p.2 #2 · Quote request and stolen images...UPDATE!!
Here's my advice, having won a settlement with a rather large company after they used one of my images in an advertising campaign. Although I consulted an attorney in the beginning, I ended up handling it by myself. It took some persistence, and I didn't back down.
First, make sure you have saved all copies of their usages. Have a copy of the catalog, make screen shots of the website, etc.
Register the images with the copyright office. You can put a rush on them for $300-400 or so (can't remember the exact cost, but it might be worth it).
Next, look at Getty images under their Rights Managed photos and enter in their usages. That will give you a high end value for the photos. START HIGH, because they will most likely try to negotiate down.
Once you have the copyright stuff in place, send them a certified letter informing them of their copyright violation. Be clear and matter of fact about all the places they used the photos. Explain that you are attaching an invoice for the photos, and that the invoice is for settlement purposes only and give them a certain number of days/weeks to pay. Be prepared to explain why your photo is worth what it is. Make it clear to them that you will notify your lawyer after that time frame to pursue further damages (this may be a bluff).
They will probably start by responding with an apology, and assurance that your photos will be removed and they won't use them again. I would stand firm, and continue to demand payment. Their next step will probably be to lowball you, in which case you can either accept or try to negotiate for more. In my case, we ended up going back and forth 2-3 times before reaching a settlement price (which was about 30% lower then what I original asked for). If they hold firm and do not offer you any payment, then it's up to you as to whether you want to contact a lawyer or not. If your images are registered with the copyright office, and there is a clear violation, my lawyer will work on a contingency basis (and you can sue for lawyer fees), so it might be worth it to pursue.
p.2 #4 · Quote request and stolen images...UPDATE!!
Not sure if you have access to this forum www.DGrin.com - its a Smug Mug Forum. Similiar thing happening to someone right now - might be worth a read. Lots of different opinions there, but there is a few bits of good advice to be found.
p.2 #5 · Quote request and stolen images...UPDATE!!
If it's registered prior to the infringement, an attorney will be much more likely to take on the case given the large amount in damages than can be sought after.
p.2 #6 · Quote request and stolen images...UPDATE!!
Brent Ward wrote:
If it's registered prior to the infringement, an attorney will be much more likely to take on the case given the large amount in damages than can be sought after.
Yes, this is exactly what my attorney told me, which is exactly why we should register our images! I definitely learned my lesson. Unfortunately, the shot of mine that was stolen was just a snapshot, and I never thought of registering it. Now ALL of my photos get registered, not just the shots I think are valuable.
p.2 #7 · Quote request and stolen images...UPDATE!!
How do you actually register your photos?
I think I shot 20,000 images last year. A hand full made it in some magazines, but as most of us know - it's near impossible to find out if the images are used elsewhere without permission - like finding a needle in a haystack.
I have never registered an image, but am always looking for the right and better way to do things.
p.2 #8 · Quote request and stolen images...UPDATE!!
Rebecca how many images do u register at 50 dollars a pop a year??
UPDATE!!!!
Called the Team Leader for the ski company (the guy I shot with and photos were used of). He called his boss/owner. He called me. And we settled for 1400 (and pulling the image off the website). Waaaay under market value but his initial was 1200 and i started at a resonable rate. Small company...but at least i get some money right...w/o legal fees.
p.2 #9 · Quote request and stolen images...UPDATE!!
aFeinbergPhoto wrote:
Rebecca how many images do u register at 50 dollars a pop a year??
UPDATE!!!!
Called the Team Leader for the ski company (the guy I shot with and photos were used of). He called his boss/owner. He called me. And we settled for 1400 (and pulling the image off the website). Waaaay under market value but his initial was 1200 and i started at a resonable rate. Small company...but at least i get some money right...w/o legal fees.
p.2 #10 · Quote request and stolen images...UPDATE!!
"However if you have not registered in a timely manner (this is a gray area...some say the law allows for 30 days after you see the infringement, others say 30 days from when you publish the images in any way)"
It's not gray and it's not 30 days. Despite what "some say". It's 90 days from first publication.
The pertinent statute Section 412(b) of the Copyright Act says (caps added by me):
no award of statutory damages or of attorney’s fees, .... shall be made for —
(1) any infringement of copyright in an UNPUBLISHED work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced AFTER FIRST PUBLICATION of the work and before the effective date of its registration, unless such registration is made WITHIN THREE MONTHS AFTER THE FIRST PUBLICATION OF THE WORK.
p.2 #11 · Quote request and stolen images...UPDATE!!
