Unauthorized use of image, Best approach?

Greetings all,

 

I am making the transistion to professional architectural

photography, so I had not yet been confronted with the unauthorized

use of an image of mine, until last week.

 

I am still working for a consulting engineering firm, as a

commercial lighting designer. As such, I have had the opportunity

to photograph my own projects (with a 4x5, etc., these are

professional quality photographs). On one occasion several years

ago, I gave a print of one of the projects to the landscape

architect from the firm that hired my firm to do the lighting

design. I did this as a courtesy to the other person for his

portfolio, as he is fairly young, and a nice person.

 

Fast foreward three years; last week I happened to see an

advertising postcard from the company with my photo on the front.

 

I am just about positive that the use of my image was unintentional,

in that architectural design firms are used to hiring a

photographer, and then the rights to the use of the images for self

promotion are unrestricted. So, there is no reason for them to have

thought that they did not have they right to use it. The photos

were not part of my job description with my employer, nor were they

part of the contract from the other company. They were performed on

my own time, and at my expense. (So, there should be no reasonable

arguement that I did the work 'for hire').

 

I want to contact them and get compensation for the use of the

photo, but I do not want to turn this into a litigeous issue,

because there are past and future business relationships at stake

here (both photographic for me, and consulting for my employer).

 

What approach do you think is the most suitable? I figure I can

call and talk to the principal in change (who may remember me from

previous jobs with them). This would give me the opportunity to

keep the issue from being blown out of proportion. However, it also

could cause them to get embarassed and react strongly.

 

The other approach is to send them a letter and a bill for the use

of the photo. I am concerned that they will take this more

impersonal approach worse than the phone call approach. I also

cannot determine whether they have used the photo for other purposes

that I am unaware of, without asking them directly.

 

Either way, I'll have to send them a bill for the work, but the

first way allows me to talk them through what happened so they don't

immediately get defensive.

 

Lastly, since I figure that the use was unintentional, and I don't

want to burn any bridges, I need to determine what is a reasonable

fee for the use. I think that a bill of the day-rate that I am

getting set to charge is reasonable, and they can then continue to

use the image as long as they wish for their own promotional

purposes. At that point, it would be as if they hired me to shoot

it for them.

 

If I felt that there was a malicious intent, I would be much more

aggressive toward them, and also be asking for more money, with the

language being much more formal and legal.

 

Any words of wisdome would be appreciated.

 

Thanks,

 

 

---Michael

First: You can't ask for monetary compensation for this usage if

you don't know how extensive that usage as been. so why bother

with a bill right now. The only way you are goingto find out is to

havethem research their records and generally that takes a letter

from an attorney to get them off of their hands. And then you

haveto wonder if they are being completely clear.<P>

Second: As you point out, professional relationships are at

stake.<P> Third: You are right about a demand letter generating

hostility.<P>Fourth: You are not an established artist and any

claim for money that takes you into Federal Court (and that is the

venue for copyright infringement cases) might require you to put

up a lot of money, and you hmay also have to try and prove how

much the use of that single image contributes to the financial

success and profits of that company in order to determine the

damages. <P> Do you want my advice?<P> A.<B> Register your

images with the U.S. Copyright Office (if you are in the USA)

now</B> and send them a polite letter letting them know that

they are using your image and that it is registered. Use lanuage

tthat gets across the message you are asking for the

professional respect you would extend to them. <P>B.)<B>Use

the contact as a business opening not a club to bash them

with.</B>

Michael, you gave the print to the landscape architect as a courtesy. Seems like a no-strings-attached gift. No agreement made as to how he could use it. I don't think you have a legal leg to stand on. Perhaps, a friendly approach will get you further. At least you won't run the risk of loosing their future business. If you demand payment, you will probably cause a lot of hard feelings.

Ellis makes some useful arguments here.

 

But Eugene, you couldn't be more wrong. Owning a print, whether as a

gift or because one paid ten thousand dollars for it, does not give

one the right to reproduce it. Period. Thus speaks International

Copyright Law. Reproduction rights can be granted only by *written*

permission, ie, a contract.

