e wonders if that was smokescreen. Every time I talked to them yesterday, they mentioned buying the photo first. And I would say we had to get "closure on the other issue" first. When I was able to finally start talking settlement with the boss, she informed me they didn't want to buy it anymore because of "these issues." She said she'd like to use it in this weeks issue and also "make it right" from last week. So I gave her the price that it would have been last week, then told her with the copyright violation, that price went up by three. That's when she started saying they had never paid that much for a photo before. And, Ween, I did say, "Yeah, but I'm guessing you had permission on those photos." She hemmed and hawed for a moment, then said, "Well, we're not using the picture this week then." I wanted to be smart about it and say, "Of course you won't, you don't have permission and you'd have to be crazy to use a shot without permission."

Still waiting on an e-mail from the publisher. It's the day before the new issue goes out, so I don't expect to hear back today. About the contest rules, I seriously doubt the rules say they can use photos for beer ads, esp. if the images don't win. since they asked my permission last December for the initial ad and have admitted fault thhis time, I doubt they think they have that going for them. But if their lawyers get involved, I'm sure all bets are off.

Meanwhile, there are other ways of getting a small bit of satisfaction out of this if they refuse to pay. That's Plan C though.
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Old 08-18-2009, 04:03 PM   #22
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About the contest rules, I seriously doubt the rules say they can use photos for beer ads, esp. if the images don't win. since they asked my permission last December for the initial ad and have admitted fault thhis time, I doubt they think they have that going for them. But if their lawyers get involved, I'm sure all bets are off.
If you can go back and find the "terms of agreement" for the contest, I would look them over. Two years ago my dad told me about a college photo contest that the company he worked for was holding. The top prizes were ridiculous. A new camera PLUS cash for first, $1000 for second, etc. With it being only open to college students I was pretty excited about it and felt I had a good chance. Then I read the "rules". In the tiny tiny print under the fine print it stated that the company had the FULL rights to ANY photos submitted into the contest no matter if they placed or not. This meant that by signing the submission form I was selling the full rights of the photos over to them and would never be allowed to claim them as my own since it would be in writing. I laughed, threw out the papers, and forgot the whole thing. Basically, they were interested in taking advantage of college students who see a big number with a $ in front and jump right in. I'm sure they haven't needed to purchase many photos since they held the contest since they now OWN all the photos submitted. Sad.

Hope things work out for you soon!
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Old 08-18-2009, 04:04 PM   #23
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About the contest rules, I seriously doubt the rules say they can use photos for beer ads, esp. if the images don't win.
Um.... "I seriously doubt" is significantly different than "I reread the contest rules" or even better, "my lawyer reread the contest rules." I sure one of the reasons they are dragging their feet is because theie own lawyers are going over the stuff right now.

If you have them by the balls, then squeeze. Just make sure you are the driver seat first. Hunting down the rules to that contest should have been the first thing you did.
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Old 08-18-2009, 04:19 PM   #24
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You were right, so I found he rules. Nothing about the photographs become thier property, only that they will publish the work of the winners.
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Old 08-18-2009, 04:25 PM   #25
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If you can go back and find the "terms of agreement" for the contest, I would look them over. Two years ago my dad told me about a college photo contest that the company he worked for was holding. The top prizes were ridiculous. A new camera PLUS cash for first, $1000 for second, etc. With it being only open to college students I was pretty excited about it and felt I had a good chance. Then I read the "rules". In the tiny tiny print under the fine print it stated that the company had the FULL rights to ANY photos submitted into the contest no matter if they placed or not. This meant that by signing the submission form I was selling the full rights of the photos over to them and would never be allowed to claim them as my own since it would be in writing. I laughed, threw out the papers, and forgot the whole thing. Basically, they were interested in taking advantage of college students who see a big number with a $ in front and jump right in. I'm sure they haven't needed to purchase many photos since they held the contest since they now OWN all the photos submitted. Sad.

Hope things work out for you soon!
That's a nice warning to all of us. I bet a lot of these internet-based contests work something like them if we really knew. Just teaches us to read the fine print. I've learned a lot over the past three days.
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