Yay: First published pic. Boo: Stolen from my site

[scottV]

So this is bittersweet, my friend informed me that in the current issue of r/c car action they published a photo that I took. Unfortunately they never contacted me about using it and they even cropped off my watermark. :boid
argle bargle im more than a bit miffed, suggestions for a first step?

original:
http://scottvickers.smugmug.com/photos/214263010-M-1.jpg

scan:
http://scottvickers.smugmug.com/photos/239791706-XL-1.jpg

[anwmn1]

Contact the magazine directly and tell them the photo was used without your consent, is an infringement on copyright laws, and demand $1.00 for every magazine printed.

If they fail to pay you for the copyright use you will sue the magazine and the person that wrote the article.

[Shudderz]

Contact the magazine directly and tell them the photo was used without your consent, is an infringement on copyright laws, and demand $1.00 for every magazine printed.

If they fail to pay you for the copyright use you will sue the magazine and the person that wrote the article.

Here is a link to their circulation numbers:

http://209.196.57.98/ME2/Audiences/dirsect.asp?sid=84B344FBDA50433A9791EB71522DE46A&nm=Circulation%2FReadership&AudID=EB1F8E332F9944ABB21AA2859911C3A6

it claims 64,745 paid circulation with 324,000 readership

just fyi.....good luck!

[Tee Why]

Personally, I'd contact a lawyer and demand payment with punitive fines for copyright infringement. If they don't pay, sue. It's a slamdunk case if you have the original image in my view.

I'm continually surprised how stupid publications can be. You would think a magazine like this would know about copyright laws. Stealing images and publishing it in a magazine is just asking to be sued.

[ArchiTexas]

Foosion,
My advice is take a couple of days to let the anger abate a bit. You've got every reason to be mad but think this through with a cool mind. There is no doubt that you are the copyright holder, but before you can sue to demand any kind of payment from the magazine a lawyer is bound to demand some kind of payment from you. I'm not a legal expert but I've been around enough to know that compensation is awarded based on what sort of damages have been done to you. Since this is your first published image and the published version is buried inside of the magazine (not, say, on the cover) I'm not sure how you'll make the case that you've taken a serious financial hit. Would you settle for a correction in next months issue where you get proper credit? What if you can negotiate for them to feature some of your work in an upcoming issue? Would that sort of exposure make amends for this transgression? All I'm saying is, once the attorneys become involved it seems that they are the only ones that win. If you enjoy photographing RC buggies maybe the mag can compensate you with free advertising space - that could have value for you and would be easy for the publication to arrange.
ERF

[Shudderz]

you offer this image on your site as a commercial license download high resolution file for $400.

any chance they purchased the download? it would give them the rights to use it in their magazine. Have you checked your sales just to make sure before you contact them. If they did purchase the download, they wouldn't need to contact you any further before printing the photo in their magazine....the license (as I read it) really doesn't even state that they must give you credit for it.

If not, as I see it, you're only out the $400.

the commercial license reads:
License For Commercial Use
What you can do: Photographer grants you a perpetual, non-exclusive, non-transferable, worldwide license to use this image for permitted commercial purposes, defined as:

advertising, promotion, brochures, packaging
as part of a commercial website for promotional purposes (maximum 800x600pixels) use
prints, posters, flyers, tearsheets for promotional purposes (not for resale)
prints, posters, or other commercial display of image
magazines, books, newspapers, other printed publications
video, broadcast, theatrical

What you may not do: Buyer may not resell, relicense, redistribute without express written permission from photographer. Use as a derivative work, and reselling or redistributing such derivative work is prohibited. Images may not be used in a pornographic, obscene, illegal, immoral, libelous or defamatory manner. Images may not be incorporated into trademarks, logos, or service marks. Image may not be made available for download.

Photographer retains all rights, license, copyright, title and ownership of the image(s).

There is no warranty, express or implied, with the purchase of this digital image file. Neither photographer nor SmugMug will be liable for any claims, or incidental, consequential or other damages arising out of this license or buyer's use of the image(s).

[rich56k]

Scott,

Also if they didn't purchase thru your 'd. download' option they possibly did a screen grab of your 'x-large' as available to any viewer - try it, I did- it's approx 720 kb in size that would be close to your 'low res- commercial use d. download' at your clearly stated price of $300 ( which in my experience would prob. be more than a similar type mag. would pay [closer to $50-100] if neg. up front to run a pic that size [approx 1/6 page] in a 'news item' style piece)....since they didn't choose to neg. you should have a very valid demand (to be handled diplomatically) for the $300 :wink

rich56k

ps: what if any thing is their stated method of submission/compensation, try to research that first... :deal there's no super rush as it's already in print - keep us posted...

pss: whether it's your first published or not is not in any way relevant to this matter, or any of their business.

psss: here's a direct link to their media kit page... it will say how much a 1/6 page(see b/w 1x) ad sells for -how many ads are in the issue you have? at 60,000 circ. they've got the resources to compensate for content with $$ -not that you'll get that much, but just but to demonstrate the perceived value to space on a page...

http://209.196.57.98/ME2/Audiences/dirmod.asp?sid=&type=gen&mod=Core+Pages&gid=1F349D8D16C1460E83AC11C770D62614&AudID=EB1F8E332F9944ABB21AA2859911C3A6

[Furono]

I'm with ArchiTexas on this one. I would see how to turn this into a positive for yourself first. Make them an offer. Ask for the money on the picture, a retraction with credit to you and hopefully an apology from the guy who did it (I hope that he gets fired). Also, try and get some work out of it. If they are smart (this is a big IF) they will see your a level headed guy in addition to being a great photographer and want you for more work. Just remember, some photographers would love for something like this to happen and open a door for them so take advantage of it. You just have to catch them, which you did.

If after all that they ignore you and don't even pay for the picture go see a lawyer. Even go see one if you in any way don't feel good about what they offer you. If anything just to see what they have to say. I've worked for lawyers all my life and I still haven't figured it all out :dunno But I have learned its best first to try and turn it into a positive first. Thats all the lawyer is going to do first and take some money from you in the mean time.

Steve

[scottV]

thanks for the input everybody. I would definitely prefer not to get a lawyer invovled. I went to the bookstore last night to pick up a few copies of the mag and then perused some photo business books looking for advice. they also suggested trying to turn it into a positive before going the legal route. One had a simple letter: "you published my photo. normally i would charge $xxx for this work, I have included an invoice for $xxx".
Now the question is how much do I ask for. I would've been so incredibly thrilled if they had purchased the commercial use license from my site to begin with, but that is not the case. Because of all this should I up the fee? In their editorial submission guidelines it says materials published become the exclusive property of air age publishing... should I base the price off of an exclusive license?

There is no shortage of ads, in the first 33 pages there are 28 full page full color.

[Tommyboy]

They won't give you more than you ask for. If you start high (though within reason) you can always negotiate down.

You have them by the short ones. Go get your money.

[Shudderz]

thanks for the input everybody. I would definitely prefer not to get a lawyer invovled. I went to the bookstore last night to pick up a few copies of the mag and then perused some photo business books looking for advice. they also suggested trying to turn it into a positive before going the legal route. One had a simple letter: "you published my photo. normally i would charge $xxx for this work, I have included an invoice for $xxx".
Now the question is how much do I ask for. I would've been so incredibly thrilled if they had purchased the commercial use license from my site to begin with, but that is not the case. Because of all this should I up the fee? In their editorial submission guidelines it says materials published become the exclusive property of air age publishing... should I base the price off of an exclusive license?

There is no shortage of ads, in the first 33 pages there are 28 full page full color.

As I see it, editorial submissions are not the same as someone purchasing a commercial use license for a stock photo.

You also have some photos at iStockphoto? is this one of them as well? If so those offer the same license option to purchasers of the photos, but for only $10-$15 and you only make about 20%. So after looking into things a bit more, if it's one of those images...then you're only out $2-$3. They then have commercial use license and can publish your photos royalty free. Doesn't matter how big their circulation is.

Make sure before you look into "legal" type actions that you seek. A lawyer could take much more than you are truly out. And you may have now spent more on copies of the magazine than you are "truly" out as the law might see it.

If these terms aren't acceptable to you, then I'd reconsider your download prices/availability on smugmug and whether or not you submit things to iStockphoto.

[Sam]

I think between Heather, and Archtexas you have some great advice, and info.

Note: If you have registered your work, and prevail in court, you can be awarded punitive damages, and attorney fees in addition to actual damages.