 

--

Listen to Ellis, he has been doing this for a while.....

Carl, I'm aware of International Copyright Laws. What I suggested was, essentially, the same thing that Ellis suggested. A little diplomacy with this client will go a lot further than getting tough and demanding payment at this late date. If the print was marked with a copywrite symbol, in the first place, it would be a different situation, and Michael would have a stronger case for getting renumerated for his effort. I've been through this situation in the past. It took an attorney to solve the problem. I ended up loosing money on the deal.

They obviously like your work. Use it to generate more business.

FWIW, I agree with David. Since having an established client base will or at least should help you get more clients, why not ask the firm for a reference? I don't know what the monetary value is you could expect gain from pressing the matter in court, especially after the lawyers get thier share, but your "client" obviously likes your work as you in turn must have been impressed by the design of the building if you went to the trouble of photographing it. Perhaps you can included a rate sheet with your correspondence to gently remind them that they got a deal this time, and that you'll make their buildings look great on film in the future, too---at your going rate.

One other thing that you should factor into your decision is the amount of money you would charge for this usage. A small run advertsing postcard with your photo on the front may be worth about $800-$1000. If your image is registered, you could sue for 3x that value, but you would almost certainly lose any future business with this client.

 

I agree with Ellis that you should register your imags, but you need to tread lightly here. If you offend the client and then your employer loses a client, too, your employer may seek redress from you. You have a legal right to payment, but you also have engaged in your personal business on company time. The individual issues are simple, the linkages make me cringe.

 

I would begin by explaining the situation to your employer. Discuss your alternatives, and ask for your employer's thoughts and concerns. This is too little money to risk your day job and another legal battle.

If your employer doesn't mind you approaching your "client", take some vacation time and do everything else on what is clearly your own time, with your own telephone, etc.

 

Your client isn't someone that you know well from what you've said. I would not be inclined to bill him. Perhaps you could start by telling him that he should not have published your photograph without your permission. Do this first verbally, and follow it up in written form. Let him know that no future publications can be made without written permission and compensation. He may offer compensation for this card, but I doubt it. Even with 3x damages, no lawyer will work on this. It may not be worth your time in small claims court. If a second infraction occurs after your written communication, sufficient money will be involved to make it interesting. But remember, only go here with your employer's consent.

 

Lesson for the future - keep your commercial photography away from your day job.

I agree with David. This was, as you stated yourself, not a malicious act on their part. I would contact them and let them know that you are now officially "in the business" and use this opportunity to secure a client. By sending them a bill, you might even get compensated for the one shot, but you can be sure that the possibility of working for them in the future is out of the question. And you can be sure that if you make a fuss, this will get around the Architectural community.

 

I would suggest looking at this as a way of getting a client. You've already got a printed piece for your portfolio as well.

 

If you were a well established commercial photographer, with clients "to lose", then you could afford to "fight for your rights".

Eugene,

 

The problem was that you said Michael didn't "have a leg to stand on"

which is incorrect. Copyright notice on the print is also not required

(though it's a good idea). However, I didn't recommend Michael get

aggressive about this: the use in question wouldn't pay for a

lawyer-letter, much less a court case. A low-key approach as several

have recommended makes sense here. That's not because of any weakness

in his position concerning rights and improper useage, but because of

surrounding circumstances and the tiny amount of "damage" that could

be claimed.

Michael,

 

I'd like to go back to your initial question and answer a couple

points. First, there is a serious issue of use without permission

here, but the issue of compensation is nearly moot because you're

talking about, well, a bumpkus useage. Architectural firms are

notoriously the cheapest of commercial photograhy clients, and

postcards are the absolute bottom of the heap in photo useage value.

Someone suggested a value here of $800-1000. I believe that's wildly

unrealistic. You'd be lucky to get $800 for the whole delivered

package--a box with several thousand finished postcards. The photo fee

would constitute a small fraction of that.

