Last year I photographed many different sports at a local high school. I sold prints to parents, but also gave the Booster Club permission to use some of my photos on their website. They, in turn, promoted my work. (I was not the contracted school or sports photographer.)
This year a different company got the contract. That's OK. I'm part-time and can't handle an entire school.
I have been photographing again this year, on spec, and in cooperation with the Booster Club.
The newly contracted photography company published a program which I saw last night at a football game. The cover sports six of MY images from last year, clearly pulled off the booster club's web site. They are small (2" x 1-3/8"), one each of six different sports. They are slightly pixelated, as would be expected from a web download.
I spoke to several leaders of the Booster Club, the Athletic Department, and the Yearbook. Nobody gave them permission to use them, not that it would matter if they had.
What would you do? I have my ideas, but would love your input!
I would ensure the booster club truly did not give the photos to company to use before going any further. If that is the case, then your beef is with the booster club.
The back of the program states: "Photography and Program produced by "Name of Photography Company". So this is not just a financial issue, but an ethics issue. It bugs me when people are willing to do this kind of thing. Makes us all look bad.
Register a Copyright of those images today.
Then seek the advice of a lawyer.If you are a member of any professional photographer association they will be able to help you.
1. Register your copyrights immediately -- you can do it online.
2. Send the photography company an invoice with a license agreement for the image use.
3. Copy the booster club with your correspondence to the photography company.
Please follow-up; I'm curious to know what the response is.
I sent the other studio an invoice with a letter explaining the situation. Price per image was reasonable, not inflated as a "gotcha" or for punitive reasons.
I got two calls last night, both telling me that the school's Athletic Director had said he told me to withdraw the invoice I sent the other photographer, or get off his sidelines. But I have not heard from him!
Nobody can understand why he is saying he already told me that. I can't either, but also I can't understand why it matters to him. This is between me and the other studio, and not the school or the booster club. Even if someone told the other photographer they could use my images (which I don't believe happened), it is the photographer's responsibility to be sure he is not infringing on my copy right.
Here is what I anticipate. The AD will "surprise" me at tonight's game. I will try to reason with him, explaining the situation and that it is between me and the other photo studio. I doubt he will be reasonable. I will then go into the stands to watch the game, lime green safety vest on and camera bag in-hand. Parents, who love me, will ask why I am in the stands. I will tell them. Players and coaches will wonder where I am and will find out. I am like a part of the team. Coaches and players get out of my way on the sidelines. It's kind of funny. Very heartwarming how I've been treated.
I don't' think this will go very well for the AD. Sure, the players and coaches have to be careful, but some of the parents (and one gramma) will not sit by on this. At least I don't think they will.
I don't know what happened between his telling others that he talked to me and his actually talking to me, but it went WAY better than I could have imagined.
He told me that the other studio does a lot for them, including that program for free. I told him it was free, but part of a profitable package. He insisted that they not pay and said he (the athletic dept) would pay.
At one point he asked what I've done for the school and the team. I asked him if he had seen last year's slide show, the football team room, the team web site, the booster club web site, the yearbook. I guess he hadn't. I told him, tons of my donated images. He asked if it was part of the agreement. I said it wasn't. That I had simply been asked to go shoot on spec so parents would have some good images. I love it, but don't make much. He actually apologized for offending me with the question.
Again, he wants me to send the invoice to him. NOW what to do? I don't want to take money away from the school and the athletics.
You cannot legally accept money from the school or the athletic department for what amounts to a copyright violation committed by a third party. Even if they were to offer it to you, it doesn't contractually absolve the third party of the violation. That is how you need to frame the discussion, because that is how the matter stands under the law--you simply can't take their money because they weren't the infringing party. The school has to be made to understand that it's not a question of you being paid for your work, but rather, the preservation of the recognition that you authored the work. And that is something that the school is not in a position to compensate you for.
I understand that the school has a beneficial arrangement with the infringing party, and they want to indemnify them in order to protect that relationship, but the matter could be made a lot simpler if everyone just sat down together and had an open discussion about respecting copyright, having honest dialogue, informing the involved parties, and giving credit where credit is due. It's not really about the money--the invoice is merely a way for you to enforce your ownership of the work in question. People pay attention when money is involved. But it's really about the fact that you don't want anyone to claim authorship of something that YOU created. Ask the infringing party how they would react if someone did that to THEIR work. They would not hesitate to enforce their copyright.
The point is, think about what it would take for you to be made whole; i.e., for the wrong to be righted. Not what you feel is appropriate punishment, or what is best for the school. Then if you are reasonable, discussing those needs with the school and the company should lead to an amicable resolution.
Here's another aspect of things that the school probably ought to consider. The school is being paid by the taxpayers to be in the business of TEACHING academics and propriety to the next generation of adults.
If the school is going to participate in what appears like a 'buy out' or 'coverup' for the other party's wrong doing ... what message are they sending to the kids.