That said if your offering a high res commercial download for a dollar or two, go directly to the nearest brick wall, and bang your head against it until you have knocked some sense into yourself.

If this is the case I would recommend forgetting the whole thing.

However if thats not the case I would follow Archtexas advice. Calm down, send them an e-mail, and explain that your image was used without your permission, and you would like to discuss, and resolve this issue with them. Do not be accusatory, be professional.

This leaves the door wide open for both you and the magazine to come out on top.

Now if they don't want to play nice, register the image, and contact an attorney.

Sam

[scottV]

nope, none of those are available on istock

[xris]

Good thread here.

Don't forget. If the pic was published without a credit it could now be considered public domain if you don't apply your rights.

And let's not forget there is theft involved here! Theft should not be tolerated. The invoice, if that's the route you take, should include at least a 50 percent surcharge for damages.

Thing is, I wonder if sending an invoice might signal acceptance of use? Perhaps you should at least talk with a lawyer. If I have it right, the product was offered for commercial sale and reasonably protected from theft but someone circumvented those controls. (Screen grab and crop watermark.) Sounds like someone that might practice this type of behavior on a regular basis? Who knows. Could even be a photo editor that steals the necessary material then bills the pub for the photos?

And from an industry stand-point I suggest this is an illegal practice and we don't want to promote it by not acting.

Perhaps criminal action is available? If so, it won't cost you a dime and might cause the publishers to pause and think about best practices.

:thumb

[jdryan3]

nope, none of those are available on istock

But is what Heather posted below correct? Excepting the part about having bought it previously online, it seems you can only invoice for the $400 you quote on your site. Especially if you are trying to take the positive high road as you stated earlier. :cool

you offer this image on your site as a commercial license download high resolution file for $400.

any chance they purchased the download? it would give them the rights to use it in their magazine. Have you checked your sales just to make sure before you contact them. If they did purchase the download, they wouldn't need to contact you any further before printing the photo in their magazine....the license (as I read it) really doesn't even state that they must give you credit for it.

If not, as I see it, you're only out the $400.

the commercial license reads:
License For Commercial Use
What you can do: Photographer grants you a perpetual, non-exclusive, non-transferable, worldwide license to use this image for permitted commercial purposes, defined as:

advertising, promotion, brochures, packaging
as part of a commercial website for promotional purposes (maximum 800x600pixels) use
prints, posters, flyers, tearsheets for promotional purposes (not for resale)
prints, posters, or other commercial display of image
magazines, books, newspapers, other printed publications
video, broadcast, theatrical

What you may not do: Buyer may not resell, relicense, redistribute without express written permission from photographer. Use as a derivative work, and reselling or redistributing such derivative work is prohibited. Images may not be used in a pornographic, obscene, illegal, immoral, libelous or defamatory manner. Images may not be incorporated into trademarks, logos, or service marks. Image may not be made available for download.

Photographer retains all rights, license, copyright, title and ownership of the image(s).

There is no warranty, express or implied, with the purchase of this digital image file. Neither photographer nor SmugMug will be liable for any claims, or incidental, consequential or other damages arising out of this license or buyer's use of the image(s).

[MichaelKirk]

I disagree with ArchiTexan solution 100% - photo credit is meaningless. NOBODY cares about your name in a magazine except yourself and your parents.

I would contact the magazine (send a certified, return receipt letter) stating that they used your image in print without your permission, writen or verbal and enclose an invoice for use of your image. I would invoice them at a very high price, but within reason ($2500 or whatever you deam fit) and send it with terms Net 30 days. Advise them that if the invoice is not paid within the net 30 days you will contact your lawyer and start a copyright infingement suit wich will cost them 10 fold.

If they pay - great. If they do not pay, make sure you DO contact a Laywer and sue them for copyright theft. It is the ONLy way these idiots will learn. Magazines KNOW that they cannot use images without permission - this was "most likely" not unintention or a "Mistake" but blatent theft - not a magazine I would really care to do any business with...buy a few, steal a few......

and just because your website says $400 for a commercial images does not mean you cannot invoice for much more (and this is the exact reason I do not list any commercial prices on my SM site - I want commercial accounts to contact me directly so we can work out a fair price.
Aso FYI, but most magazines have a set rate they pay for images - nothing more or less. By pricing you commercial images you are probably shooting yourself in the foot by loosing business due to being over priced. The magazines I work with I just dump photos in a private gallery in my website for individual magazines and they download what they want and mail me a check later (at their set rates).

Michael

Foosion,
My advice is take a couple of days to let the anger abate a bit. You've got every reason to be mad but think this through with a cool mind. There is no doubt that you are the copyright holder, but before you can sue to demand any kind of payment from the magazine a lawyer is bound to demand some kind of payment from you. I'm not a legal expert but I've been around enough to know that compensation is awarded based on what sort of damages have been done to you. Since this is your first published image and the published version is buried inside of the magazine (not, say, on the cover) I'm not sure how you'll make the case that you've taken a serious financial hit. Would you settle for a correction in next months issue where you get proper credit? What if you can negotiate for them to feature some of your work in an upcoming issue? Would that sort of exposure make amends for this transgression? All I'm saying is, once the attorneys become involved it seems that they are the only ones that win. If you enjoy photographing RC buggies maybe the mag can compensate you with free advertising space - that could have value for you and would be easy for the publication to arrange.
ERF

[~Jan~]

I am the worst to offer advice here (way too passive LOL) but I am glued to this thread to see what happens! Let us know!

[scottV]

dang, every new post I read changes my mind back and forth, too much good advice :D
good point on the commercial pricing Michael, with the large variations that places are willing to pay you don't want to be pigeonholed.
As far as keeping things really friendly for prospect of future work I don't really see that happening. Looks like they mostly take their own photos, plus this isn't something I have shot before or plan to do regularly, just tagged along with a friend who makes parts... he paid me in beer.

[ArchiTexas]

I disagree with ArchiTexan solution 100%

Michael

Michael, now you sound like my in-laws: they are always telling me they disagree with me 100%! :D

[evoryware]

They didn't negotiate with you on the front end. Don't negotiate with them on the back end. I'm with Michael, send an invoice, get your money. Then when you get your money you can tell your friends and family about your first published shot.

[cmason]

I agree with MichaelKirk. If they had followed the legal route, it would cost them $400. That is quite cheap, esp for a cover shot. If this was a small-time magazine, printed by a guy and his dog, I would feel bad. But if this is a full-color, ad loaded, distributed magazine like you say, then they should know much better, especially as I am sure they care alot about their own copyright.

You were wronged, they should pay. Simple. Be reasonable, but don't take your normal fee. $2500 sounds like a good negotiating position.

Don't accept 'free promotion', that is useless. Consider the readership of the Magazine. If this were "Sports Promoter Magazine' or maybe "Wedding Planning Magazine", then it may make sense. But readers of this magazine are more interested in a better RC car battery than a photographer.

[xris]

I agree with MichaelKirk too. 100% on the money in my opinion. But you must be 100% committed to seeing it through, too.

Try having the lawyer send the letter.

:thumb

[thenimirra]

I'm so sorry that this has happened to you, but I'm glad so many knowledgeable people have responded to you. I wouldn't know the first thing to do either if something like this happened to me.

Good luck and hang in there! I'll be watching this thread to see how things turn out.

[Rhuarc]

Good Luck on getting this resolved! Looking forward to hearing how this gets resolved.

[Angelo]

here's a thought...

technically they stole from Smugmug

have you contacted the help desk for advice?

[Shudderz]

here's a thought...

technically they stole from Smugmug

have you contacted the help desk for advice?

I would have to disagree. Smugmug does not own any of the copyrights to our images. It's simply a tool we use to get OUR images out to people. You still own the rights to the photo, not smugmug. You would be the victim, not smugmug.

just my .02......I'm sure there's something stating this in one way or another in terms/conditions. TERMS (http://www.smugmug.com/aboutus/terms.mg)

That being the case they really would have no part in this.....but someone may be able to offer advice.

Hope all works out ok for you.....any updates?

[scottV]

I think I will go the route of sending a strongly worded letter and see what happens. I assume the letter should be addressed to the editor? Or is there someone more appropriate?
thanks for everyone's guidance, definitely helps.

[DavidTO]

I say send 'em an invoice.

[cmason]

I say send 'em an invoice.

