how to sue a client for using images without a permission?

Discussion in 'Business of Photography' started by thomas_jansson, Dec 30, 2010.

  1. hi,
    i have shot and indie hip hop artist recently. he signed a model release that said that he only can use the images for online social networks ( i have charged him barely anything for it).
    it came out to my attention that he is using the images outside the release - with a commercial purpose.
    one of the images is used in his book as a author shot on his book that is sold in Barnes and Nobles.
    the other two image are used as a single covers for two tracks ( both sold on itunes) as i know both tracks ft. famous singers/rappers.
    i have not received an email note or anything about this. everything has been out there for at least a year.
    his is dropping his album in the next couple of weeks and I am assuming that he might be using one of my images inside( or even on a cover), should i wait and see?
    i am pretty pissed as you can imagine. this is a lot of money that could be in my pocket.
    please help me, how to get money from him? I figure i should have a lawyer contact him.
    how much money can i sue him for?
    please help.
    thank you
     
  2. send him a bill for the usage . . .
     
  3. hi Tony,
    thanks.
    my thing is that i want to teach him a lesson too. He is a total douc.... bag and he does not treat other artist with respect.
    how much do you think i can bill him for? and how much can I sue him for?
    thanx
     
  4. Get all of your documentation together - including releases, contracts, etc...
    Review it - You indicate he signed a release stating that he can use images for x, y and z but not a, b and c - typically a release is not something used for that purpose - a release says that the photographer or agency can use a photo in a certain way - What you would be referring to is a contract or licensing agreement.
    As for how much - 1st thing to do - assuming you are in the US - register your copyrights - that will increase any monetary damages to you.
    Next find a lawyer - most will give you an initial consult - my guess is that most will ask if you tried to contact the client and if you have sent him any bills or invoices. I would recommend that you print copies of any communications you have had with the client.
    How much? That's up to you.
    Dave
     
  5. the first thing you might want to do is drop the 'tude about your client. calling him/her names will eventually translate into a weaker bargaining position for you. secont thing would be to bill him/her for the usage that you know about and with that deliver a "cease-and-dessist" for further usage until payment per your billing schedule is fulfilled. each time you'll want to work a separate usage agreement.
    as far as "compensatory damages"... you might want to give up on those thoughts. it doesn't seem that anything more than your pride and temper has been damaged.
    perhaps consider taking him/her to The People's Court or Judge Judy... he/she could use the free exposure.
     
  6. thanx David,
    yes I am in US. my images are all copyright.
    i want to know how much i can sue him for? i mean if it is worth it. i charge $3500 for album covers and $1500 for author photos. can i sue him for more then $10k. i know that the latest photo shoot that he payed for ( and obviously he didn't like the images because he used mines) cost him $25K!.
    i simply don't understand and want to learn him the lesson.
    what an idiot!
    sorry.. I know I am mad. that is why I want my lawyer to handle it.
     
  7. Brian, sorry.. I know I don't have a temper.I just don't understand artist using other artists.
     
  8. As far as the amount is concerned, just work out what you would have charged if you had known what the use was going to be then perhaps add 50%.
     
  9. thomas, remember that anything, and everything, you say on PN will be available to your client, and his attorneys. All they have to do is Google your name and there you are, calling the client names, copping an attitude, and making derogatory statements.
    Not a great starting point for a suit.
    <Chas>
     
  10. Please check out http://thecopyrightzone.com/ for real advice.
    But in the meantime...
    1) Register your copyrights. Do that now. if you don't register your copyright you don't have much legal leverage.
    Copyright registration instructions can be found at http://www.editorialphoto.com/copyright/
    2) 'i want to know how much i can sue him for? i mean if it is worth it"


    You have no idea how much it is worth becasue you don't know every way the photo has been used, what size the first print run on the book was, what kind of publicity campaign was mounted, etc., how many of the singles have been sold, etc. Maybe it is up on a billboard in Los Angeles, Tokyo, New York City, Atlanta, etc. Maybe it has used on TV to hype his appearances.
    You, or rather your attorney (there are a couple of people I can recommend who specialize in copyright infringement) , find this out in the discovery phase when you file an infringement suit. Usage determines damages.
    Ideally this won't go to trial but you and your attorney and he, his publisher, and his record label and management team's legal teams will settle before trial.
    second thing would be to bill him/her for the usage that you know about and with that deliver a "cease-and-dessist" for further usage until payment per your billing schedule is fulfilled. each time you'll want to work a separate usage agreement.
    as far as "compensatory damages"... you might want to give up on those thoughts. it doesn't seem that anything more than your pride and temper has been damaged.
    Sorry Brian but that is just such bad advice all the way around. Take the personal aspect out of it and you'll see that this is several business entities unfairly enriching themselves at the expense of a much smaller one.
    It is a perpetual mystery to me as to why some photographers think they have to automatically roll over and slit there own belly open for the unscrupulous to feast on.
     
