Copyright Infringement

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ElanKawesch
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p.1 #1 · Copyright Infringement

Got some great help here last time I had a question, now I'm back for more.

Last October, I shot a D1 women's soccer game and sent a few pictures to the opposing team with a usage license that said that they could only use the pictures on their site. The SID assured me that he would make sure that his staff would not send out the pictures to outside sources.

A few months go by and (tonight) I find one of the pictures on a major news site from the city that the opposing team is in (intentionally vague). According to Alexa, this site is in the top 700 sites in the US. I'm pretty sure that they didn't get the photo from the SID because it has the college's website credit line watermark on it, so I'm pretty sure they just copied off the site.

Is it too late to send an invoice to the site that took the photos? Should I send an invoice? How much should I charge?

Thanks for the help!

Feb 25, 2013 at 12:45 AM

pjbuehner
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p.1 #2 · Copyright Infringement

I would be very surprised if the paper simply took the photo. Many Universities supply images to local papers upon request. My guess is that since it was credited to the college and not you, they got it from the school assuming it was a school photographers image or supplied to them by someone in the Athletic department since it is standard procedure.
My advice is to call the school and ask what happened.

If the paper had hired you, my guess is that it might pay from $75 to $150..ballpark guess.

Good luck. As always, this would be much easier if you got a contract signed and didn't give away the images.

FYI the school I shoot for has several Assistant Athletic Directors who are in charge of different sports. They all know to give media images...it gives the school exposure. That is what they are hired for. Giving images to a University and asking them to not use it to promote their school is simply asking for trouble. What if the SID you spoke to quits? Your image would be floating around the office waiting to be used and nobody would know about the agreement you had prior. Someone in the office probably sent it unwittingly since it is likely an unusual agreement to make.

One other thing to consider. If you are looking to make a relationship with a school to potentially work for them in the future...making a big fuss about this might end that. Giving an image away to a school but putting restrictions on it is a really difficult play. Schools that I shoot for won't take images unless they are given rights to use them..no need really. There are throngs of students with cameras begging to be sports shooters for free simply for the chance to be on a sideline.

One last thing...make sure that you are positive that it is your image. I have had shooters next to me capture virtually identical images as me. If you were shooting a large venue, there were likely multiple shooters near you.

Best of luck.

Feb 25, 2013 at 01:07 AM

ElanKawesch
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p.1 #3 · Copyright Infringement

Thanks for the reply.

It was credited to me, but it was credited with the watermark that the SID put on their site with my name. I have a contract but, I still think that the school had nothing to do with this, that the site just downloaded the picture from the school's site.

I'm not really looking to make a relationship with this school in particular, they are a few hundred miles away from me. They were just playing against a school that I do some work for.

Thanks again, and I'd love to hear more if anyone has anything to add!

Feb 25, 2013 at 01:21 AM

Mark Peters
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p.1 #4 · Copyright Infringement

It's never too late, but the big question is whether you registered the image with the copyright office in a timely manner (90 days of first publication - and posting on-line does constitute publication.). Failing to do so means that statutory damages are not available to you (and your ability to collect attorney's fees is greatly diminished.) You would have to demonstrate not only the infringement but also what your actual damages are. This significantly impacts the likelihood of ever collecting from them. You can also send them a take down notice.

http://www.copyright.gov/circs/circ01.pdf

Standard I'm not an attorney disclaimer. If you want a precise, thorough answer, you need to talk to an attorney that specializes in intellectual property.

Feb 25, 2013 at 02:22 AM

ElanKawesch
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p.1 #5 · Copyright Infringement

Thanks for the advice.

I'm in high school, just starting out, so should I pursue this further because I don't have a ton income to pay for gear, or do I just add this to my clip collection?

Feb 25, 2013 at 02:53 AM

ElanKawesch
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p.1 #6 · Copyright Infringement

Never mind, it's all been figured out. I talked with the SID and the site automatically syndicates the school's content.