"Hey kids, ripping off other people is okay as long as the guy you sell the stolen stuff to is cool with it." and then to pour salt in the wound, "if somebody complains about it, just pay them off." Along with the underlying message of "Copyright and the law really is only a fantasy thing, nobody really ever gets in real trouble for doing it, unless you do it really big. Go ahead and make all those pirate copies of software and music you want, sell it (or give it) to who ever you want. As long as they're cool with it you won't be liable for it." And one for the road, "BTW, when someone does you wrong in future, don't expect anyone to help uphold your rights ... hey, what's good for the goose, is good for the gander. That's just the way our society is, cause it's the way we are making it to be."
It really doesn't matter which photographer did more for the school, the fact of the matter is that a violation was committed. And really, unless the offfending party makes proper restitution, the school SHOULD cease doing business with them on an ethical basis. I would expect that in this day & age that the school has legal policy in their contracts/purchasing that attach ethical conduct to their vendors. Keeping the school out of hot water usually isn't an AD's main agenda ... leaving that to other folks to tand to, so the AD's perspective on the matter might be just a bit skewed.
Instead ... here is an opportunity to deal with each other amicable and outside of the court system, that could be used as a teaching point for the school ... i.e. turn lemons into lemonade, kinda thing. Of course, you have to have thoughtful and reasonable people involved. A viable case study in the making.
Even if the offending party did so out of ignorance (big benefit of the doubt for ease of restitution/discussion), he is still the offending party and restitution (form undetermined) and/or correction still needs to be provided. The accountability for restitution (not necessarily punitive) by the offending party should not be allowed to be ommitted. That would send a bad message to everyone watching. The school should do the right thing ... even if the parties are willing to be a little 'creative' about how it gets resolved.
I think this one might be one where the focus could shift from how the wrong was done, to how the correction is done right.
We all make mistakes and do things wrong, it happens ... I don't necessarily judge someone by their mistakes, sometimes more so on how they make amends.
Actually you can legally accept money from whomever you want, if they're willing to give it to you. The school can pay you for your time and trouble if it wants. And you can choose to accept or not accept the money.
It would appear that the reason the school is getting involved is because the publisher of the program received an invoice from you, did a head-scratcher, and contacted the school. Possibly because the school gave the studio the photos under the expectation that the studio would not have to pay for them. Perhaps in your contract (if there was one), you didn't make clear that the Booster Club could not give those images to a third party.
If you send invoices out of the blue expecting to get paid then that's the outcome you should expect... a lot of very confused parties. Especially since you never entered into a contract with the publisher in the first place. They are within their rights to tear up your contract if they wish. However they may have to defend an infringement action in the future.
If the school does not cease to do business with the studio that put together the program, it's not your problem. If it bothers you so much then you are free to stop doing business with the school. I'd say that's a pretty good way to ensure your photos are not used in the school's programs any more. It's probably a waste of your time to have a roundtable about the virtues of copyright.
mdude85 wrote:
Actually you can legally accept money from whomever you want, if they're willing to give it to you. The school can pay you for your time and trouble if it wants. And you can choose to accept or not accept the money.
You misunderstand the point of my post. Yes, any two parties can engage in an exchange of money if mutually agreed upon. But the point is that doing so does nothing to address the real problem, which is that a third party infringed upon the OP's copyright. What if the third party continues this behavior? What stops them from continuing to claim the images as their own?
From a legal perspective, the question that must be settled is what any such monies paid is supposed to represent. What is being bought? A license to use the images? Under what limitations, if any, is that license granted? The problem in accepting the money is that none of this is explained because it's just the OP and the school talking about it, and the infringing party isn't even involved when they're the ones who actually used and cited the works improperly! That's what's so boneheaded. If the school wants to protect the third party company, fine. But by paying off the OP, they're doing nothing of the sort--the payment doesn't represent any kind of protection for either the third party or the OP.
Just because the OP gets paid doesn't mean a resolution has been achieved. That's the problem with sending out invoices and talking about money--it gets people's attention, but it also makes them think that the ONLY thing that matters IS the money.
Sure, but at the end of the day you have to ask yourself if it's worth all the time and effort to engage some small town outfit in a broader discussion about the meaning of copyright, or whether you should just take whatever money available to you so that you can be done with the whole mess. The likelihood that these people are going to learn from their mistakes is probably quite slim.
mdude85 wrote:
Sure, but at the end of the day you have to ask yourself if it's worth all the time and effort to engage some small town outfit in a broader discussion about the meaning of copyright, or whether you should just take whatever money available to you so that you can be done with the whole mess. The likelihood that these people are going to learn from their mistakes is probably quite slim.
The OP won't know until they actually have that discussion.
I find arguments along the lines of "it's not worth the time or effort" to be useless. It's ALWAYS worth it. Photographers as a group are always complaining about how their copyrights aren't respected, and how people just take what they want without understanding why it's wrong. But then when it comes to actually doing something about it, they throw their hands up and say "well it's not worth it." To that, I say put up or shut up. You reap what you sow. If this is just a hobby for you, then you shouldn't be engaging in practices that would open yourself up to others claiming your work as their own, or you shouldn't complain when someone does. If it's something you are making money from, then like ANY business, it is always about protecting your assets by enforcing your intellectual property rights. If you feel that's not worth your time, then put away the camera.