Durn tootin'

[DavidTO]

Durn tootin'


Yup. The only thing they can do now is to reimburse you monetarily. Anything else is just talk. :thumb

[Angelo]

I would have to disagree. Smugmug does not own any of the copyrights to our images. It's simply a tool we use to get OUR images out to people. You still own the rights to the photo, not smugmug. You would be the victim, not smugmug.

just my .02......I'm sure there's something stating this in one way or another in terms/conditions. TERMS (http://www.smugmug.com/aboutus/terms.mg)

That being the case they really would have no part in this.....but someone may be able to offer advice.

Hope all works out ok for you.....any updates?

I did not say anything about Smugmug owning the copyright.

Smugmug acts like a retailer selling images on behalf of its member photographers and it was Smugmug's site from which the image was stolen. It would have been Smugmug that would have conducted the sale of the image so it would seem appropriate they might have an interest in this.

And since you've linked to the "terms" why not read this?:

copyright complaints

SmugMug respects the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact SmugMug's agent for notice of claims of copyright or other intellectual property infringement ("Agent"), at copyrightagent@smugmug.com or Copyright Agent, SmugMug, 3347 Shady Spring, Mountain View, CA 94040. Please provide our Agent with the following Notice:

Identify the copyrighted work or other intellectual property that you claim has been infringed;
Identify the material on the SmugMug site that you claim is infringing, with enough detail so that we may locate it on the website;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you declaring under penalty of perjury that (a) the above information in your Notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
Your address, telephone number, and email address; and
Your physical or electronic signature. SmugMug's Agent will forward this information to the alleged infringer.

[Dizzle]

This chunk of the TERMS seems more geared toward a SM user who has someone elses copywritten images on their site, not a SM user being wronged.

As for the magazine, its a huge international publication, not just here in the US if I remember correctly. Have been in the RC world for a bit and tat particular mag has been around for a very long time. I also believe that it is just one of many magazines that the publishers puts out each month. THey for sure know what copyright is and would go after you tooth and nail if the roles were reversed.

Good luck with it!!!

I did not say anything about Smugmug owning the copyright.

Smugmug acts like a retailer selling images on behalf of its member photographers and it was Smugmug's site from which the image was stolen. It would have been Smugmug that would have conducted the sale of the image so it would seem appropriate they might have an interest in this.

And since you've linked to the "terms" why not read this?:

copyright complaints

SmugMug respects the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact SmugMug's agent for notice of claims of copyright or other intellectual property infringement ("Agent"), at copyrightagent@smugmug.com or Copyright Agent, SmugMug, 3347 Shady Spring, Mountain View, CA 94040. Please provide our Agent with the following Notice:

Identify the copyrighted work or other intellectual property that you claim has been infringed;
Identify the material on the SmugMug site that you claim is infringing, with enough detail so that we may locate it on the website;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you declaring under penalty of perjury that (a) the above information in your Notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
Your address, telephone number, and email address; and
Your physical or electronic signature.SmugMug's Agent will forward this information to the alleged infringer.

[evoryware]

Well email smugmug and post in the Pro Sales support Forum a link to this thread and find out for sure instead of speculating.
:deal

[Angelo]

This chunk of the TERMS seems more geared toward a SM user who has someone elses *copywritten images on their site, not a SM user being wronged.

I don't think so and don't see how you've reached that conclusion.


* I think you mean copyrighted

[Dizzle]

I don't think so and don't see how you've reached that conclusion.


* I think you mean copyrighted

Yep, copyrighted material...sorry spent way too much time today correcting the horrendous grammar and spelling of a client, it rubbed off.

Anyway, my conclusion comes from the simply stated item No. 2 in the list you posted:



Identify the copyrighted work or other intellectual property that you claim has been infringed;
Identify the material on the SmugMug site that you claim is infringing, with enough detail so that we may locate it on the website;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you declaring under penalty of perjury that (a) the above information in your Notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;
Your address, telephone number, and email address; and
Your physical or electronic signature.

That statement is asking for the offended to identify images/work on a SmugMug site that is infringing. Why is that? Probably because legally the only servers that anyone at SmugMug has content control over are the ones they own.

This is simple basic Copyright 101 here. SmugMug can and will remove items from a client site on THEIR servers that is found to contain copyrighted material that is not properly credited or illegally used.

I used to do a very similar job for the newspaper I worked for so I do have a bit of experience on this one. My few minutes of usefullness for the day.

[Justiceiro]

I think I will go the route of sending a strongly worded letter and see what happens.

This would be a mistake. If you send them a strongly worded letter, you are essentially counting on their decency to get them to compensate you. Clearly, they aren't those types of folks, or they wouldn't have stolen the image in the first place. Let us not forget here that the salient issue is theft of intellectual property. It is in fact real property- they may as well have stolen your stereo. Or my car, which costs significantly les than $2500.

Also consider the bureaucratic response to such a letter. How do they respond? Do they offer to pay you? How much? Who, within the organization, do they go to in order to authorize such a thing (a person to whom they will have to admit their theft and exposure of the company to litigation.)

Sending an invoice has a high probability of success. It easily flows into an established procedure they have for paying suppliers. It establishes a firm basis for you, if they do not respond, to begin your legal action (if no invoice is sent they wil very likely hoist you on your own petard and offer $400 in small claims court, or something like that). The probability of you getting paid without resort to lawyers is highest if this course of action is followed. There is also a bit of an intimidation factor here. If they get an invoice and a legally worded notice, they will likely realize they have stolen from someone who A) makes a living off their photography, B) is well aware of copyright law, has them dead to rights and knows it, and C) is prepared to take this issue forward to an unhappy resolution for them. A "I'm pissed of at you letter" will likely get as much attention as the last letter I sent to my congressman indicating my displeasure with his performance did- not much.

Don't get heavy or pissed off in the letter that accompanies the invoice. Stay cool, colleced and brief. Just the facts ma'am.

If they don't pony up the cash. Nail them to them to the wall with a dull and rusty railroad spike.

[scottV]

by strongly worded letter I just meant a letter illustrating the facts and also intended to include an invoice.

[Foochar]

by strongly worded letter I just meant a letter illustrating the facts and also intended to include an invoice.

I am not a lawyer, but this is my take on this:

When you are deciding how much to invoice them for you should keep in mind that your $400 digital download price grants them a non-exclusive license to the image, and according to an earlier post you made their standard terms state that published images become their property, meaning that you have lost your rights to make additional income from the image. From your earlier post it seems like you get this, but several of the other posters seem to be glazing over this fact. If you sent them a fairly generic invoice, that could be interpreted as accepting their standard terms in exchange for whatever you invoice them for (say $400 + 100% penalty for failure to obtain rights prior to publication.) If on the other had the invoice clearly states "Non-Exclusive license to publish Image-XXX in one issue of Magazine YYY" and they pay you what you invoice them for this should be interpreted as their acceptance of the terms in the invoice.

One option I would consider if I was in your shoes would be to send two invoices with the letter, one for $400 + 100% penalty for failure to obtain rights prior to publication with the above verbiage about non-exclusivity and one issue, and one for $2500 + 100 % penalty for failure to obtain rights prior to publication with verbiage stating their rights are as described in the magazine submission policy.

[ChatKat]

by strongly worded letter I just meant a letter illustrating the facts and also intended to include an invoice.

Dear Copyright Violater:

Enclosed is my invoice for the Image in the amount of "Cars at the Races" used in your magazine. I am honored that you chose my image, however, I want to point out to you that you violated my copyright in using that image without my permission to do so. Enclosed is a copy of the image as used in your publication.(enclose a copy of the piece)

As a publisher, I am sure you are aware of copyright law as stated by Federal Law. (Insert Copyright Law information here - which I did not have handy or I would do that).

I am certain that you do not want this to escalate into a legal issue which would, without any doubt, incur addtional costs including legal fees and punitive damages, to you above my cost for that image.

Sincerely,
Wronged Photographer and Image Owner

[urbanaries]

It seems clear the answer is to send them an invoice.

What isn't clear is for how much. The concept that since they stole an image of yours enables them to claim exclusive copyrights to it is downright ludicrous.

Seems to me the real answer of is
A (what you would have charged for an exclusive right to the photo had they negotiated upfront)
+
B (civil damages for being a thief).
= invoice.

I would do some research and get an idea for the damages actually awarded by courts for this type of infringement, then offer a settlement based on that. You don't necessarily have to spell that out for them, but at least you have a verified starting point. If courts are just slapping folks on the hand, they may call your bluff. On the other hand, if a magazine was fined $100,000 last year for a similar infraction, they may write you a check for $?,000 in a heartbeat.

Just my free legal advice from a non-lawyer. Curious to see how this one pans out!