Feb 25, 2013 at 03:12 AM

TT1000
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p.1 #7 · Copyright Infringement

Peters,

"90 days of first publication .."

The rule is 3 months not 90 days. (There are not 30 days in each month)

"(and your ability to collect attorney's fees is greatly diminished.)"

If you don't satisfy such registration timing you would be precluded from an award of attorney fees.

"You can also send them a take down notice."

DMCA notices should get sent to the relevant ISP (or its registered agent) not to the infringer.

Feb 25, 2013 at 07:04 AM

pjbuehner
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p.1 #8 · Copyright Infringement

Exactly as I suspected. Use this as an indicator of how Universities operate with Local media in the future and you will be all set.
Here is a question for you. Why did you give your images away in the first place? Most working PJ's would say NEVER give your work away because it undermines the profession (this is happening everywhere...especially at Universities) and it also devalues you.
One instance where I might see someone justifying giving away images is if you were trying to get your foot in the door (one could argue that you could just show a sample of work too). This doesn't seem to be the case with you.
Lots of people simply want to see their work published and don't care if they are paid.

No need to answer the question here but you should ask yourself and see what your answer is. This will help guide you in the future and will also help avoid conflict.

Best of luck

Feb 25, 2013 at 12:00 PM

Mark Peters
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p.1 #9 · Copyright Infringement

TT1000 - you are correct, and thank you for both providing more precise/accurate information and helping to illustrate the folly of seeking legal advice on a photography forum. While I agree a formal DCMA take down notice should be sent to an ISP, in my personal experience, I have obtained much faster results contacting the infringing party directly (when I also ask where to mail the invoice). If they refuse/fail to respond, then yes, I've contacted the ISP.

Elan, while their syndication agreement may inform you as to how they received your image, I don't see how that addresses your question about infringement. (Again not legal advice) - their syndication agreement does not allow them to convey rights to others which they don't possess. If you didn't license the image for distribution beyond the school's own use then the news outlet doesn't have the right to publish it. The school, knowing its syndication arrangement and knowing the license terms for your image, should not have put the image up on their site, and thus made it available to be scraped by the new organization. The infringement though is by the news organization which published it. While I believe the cost to attempt to pursue an infringement claim now (presuming that you did not register the image inside the three month window) would swamp any potential award for actual damages (on an image that you yourself valued at zero when you sent it to the SID), that certainly does not mean that you can't 1) ask for compensation for its use by the news organization and/or 2) ask for it to be removed from their site (whether that be via a DCMA take down notice or a request to the news organization itself).

Feb 25, 2013 at 02:03 PM

ElanKawesch
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p.1 #10 · Copyright Infringement

pjbuehner wrote:
Exactly as I suspected. Use this as an indicator of how Universities operate with Local media in the future and you will be all set.
Here is a question for you. Why did you give your images away in the first place? Most working PJ's would say NEVER give your work away because it undermines the profession (this is happening everywhere...especially at Universities) and it also devalues you.
One instance where I might see someone justifying giving away images is if you were trying to get your foot in the door (one could argue that you could just show a sample of work too). This doesn't seem to be the case with you.
Lots of people simply want to see their work published and don't care if they are paid.

No need to answer the question here but you should ask yourself and see what your answer is. This will help guide you in the future and will also help avoid conflict.

Best of luck

I really hate giving away images for free, but you were right in that at the time I was trying to get my foot in the door. I know this isn't great justification, but I figured that I didn't have much to lose by sending over a picture or two with limited usage to get my name out there as a junior in high school.

Feb 25, 2013 at 06:44 PM

ElanKawesch
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p.1 #11 · Copyright Infringement

Mark Peters wrote:
TT1000 - you are correct, and thank you for both providing more precise/accurate information and helping to illustrate the folly of seeking legal advice on a photography forum. While I agree a formal DCMA take down notice should be sent to an ISP, in my personal experience, I have obtained much faster results contacting the infringing party directly (when I also ask where to mail the invoice). If they refuse/fail to respond, then yes, I've contacted the ISP.

