It doesn't matter where a photo runs, or what size....
If someone uses your photo, you should be paid.
How much you should be paid, or can get under the circumstances, is the multi-million $$$ question.
If someone (anyone) anywhere publishes (i.e. even if not "stolen") one of your images in a newspaper or online in any unauthorized manner, I would nail them hard!
To discourage such behavior, the price should be much higher ... i.e. the maximum amount possible!
colinm wrote:
If you're an employee of the magazine, then it's work made for hire as part of your job (unless negotiated otherwise) and of course you wouldn't bill them.
If you're a contractor (freelancing), it's not work made for hire unless you're crazy enough to sign a contract that says it is, and you would (and should) bill them.
Huh? Maybe I am misunderstanding you, but if you are a contractor, it is work made for hire. If you are an employee of the magazine, it is not work made for hire. I think you have them switched.
So two photos of yours were published in a magazine...and you want to know if they were published? Hmmm, this one is tricky. Did they use invisible ink that you need to hold under a black light or use some magic elixer to see? If so, then I would say that yes they did publish the photos, but only to some of the readers. You might need to poll the readership to get an accurate idea of the proper rates. Now if they used normal ink and paper, then, um...what other meaning does 'publish' have? Sorry to be so 'cheeky' but your antagonistic replies to some people are not exactly called for given the question.
andrew81 wrote:
A mag I gave my photos to for use (and payment before you all jump on me for that!) used one and the other as a background faded photo. I consider this a published photo and have billed them for it. Do you consider it a published photo? Do you not consider it a published photo.
Of course it's a published photo! The rest of your story doesn't make any sense though! You gave them the photos to use for which they paid, so you didn't give anything, you sold them. Then they use the photo and you bill them again. That's basically what you're saying
mdude85 wrote:
Huh? Maybe I am misunderstanding you, but if you are a contractor, it is work made for hire. If you are an employee of the magazine, it is not work made for hire. I think you have them switched.
I would say you're the one who got it switched, he clearly states the opposite of what you said he mentioned.
mdude85 wrote:
Huh? Maybe I am misunderstanding you, but if you are a contractor, it is work made for hire. If you are an employee of the magazine, it is not work made for hire. I think you have them switched.
No, you're wrong. Your average salaried, full-time employee is the one under the work-for-hire agreement. An independent contractor is not unless the contract says otherwise.
The photos were published. Who owns the rights?
Are you in the employ of the magazine as a photographer?
Yes? They own the photo, and all rights.
No? Was there a signed agreement ahead of time, that described your upcoming work as "work for hire".
Yes? They own the photo, and all rights.
No? You own the copyright.
It sounds like you took the photos speculatively, and presented a "contact sheet" from which they selected a few to use.
So far so good.
Your message said "Asking the PM community if they consider it a published photo as I do, or do they not".
If it is in ink, and multiple copies made, how could anyone contend that the photos were not "published"? Are they claiming "derritive work"? Are they claiming "fair use"?
You turned hi-res photos over to them for the purpose of putting in the magazine. You did not specify up front your fees, their usage rights, whether they could make derritive works (the faded photo as a background for your other photo), the collage (a derritive work in itself).
There is now a mess. (I know, tell you something new).
Is it a matter that payment is different for a published work versus a non-published work?
Is the question that they paid you for the photos, and now that they are published, you want an additional "publishing fee"? If they paid you, and you accepted, and turned over the hi-rez photos to them, (a magazine), what did you expect them to do with the photos.
Without a specific licensing agreement up front, it would seem that by accepting payment, you agreed to the terms of use which was basically unrestricted.
I'm not a lawyer (nor do I play one here on FM) but it seems you need more than FM to sort this one out. Get an IP attorney, and TELL THEM EVERYTHING.