[Sam]

I have been reading this for a few days, and I guess I am forced to post again.

First: Repeat after me "copyright infringement is not theft", "copyright infringement is not theft", "copyright infringement is not theft", "copyright infringement is copyright infringement".

Basically there are two approaches you can take here.

1. Assume they are bad nasty people who have deliberately violated your copy rights. Go in with guns blazing. Threaten them, pounf your chest, and demand a ridiculous amount of money to be paid yesterday while bowing, and scraping.

2. Make no assumptions: Go in explaining the copyright violation, and that you would like to resolve this issue.

Likely results: In the first scenario I doubt you will get any response at all, and you have limited yourself to an adversarial resolution process. You are not going to intimidate a magazine with threats of sicking a lawyer on them. Estimate 95% to 99% you will need to get an attorney.

In the second scenario while no one can predict what the results will be, you have not voiced any assumptions with regard to intentional copyright, or mistaken copyright violations, and left the door open for an honest open resolution process. Now that said, if they are in fact nasty bad people, etc. You have not eliminated the option of hiring an attorney you have just position that option as number 2.

The second option provides an opportunity for a fast, amiable, and fair resolution. The first limits you to combat.

It's your choice.

Sam

[cmason]

I have been reading this for a few days, and I guess I am forced to post again.

First: Repeat after me "copyright infringement is not theft", "copyright infringement is not theft", "copyright infringement is not theft", "copyright infringement is copyright infringement".



Sam: agree with your recommendation. However, I am no lawyer, but I disagree with your assertion that copyright infringement is not theft. Now I am not capable of teasing apart the meaning of theft but I take it to mean it is not covered by criminal court. In fact, until the passage of the NET law, copyright was only a civil court matter. Since 1997, however, copyright violation is indeed a CRIMINAL act in the US, and can result in jail time:

"The United States No Electronic Theft Act (NET Act), a federal law passed in 1997, provides for criminal prosecution of individuals who engage in copyright infringement (http://en.wikipedia.org/wiki/Copyright_infringement), even when there is no monetary profit or commercial benefit from the infringement. Maximum penalties can be five years in prison and up to $250,000 in fines. The NET Act also raised statutory damages by 50%.


Prior to the enactment of the NET Act in 1997, copyright infringement for a noncommercial purpose was apparently not punishable by criminal prosecution, although noncommercial infringers could be sued in a civil action by the copyright holder to recover damages."

source: Wikipedia (http://en.wikipedia.org/wiki/NET_Act)

[Justiceiro]

I have been reading this for a few days, and I guess I am forced to post again.

First: Repeat after me "copyright infringement is not theft", "copyright infringement is not theft", "copyright infringement is not theft", "copyright infringement is copyright infringement".


I disagree. A copyright is intellectual property, which is property. Appropriating or deriving income from the unauthorized use of anothers property is, well, theft.

That being said, it is often not considered theft due to the fact that, ebing intellectual property, it isn't necessarily a unique tangible object. The fact that these dudes used his photo doesn't mean that, for instance, he can't continue to use the photo as well' unlike the fact that whoever is currently using my old iPod has deprived me of its use in a more classic case of theft. It may be less egregious theft, perhaps, but it's still theft. US copyright law conforms with most provisions of the Berne convention, which holds that "copyrights for creative works are automatically in force at creation, without being asserted or declared." He created the work, and even went so far as, by offering usufruct (Excellent, I have always wanted to use that word in a sentence legitimately!) of the copyrighted material for a fee through the smugmug website from which it was obtained, asserted ownership of the copyright to the work and its status as being copyrighted. I think he is in a good position here.

That being said, your point about going in all combative is correct. There is no need to ratchet up to that level at this point. I think it is important to allow the magazine the opportunity to resolve the issue amicably. But if they refuse, Foosion definitely has grounds for legal action- provided he is willing to go through the giant pain in the ass that action will inevitably be.

Also, I am hoping that Foosions use of "dear copyright violater" is a joke. I think his letter will be taken more seriously if it is presented in a non hostile and detached, professional manner. Think Abe Vigoda in the Godfather here. It's just business.

[DavidTO]

Sam, it IS theft.

That said, I think you're right that there's no need to go in fighting. An invoice, a letter explaining the purpose of the invoice is all that is necessary to start with. If they don't respond with a check, then it's time to ratchet it up a notch. But I would not assume malice on their part from the start.

[kygarden]

Just curious - how did they get a copy large enough to publish? Do you have the right-click protection enabled? If so, do you allow extra large previews of your photos or even the original size and maybe they took a screenshot to snag your photo?

Just curious. If you've got right-click protection turned on and not so large previews, then that worries me a little :)

[Sam]

I will stand on my statement that a copyright violation is not theft until proven other wise.

Seriously if I am wrong, I will NOT eat worms. :D

I'll think of some harsh penance.

Send me a list of proposed penance, and prove to me that the courts have ruled copyright infringement is theft, and I will perform on the penance, and photograph the act. :wink

Sam

[SloYerRoll]

Sounds like moral values vs. the courts. I don't doubt Sam is probably correct on this.
This doesn't change the fact though that if someone takes my images. It's copyrite infringement and I'll say they stole from me regardless of what the court says.

[Justiceiro]

I will stand on my statement that a copyright violation is not theft until proven other wise.

Seriously if I am wrong, I will NOT eat worms. :D

I'll think of some harsh penance.

Send me a list of proposed penance, and prove to me that the courts have ruled copyright infringement is theft, and I will perform on the penance, and photograph the act. :wink

Sam

Sam, I used the word "usufruct." therefore it is theft. the awesome power of that word is undeniable. My proposed penance- you announce publicly that California isn't as cool as New York.:wink

If the use of usufruct wasn't enough, here is some US case law:

1884 Burrow-Giles Lithographic Co. vs. Sarony- Extended copyright protection to photography

Not so good for my argument:
1985 Dowling vs. The United States; The supreme court finds that copies of copyrighted material cannot be considered stolen property when
courts consider the transportation of such material across state lines.

"Ouch" Looks like a solid blow by Sam!

But then, it's the KO!

1997, the NET (no electronic theft) Act (see http://www.usdoj.gov/criminal/cybercrime/17-18red.htm)

the NET act criminalizes what was previously only actionable in civil cases. That means that electronic pilfering has moved from infringement, to actual theft. Sam was right, before 1997, but alas, it is now 2008.

BTW, foosion, you might want to value your work at slightly above $2,500 and include an actual copy of the NET act, which includes this chilling codocil:

"Any person who commits an offense under subsection (a) of this section section 506(a)(1) of title 17--

1. shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, with a which have a total retail value of more than $2,500;

2. shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and

3. shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case. "

[Tina Manley]

There is a very good tutorial on copyright issues on the ASMP site:

http://www.asmp.org/commerce/legal/copyright/index.php

The section on what to do if your rights are infringed is here:
http://www.asmp.org/commerce/legal/copyright/protect.php

ASMP - American Society of Media Photograpers is a great organization that stands up for the rights of photographers and provides legal assistance. They've helped me out several times. If you really want to recover damages for copyright infringement, your photos have to be registered with the copyright office. That is much easier now with on-line registration. Hope this helps.

Tina Manley
ASMP, EP, NPPA
www.tinamanley.com (http://www.tinamanley.com)

[Rhuarc]

Sounds like moral values vs. the courts. I don't doubt Sam is probably correct on this.
This doesn't change the fact though that if someone takes my images. It's copyrite infringement and I'll say they stole from me regardless of what the court says.

Agreed! :thumb

To me if someone takes something from me without my permission, then it has been stolen from me and is theft. Period. What the courts call it is just semantics IMHO... I do agree with Sam that leaving the lawyers as the second option is probably for the best. It won't put them immediatley on the defensive.

[Sam]

Sam, I used the word "usufruct." therefore it is theft. the awesome power of that word is undeniable. My proposed penance- you announce publicly that California isn't as cool as New York.:wink

I see no corrilation bewteen the meaning of "usufruct", and theft.

But thanks for the edgication! Who know that was a word? I didn't. :D

Lerned somptin new.

Sam

[cmason]

If you really want to recover damages for copyright infringement, your photos have to be registered with the copyright office.



Sorry Tina, I think you are wrong on that, you do not have to register at all, your copyright is assured as soon as you produce the work.

From US Copyright Office: http://www.copyright.gov/circs/circ1.html#cr
Copyright Registration

In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

Registration establishes a public record of the copyright claim.
Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.
If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies. For additional information, go to the U.S. Customs and Border Protection website at www.cbp.gov/xp/cgov/import (http://www.cbp.gov/xp/cgov/import/). Click on “Intellectual Property Rights.” Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.

