Need some (legal?) Advice

[DanStar]

I just got a copy of our Town Planner Calendar. It has lots and lots of local adertising in in and is sent out free of charge to just about every home in McKinney.

Well, I was thrilled to see two of the images from my daily photo blog included on the cover the calendar. Yet also a little surprised that I had never been contacted for a release of the rights to use the image. It seems to me as if good business practice should dictate that I be contacted. Also, is this a violation of copyright restrictions?

In some ways, I feel like the image was stolen from my website.

What is your opinion on this?

Thanks!

Dan

[CaptainTom]

It certainly seems like a copyright violation.
I'd be inclined to call the people who put this together and ask them
what they had in mind by taking your copyrighted images off the internet.
You do not have to file anything to have copyright. If you file , then you have ability to collect a lot more money than if you don't.

See what they have in mind. They'll undoubtedly contact the town attorney first. Don't back down. Even though this is sent out free, the advertising value is there.

Let us know how it goes.

p.s. If in fact they took your photos, they are complete idiots. Since they obviously garnered a lot of money for the advertising content, you would be awarded a hefty sum.

[snidow]

I agree with your assessment and believe you should have a lawyer contact the company that published the planner notifying them they are in volition of copyright law. Then work with them for a fee that is acceptable to you or have them discontinue use of the photos.

[CaptainTom]

Since these books are already published, the cat is out of the bag so to speak.

I have a nephew here in Ft.Worth who is an intellectual properties lawyer, and i can give you his number if you like.

[jesswhs1323]

I have had something very similar happen a couple of times. Call the people in charge... that is your first step. See who is behind publishing your photo without permission

[KD5NRH]

Originally Posted by DanStar

Well, I was thrilled to see two of the images from my daily photo blog included on the cover the calendar. Yet also a little surprised that I had never been contacted for a release of the rights to use the image.

It's definitely a copyright violation if they are your images, but are you certain that they are yours, and not just photos of the same subject under similar conditions? In looking through some of my images of local landmarks, without the watermarks I'd be hard pressed to positively identify some of them as mine, simply because they are exactly the shot, angle, and lighting I'd expect from any photographer who was told, "go get me a picture of the courthouse."

There's also the possibility of a less experienced photographer in your area who likes your work, knows the landmarks, and used the opportunity to try to duplicate your photos as a learning experience. While it may not be completely ethical to sell the results, if that's a crime, I suspect a lot of us owe the Adams estate a fortune.

[DanStar]

Good caution here. Never hurts to make sure I am on firm ground before I start making some assertions. I am certain that they are definately my images. I can verify this since they are not just of local landmarks but of particular events.

[ramblinray]

While you own the copyrights for your work, I don't believe you are able to file suit and collect monies for violations unless you have registered them with the copyright office. Least wise that is my take on what Ed Greenberg said in a seminar on copyright at the last Photoshop World convention. It is even possible for them to file a copyright on your image if you have not done so, I believe. Perhaps Tom can check with his nephew to see if I a totally off base, but that was my understanding from the information presented.

[kenw]

you can file and win all sorts of reparations without filing. A copyright is a copyright is a copyright whether registered or not.

what you CANNOT do is get the Copyright Office to back you up if you haven't registered them. They are the 800 lb gorilla witness and as such, having them on your side is usually the slam dunk.

This was personally explained to me by the nice folks in Wash DC back in the 80s in reference to an artwork copyright I created.

However, suits CAN be won (with plenty of damages) without registering. It's just a lot harder and potentially costlier to pursue.

[Jenny Z]

File the images with the copyright office

Call a lawyer

Profit! (hopefully)

[picman]

My take on a class I had with Jack Reznicki.

No registered copyright - no punitive damages.

You can collect actual damages, which would be what would be normally charged for the work. Chances of getting a lawyer to take such a case on contingency - zero. PPA would also not support action w/o registered copyright.

[KD5NRH]

One point of interest; do any other photographers advertise in the calendar? Artists of any type?

They might be really interested to know if the publisher is infringing someone else's copyright and causing them to be associated with the act.

[CaptainTom]

No matter what anybody says here, don't let this issue just drop.
Contact them and see what their side of the story is.
Contact an Intellectual Properties attorney and find out what your course of action might be.

We aren't lawyers.

[toverman]

Originally Posted by CaptainTom

No matter what anybody says here, don't let this issue just drop.
Contact them and see what their side of the story is.
Contact an Intellectual Properties attorney and find out what your course of action might be.

We aren't lawyers.

For sure. You don't want to be victimized by them again, don't let it drop. And don't ask photographers for legal advice ... we're literally full of it whether it's right or not.

[DanStar]

Here is an update. I contacted the producer of the calender and pointed out that while I was flattered they used my images I was also surprised they didn't contact me for a release to use them for commercial purposes.

The initial reply was to apologize and blame the art department for not making sure the images were released by the author. She offered me some free advertising next year. My reply was basically that although I understand how mistakes can happen they are still responsible for the actions of their employees. Also, thanks to the pricing tools provided in this forum, I provided a somewhat objective value for the images. I also mentioned getting someone else involved in resolving this issue if I couldn't work something out with them in a reasonable amount of time.

The next email I got was from the owner who also apologized and shifted the blame. He told me the price I quoted "wouldn't work for them" and quoted me micro-stock pricing which he said they were "used to paying". In my reply I pointed out that those prices were fine if my images had been on a micro-stock site and they had bought the rights before publication. However, since these were not micro-stock images and they had used them without permission then the going rate seemed about right to me. I asked him to reply within a couple of business days otherwise I would contact a lawyer.

In his replay the owner pointed out that this had happened before when they used someone's image without permission on the front cover of one of their magazines (more on this later). Of course he pointed out how kind and gracious the other photographer was and what he had been paid then he made me a counter offer.

The offer seemed a little low given the pricing information I provided. So I made a counter and we settled. At this point the check is in the mail. I should see something in the next couple of days.

When I first started this I was feeling a little generous and was thinking I would settle for a token payment. But as it developed and they started talking about their "art department", "office staff", etc. it became clear they weren't exactly a mom and pop outfit. Then I found out on their website they have been at this for 10 years with a circulation of 100,000+ and have a range of publications. In other words, they ought to know better. In addition, the fact that they had done this before and settled the complaint for a relatively small amount of money, got me wondering whether there is a pattern of illegal behavior with this outfit. Do you think that, in order to keep their costs low, they are out there harvesting images from the web then only oiling the sqeeky wheel? Anyone else have an experience like I have had with this outfit?