  11. Register your copyrights. Do that now. if you don't register your copyright you don't have much legal leverage.​
    That is only true in the U.S. I don't know why registration should make any difference as the crime is the same, registered or not.
     
  12. Steve -
    Registration makes all the difference in the world (or at least in the U.S.) - In the court's view - if you've registered you have value there. If you haven't registered - the value / recovery amounts go down significantly.
    Does it make it any more or less of a violation? No, but it does help both from a proof of ownership and monetary stand.

    Dave
     
  13. "Sorry Brian but that is just such bad advice all the way around. Take the personal aspect out of it and you'll see that this is several business entities unfairly enriching themselves at the expense of a much smaller one.
    It is a perpetual mystery to me as to why some photographers think they have to automatically roll over and slit there own belly open for the unscrupulous to feast on."
    Maybe, Ellis... but this is my experience. I don't believe I ever suggested that he "automatically roll over and slit there own belly open for the unscrupulous to feast on"... although that is such a dramatic statement that it made me go back and re-read what I wrote.
    I read a lot of "chest beating" on the internet about people wanting compensation beyond economic recovery but never hear of anyone really succeeding. What I suggested is my understanding of legal "damages" based on my experiences and consultation with attorneys in simialar situations. I think the principle is to be "made whole"... which for the OP is to get paid for the usage of the imagery.
    I'd be very interested in some bonifide stories of successful lawsuits for damages like hurt feelings or "photographer abuse", or even comment from a real lawyer indicating that that is possible.
    Good luck (and I mean that sincerely) to the OP in whatever you choose to do and whatever you are able to recover. You should not automatically roll over and slit your own belly open for the unscrupulous to feast on.
     
  14. "yes I am in US. my images are all copyright." You - promptly - need to get the $45.00 fee and a CD with your images on it to the U.S. Copyright office.
    And, for the moment, you have learned a life-time lesson in business. Do not release a image without a contract to a "professional" person: singer, trumpet player, basket ball pro, etc. Without a paper contract, that may be a key to any future legal issue: it becomes a battle of "he said," and "no, he didnt say" issues.
    And the best place for legal advice is with a lawyer that has experience in the entertainment business.
    Good luck!
     
  15. For got sake product in store with your image -go and prove,before we all concider your frend from same brotherhood,-yes he was!.....?
     
  16. This is really not the place to be asking for advice on how to handle this. You really need to consult with an attorney.
     
  17. I'd be very interested in some bonifide stories of successful lawsuits for damages like hurt feelings or "photographer abuse", or even comment from a real lawyer indicating that that is possible.​
    Contact Jack Resnicki, Scott Bourne, and Jay Maisel about their success in doing so. There is also the guy who took the high school yearbook photo of the guy that Britney Spears was married to briefly as well. I've also had good success the few times I've had to do this as well.
    there is also:
    http://pdnpulse.com/2010/09/hachette-loses-round-in-copyright-case.html
    http://pdnpulse.com/2010/09/photographer-wins-129k-against-pornographer.html
    http://www.pdnonline.com/pdn/news/After-Flouting-Print-1163.shtml
    justto name a few.
    and as I suggested before check out
    http://thecopyrightzone.com/
     
  18. "Copyright" does not exist automatically.​
    Yes, it does as soon the image is created.
    You have to apply for and register your copyright.​
    No. You don't. Although it is needed for for infringement actions and certain remedies and is helpful as evidence.
    It has to be proved that the images are legally yours only. In your case it will now be difficult as the images are in the public domain.​
    While post publication registration is not ideal, its not THAT difficult in an isoltaed matter like this unless materials, digital data, documents (including contracts) and other indicia of the shoot are not available. This is probably one of the easiest parts.
     
  19. Ellis,
    Yes... people have won copyright infringement lawsuits before. That was never a question. I'm a bit perplexed what your point is.
    From one of your citations (the first one): "At the same time, though, the lower court limited Latimer to actual damages on any claims he wins"
    What were the "actual damages"? I've been told that the actual damages are the usage fees not paid (plus court costs). This wouldn't include "hurt feelings and bruised pride" or "revenge for being wronged". That's all I said might not be compensatable.
    Perhaps the copyright law provides for punitive damages... you seem to know more than me; does it?
     