[Tina Manley]

[quote=cmason]Sorry Tina, I think you are wrong on that, you do not have to register at all, your copyright is assured as soon as you produce the work.

Of course your copyright is assured as soon as you press the shutter. What is not assured is that a lawyer will take your case if that right is infringed. If you read the tutorial, you'll find out that lawyers will not accept copyright infringement cases and courts will refuse to hear the case unless the photos have been registered with the copyright office. That is true in the USA but not other countries. If you are a photographer based in the USA, it is a no-brainer to register all of your work routinely.

Tina Manley
www.tinamanley.com

[scottV]

right-click protection is not enabled on my gallery and the largest size is XL.
As far as if they are evil and doing it intentionally or not, the part that bugs me is how they were sure to crop out the watermark just right... it's hard to argue that they didn't knowingly do something wrong at that point.

[scottV]

I've been surfing around sites looking for more information on actual fines imposed in similar cases..not much luck finding anything concrete but I saw this on one site:
Section 1202 of the U.S. Copyright Act makes it illegal for someone to remove the watermark from your photo so that it can disguise the infringement when used. The fines start at $2500 and go to $25,000 in addition to attorneys' fees and any damages for the infringement.
It's from photoattorney.com, lots of interesting blog posts.

[MichaelKirk]

I would definately include the wording from Section 1202 of the US Copyright Act in your letter and invoice.

You have a lot of good info here - keep us all in the loop so we can learn from your actual issue and hope we never have to duplicate you efforts. :)

Michael



I've been surfing around sites looking for more information on actual fines imposed in similar cases..not much luck finding anything concrete but I saw this on one site:
Section 1202 of the U.S. Copyright Act makes it illegal for someone to remove the watermark from your photo so that it can disguise the infringement when used. The fines start at $2500 and go to $25,000 in addition to attorneys' fees and any damages for the infringement.
It's from photoattorney.com, lots of interesting blog posts.

[ChatKat]

Yes, that part was intended to be tongue in cheek. The letter I wrote was where I might have started, however, I would have done the research to find the actual publishers names and written the letter to him. I was just giving a starting place to actually writing the letter.

BTW - if you were a member of PPA, you would have access to an attorney to write this letter and deal with the violator (Thief to some)for you included in your membership.

[xris]

At the risk of stating the obvious I'd like to say that this has become one highly useful thread. Ton's of very useful info!

A round of applause for all involved!!

:clap:clap:clap:clap:clap.

[keepright]

In a wild coincidence, I was in a bookstore in Toronto two nights ago and saw this photo in the magazine. My GF was looking at some magazines nearby, I was loitering, and had an RC buggy about eighteen years ago. Small world...

I have no direct experience with this sort of case, but my business of photography instructor uses the technique of sending an invoice. For the full amount of the maximum fine for copyright infringement. Per use. If nothing else, it will make for an interesting response.

IIRC, John Harrington's blog had a write-up of a case where the judge's final damages award was based on the amount that the photographer had placed in the initial "You may already be an infringer" invoice. Personally, I'd be sending them a bill for $20,000. That's what out of court settlements are for, right?

[shaybshay]

f00sion, I really don't understand why you are confused or not sure what to do. If this happened to me the first action by me would be to get a lawyer who understands these matters. I read through this post rather quickly but can't recall if someone posted their own personal experiance relating to this and how it turned out. That being said their situation would still differ from yours and again I say only a lawyer who has real experiance can help you. Maybe you are conflicted about taking recourse at all and maybe you just don't want the confrontation. That's a personal choice you have to make. My choice would be to get a lawyer as I said. If the lawyer asked me what I want out of it I would say justice of course, whatever the legal recourse is. I don't know if its theft but the lawyer will. I feel like it is, I mean someone took something of yours without out asking is now profiting from it. I think the world and all of the readers of this magazine should know how they go about their business but then you might be getting into legal trouble there if you start going around saying stuff about this magazine. The fact is they did it. The fact is it was wrong. The fact is they should atone for that somehow. I wish you well and hope this turns out well for you but let's not forget about the next photographer they do this to. You might be doing justice for the rest of us by getting a lawyer and exposing them in a legal way. Like I said though it's a personal choice. Shay.

[Tanuki]

I would like to suggest that the magazine is not necessarily the one at fault. They may have received the photo from a third party who claimed to be the owner of the photograph, and how would the magazine know otherwise? Now if you send an invoice claiming to be the rightful owner of the photograph, how will they respond?

As already suggested by others, I would suggest getting the services of a lawyer who is experienced with this subject to get some advice on your possible courses of action.

Good luck with your situation.

Mike

[StevenV]

maybe 205, but...
Washington Post: Hey, Isn't That . . . (http://www.washingtonpost.com/wp-dyn/content/article/2008/01/08/AR2008010804626_pf.html) People Are Doing Double-Takes, And Taking Action, As Web Snapshots Are Nabbed for Commercial Uses

[scottV]

so the letter+invoice was sent yesterday. I think the amount was fair considering all the circumstances, if they pay then great, if they don't then that would suck if I have pinned myself to that amount after a court battle... we will see what happens. I was feeling good about it last night but not so much now that I have read the most recent responses.

The person who wrote the article was actually sent the link to my site from a friend of mine, so I would be pretty certain that he got it directly from me.

[cmason]

if you don't mind our asking...how much did you invoice? :ear

[MichaelKirk]

Inquiring minds want to know all the details! :D

Michael




if you don't mind our asking...how much did you invoice? :ear

[scottV]

enough for a new 40D + 24-70 2.8L + nice dinner with my old lady.

[cmason]

enough for a new 40D + 24-70 2.8L + nice dinner with my old lady.

Excellent :clap

[Poseidon]

Good luck! I hope it works out in your favor. Teach the scandalous sons of bitc&^% a lesson!

[antrix]

I thought those of you following this thread would like to read these articles written by Dan Heller, a photographer with a lot of experience in copyright infringement, which speak directly about what your options are and what you can expect when you find yourself in the situation f00sion is in:

Article 1
http://www.danheller.com/blog/posts/making-money-from-your-stolen-images.html

Article 2
http://www.danheller.com/blog/posts/glass-is-neither-half-empty-nor-half.html

f00sion, pay particular attention to the "Opportunities for Everyday Photographers" in article 1. After quickly reading through this thread, it sounds like you had watermarks on the image, but you have not registered the image with the copyright office. According to Heller, you would not be able to collect statuatory damages (the big $$) since it is not registered, but you could collect compensatory damages if you can find a lawyer who will take the case (should it proceed that far).

-Edit-
Actually, I read that wrong. If you've registered the image OR watermarked it (and they willfully removed it), you are entitled to statuatory damages, according to Heller.

[nipprdog]

Scott, are you considering redoing your watermark to prevent this in the future?

[jcdill]

Scott, are you considering redoing your watermark to prevent this in the future?

There is no way a watermark can prevent a copyright violation, without outright ruining the image. A faint watermark over the body of the image can be cloned out with little effort - a more prominant watermark injurs the photographer more than it hinders stealing. If they are determined to use the image without paying for it, they will.

This is a fundamental situation with copyright and digital media - the technology to edit and copy outstrips (and will always outstrip) the technology to "protect" digital media. If you can hear a song being played on your computer, you can copy it. If you can view a photo (or video) on your computer, you can copy it.

Scott, have you heard back from the magazine yet?

[Icebear]

Cropping or any other action a violator takes to remove a watermark eliminates any defense of "I didn't know" and subjects the violator to substantially greater penalty and damages.

[Sam]

Antrix: Thanks for posting the links. The author mistakenly states you need to register the work prior to the infringement. I am %99.9 sure you have three months after you are aware of the infringement.

JC: I agree with your comments here, but according to the article, and in keeping with Icebar's comments, while a small unobtrusive watermark will not stop copyright infringement, it can apparently add legal teeth to your claim of deliberate infringement.

I personally HATE large watermarks, and will generally leave the site immediately. That said I think I will when I have an on line site add a very small unobtrusive water mark to a bottom corner.

Oh, and PLEASE let us know what the out come of your letter is. I believe I know what it will be, but who knows, I was wrong once. :D

Sam

[Foochar]

Antrix: Thanks for posting the links. The author mistakenly states you need to register the work prior to the infringement. I am %99.9 sure you have three months after you are aware of the infringement.


