Am I entitled to revoke permission on photo use?

Discussion in 'Business of Photography' started by eric_bauer|2, Sep 22, 2010.

  1. Hello all,
    I've run into a bit of a problem with an interior designer who's using my work and I don't want them to anymore. What started out as a "you scratch my back & I'll scratch yours" type of deal has gotten ugly.
    I provided framed work to be displayed in an interior designer's staged condo as well as some architectural shots of a place that I did. In return they were to promote my work, (try) to put me in touch with a local magazine as well as let me do some architectural shoots for free for the purpose of building my portfolio. I delivered on the art as well as 2 sets of architectural shots (which they used for mass mailings to clients) and they did nothing in return, the lady told me she doesn't even know anyone from that magazine.
    I had asked them to either rectify the situation and deliver on some of the things they said they'd do or take the photos off of their website and facebook fan page. The reply I got in return was less then pleasant and the bottom line is that she refuses to take down my photos, claiming that it's shots of her interior design work that she'll not be able to retake as the place sold and removing the photos would be detracting from her portfolio. One important note; she told me my work was juvenile and amateur. She took my name away from the credits but forgot to photoshop out my signature on the bottom. As well, to top it off, I was threatened physically by her partner in the business; "I'll spilt your head open". I have all the RAW and edited masters, they only have emailed jpgs, as well I have all the emails from the very first contact with them right up to where she openly admits they are my photos but is refusing to take them down.
    From what I've been reading on copyright laws, I gathered that I am well within my right to tell her she cannot use the photos anymore regardless of any past permission I granted. She already stated that she'd see me in court before she took those photos down.
    What are my rights here? Can I take her to court and win? Really all I wanted was for them to stop using my photos but now after the vulgarities she blasted me with and the physical threats from her partner, I really want to sue big time!
    Do I have a leg to stand on is my ultimate question?
    Thank you to any and all that may be able to offer some advice on how to handle this, I would appreciate it greatly
    Regards,
    Eric
     
  2. Spearhead

    Spearhead Moderator Staff Member

    Find out who is hosting the site and send a DMCA takedown notice.
     
  3. There's a lot that your paperwork may or may not do to support your case. If you have any suggestion in writing that they have agreed to some degree of compensation to you that would certainly help. The fact that they're continuing to use the images implies that they see value in them, especially if you've asked for them to be removed. Your best option is probably to take them to small clams court for the value of the usage plus a generous amount for your trouble.
    Most US cities have Lawyers for the Arts organizations that provide free advice to people such as yourself. You'd do well to contact them, or a similar group for some advice. It'll always be more valuable than the advice of the jailhouse lawyers here - that includes me.
     
  4. Spearhead

    Spearhead Moderator Staff Member

    DMCA takedown will be much quicker. I've done it. ISPs don't want to deal with a lot of trouble, so they are quick to respond. Dealing with court is a major time sink for something that may not have much value. If it was Coca-Cola, it would be worth court, no question. But if the photos are worth that much to them, they will negotiate after the ISP gets a takedown notice and you won't have to deal with much more complex situations requiring your time and money.
    Physical threats should be reported to the police.
     
  5. ...one suggestion. Make up a CD with small images of all the photos in question, and spend the $45-something to register the images with the US Copyright Office.
    That makes for a more concise way to settle the issue if you end up in a lawyer-sponsored free-for-all....
     
  6. Thank you all for the advice, very much appreciated.
    Well, she made it a point to stress how successful she is and how I was a nothing. I'm feeling that a law suit is in order, if only to knock her off her high horse. Funny thing, I just read a posting from a past client of theirs and this lady went off on them as well when they complained about the poor work; I'm thinking she's got a few screws loose in the head.
    I will copyright all my photos (I hear it's 45 bucks for as many as you can fit on disc) and proceed with the lawsuit, I feel she deserves it as it is a clear case of the big guy picking on the little one. As you might have guessed I'm still new to the business side.
    Thanks again everyone!
     
  7. Another good example of why everything in business, even "scratch my back I'll scratch yours" type trades need to be spelled out in writing with a signed contract. EVERYTHING.
     
