"You immediately limit any and all compensation to whatever dollar amount you set , and it is anumber you set blindly without knowing how they have used it how much they have prrofited from it, or where else the photo(s) have ended up."

The invoice/agreement, as sjlocke noted, OBVIOUSLY should only cover the specific discovered use and nothing else. You would have them represent that there have been no other uses. So if there are other uses you then have a breach of contract as well as copyright infringement. If you price as a function of their profit you could have them represent their profit amount as well.

Any notion that if a settlement falls apart you've set the bar on the amount you can subsequently recover for to the amount of your settlement offer (invoice) falls apart for a number of reasons not the least of which is you'll likely want to request statutory damages.

Getty likes to send out offer letters to settle claims of copyright infringement for discovered unlicensed web usage of their images. I think I saw people posting that Getty would ask in the neighborhood of a couple of thousand dollars to settle. Don't think for a second that would be the bar on your liability if you decline and decide to litigate. Or that if they discover other uses that your agreement to settle with them will cover those uses.

It appears the publication could construe the use as being fair use as part of an educational publication.

It is a myth, however, that using a work for "educational purposes" is automatically "fair use." The myth is based on a false understanding of the law.

It may be "fair use" to use a work for educational purposes if in addition to the educational purpose the use also satisfies the four "fair use" criteria:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

The educational use satisfies criterion #1, but it may blow criteria #2 and #3 out of the water--which would make it illegal. That's why textbook publishers have been successfully sued by copyright holders.

Because of the limited physical nature of a photograph, nearly any real-world use of a photograph is going to run afoul of #2 and #3 if not also #4. It's easy to quote a few lines from a novel in a textbook to meet criterion #1 and not run afoul of the rest--it's not so easy to use a photograph that way.

TT1000 wrote:
"If you did not register the photo with the US Copyright office, you cannot collect damages beyond actual ones,"

I assume by collecting you are referring to using the court system in some manner. If so, be aware that you have to register before you can sue for copyright infringement [Section 411(a) of the Copyright Act]

"You are allowed up to 90 days after publication to register your images."

For post-1977 work you may register a copyright at anytime during the term of the copyright. In general the term equals the life of the author + 70 years. [Section 408].

If you want to request statutory damages instead of actual damages and/or recovery of your attorney fees then: (1) for published work, you have up to three months (not 90 days) from first publication and (2) for unpublished work, you must register prior to the infringement. [Section 412]





I believe that poster was referring to being allowed up to 90 days after publication of the infringing work to register one's images.

RDKirk wrote:
It appears the publication could construe the use as being fair use as part of an educational publication.

It is a myth, however, that using a work for "educational purposes" is automatically "fair use." The myth is based on a false understanding of the law.


I never said that work for educational purposes is "automatically" fair use. I said it could be construed as fair use.

mdude85 wrote:
RDKirk wrote:
It appears the publication could construe the use as being fair use as part of an educational publication.

It is a myth, however, that using a work for "educational purposes" is automatically "fair use." The myth is based on a false understanding of the law.


I never said that work for educational purposes is "automatically" fair use. I said it could be construed as fair use.


I did not say that you did.

It's UN publication, from an organization in Kenya, printed in the UK. I'm sure they will be sensitive to your concerns and respond immediately. Or not. But when one looks at the list of sponsors, etc., they've got the resources to do things right.

It also looks like they may make a practice of harvesting flikr images which means they may be intentionally avoiding commercial sources for their images. However, I'm not sure that you will get much effort on their part to resolve this.

Craig ... +1

However, there is a difference between harvesting from the Flickr marketplace with permission from amateurs who would be simply thrilled to have the work in a publication ... and intentionally publishing without permission.

I've been contacted by others about these same leatherback turtle shots who were also trying to avoid commercial sources, citing the non-profit / no budget tune. So far, they had all dropped the issue whenever I've asked them to inform me of the intended use, as well as my expectation of proper photo credit and tear sheet copies, even without an immediate requirement of compensation.

It seems that without even discussing compensation, many run away when they realize that you might understand a little about photographic rights. In this particular case, the unauthorized use was without any dialogue, only an unanswered request was made on their behalf.

Time to hire a lawyer experienced with copyright law. Quit poking around here for advice.

Naw ... you guys are way more fun than some lawyer.

Besides, there probably isn't one within a hundred miles (okay 75) of me that does copyright law ... and as others have mentioned, probably would cost me more to pursue with an attorney than could be gained. My experience with attorneys around here has been that unless you've got something that is going to make their banker and their spouse real happy, they'd rather pass and wait for a bigger fish to come along.

As far as I can tell, this is an 'open & shut' case on its merits ... but not so much on its value.

You have no idea of its value - -and that is your problem -- you are looking at it as to what you think it is worth but not thinking about what using the image is/was worth to the people who thought enough of it to take it without your permission. Also by not pursuing it, you are telling other current /future infringers that it is worth nothing. Which contradicts your first post:

it is one that very few people ever get to shoot. I travelled very far (on different business), drove & hiked long and waited very long to get that shot with the limited gear I had with me (2008). It literally was a 20 hour effort that day & night ... an experience, I'll never forget.

Btw, it's not so easy searching a beach in PITCH BLACK (no moon) till 2 AM to find a nesting leatherback turtle. Actually, you find one coming ashore ... then go far enough away (40-50 yards) that she doesn't turn around and go back to sea (first one did) ... and wait for over an hour ... checking progress at 20-30 minute intervals without scaring her off.

