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Archive 2012 · Is this a lost cause?
  
 
mihind24
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p.1 #1 · Is this a lost cause?


About 4 years ago, I made a photograph in Sedona which has become quite popular. Within the last half year, I have noticed the photograph popping up in places where it should not be, basically, without my permission. I will admit, I was naive and posted it on Flickr without a watermark, not expecting anything to happen. Well it has, and apparently a lot.

Here is the image I speak of... http://www.flickr.com/photos/brianplipski/2849075795/in/set-72157607539584690
I saw a timeshare company using the image in an advertisement here in the Phoenix area where I live. I have seen people using the image as their cover photo on Facebook. My friend saw an advertisement on a Sedona adventure company vehicle using my image. Another friend saw another advertisement online for another company, Sedona Rouge Hotel and Spa, using the image also. I just spoke with them, and pretty much all I got was, "everyone in Sedona is using this image, so we figured we would too. We thank you very much for sharing this great image." I have never given anyone permission to use the image.

I am a full time student in pharmacy school, as well as working to support myself, so I have very little free time or money. My question is...can I *realistically* fix this problem? Photography is not my main profession, just a hobby, so it is not effecting my income. Has anyone had similar situations and been able to rectify them without having to go to an attorney and forcing the issue legally? My sister is an attorney, but her firm won't let her do a cease and desist letter unless...I forget specifically, I think they have to check that any of the offenders have not been prior clients, otherwise it will be a conflict of interest. Or is this going to be a lesson, to always watermark my photos?

I have not submitted the photo with the copyright office. Should I still do that, or is it too late? Basically, can it be applied retroactively, or only to instances after I have submitted the copyright?

Thank you for your time!



Sep 20, 2012 at 03:49 PM
BluesWest
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p.1 #2 · Is this a lost cause?


You should definitely contact an IP attorney specializing in photo copyright about this matter. Based on your description, your copyright has been infringed multiple times -- by for-profit entities -- so it sounds like the type of case that a lawyer would be willing to take. But the fact that you never submitted the photo to the copyright office raises the issue of whether you can sue for "special remedies" (attorney's fees and additional damages), as there is a time limit after the infringement has occurred (I think it is three months).

I recommend you check out Carolyn Wright's website PhotoAttorney. There is a wealth of information in her blogs about photo copyright infringement and how to deal with it.

John




Sep 20, 2012 at 05:03 PM
Wobble
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p.1 #3 · Is this a lost cause?


When I right click on your photo is shows that it is copyrighted with all rights reserved. Notify the offenders and ask that they either take the photo down or pay you for it's use. Watermark it now with your name.


Sep 20, 2012 at 05:04 PM
borderlight
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p.1 #4 · Is this a lost cause?


You are going to have to register the photo with the US copyright office if you plan to sue. There are services that will actually track down offenders. The hotel you mentioned is a prime target for a copyright infringement lawsuit. Not only did they use it, but said gleefully said they used it. The photo is good enough to be on all kinds of print media and the internet. I know someone who sued a client for reusing his pictures without permission in another venue. He made $40K on that one. So it might be worth your time and money to look into it. Until then here is a link to the copyright office:

http://www.copyright.gov/help/faq/



Sep 21, 2012 at 06:13 PM
mihind24
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p.1 #5 · Is this a lost cause?


Thank you guys for the responses. As I said, I'm too busy in life to go the legal route, so I'd like to stay away from that. I will check out both links and get it copyrighted. I have watermarked it, hopefully nobody will just try and crop it out.

I might try to contact an attorney and see if they think it's worth pursuing. Right now, if a letter to whatever company is using it would make them stop using it, I'd be happy.

That PhotoAttorney site looks to have a wealth of information! Thanks again!



Sep 21, 2012 at 08:26 PM
BluesWest
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p.1 #6 · Is this a lost cause?


I'm too busy in life to go the legal route

The point of hiring a lawyer is that they do the legal work (for a fee of course)!

Please let us know how your case turns out. The information will be useful if we find ourselves in the same situation in the future.

John



Sep 22, 2012 at 04:27 AM
Wahoowa
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p.1 #7 · Is this a lost cause?


borderlight wrote:
He made $40K on that one.


That's the figure I have in mind.



Sep 23, 2012 at 11:48 PM
drlouis
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p.1 #8 · Is this a lost cause?


I remember how little time there was in pharmacy school, but consider that you wont be putting in most of the time (your lawyer will), you could get a nice paycheck, and if you let them get away with this they'll be more likely to do the same to the next photographer.

I'd at least talk to an attorney and see what they think they can do for you. Imagine paying down your student loans with that money. Even after attorney fees $40k is a nice chunk of change.

Keep us updated too, I'd love to hear how this turns out.

Louis (PharmD)



Oct 08, 2012 at 03:58 AM
 

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Glenn Kendall
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p.1 #9 · Is this a lost cause?