 

Whenever a photograph is used without permission all photographers are

damaged, however slightly and indirectly. So it's always good to

follow up, but I think you'd be best served by approaching this as a

matter of acknowledgement, and concern that the problem isn't repeated

in the future. On the compensation end of it, there isn't enough value

in this use to risk the slightest ill will for yourself or your

emp

PS: Does anyone know how to keep this software from cutting off the

end of messages? Adding extra characters and/or returns does not help

at all.

I agree with alot has been said here but you have to look at the whole picture. A friendly letter is in order here. You did this with the kindness of your heart and you did not expect anything and as you say, the photo shoot wasn't part of your job. It was illegal for this "nice person" to allow this shot to be used for the use of monitary gain, period! If you want to go forward with this, do so after talking to your employer. You may lose your job there or they maybe helpful but I doubt it with future revenue involved! There are NUMEROUS cases on copyright infringements that are usually won but as you also state, it will cause loss for your company in the future... my advise, at the risk of sounding like I am not respecting the copyright laws, which I am, have them send you several postcards for your book after the friendly letter and call it an experience.

Thanks for all the well-reasoned responses everyone.

 

I want to resspond to several statements to help clarify my position. I have not done any of the photography on my previous company's time. They have supported and have benefitted from my photography on occasion, but the vast majority of my work has been on my own time, with my own resources, so there is no conflict with my employer.

 

I also discussed this issue with them last week, and they support me approaching the other firm with this issue. I will not even consider taking this to the point of getting a lawyer or the courts involved, because I do not want it to impact the relationship that my previous employer has with the other firm. I left the company as an employee three years ago, but stil work for them as a sub-consultant via the internet and occasional trips to the city of my old employer.

 

I would have let the issue drop completely of my old employer (who I am very committed to for various reasons) had indicated that their relationship was strained, but they encouraged me to persue it.

 

As monitary renumeration goes, I see this as an assignment that they never paid for. That is, they are using the image (without photo credit) as if they hired me to go out and take it for them. As I stated, this type of assignment typically goes hand-in-hand with the assignment of all rights for promotional literature to the architectural firm. So I don't really see this as a single use issue, but as an issue of the assignment of these general promotional rights.

 

That's why (I think) the value should be based on the day rate that I am planning to change, because they would have had to pay me that amount (or at least a 1/2 day rate) to get me out there to take the photograph for them. Doing that would have given them the right to use the image for any and all promotional purposes they would like.

 

Carl, I normally end my posts with a closing and then two carriage returns. That appears to keep all the relevant text on the post.

 

I appreciate the input from everyone.

 

 

---Michael

We've all forgotten one other big item. I'm assuming there is no property reaease on this photo. Any photo used to enhance a business position needs to have a property release signed by the property owner. I followed a thread from the ASMP site on this a while ago. I'm sure this is innocent infringement, people in the building trades are usually uninformed about matters like this, so it's up to you to point out that they have exposed themselves to liability by publishing this photo withpout proper authorization. To make the diplomacy "work" in your favor, contact the landscaper and tell him that in the absence of a property release, he is liable to the property owner for unauthorized use and could be sued. . You've now made the property owner the "bad guy". Then explain that the landscaper should've have contacted you first about publishing the photo because you own the copyright abd as a professional, you would have included proper releases from both the propery owner and usage terms from you to make the deal legal withput the chance of any surprises down the road. Explian y]that as a professional, your job is to make sure all loose ends are buttoned up and he won't be liable for anything IF he had followed proper protocol by contacting you first. Since this is after the fact, explain that it may cost more because there is risk of the property owner not signing the release. Again, this makes you the good guy for pointing out his exposure to liability.

Michael,

 

You wrote

 

As monitary renumeration goes, I see this as an assignment that they never paid for. That is, they are using the

image (without photo credit) as if they hired me to go out and take it for them. As I stated, this type of assignment

typically goes hand-in-hand with the assignment of all rights for promotional literature to the architectural firm.

So I don't really see this as a single use issue, but as an issue of the assignment of these general promotional

rights.