The wording from the copyright.gov website regarding punitive damages and lawsuits is "If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions.". I would think that publication would refer to when your work (be it book, photograph, sound recording) first gets into the wild. Most judges would probably interpret posting to a publicly accessible website, or in a forum post somewhere, as publication and start the 3 month clock ticking from there.

[Sam]

The wording from the copyright.gov website regarding punitive damages and lawsuits is "If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions.". I would think that publication would refer to when your work (be it book, photograph, sound recording) first gets into the wild. Most judges would probably interpret posting to a publicly accessible website, or in a forum post somewhere, as publication and start the 3 month clock ticking from there.

Interesting...................I need to some additional research on this.

Thanks,

sam

[rwdfresno]

Perhaps you could take an initially amiable approach and if it is resolved well you could get more work with them in the future.

Ryan

[ChatKat]

Perhaps you could take an initially amiable approach and if it is resolved well you could get more work with them in the future.

Ryan

A photo teacher I had burns a CD of thumbnails when it's full or every three months to register her copyright. Sounds like a good plan to me and worth the money.

[jkcashin]

The fact that these dudes used his photo doesn't mean that, for instance, he can't continue to use the photo as well
Actually, yes it does in this case as the magazines own publishing policy states that published works become their property, so they have claimed intellectual rights.

Jamie

[scottV]

thanks for the articles antrix, those are excellent reads.

I used to have a larger watermark but I definitely like the smaller one better, even if it is super simple to crop out. There's no amount of protection that makes it impossible to steal the image, and I would rather have the image look nice for all the other visitors.

[MooreDriven]

I'm sorry to hear about the "theft" of your image. Hopefully you will get a postive response and resolution to your issue without the need of going to court. However, one positive aspect of hiring an attorney is that they could find out if this magazine has been sued in the past for similiar infractions. If so, the judge could impose a large fine to make a strong statement.

Another factor is that when they receive an image from a 3rd party source, they may require them to sign a release, to protect them from potential law suits like your situation. I'm not an attorney, but I suspect the magazine has a good attorney that was paid to draft such documents.

My experience has been to hire an attorney at let them do the research, and write the letters. If your in business, you should already have an attorney.

Good luck, I'll keep watching to see the outcome.

Dale

[achambers]

Good thread here.

Don't forget. If the pic was published without a credit it could now be considered public domain if you don't apply your rights.



Your rights exist whether or not credit is given. You can't 'lose' your rights

[xris]

Your rights exist whether or not credit is given.... I guess, technically, you retain your copyright. But how can you charge someone for use when if you've allowed the work to enter the public domain?

It's my understanding that this is why folks put so much effort into defending the right. Not because they loose the copyright itself, but because they just might loose the right to control (and charge for) use of the work?

It's always been my understanding that works enter the public domain not only X years after the death of the creator, but also if the work is repeatedly distributed in public without copyright notice and without that copyright being defended.

Many poster and other publishing companies base their business on public domain works, simply because there's no need to pay royalties or comply with reproduction limitations of the works involved.

...You can't 'lose' your rights If someone else 'proves' copyright belongs to them (by, for instance, registering the work before you), you HAVE lost copyright. That's what registration is all about. It's simply a way to prove that you claimed copyright before anyone else.

Some folks send themselves a copy of their work by registered mail, then file it away unopenned, thereby depending on the post mark to set a copyright date in case of dispute, but that is now questionable, expensive and unweildy.

I always try to remember that 'moral' copyright and 'legal' copyright are not always the same thing.

:thumb

[justus]

I had a similar situation happen a few years ago. You do NOT have to register your photos with the US Copyright Office to prove ownership. A copyright belongs to the photographer at the time the photos were taken

Also, we will be able soon (if not already, I haven't checked in a few weeks) to register our work via computer, instead of burning CD's or DVD's and sending them in to the copyright offices. It took them WEEKS to process a single DVD of images. Hopefully, this will be cheaper.

The author seems to be the responsible party for snatching the photo for use. They are obviously uninformed as to copyright law and photo usage. I would send them an invoice for the standard infringement amount of $500.00 per image.

[scottV]

damnit, they have the wrong city in the address on their website, certified letter came back to me today grrrr

[jdryan3]

damnit, they have the wrong city in the address on their website, certified letter came back to me today grrrr

What about the publisher details on the inside of the magazine? :dunno

[scottV]

it's correct in the mag, and on the footer of their website... I was looking at the contact us page which has the incorrect city.

[photoj]

The copyright office is conducting a beta test of their eCO platform now.

From the US Copyright Office page:

The Copyright Office is conducting a beta test of its web-based registration system, electronic Copyright Office (eCO). Participants in eCO beta testing will file basic registration claims (javascript:pop('eco-registrations.html')) online at a reduced fee (http://www.copyright.gov/reports/fees2007.html) established for electronic filings ($35). Currently, eCO beta testing covers basic registration claims for literary works, visual arts works, performing arts works, and sound recordings. At a later date system testing will expand to cover additional registration claim types and services including serials, group registrations, vessel hull designs, mask works, renewals, and corrections and amplifications of existing registrations.

There was an article about it in Popular Photography this month.

[achambers]

It's always been my understanding that works enter the public domain not only X years after the death of the creator, but also if the work is repeatedly distributed in public without copyright notice and without that copyright being defended.

The copyright still exists, you have to actively give up your copyright for it to pass into the public domain.

[djspinner2k]

I don't think I quite understand. how much dose it cost to have your photos copywritten.

Great Thread

[cmason]

I don't think I quite understand. how much dose it cost to have your photos copywritten.

Great Thread

Nothing. Your photos are copywritten the minute you take them. You do not need to take any action.


Registering your photos with the US Copyright office simply provides documentation should you enter into litigation over your copyright, but is not required. For those making their living with photography, it likely makes sense to register work to ensure you have all available options to ensure your livelihood.

[djspinner2k]

Nothing. Your photos are copywritten the minute you take them. You do not need to take any action.


Registering your photos with the US Copyright office simply provides documentation should you enter into litigation over your copyright, but is not required. For those making their living with photography, it likely makes sense to register work to ensure you have all available options to ensure your livelihood.

I guess I am wondering what the cost is to copyright a dvd of images

[Icebear]

I think it's like $45 to register the DVD's contents.

[cmason]

Read through this thread, you will find links to the copyright office telling you exactly how to register. One post on here indicates it is possible to simply submit the thumbnails, and a DVD will hold alot of thumbnails.

[~Jan~]

Did you see this? http://abcnews.go.com/Technology/CSM/story?id=4156276&page=1

[VisualXpressions]

I have been reading this thread from the beginning... very interesting... Is there any update to this saga? Inquiring minds want to know...:wink

Winston

[SloYerRoll]

a DVD will hold alot of thumbnails.Lol. Yea, like 13,000+ thumbnails.

[alorentzen]

..this isn't something I have shot before or plan to do regularly, just tagged along with a friend who makes parts... he paid me in beer.

I haven't read the whole thread, but I'm wondering if you already "sold" the photo... Did you give a copy to your friend - without any rights limitation? Did your friend send the author or magazine the photo? Does he think he owns the photo because, as you say, he "paid (you) in beer"? That might be their attorney's position if push comes to shove...

[Angelo]

I haven't read the whole thread, but I'm wondering if you already "sold" the photo... Did you give a copy to your friend - without any rights limitation? Did your friend send the author or magazine the photo? Does he think he owns the photo because, as you say, he "paid (you) in beer"? That might be their attorney's position if push comes to shove...

irrelevant.

publishers know better and are ultimately responsible for securing permission from copyright holder.

[djspinner2k]

this was a site i stumbled upon. I don't know if the amounts sound good to you guys. it's a stock photo price calculator.

http://photographersindex.com/stockprice.htm

[I Simonius]

If that were me I would simply send them an invoice for the same amount I woud have cherged if they asked me for it in the first place

Shots for a mag like that over here (UK) are provbably £25-£150 max. Most likely £25-50 range. So bump it up a little but if ou expect them to agree to pay without a fight at least make it reasonable

The question really is do you just want paying for your pic or are you looking for someone to sue the hell outta???

I would not approach this from the POV that they are thieves. [even if they are]. Not unless they refuse to pay- give them that option first:wink

They might buy more pics from you even!

[Sam]

Foosion,

Back on 1-18-08 you indicted you had sent the original letter of demand to the incorrect address, but now had the correct address.