There's a potential middle way between doing nothing and hiring a lawyer. It's small claims court. And you can do it yourself. And it doesn't take as lot of time. In AZ the limit is $2500 but you've got several AZ businesses you can sue. See here, for example, for more info on AZ small claims: http://legal.asua.arizona.edu/sc_ct.html.

One wrinkle is that if you sue on the ground of copyright infringment, the small claims court would likely decline the case on the basis that copyright is a Federal matter. But if you were to sue on another basis, say theft of property, that might work. Marshall your evidence on one particular use (theft) and on your ownership of the image. File the case and see what happens.

Because small claims do not permit attorneys w/o the parties' mutual consent, the offending party may well just send you a check to avoid the larger cost of hiring an attorney for a 2.5K issue.

If the samll calims route proves fruitful, repeat with all other local offenders. Once you've done one, it will be easy to replicate additional cases.

Good luck. And, BTW, fantastic image. No wonder it's being stolen.



Oct 08, 2012 at 12:40 PM
borderlight
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p.1 #10 · Is this a lost cause?


According to the ASMP link below a small claims court is reserved for settling business disagreements within local jurisdictions. Considering the tonnage of misappropriated (stolen) photos world-wide it might be just a happy coincidence that a copyright violation would be contained locally. Even if not the case, there are no guarantees of monetary reimbursement at the end of a successful small claims court lawsuit. It's worth the read if a copyright violation pertains to you.

http://asmp.org/tutorials/enforcing-your-rights.html



Oct 08, 2012 at 04:53 PM
Glenn Kendall
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p.1 #11 · Is this a lost cause?


borderlight wrote:
According to the ASMP link below a small claims court is reserved for settling business disagreements within local jurisdictions. Considering the tonnage of misappropriated (stolen) photos world-wide it might be just a happy coincidence that a copyright violation would be contained locally. Even if not the case, there are no guarantees of monetary reimbursement at the end of a successful small claims court lawsuit. It's worth the read if a copyright violation pertains to you.

http://asmp.org/tutorials/enforcing-your-rights.html



Small clams courts can be used for many types of claims (B to B, P to B, P to P, etc.). Each State establishes its SCC's jurisdiction. Re "local", re-read OP's 2nd para and my 5th sentence. A "happy coincidence" is not needed. Per OP, "local" defendants are identified. As I mentioned, copyright is a Federal matter; OP would have to sue on another basis in SCC. Re collection, there's never a guarantee that a successful plaintiff will be able to collect damages -- regardless of the type of court that render the judgement. The reason that SCC can be useful is that business defendants will often pay up on a small claim without going to court in order to avoid the larger legal costs that hiring a lawyer would entail. If the plaintiff can be satisfied with the small damages, it can be an effective way to obtain redress.



Oct 14, 2012 at 11:57 AM
borderlight
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p.1 #12 · Is this a lost cause?


Glenn: I know the OP poster's situation was presented as local, but do you think a popular photo is always contained under local jurisdiction? Could it be that it was just a "happy coincidence" that it was not also stolen out-of-state/country even if the OP never pursues it? If so, then what I stated is just an adjunct of my two previous posts. I referred the OP to the ASMP link since that organization has been fighting for photographers rights in the courts since its inception. SCC is even mentioned in the link, as for the need for an attorney if only to get "your ducks in a row" before embarking on a lawsuit. There is no need for further explanation when a one minute read (link) spells it out.





Oct 14, 2012 at 01:03 PM
Glenn Kendall
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p.1 #13 · Is this a lost cause?


borderlight: No, I don't think a popular photo is always contained under local jurisidiction. I was simply articulating a local strategy that the OP could try with local offenders and that could be done on the cheap in terms of time, effort, and money. My posts never suggested that the SCC strategy could be extended beyond AZ. And SCC is geared to self-representation; there's no absolute need to hire an attorney. Anyone with sufficient smarts to get into dental school would be able to present his or her case in SCC. It's easier than pulling teeth.


Oct 14, 2012 at 01:16 PM
borderlight
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p.1 #14 · Is this a lost cause?



And SCC is geared to self-representation; there's no absolute need to hire an attorney.

I think you misread "as for the need for an attorney if only to get "your ducks in a row" before embarking on a lawsuit." It was an ASMP suggestion, not a rule. Here's a QUOTE from the ASMP link:

"The beauty of small claims court is that you can present the case yourself; you donít need a lawyer with you in the courtroom. However, you certainly can (and probably should) consult a lawyer beforehand, just to be sure your ducks are in a row."

Anyone with sufficient smarts to get into dental school would be able to present his or her case in SCC. It's easier than pulling teeth.

Funny, but if you aren't careful the whole thing could backfire.... even if you are (Good) Will Hunting.
What do you think the odds are of a hotel (OP reference) not being legally prepared for a court encounter like this?



Oct 14, 2012 at 01:56 PM
Ed Swift
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p.1 #15 · Is this a lost cause?


It might not work, but i suggest you give tineye.com a go to try and identify as many offenders as possible.

good luck in your fight.



Oct 27, 2012 at 09:16 AM





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