 

That's why (I think) the value should be based on the day rate that I am planning to change, because they would

have had to pay me that amount (or at least a 1/2 day rate) to get me out there to take the photograph for them.

Doing that would have given them the right to use the image for any and all promotional purposes they would like.

 

Ignoring copyright for the moment, from a business practices standpoint your analysis doesn't work out right. This is a single use issue (with potential for more uses). Pragmatically speaking, it's unlikely they would *ever* pay for a day, or even half day, assignment to get a picture to use on a postcard. I don't know if I'm getting the point across, but you've got the cart before the horse in your analysis of what this useage is worth. When a client does everything right and pays to use a photograph in a minor way, that's what they pay for, that minor useage, not what an assignment would have cost. Heck, that's why the use of stock pictures is so popular, because it's so much cheaper than paying for assignments.

Carl,

 

I understand your point. However, my experience with my previous firm, and with other architectural firms is that they will spend the money to photograph a completed job without a specific purpose in mind, other than 'marketing materials'. That is, they will not have a postcard in mind specifically, but generally, want images for their website, some prints for the office, some images for submission for design awards, marketing brochures, and for submission of sample projects for future design competitions. So, generally, there is not 'one use' intended when an architectural photographer is hired.

 

That said, your point is well taken that I cannot realy collect but for the one use that I am aware of.

 

At this point, and based on the comments I have recieved, I am inclinied to try to just get some cutsheets from them for my records and portfolio , and request that they not use the image again without renumeration, and turn it into a potential positive client contact that I had not anticipated.

 

---Michael

I received many kind responses to a similar situation a few months

ago. see "If you sued. Did you win?" in the archives under

Ethetics & Phil. The most disapointing caveat to the law was

the liability (for the infringer)with using a formally registered copyrighted image vs. copyrights granted simply because the photographer created the photograph was so different.

I think that two subjects need to be addressed more thoroughly:

Never, not ever, use a photograph/illustration unless you have

written permission from the photographer. No ifs, ands, or buts!

The liability needs to be the same, rather formally reg. or not.

I cannot go back and register 2000 images, however, If a image is

improperly used, I deserve the same compensation, registered or not.

"Any words of wisdom"

 

<I gave a print of one of the projects to the landscape architect from the firm that hired my firm to do the lighting design. I did this as a courtesy to the other person for his portfolio, as he is fairly young, and a nice person.>

 

S.O.O.L. (Poop out of luck). Unless you want to push the issue with the company. You have no legal recourse. Written documentation is your only proof which you have none?

Legally, you're way up in the air. Send them a note complimenting them on the choice of your photo for their campaign. Throw a little conversational history in about when and why it was taken. Don't ask for anything. Judge your next action by their response. You might get lucky and they might offer to do the right thing - pay you something for it. Consider it gratuitous advertizing on your part. You might get further work from them if they recognize they have a problem and you provide them with a smooth exit. Work up the value and write it off as a bad debt later if you don't get paid. You might get the value back as a tax loss.

Your tax write off would be limited to your expenses on the job: film, processing and transportation. You can't write off what you didn't expend. Use the postcard in your portfolio, solicit more business from the various people/companies involved if possible, and be more careful in the future.

Michael,

Greetings. You may remember me from the mammoth

workshop a few years ago. Congratulations on your shift to

professional photography.

 

There has been a lot said here already and now my 2¢:

If you did not have copyright notice on the print you gave your

friend/client, they can claim "innocent infringement". i.e. they did

not know it was a copyrighted image, thus substantially reducing

their liabilty. Perhaps even to nil. They can rememdy the

situation by removing your image or making a deal with you, but

they will probably end up owing you nothing for "innocent

infringement".

 

Diplomacy goes very far. Get them to at least give you photo

credit. Good humor creates a more good will than $800. could

ever buy.

 

Also get a copy of ACLU's "the Rights of Authors, Artists, and

other Creative People" by Norwick and Chasen, pub. Southern

Illinois University Press. An invaluable addition to your bookshelf,

you can keep it next to the rubber stamp that says: Copyright

2002 Michael Mutmansky !