So, inquiring minds want to know, if they sent payment via limo, or if by chance they were less polite? Perhaps they didn't responded at all. :D

Sam

[scottV]

sorry, had the flu last week and crazy busy at work.

they actually hand delivered the check by way of private jet.

haven't heard a peep yet, im sure they are working with the bank to get the funds lined up. hopefully it will arrive as one of those giant novelty checks. :thumb

[paulbrock]

Last week, I recently caught a company using an image of mine without permission on a brochure; I wrote to them and explained the situation. After proving the image was mine, they accepted my suggested fee for the usage (including a surchage for doing it AFTER use), so now I count it as a sale! :D

Hopefully things were kept civil enough that they may use my services in future; I didn't mention lawsuits or solicitors, merely stated my case in a calm, co-operative manner.

[Sam]

Last week, I recently caught a company using an image of mine without permission on a brochure; I wrote to them and explained the situation. After proving the image was mine, they accepted my suggested fee for the usage (including a surchage for doing it AFTER use), so now I count it as a sale! :D

Hopefully things were kept civil enough that they may use my services in future; I didn't mention lawsuits or solicitors, merely stated my case in a calm, co-operative manner.

This is best way to begin when faced with this type of situation. One can always fall back on plan B, if this doesn't produce the desired results.

You have demonstrated common sense, logic, and have quickly achieved success without spending large sums of money or forming numerous comities.

You are no longer eligible to be employed by the United States government. :D

Sam

[Mike Lane]

This is best way to begin when faced with this type of situation. One can always fall back on plan B, if this doesn't produce the desired results.

You have demonstrated common sense, logic, and have quickly achieved success without spending large sums of money or forming numerous comities.

You are no longer eligible to be employed by the United States government. :D

SamCareful, lots of government employees and/or current and ex military in here. No need to go down that road.

[Sam]

Careful, lots of government employees and/or current and ex military in here. No need to go down that road.

The military is different. As time goes by I meet fewer, and fewer who have served. Of the ten people who are running for president, only one has served in the military. (This is not an endorsement of any particular candidate, jut a statement of fact.)

As to my statement implying the government, (not any one particular person) is less than competent, I will stand by this as fact.

Sam

[Mike Lane]

The military is different. As time goes by I meet fewer, and fewer who have served. Of the ten people who are running for president, only one has served in the military. (This is not an endorsement of any particular candidate, jut a statement of fact.)

As to my statement implying the government, (not any one particular person) is less than competent, I will stand by this as fact.

SamI got out after 8 years as a Capt. in the USAF, FYI. My wife is still in and we can't swing a cat without hitting a military person we know.

Nice to meet you.

[LittleLew]

I'm surprised that the publication didn't catch this.
In every publication I've ever done (>100 professional pubs) I have always had to sign a para that said I owned the rights to use the figures and/or pic.

I would guess that the author lied but that doesn't excuse the company.
If they say they 'own' the picture now, they are part of the theft.

[mbellot]

we can't swing a cat without hitting a military person we know.

Great use for a cat, but doesn't it annoy the officers? :rofl

[xris]

Great use for a cat, but doesn't it annoy the officers? :rofl Probably annoys the cat, though! I wonder who's photo's he stole?

[mteicher]

I recently had the same issue occur except it was on a show flyer, although my prices for a commercial commercial use license are quite a bit more than that. I have been bit multiple times regarding magazine covers.

My solution to the issue is that I picked up the phone and called me lawyer providing him with the details and the original photo and the flyer. it was used in, including information of the person who placed it into the flyer.
"a nice cease and desist letter" is going out to the violator. I have burned way too many times prior to this one. I had one magazine publisher continue to use my name in his magazine and pictures on the covers and I never got one penny from him.

you offer this image on your site as a commercial license download high resolution file for $400.

any chance they purchased the download? it would give them the rights to use it in their magazine. Have you checked your sales just to make sure before you contact them. If they did purchase the download, they wouldn't need to contact you any further before printing the photo in their magazine....the license (as I read it) really doesn't even state that they must give you credit for it.

If not, as I see it, you're only out the $400.

the commercial license reads:
License For Commercial Use
What you can do: Photographer grants you a perpetual, non-exclusive, non-transferable, worldwide license to use this image for permitted commercial purposes, defined as:

advertising, promotion, brochures, packaging
as part of a commercial website for promotional purposes (maximum 800x600pixels) use
prints, posters, flyers, tearsheets for promotional purposes (not for resale)
prints, posters, or other commercial display of image
magazines, books, newspapers, other printed publications
video, broadcast, theatrical

What you may not do: Buyer may not resell, relicense, redistribute without express written permission from photographer. Use as a derivative work, and reselling or redistributing such derivative work is prohibited. Images may not be used in a pornographic, obscene, illegal, immoral, libelous or defamatory manner. Images may not be incorporated into trademarks, logos, or service marks. Image may not be made available for download.

Photographer retains all rights, license, copyright, title and ownership of the image(s).

There is no warranty, express or implied, with the purchase of this digital image file. Neither photographer nor SmugMug will be liable for any claims, or incidental, consequential or other damages arising out of this license or buyer's use of the image(s).

[jcdill]

So this is bittersweet, my friend informed me that in the current issue of r/c car action they published a photo that I took. Unfortunately they never contacted me about using it and they even cropped off my watermark.

You may be interested in this recent court case (http://www.cgstock.com/blog/2008-02-15), where a stock photographer won almost $20k for someone who used his photo without paying.

[noparallel]

Just curious - how did they get a copy large enough to publish? Do you have the right-click protection enabled? If so, do you allow extra large previews of your photos or even the original size and maybe they took a screenshot to snag your photo?

Just curious. If you've got right-click protection turned on and not so large previews, then that worries me a little :)
There is no real way to protect pictures posted on the net. That's why you should only post low-resolution pictures.

[I Simonius]

There is no real way to protect pictures posted on the net. That's why you should only post low-resolution pictures.
althopugh the nicked pic in question didn't look that big.. did it ( in te link about the lawsuit)

[mercphoto]

right-click protection is not enabled on my gallery and the largest size is XL.
I don't remember seeing anyone respond to this so I will. I have to ask why you let someone get an XL image and you don't disable right click protection? You might run into the problem of the violator saying that you did not attempt to "lock your doors", so to speak. You do get some amount of automatic copyright protection but you still need to exert some amount of effort into protecting your rights because, otherwise, you will be stripped of those rights. In short, it IS possible to have you copyright nullified.

Copyright law is not quite as simple as some on here would lend you to believe. Yes, technically the image is copyrighted by you as soon as you press the shutter button but in reality that is not enough to protect yourself. There is a reason why there is a formal filing process with the government.

[darkdragon]

I don't remember seeing anyone respond to this so I will. I have to ask why you let someone get an XL image and you don't disable right click protection? You might run into the problem of the violator saying that you did not attempt to "lock your doors", so to speak. You do get some amount of automatic copyright protection but you still need to exert some amount of effort into protecting your rights because, otherwise, you will be stripped of those rights. In short, it IS possible to have you copyright nullified.



So by this line of thought, if someone didn't lock thier car doors and I went in an took all thier CDs - I could argue that they didn't care enough to lock the door so I shouldn't be punished? :scratch

[mercphoto]

So by this line of thought, if someone didn't lock thier car doors and I went in an took all thier CDs - I could argue that they didn't care enough to lock the door so I shouldn't be punished? :scratch
You are trying to find some correlation between common sense and the law, and that doesn't always work. :) Also, what pertains to everyday life does not always pertain to Intellectual Property law. The items inside your car and the IP of a business is not an apples-apples comparison.

I work for a hi-tech company. We have electronic access to the building. Yet we still keep everything inside the building locked up. Computers go into a locked screen mode, file cabinets are locked, personal offices are locked, confidential information cannot be kept on tops of desks, etc. In a very real sense things are locked up behind multiple locks. You would think that locking the front door would be enough, but its not. There are reasons we go through the trouble of locking stuff behind locked doors and most of them are legal reasons. You have to show a willingness to protect something against theft. Further, if one person steals something you must go after them, otherwise your risk losing your rights altogether. (this is to keep a company from discriminating who they will prosecution and who they let have a pass -- all violators are supposed to be treated equal).

In short, you lock your car not only to make it harder to steal the CD's, but also to prove that you had the intention to keep the CD's from being appropriated by someone else in the first place.

[OsirisPhoto]

You are trying to find some correlation between common sense and the law, and that doesn't always work. :) Also, what pertains to everyday life does not always pertain to Intellectual Property law. The items inside your car and the IP of a business is not an apples-apples comparison.