Elan, while their syndication agreement may inform you as to how they received your image, I don't see how that addresses your question about infringement. (Again not legal advice) - their syndication agreement does not allow them to convey rights to others which they don't possess. If you didn't license the image for distribution beyond the school's own use then the news outlet doesn't have the right to publish it. The school, knowing its syndication arrangement and knowing the license terms for your image, should not have put the image up on their site, and thus made it available to be scraped by the new organization. The infringement though is by the news organization which published it. While I believe the cost to attempt to pursue an infringement claim now (presuming that you did not register the image inside the three month window) would swamp any potential award for actual damages (on an image that you yourself valued at zero when you sent it to the SID), that certainly does not mean that you can't 1) ask for compensation for its use by the news organization and/or 2) ask for it to be removed from their site (whether that be via a DCMA take down notice or a request to the news organization itself).

I totally understand that and moving forward will keep that in mind. I was asked if I wanted it removed, but I figured that months after the fact it would be better (as a high school kid just starting out) to add the screenshot to my list of published photos rather than making a big stink about getting it removed, and possibly losing a future client.

Thanks again to all of you for the help!

Feb 25, 2013 at 06:47 PM

James Broome
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p.1 #12 · Copyright Infringement

ElanKawesch wrote:
I totally understand that and moving forward will keep that in mind. I was asked if I wanted it removed, but I figured that months after the fact it would be better (as a high school kid just starting out) to add the screenshot to my list of published photos rather than making a big stink about getting it removed, and possibly losing a future client.

You've lived and learned. Remember all of this in the future and you'll be fine.

Feb 25, 2013 at 07:20 PM

clarence3
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p.1 #13 · Copyright Infringement

ElanKawesch wrote:
...it would be better (as a high school kid just starting out) to add the screenshot to my list of published photos

Somewhere on some web-design forum there's a kid complaining that a photographer took a screenshot of their web site layout that they provided to a local university and is using it in their portfolio without permission

Feb 25, 2013 at 08:33 PM

ElanKawesch
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p.1 #14 · Copyright Infringement

clarence3 wrote:
ElanKawesch wrote:
...it would be better (as a high school kid just starting out) to add the screenshot to my list of published photos

Somewhere on some web-design forum there's a kid complaining that a photographer took a screenshot of their web site layout that they provided to a local university and is using it in their portfolio without permission

haha it's actually a news site that is owned by a major media company, so I hope they don't have some kid doing their web design.

Is this actually a problem? Should I not be putting up screenshots of my work on other websites? I see it all the time, so I'm not sure if you're being sarcastic or not. The

doesnt help!

Again, thank you to everyone for the help and support!

Feb 25, 2013 at 08:51 PM

clarence3
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p.1 #15 · Copyright Infringement

ElanKawesch wrote:
Is this actually a problem? Should I not be putting up screenshots of my work on other websites? I see it all the time, so I'm not sure if you're being sarcastic or not. The

doesnt help!

Exactly. We think nothing of it, but whenever my shots show up on cbssports.com or in a paper or magazine, I always capture a screenshot. But the site logos, design, and text are just as protected/infringeable as your own images. Are you legally allowed (without explicit release for implicit association) to use a screenshot copy of the ESPN, SI, or USA Today logo when promoting or selling your services?

Are MLB/NFL/NBA/NHL/NCAA logos and your images of MLB/NFL/NBA/NHL/NCAA players allowable for use when selling photoshop poster templates or trading card templates?

A lot of photographers also think nothing of using copyrighted music for slideshows at team banquets, youtube, or even on their websites. Legally, I don't think that HS teams are even allowed to publically broadcast copyrighted music during pre-game warm-ups.

AFAIC, if I provide an image for a public website, I watermark it with my URL, assuming that it'll be copied to facebook or other websites. I wouldn't ever consider sending an invoice if I saw it copied on another related website, especially if the credit/watermark is left intact.