Of course, you can't see her because it's so dark and she is too. You have to move VERY SLOWLY to approach or you'll startle her and off she'll go without finishing the nesting process ... not good for conservation.

It would cost me thousands to replicate that shot due to the travel costs alone.

You aseem to be clearly in the right here. Do you enjoy being victimized by the unscrupulous?

No matter what you think of the aesthetic merits of your photo, it obviously has a great deal of intrinsic value due to the content. They know it, you know it, but you choose to ignore it or make up excuses not to protect yourself.

Listen I really don't like fighting or arguing either and generally go out of my way to avoid conflicts but sometimes you have to do it to protect yourself.

Just Please check out:

http://thecopyrightzone.com/

and

http://www.aphotoeditor.com/2010/02/09/photographers-how-to-deal-with-infringements/

and shoot a question to Ed or Carolyn.

Naw ... you guys are way more fun than some lawyer.

You haven't met Ed. He's a lot more fun than 99.99% of the photographers I know

you gotta do something...

where does this chit end?

RustyBug wrote:

As far as I can tell, this is an 'open & shut' case on its merits ... but not so much on its value.



I'm not saying it doesn't have value, quite the opposite ... I'm saying that there will be a wide debatable variance as to what that value might be, and proving that will be a challenge that I don't think anyone around me has either the desire nor the experience to be able to help me with.

While there is no imperical, tangible evidence of its value, the violation is totally imperical, tangible and obvious. I personally wouldn't know how to assess and argue that valuation. I could beat my head against the wall looking for someone in my neck of the woods to help me with this ... hence the posting here.

Checked out the St. Louis VLAA and I don't qualify for their services ... email sent to Carolyn.

Thanks for the direction & perspective.

A friend of mine once got a check out of the blue from a textbook publisher he had licensed a photo to years before. The photo had been licensed for use as a quarter page or smaller for a few hundred dollars. The check he received was to reuse the photo and it was for around $15000. He asked his lawyer what to do and the lawyer said "don't deposit it, hold on to it while I request some info from them." I'll make the story short but after a couple of years of depositions and just before the trial started they settled for around $250,000. It was a fairly ordinary photo -- nothing portfolio worthy -- it's just that he had it and no one else did and then the client had used it and tried to coverup their misdeeds --in all sorts of ways that were only uncovered through the discovery process.

My point is that of course you have no idea how much their appropriation of your work is worth in monetary terms -- because they have no incentive to tell you.

I'd have called Ed myself even though I'm in Atlanta.

RustyBug, are you a full-time photographer ?

There was just recently a class-action lawsuit over copyright infringements. I don't recall much of the details, but one of the factors that came out was members of the class hadn't all registered their images with the LoC but they were still included in the legal action. In individual cases (in the US), it's a necessity to register the infringed "work" before an infringement case can be filed. The point could be that while as an individual, you may not typically sell your images or may not sell them for much, but that you may also be a member of a larger group or class that has also been victimized by a pattern of infringing actions.

Your info could be that hint of blood in the water.

CG, I don't understand your point.

As far as that case, I'm guessing you refer to Elsevier v. Muchnick.

It involved a copyright infringement class action settlement between freelance authors and publishers, which settlement included both reigstered and unregistered works.

The issue was whether section 411(a) (you have to register before you can sue) is a jurisdictional requirement. If it is the lower court would not have the power to bless the settlement because it included unregistered works.

SCOTUS held 411(a) is not a jurisdictional requirement, it's a precondition to a lawsuit, so it doesn't limit the districts courts jurisdiction over the unregistered works.

I just watched this the other day (and rewatched it this morning again) from the Photo Attorney (Carolyn E. Wright) and found it to be very informative...

https://admin.acrobat.com/_a959994825/p55517176/?launcher=false&fcsContent=true&pbMode=normal

and and this article by her as well....

http://www.photoattorney.com/?p=515

From Wikipedia, the free encyclopedia http://en.wikipedia.org/wiki/Statutory_damages_for_copyright_infringement


Statutory damages for copyright infringement are available under some countries' copyright laws.

The charges allow copyright holders, who succeed with claims of infringement, to receive an amount of compensation per work (as opposed to compensation for losses, an account of profits or damages per infringing copy). Statutory damages can in some cases be significantly more than the actual damages suffered by the rights holder or the profits of the infringer.

At least in America, the original rationale for statutory damages was that it would often be difficult to establish the number of copies that had been made by an underground pirate business and awards of statutory damages would save rights holders from having to do so.

Statutory Damages in the United States
In the United States, statutory damages are set out in Title 17, Section 504 of the U.S. Code. The basic level of damages is between $750 and $30,000 per work, at the discretion of the court.

Plaintiffs who can show willful infringement may be entitled to damages up to $150,000 per work. Defendants who can show that they were "not aware and had no reason to believe" they were infringing copyright may have the damages reduced to $200 per work.

Under 17 USC 412, statutory damages are only available in the United States for works that were registered with the Copyright Office prior to infringement, or within three months of publication.



I'll be registering images this week.

TT1000 wrote:
RustyBug, are you a full-time photographer ?

Full time ...

in my head & heart
in my checkbook