I work for a hi-tech company. We have electronic access to the building. Yet we still keep everything inside the building locked up. Computers go into a locked screen mode, file cabinets are locked, personal offices are locked, confidential information cannot be kept on tops of desks, etc. In a very real sense things are locked up behind multiple locks. You would think that locking the front door would be enough, but its not. There are reasons we go through the trouble of locking stuff behind locked doors and most of them are legal reasons. You have to show a willingness to protect something against theft. Further, if one person steals something you must go after them, otherwise your risk losing your rights altogether. (this is to keep a company from discriminating who they will prosecution and who they let have a pass -- all violators are supposed to be treated equal).

In short, you lock your car not only to make it harder to steal the CD's, but also to prove that you had the intention to keep the CD's from being appropriated by someone else in the first place.
But theft of those items / data is still theft.

[Andy]

we can't swing a cat without hitting a military person we know.


http://www.greenash.net.au/sites/default/files/images/no_cat_swinging.png

http://www.bbc.co.uk/cult/buffy/indetail/emptyplaces/index.shtml

[mercphoto]

But theft of those items / data is still theft.
Like it or not, you still have to show a willingness to protect your rights in order to keep your rights. That is why you right-click protect your images. That is why you watermark them. That is why you register them with the Copyright office. And that is why you go after all people who infringe upon them, not just the big guys, and also why you will loose your protections if you don't.

[davidweaver]

Like it or not, you still have to show a willingness to protect your rights in order to keep your rights. That is why you right-click protect your images. That is why you watermark them. That is why you register them with the Copyright office. And that is why you go after all people who infringe upon them, not just the big guys, and also why you will loose your protections if you don't.

Phooey.

That arguement follows along the line of there should have been more guards in that European museum too when it got robbed.

Separate the person/people/emotions/buisiness from the problem.

You have been infringed. You want to be compensated.

1. Get a lawyer. Pay for an hour of advice/service.
2. Act upon that advice. If it's a phone call, or a written letter or a demand letter or a suit then do that.
4. Understand what a retainer is and how to negotiate with an attorney.
3. Get a better lawyer or retain the one you used in #1 after understanding the result from #2.

You hire lawyers so you don't have to deal with all the crap that lawyers deal with. Remember, clients hire you because you are a professional. You need to do the same. You're legal fees are business expenses. Your compensation from any reward is income.

Base the legal fees upon getting something back. You minimize your risk and your reward.

Pay for an attorney all upfront and YMMV but your upside might be more.

Good Luck.

[Foochar]

But theft of those items / data is still theft.

Like it or not, you still have to show a willingness to protect your rights in order to keep your rights.

Truth is a three edged sword (http://www.tk421.net/character/kosh.html)

There is truth to what both of you are saying. If you become aware that a advertisement is using an image of yours that infringes on your copyright and do nothing to notify them of the fact and do not pursue enforcement of your copyright that will most likely be viewed as a tacit permission for them to continue to use the image. If you decide down the road to go after them for infringement, and they can prove that you knew about infringement (say by a board posting mentioning it) and you can not prove that you attempted to enforce your copyright they will probably be able to limit the damages you are able to collect to the infringement that occurred prior to you becoming aware that they were infringing on your copyright. That does not make what they are doing any less illegal, it just affects what the legal system will allow you to recover.

Taking the time to register your images with the copyright office BEFORE they are infringed on (or within 3 months of initial publication, which in my mind would include publication even on a personal website) grants you additional rights. You images are protected by copyright even if you don't register, but you can only collect actual damages, not punitive/statutory damages. If someone infringes on your copyright and you then go out and register them with the copyright office (assuming it has been at least 3 months since initial publication) you are only going to be able to collect actual damages for that infringement.

This can even be extended back to the analogy of theft from a car that was brought up earlier. I have a separate insurance policy on my photography equipment that includes coverage for theft, however it (and most other insurance policies I've seen) specifically excludes "mysterious disappearance." What this means is that if there is no evidence, such as a broken window or damaged lock, or witness to the theft they do not have to reimburse me for the loss. It doesn't make the theft any less of a theft, but it does affect what I am able to recover.

Another example would be the use of No Trespassing signs. If someone is on property that you own that is not fenced in and that property is not properly marked with No Trespassing signs, or other legal indicators (such as particular color of paint on trees) your recourse is limited to asking them to leave, and until you do so you are not going to be able to bring any charges against them. If however your property is signed for no trespassing you will have a much better chance of being able to successfully bring charges against them for trespassing.

[cmason]

Read this:

http://www.cgstock.com/essays/vilana

a photographer that fought a company illegally using his photo, and won..

[RogersDA]

Read this:

http://www.cgstock.com/essays/vilana

a photographer that fought a company illegally using his photo, and won..

Remember, too, that winning in court and actually collecting the awarded damages are two completely separate issues. That could be a whole different battle that could be (and oftentimes is) fought in court.

It will be interesting to see in vilana actually pays up. I would be surprised if he did without another long, protracted battle.

[ClubFlys]

So what ever came of this? Was payment made?

Also, is it possible to see a copy of the letter/invoice that was sent? I am interested in knowing what wording was used.

I am constantly seeing images taken by myself being used on local flyers for events/shows. This thread has definitely been a great source of information.

[mteicher]

I filed for and submitted paperwork for a US Copyright, obtained the US Copyright, the paperwork is much easier these days electronically.
I also have a lawyer on retainer who I work with to negotiate contracts and send nasty grams and collection letters to not so nice people who use our pictures or post them without asking us first. I have posted almost on every single gallery a nice little warning, it bothers some, but it cuts down on a lot of issues to date, plus our picture sales are somewhat getting better, not great..

/mark

So what ever came of this? Was payment made?

Also, is it possible to see a copy of the letter/invoice that was sent? I am interested in knowing what wording was used.

I am constantly seeing images taken by myself being used on local flyers for events/shows. This thread has definitely been a great source of information.

[ClubFlys]

I filed for and submitted paperwork for a US Copyright, obtained the US Copyright, the paperwork is much easier these days electronically.
I also have a lawyer on retainer who I work with to negotiate contracts and send nasty grams and collection letters to not so nice people who use our pictures or post them without asking us first. I have posted almost on every single gallery a nice little warning, it bothers some, but it cuts down on a lot of issues to date, plus our picture sales are somewhat getting better, not great..

/mark

That is a great suggestion of posting a warning on each gallery. I have applied the warning to my template customization and it is now seen on every page of the gallery portion of my site.

Thank you!

[mteicher]

The other item to fix is to raise your personal/commercial use license fees to something that you feel reasonable ok about.. I raised them to a point where if the person is really serious about using the picture for commercial purposes, they usually get me on the telephone or email, since the prices are steep, but that stops a majority of them, plus I use the stock 'PROOF" across the pics posted, it is removed when the picture is ordered, but the other big dollar item is purchasing a MyDigimarc license, via mydigimarc.com, it is bit pricey, but it also allows some visibility on where your pictures may end on the internet.

That is a great suggestion of posting a warning on each gallery. I have applied the warning to my template customization and it is now seen on every page of the gallery portion of my site.

Thank you!

[claudermilk]

FYI, just about every time I've seen Digimark mentioned, it has been about how useless it is. Before spending a bunch of money on it, I'd look into it & get feedback about it's actual effectiveness from third parties first.

[scottV]

So after I sent the letter they got in contact with me and we worked out a fair price. I was pleased and they were going to print a correction with proper credit in the may issue. May issue is out now and big surprise, no reprint. Email to them last week has gone unsanswered, my fault for trusting them I guess, what a pack of a-holes. :flip

[ClubFlys]

FYI, just about every time I've seen Digimark mentioned, it has been about how useless it is. Before spending a bunch of money on it, I'd look into it & get feedback about it's actual effectiveness from third parties first.

I checked out the Digimark and sure enough, it is far to expensive for me to use. $500 for protection of 5000 images. That would be 2 weeks of photos for me so it definitely it is not acceptable. Plus, I am unsure how the digimark will still ensure protection when someone hacks up my image into photoshop for use in a flyer since that is my main problem at the moment.

f00sion, well you did get paid though right? That has to be a good thing.

[Tanuki]

So after I sent the letter they got in contact with me and we worked out a fair price. I was pleased and they were going to print a correction with proper credit in the may issue. May issue is out now and big surprise, no reprint. Email to them last week has gone unsanswered, my fault for trusting them I guess, what a pack of a-holes. :flip

Congrats! Not that you should stop pestering them about proper credit, but even if they don't come through you can still say on your website that you've been published!