  20. There may be something to be said for having one's contract treat unauthorized uses or transfers of associated images to be treated as a breach of contract along with having contract based remedies. This way a complicated, long winded, expensive federal court infringement claim can be bypassed in favor of a state breach of contract action which can be brought in state court including small claims.
     
  21. I think the OP needs an attorney to deal with the matter because right now his emotions are so strong he doesn't even know the right language much less the right legal language to describe what needs to happen -- which is that he should be compensated fairly for the value of his work. I guarantee that who ever he is talking about, the book publisher, and his record label are already well "lawyered up" for contingencies like this.
    I'm am just trying to help the OP and others who might stumble on this thread out wit hsome practica ladvice from the trenches.
    @ Brian, I apologize for mischaracterizing your words.
    @Johannes, Copyright and other intellectual property differ from country to country. In the USA the copyright (ownership) of a creative work is established at the instant of its creation. Unless you negotiate the transfer of to another person or entity, the creator of the work owns it.
     
  22. No problem, Ellis... I enjoy conversation. :)
     
  23. Registration makes all the difference in the world (or at least in the U.S.) - In the court's view - if you've registered you have value there. If you haven't registered - the value / recovery amounts go down significantly.​
    That's what I keep reading about but I don't see why it should matter. If you can prove the images are yours, registration should be irrelevant.
    No. You don't. Although it is needed for for infringement actions and certain remedies and is helpful as evidence.​
    Why is it needed? I can appreciate that it may be of assistance to prove ownership but it shouldn't be used to determine the seriousness of the infringement and therefore, the level of damages.
     
  24. I don't know why registration should make any difference as the crime is the same, registered or not​
    There isn't a crime here, no law has been broken. This is simply your interpretation of an action by another person as a breach of a contract. Civil law ( Law of Tort ), not Criminal.
    However you have not contacted them to present your position and, until you do, you haven't even got a civil dispute.
    For all you know this is a simple misunderstanding and either they'll be fine paying you or ( and you should be prepared for this ) you have no right to a claim. You may find all you have the right to is a credit for the photo, maybe not even that.
    You need legal advice from a professional, not guesswork from people whose training consists of semi-regular Judge Judy and Law and Order episodes. A lawyer will expect you to have first contacted them, formally and without wild talk of theft or similar.
     
  25. That's what I keep reading about but I don't see why it should matter. If you can prove the images are yours, registration should be irrelevant.​
    Registration is one of the ways you prove that you own it. You it for the same reason you also register deeds on real property as well as on other forms of intellectual property. It takes that part of the dispute out of the "I say vs. you say" stage. It formalizes your ownership to the property in question.
    if you are friends with any attorney , especially one who specializes in intellectual property law (copyrights, patents, trademarks, etc.) , ask them.
     
  26. The copyright laws and a variety of explanatory fact sheets, brochures, etc., are available at the Copyright Office website for the US. It's really worth spending some time going over the material. It includes the issues of registration, what registration does when it comes to establishing "damages," including the impact of timely registration and the need to register to pursue a copyright infringement action.
    http://www.copyright.gov/
     
  27. Steve Smith wrote:
    That's what I keep reading about but I don't see why [copyright registration] should matter. If you can prove the images are yours, registration should be irrelevant. ... Why is it needed? I can appreciate that it may be of assistance to prove ownership but it shouldn't be used to determine the seriousness of the infringement and therefore, the level of damages.​
    Steve, you're arguing an opinion about what copyright law ought to be; John is simply explaining what the law actually is in the US. In the US, copyright exists from the moment of creation of the original work, and a copyright holder may take certain steps against infringers on that basis. But for some actions and for certain desirable kinds of damages, US copyright law requires federal registration as a prerequisite. Whether you or I agree that this is how the law should be isn't germane to this thread.
    John's point about including consequences and damages for unauthorized use in the original license agreement is a very good lesson for readers of this thread.
     
  28. Just putting the little "circle c" on your images is meaingless.​
    Statutory damages, where available, will be substantially higher if an infringement is willful. A copyright symbol present makes it more difficult for the infringer to claim they had no knowledge that the image was copyrighted.
     
  29. Steve, you're arguing an opinion about what copyright law ought to be​
    Guilty as charged! I am in the U.K. where registration is not part of the legal process of copyright for images so it seems strange to me that the U.S. needs it.
    A copyright symbol present makes it more difficult for the infringer to claim they had no knowledge that the image was copyrighted.​
    Again my U.K. perspective does not agree with this. Ignorantia juris non excusat (ignorance of the law is no excuse).
     