  8. Believe me, this taught me that lesson the hard way. I do have email correspondence that loosely defines the terms.
    What can I say, I was wet behind the ears, out of work and excited that an interior designer wanted to use my work. This will certainly not happen again!
     
  9. Believe me, this taught me that lesson the hard way. I do have email correspondence that loosely defines the terms.
    What can I say, I was wet behind the ears, out of work and excited that an interior designer wanted to use my work. This will certainly not happen again!​
    Don't feel bad, we've all been there. Some version of this happens to most every professional photographer at least once. Well, once if you are smart and learn from mistakes. More than once if you are not.
     
  10. In the eventual pissing match that may result in a court action it might be 'better' for you to be seen to be 'reasonable'.
    First - send a polite professional letter ordering them to remove your work from their website, clearly and objectively stating the reasons why they must do so. Give a reasonable time frame for this to occur. Point out that failure to do so will result in DMCA action followed by court action. Send by Recorded Delivery.
    Second - prepare ALL the DMCA stuff - for all the reasons Jeff Spirer has already noted - and if no response from the other side, send it off. Thats going to be their first real wake-up call - they will be confronted with both their ISP and Google demanding they remove the work or their site goes down the pan. This DMCA action involves some work on your part to get it right, but its worth it. (I've used it with great success and got action taken against an infinger within two weeks).
    Third - if they're not in contact trying to forestall the court action, or are being aggressive and threatening, keep records of communications, phone call recordings, etc and proceed with court action.
    Its important to be methodical, and to remain reasonable as all of this is going to be to your advantage.
    EDIT: the DMCA take down is based on you providing incontrovertible proof of ownership of copyright, and the infinger having to show full written/legal permission from you to use the work. Of course in the absence of such 'proof' the infringer has a problem. It may be the case legally (other more legally savvy commentators may wish to advise) that in any resulting legal action the fact they voluntarily removed the work on demand from their ISP, is a tacit admission of 'guilt' (if having no right to reproduce the work in this instance is a matter of 'guilt'). I'm being circumspect in my words here because there is a history to this, various he said/she said stuff, and probably lots of emails, all of which might muddy the water.
     
  11. Regarding the copyright registration, do know that copyrighting after the fact does not make them an infringer. There are rules about getting images copyrighted before publication in order to have full protection.
    Before you do anything else though, get some screen shots of the site that clearly show the URL and your images. Otherwise, once they're down you have no evidence they were ever up or how they were displayed.
     
  12. Speaking of sounding reasonable ... remember that Google already knows about this thread, and will never forget about it. References to loose screws, etc., can sometimes come back to haunt you. Always take the high road when it comes to how you describe an ongoing bit of friction like in a public forum. Always.
     
  13. Regarding the copyright registration, do know that copyrighting after the fact does not make them an infringer. There are rules about getting images copyrighted before publication in order to have full protection.​
    Your images have copyright protection the instant you create them. You cannot copyright something 'after the fact' as you put it.
    Registration is not the same thing as copyright (and is only really valid in the US).
     
  14. Eric -
    From what is presented - you had an agreement - or a "contract" just not a written one. The contract stated that you were to take photos for the client firm, provide them with an agreed upon number of files and prints - and in return - they were to promote you as the photographer - hopefully generating business from clients of their's who saw the photos and liked the work.
    Now they (Arch Firm) is saying that you are not good, hasn't held up their end of the deal, etc...
    I'd do as suggested with the take down request - and also call a lawyer to get a consultation. If there's money there - lawyers will find it.
    Copyright - as mentioned you own copyright as soon as you shoot. Registering copyright (in the US) is how you can get more money back for violations of the usage agreement.
    Now - back to your original question - What you have is called a "Breach of Contract" - the firm has effectively breached the contract by not following through on their part of the deal. Now you add to that the threat of physical violence and it gets really messy. Since the contract is in Breach - you have the right to tell the client firm to cease and decease until they make the contract whole again.
    Dave
     