I should add that effective date of registration is the date the Copyright Office received a complete submission that is subsequently accepted. But you can't commence your suit until the registration is accepted which can take many months though as someone earlier said there is an expensive filing fee for expedited service.
p.2 #12 · Quote request and stolen images...UPDATE!!
TT1000 wrote:
"However if you have not registered in a timely manner (this is a gray area...some say the law allows for 30 days after you see the infringement, others say 30 days from when you publish the images in any way)"
It's not gray and it's not 30 days. Despite what "some say". It's 90 days from first publication.
The pertinent statute Section 412(b) of the Copyright Act says (caps added by me):
no award of statutory damages or of attorney’s fees, .... shall be made for —
(1) any infringement of copyright in an UNPUBLISHED work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced AFTER FIRST PUBLICATION of the work and before the effective date of its registration, unless such registration is made WITHIN THREE MONTHS AFTER THE FIRST PUBLICATION OF THE WORK....Show more →
The number of days was off the top of my head...so my bad. However the issue with the gray area comes into play with 'publication'. What is publication? Posting them on a website to view as proofs? Use in an ad campaign? Printing it? I've spoken to IP attorneys on this one and they say just do it as soon as you take the photos. That way you don't leave your case up to interpretation of this language.
p.2 #13 · Quote request and stolen images...UPDATE!!
I gotcha.
And I agree it's a wise practice is to file within 90 days of taking your shots and not get into a discussion of what is publication.
FYI, publication is defined in Section 101 of The Act but I think what your attorney means is that it's not clear how the definition applies in many contexts and with newer uses.
p.2 #14 · Quote request and stolen images...UPDATE!!
TT1000 wrote:
I gotcha.
And I agree it's a wise practice is to file within 90 days of taking your shots and not get into a discussion of what is publication.
FYI, publication is defined in Section 101 of The Act but I think what your attorney means is that it's not clear how the definition applies in many contexts and with newer uses.
Exactly...In the end not registering promptly comes down to you are cheap or lazy. Either can cost you big time. It would be terrible to lose a case because you forgot to register and allowed interpretation of legalese to decide your fate.
p.2 #15 · Quote request and stolen images...UPDATE!!
I'm glad the you made some sort of settlement but I think your title to the this post is a little misleading. They didn't really steal your image...they used it more than they told you they would.
As i understand it, the client paid you for the use in the ad in Powder magazine and then used it again in different places with out permission. This type of thing happens a lot when someone at the client sees the image from the ad and needs it for another project on the web or the direct mail piece and they wrongly use it either not knowing or not caring about the agreed usage rights. Often they contact the photographer but sometimes they don't if no one is watching the store. In most cases it makes more sense to approach this as a contract issue or misunderstanding and bill them accordingly. To file a copyright case is very expensive, takes a lot of time and needs to be filed in federal court, probably costing you about $10k to start, and more clients have legal departments than photographers do. There may be a $100k settlement at the end, but there may not. A lot of people talk about these kind of payouts, but I really don't know how often it happens, maybe there are gag orders and it happens all the time maybe it happens once in a blue moon.
Determine the difference between a copyright issue and a business/contract issue and approach it the right way.
p.2 #16 · Quote request and stolen images...UPDATE!!
MichaelKirk wrote:
How do you actually register your photos?
I think I shot 20,000 images last year. A hand full made it in some magazines, but as most of us know - it's near impossible to find out if the images are used elsewhere without permission - like finding a needle in a haystack.
I have never registered an image, but am always looking for the right and better way to do things.
Michael
Can someone fill us in on the proceedure and costs involved?
Just to reiterate the point. It's all about statutory damages (and attorney fees).
The reason you want to file is twofold. First, you can not bring a copyright action without first registering. And second, you can not seek statutory damages and attorney fees without registering in a timely manner (as discussed above).
It is statutory damages that will focus the minds of potential defendants. Without statutory damages you can only recover actual damages (and no recovery of attorney fees).
Statutory damages may be awarded by the court without regard to actual damages. Statutory damages can be up to $30,000 PER unwillful infringement and $150,000 PER willful infringement.
So let's say someone uses your picture. A good defendant (meaning one you can find and that has money to pay if you prevail in a lawsuit). You go to the lawyer. If you haven't timely filed a copyright registration it's tough to bring a suit. As someone else noted you can only bring an action for copyright infringement in federal district court. It's expensive (not the filing fees but the legal costs). And it won't often make economic sense. But if you can recover your attorney fees and get statutory damages that changes the entire equation. You may be willing to bring that suit and many attorneys may be willing to do it on a contingency basis (footing all the expenses and taking the risk for a potential payday). It also greatly increases the chances of getting a quick settlement.