If the university that you provide your images to realizes that you're sending unsolicited invoices and cease/desist letters to the affiliates in their syndicate, then it's probably safer and easier for them just to revoke your credentials and not risk future infringement of your copyright.

Feb 25, 2013 at 09:58 PM

ElanKawesch
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p.1 #16 · Copyright Infringement

clarence3 wrote:
...AFAIC, if I provide an image for a public website, I watermark it with my URL, assuming that it'll be copied to facebook or other websites. I wouldn't ever consider sending an invoice if I saw it copied on another related website, especially if the credit/watermark is left intact.

Are you saying that if you sell an image to a website, and another site downloads it from the site you sold it to without your knowledge, you're okay with it? Aren't you losing money there? Aren't they are stealing from you?

clarence3 wrote:
If the university that you provide your images to realizes that you're sending unsolicited invoices and cease/desist letters to the affiliates in their syndicate, then it's probably safer and easier for them just to revoke your credentials and not risk future infringement of your copyright.

First off, I didn't get credentials from that school, they were the away team. Secondly, I asked the SID before sending anything to the infringing website. According to our contract, the SID did not have the right to give out photos to their syndication partners. I'm pretty sure I did nothing wrong.

Feb 25, 2013 at 10:35 PM

clarence3
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p.1 #17 · Copyright Infringement

ElanKawesch wrote:
Are you saying that if you sell an image to a website, and another site downloads it from the site you sold it to without your knowledge, you're okay with it? Aren't you losing money there? Aren't they are stealing from you?

No, I'm saying when I provide any image for any website (whether it's my own site, a forum, or the school or the team's website), I watermark it with my URL and assume it's going to be widely/freely distributed and copied. That's a very small percentage of my images, but I chalk it up as advertising and additional exposure. When the away team uses it, that doubles the size of buyers. I love having a batch of orders come in from the opposing teams. A lot of times I'll get an e-mail forwarded from a player or parent who forwards a link to my galleries to the rest of the team. That's not stealing from me; that's doubling my market.

ElanKawesch wrote:
..the SID did not have the right to give out photos to their syndication partners. I'm pretty sure I did nothing wrong.

Never said you did anything wrong. But instead of the SID enforcing changes to prevent unintentional infringement, the department may decide it's legally safer to just not have any of your pictures in order to mitigate the risk (i.e., deny your credentials and refuse to even accept any more of your images under any terms or conditions).

Feb 26, 2013 at 12:21 AM

ElanKawesch
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p.1 #18 · Copyright Infringement

Ahhhhh... I get it now, thanks for the explanation.

Feb 26, 2013 at 12:25 AM

Geo31
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p.1 #19 · Copyright Infringement

clarence3 wrote:
ElanKawesch wrote:
Is this actually a problem? Should I not be putting up screenshots of my work on other websites? I see it all the time, so I'm not sure if you're being sarcastic or not. The

doesnt help!

Exactly. We think nothing of it, but whenever my shots show up on cbssports.com or in a paper or magazine, I always capture a screenshot. But the site logos, design, and text are just as protected/infringeable as your own images. Are you legally allowed (without explicit release for implicit association) to use a screenshot copy of the ESPN, SI, or USA Today logo when promoting or selling your services?

Excellent points. We all become indignant when someone infringes our rights, but we often don't think of when we infringe the rights of others. In this increasingly digital world it will become worse (and easier to do). If we are going to throw stones we should look inside our own hearts and try to act with honor equal to what we expect from others.

That said, wouldn't a screen shot be considered essentially a digital tear sheet (I don't know, so I'm just asking)? When we buy a newspaper, magazine, or other publication (or it's given to us), someone else owns the right to that publication, yet it has always been seen as legit to use the tear sheet for portfolio purposes. I could see the argument being made that the screen shots described in this thread are digitally the same as the traditional print tear sheet.

Mar 05, 2013 at 11:45 AM

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