  15. If you intend to use DCMA to enforce removal of your work due to unauthorized usage, you will most likely have to prove that your work was properly copyrighted (registered with US Copyright Office) before the infraction occurred. An ISP may not remove data on a accusation of copyright infringement alone, but this depends on the ISP itself as some are more responsive than others.
    As for removal of your images from Facebook, you may want to read through their TOS (terms of service) before attempting to evoke DCMA in removing your work, then fill out the form at http://www.facebook.com/legal/copyright.php?copyright_notice=1.
    In a lawsuit, you will need to provide documentation pertaining to the aforementioned copyright (e.g., date of copyright, date of submission for copyright, proof of copyright, etc.). However, under intellectual property law, the images are your property from the moment of their creation, even if the copyright was technically obtained after the infringement; all you would need to prove is that you created the images and that you did not grant permission for the infringer to use the aforementioned images in the manner they have chosen to do so (i.e., initial terms of usage in your emails with infringing party).
     
  16. This won't really help the original poster, but on the Facebook end of things, I can vouch that they are pretty quick to remove photos if you fill out the DMCA form. I've had a few of mine used by idiots to abuse the people in them. Within just a few days of notifying Facebook, the photos had disappeared from their profile. (They even complained in a status update about how quick FB snatched the photos down on them, lol.)
     
  17. You can submit the copyright registration request online instead of using a CD nowadays:
    http://www.copyright.gov/eco/
    I also would be careful not to say things like "if only to knock her off her high horse" since it can be used to indicate you're being "vindictive" rather than protecting your rights.
    I think the DCMA takedown suggested is brilliant as the generally evil DCMA act may as well be used for some good...
     
  18. PS: I really don't get people who use "Facebook" for professional means. I half of my connections are jokers who put up less than flattering things that I wouldn't want associated with my profile if I were running a business...
     
  19. Spearhead

    Spearhead Moderator Staff Member

    Re the PS - You're using Facebook in the wrong way for professional marketing, based on what you say. Also, I don't see where anyone here mentioned using Facebook for professional stuff, where did you see that?
     
  20. "I'll spilt your head open".
    I think this is a matter to discuss with the police.
     
  21. Well, Matt, you might not get using FB for professional stuff. But I'm living in London, and a lot of the folks I work with (young designers, dancers, grime artists and other musicians) use Facebook just like breathing. I've gotten loads of business from my FB page, as has my studio partner. He's 22, and I'd bet money that within 10 years, people are going to be looking at him like folks respect Nick Knight now. And Facebook is one of the best ways he's gotten out his work for people who might want to hire him (and have hired him--he's been working for some pretty major people since he was 18) to see his stuff...and to get to know him a bit before they work together.
    I think he would disagree with your assessment of the value of Facebook, and I'm pretty sure he's gonna be pulling down close to six figures by the time he's 30.
    I'm also doing some documentary work on the gay black club scene over here. In order to get in good with the punters so they'll show me their best when I'm about with the camera, I have a private page where I post the photos after a rave. While 99% of them love the shots, there's always a *X&$#**X&$#**X&$#**X&$#**X&$#**X&$#**X&$#**X&$#* or two who wants to get back at an ex or is jealous or something, and I've had to put the kibosh on them.
    If I weren't using Facebook professionally, I'd be moping about my tiny South London flat instead of working with some of the most interesting young creative people here. I guess maybe it depends on where you're at, innit?
     
  22. Wow, thank you all for the great advice! I'm going to proceed with a formal letter stating that the company no longer has permission to use my photos and give them 1 week to remove them from any and all websites as well as promotional material.
    I have been completely reasonable, the first email I sent was plain and simple but to the point. You could say it was a bit blunt but nothing rude or vulgar at all. The reply I got back wasn't as polite. If I were to post one of the emails this person sent I'd be thrown off this site so fast for the obscene language they used. Naturally I lost my cool and gave it right back to them but like the movie, they drew first blood.
    Funny thing is; the pictures they're using and refusing to take down were shot prior to ever knowing about this company. The architect who built the house let me take the photos for my portfolio. After I was done shooting I saw this company's literature and then contacted them regarding paid architectural shoots, the photos I had just taken were what got me in the door with them.
    As for the physical threat, I am really not concerned with that at all. Some guy trying to play tough to impress the ladies in the office isn't worth my time.
    I too use facebook for promoting my work and it's an invaluable tool for marketing; I actually made a few fine art print sales from it. One of the sale was to a competitor of the company I'm having issues with now and I know for a fact that the 2 don't get along. But facebook is wonderful for getting your work out there, of course I don't show my very best stuff there and I watermark everything I post to keep it as safe as I can.
    Thank you all so very much for your time, information and understanding; I really do appreciate it! Now I at least have an idea on how to go about handling this problem.
    Eric
     