You seem to be under the misapprehension that taking some hush money is going to make the problem go away, when there is no indication that such a thing would actually happen. As I explicitly pointed out, what is to stop this third party from taking whatever other images that the OP shoots for the school, and claiming it as theirs in a variety of publications and media? What gives you the idea that this is a one time thing and it's going to stop just because the school ponied up?
At the very minimum, the three parties need to sit down and lay out in clear terms what is allowed and not allowed, and sign a legally binding contract to that effect. It doesn't have to be written in legalese. It just has to be CLEAR. We're not talking about the OP lecturing anyone about copyright. The notion of a world where people can conduct business by verbal agreements alone is a nice little fantasy. The reality is that you need things in writing, even when it's small potatoes. If you don't have that, don't complain when you get screwed.
mdude85 wrote:
Actually you can legally accept money from whomever you want, if they're willing to give it to you.
Sorry, but that is just simply NOT TRUE.
If it were, bribes would not be illegal. Even as a gift with no specific attachment of expectation, many public officials are restricted from receiving such monies. I'm not saying it doesn't happen because we all know it does, but that does NOT MAKE IT LEGAL.
Another note that comes to mind. The OP mentioned a NEW contract for a DIFFERENT company ... I'm guessing (pure conjecture) the school went with some form of "low bid" to save a buck or make a buck in their decision to change horses ... and this is yet another byproduct of "Ya gets what ya pays fer." Gee, no wonder a company can be cheaper ... especially if they are willingly ripping off other people's work.
I'd be interested in hearing from LAST YEARS company (or the other non-winning bidders) on this one.
NOTE: As a public official ... I've had to 'oust' companies for such violations and 're-award' the contract to a 'losing bidder' for lesser violations that went against contract/purchasing policies. Just because you were awarded the contract doesn't mean that you are automatically entitled to keep it. Generally speaking, it was the new awardees that had the most problems with terms of compliance ... only once in a blue moon was it an old dog that was up to bad tricks.
If the new company doesn't have enough sense to know how to conduct business within the confines of the law ... they have no business doing business with the school and putting the school in such situations. The school should require full restitution by the offending party and/or rescind the contract with the vendor who is involving them in criminal activity ... re-awarding the contract to another company. By the school NOT doing so, the school then opens themselves up for some potentially very serious litigation problems.
And, just because the OP was the offended party, and is willing to be a "nice guy" about this ... DOESN'T preclude ANY OTHER PHOTOGRAPHER (i.e. one who didn't win the contract) from suing the school for continuing to doing business with a company involved in both copyright and fraudulent representation. The school needs to PROTECT THEMSELVES ... AND NOT WORRY ABOUT PROTECTING THE OFFENDING COMPANY. The school can really like the company and they can feel sorry for the new company making a mistake, but neither of those will absolve the school for not properly addressing the situation should someone turn their attention toward the school's role in this.
I appreciate that the OP is not trying to "strong-arm" anyone in this matter, as I find it admirable. But, if he truly cares about the school ... he might want to alert them to the hazards that they may not be aware of ... for their sake, not his. Diplomacy & tact are certainly in order, but this could become a big can of worms for the school, even if the OP doesn't pursue it any further.
Think about it ... you've got a guy suing for a photographer to redo his wedding more than six years post shoot in another thread. What would keep multiple photographers/companies from suing the school for the revenue they lost because the school continued to do business with a company that should have had the award rescinded and the school failed to do so. It could easily accrue to multiple years of revenue involved ... only compounding to the amount of 'lost revenue' for those non-offending companies that did not get the award. The school really needs to nip this one in the bud for their own protection.
Many will disagree, thinking "mountain out of a mole hill" ... but once you've been officially responsible for awarding/rescinding contracts in the public domain and involved with defending suits from non-winning bidders against your institution ... I'd prefer to see it as an "ounce of prevention" more than a "mountain". Lessons learned and forewarned is forearmed.
What is the goal: forcing people to respect your copyrights, or engaging in a legally binding contract? In my view, one of these is an ethical consideration and the other a practical consideration. If you consider the basic fact that forcing people to respect your copyright is not at all the same thing as enforcing your copyright, then you're more or less left with the practical consideration of ensuring that the terms of use of your photography are explicitly laid out for your clients. So while I completely agree that everything should be in writing (it's what I do in my job all day ), I would caution the OP from spending a lot of his time or energy trying to give a free copyright lesson to an entity that is at best likely to ignore him and at worst likely to drop him in favor of someone who doesn't care as much. Of course the outcome could be more positive. However I don't think "put up or shut up" is always the best option. Sometimes "fighting your battles" is the best option. Especially seeing as we're talking about pretty small potatoes here. Best of luck
), I would caution the OP from spending a lot of his time or energy trying to give a free copyright lesson to an entity that is at best likely to ignore him and at worst likely to drop him in favor of someone who doesn't care as much. Of course the outcome could be more positive. However I don't think "put up or shut up" is always the best option. Sometimes "fighting your battles" is the best option. Especially seeing as we're talking about pretty small potatoes here. Best of luck