  23. If you've started your photography business recently then my advice (even as a non-pro) would be to stay well clear of anything that might lead to protracted hassles and aggravation. Nothing does that more than a lawsuit - even if you're entirely on the side that is and has been acting within its rights and obligations. Turning your initial efforts, excitement and hard work into a profitable business will most likely require all your skills and attention for quite a while to come. Not just to see your business take off, but also to keep it going in the longer term on a sound financial and motivational footing.
    Unfortunately & no doubt there will be plenty more high-horsey people to deal with in the future, both customers and flaky or untrustworthy partners/collaborators in mutual promotions etc. So better to think of this as a self-training exercise in effective "pest management" at minimal cost to yourself and your business, chalk it up to experience, and aim for a cool and professional response from beginning to end in similar future cases, rather than getting stung or drained by rudeness and potentially descending to their level. All of which I realize from personal experience (even as a non-pro) is much easier to say but hard to do in practice!
    And of course you should most definitely inform all relevant persons and businesses in writing to cease and desist from unauthorized use of any and all material you produced.
     
  24. My take on this: A lawsuit just to knock her off her high horse is a waste of time. Only do it to recoup lost revenue, and do so wisely. If you gave permission to use the images at some point, whatever the agreement, the burden of proof may be upon you to demonstrate that she did not meet her obligations. If you ask the ISP to remove these images, she may be able to sue you.
     
  25. I honestly never wanted to pursue legal action, I merely wanted them to deliver on what they said they'd do in return for the photos and if they had no plans of hooking me up I wanted the pictures taken down. When I had asked them to stop using them due to the fact that I received nothing out of it is when it got ugly. The owner of the business said the only way she'd take the photos down is by going to court. My thought is to send them a professional, to the point letter telling them that permission to use my work has been revoked and they have 30 days to remove them from their site; which would give her plenty of time to have another photographer go shoot the condo again so her portfolio isn't diminished in any way shape or form. To me, that sounds fair. If they don't comply I would follow through with asking facebook to remove the images due to copyright infringement and see her in court if it comes to that.
    I would hate to think that they would get away with it and they continue to use my work without crediting me for it, something about that isn't right and doesn't sit well with me at all.
     
  26. PS. I have an email from her stating that neither she nor any of her staff is to promote me or my work in any way shape or form. The email also goes on to state she'd take my name away from the credits but still leave the photos in place. The exact quote was: "I'm not removing shots of my best work just because you took some pictures". So right there I have her admitting that the work is mine, that she's taking my credit away and that she's no longer promoting my work which was part of the verbal agreement.
     
  27. Spearhead

    Spearhead Moderator Staff Member

    The owner of the business said the only way she'd take the photos down is by going to court​
    You're not paying attention. I said it in the first response. DMCA takedown notice. It doesn't go to the site, it goes to the host (actually to their DMCA agent). Most hosts are immediate in their response to takedown notices. Instead of spending all this time on back and forth here, if your objective is to get the photos down now, go read up on DMCA takedown. You don't need a lawyer.
     
  28. I have been paying attention but I keep getting different replies. Did you see the post above mine saying I could get sued for having the photos taken down via DMCA?
     
  29. Spearhead

    Spearhead Moderator Staff Member

    How? All they can do is file a counter-claim on the DMCA. You can only get sued for deliberate fraudulent filing of the claim and it's obvious that isn't the case here.
     
  30. Alrighty then, looks like I'll get the ball rolling on the DMCA take down notice and see what happens with that. Thanks again for the advice and tips!
     
  31. Ok, the take down notice was sent and the pictures have been removed. Just waiting for the blow back because I know I haven't heard the the last of them, but I'll deal with that if (or when) it comes up.
    Thank you to everybody for all the helpful advice, I appreciate your time and assistance greatly!
    Eric
     

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