  30. Call Amy Dunn in Houston , she is a lawyer and photographer with experence in this field. This is her blog.
    http://www.amydunn.com/blog/
    Jim
     
  31. This is simply your interpretation of an action by another person as a breach of a contract. Civil law ( Law of Tort ), not Criminal.​
    Some infringing is criminal. As to breach of contract, it is not part of the "Law of Tort". I agree with the rest of the post that there may be some premature posturing here.
    As to contract breach here, it may seem so at first blush but, is it really without specifically and expressly making it one in a contract? If I have a contract allowing someone to take ten barrels of widgets from my depot and they take forty or rent a car and they drive off with two or three is that a material breach or is that beyond the scope of the contract with the wrong being potentially a tort and/or criminal matter? If a contract is about a payment for permission to do something concerning the intangible (i.e. having a license for a certain kind or amount of uses of an image) does that really change anything about a whether there is a breach? There is the special infringement remedy on copyrighted material that can be sought after all.
    Consider a contract for use of an image for 500 posters with a fee of $3000.00. The fee is paid. 500 posters are printed. Contract fulfilled. Then one day the image appears on magazine covers because the other party decided to use them for that purpose without a new arrangement. Do you rush to say "breach of contract" or do you recognize it is beyond the scope like someone scarfing forty barrels and driving off with extra cars? If the latter, you are stuck with the complex federal infringement action. If the former, with the easier state court access, do you want to face the argument that the license limits were merely what the contract was about and that it was fulfilled and that the case should be dismissed because the remedy, if any, has to be brought in federal court with registration requirements and so on? If it is made express in the contract that exceeding uses are a material breach and there is a contract based remedy, can there really be any question a breach of contract action is viable? (One need not waive the infringement remedy but if the contract has liquidated damages for unauthorized uses, that may impact damages in federal court)
    I will research this interesting topic further.
    Throwing a curve ball in to this issue is how one goes about inserting contract breach and contract consequences in a contract without scaring off clients? Avoiding draconian terms that may spook a client while not low balling the cost if they exceed the usage allowed which could even encourage exceeding uses? Assuming that can be done, how to set up a remedy for a wide range of potential exceeding uses? A dollar amount for a certain amount or kind of uses that scales down after so many uses? Businesswise, what is realistic and workable?
    Thoughts?
     
  32. "A lawyer will expect you to have first contacted them, formally and without wild talk of theft or similar."
    For a little bit of money a lawyer will make that first contact for a client. In my experience that has been a successful method of dealing with a situation in which one expects a less-than-cordial discussion.
     
  33. registration is not part of the legal process of copyright for images so it seems strange to me that the U.S. needs it​
    You don't need it. But you if you do register, you've expanded your options when someone infringes.
    ignorance of the law is no excuse​
    Marking an image with a copyright symbol isn't meant to fend off arguments that the infringer was ignorant of the law, but to fend off arguments that people aware of copyright law thought that perhaps the image they were using was somehow public domain or otherwise free of ccopyright protection.
     
  34. i charge $3500 for album covers and $1500 for author photos.​
    Next time stick to that instead of screwing around with hip hop artists. Either charge your rate or donate and walk away.
    I've said it before and I'll say it again, back end deals are rarely worth the paper they are written on. Get paid to shoot. If and when an image goes viral beyond expectation chalk it up as free advertising.
    Oh, and model releases are for models and are not valid substitutes for employment contracts- especially when it is the photographer being employed. I'd expect someone charging 3500$ US for a single shot to have a better grasp .
     
  35. Dennis, his wording may have been wonky. Taking his statements at face value, the artist signed off that he would not use the images for anything other than social media. Now I don't know the exact legal wording (and I honestly couldn't tell you how valid it was if I did), but at least that part is in writing. There may not be an actual copyright infringment, but there is most definitely a breech of contract; that much I know.
    The OP also didn't mention whether or not he was credited for these images; that also comes into play when determining whether it was breech (breach?) of contract or infringement.
    Yes, you can sue him for money. Yes, you will probably win. Only a lawyer can tell you if you can win enough to make it worth doing though. My guess is that unless this image was used in national publications AND you have records of at least one instance where yoiu tried to contact him and tell him to stop using the images, then you won't be able to make enough to justify taking him to court.
    Then again, if the images are registered you could always sue him under intellectual property laws. You won't get nearly as much money, but he'll still have to pay a fine, even if it is to a patent office.
    Seriously. Get a lawyer on Monday.
     
  36. the artist signed off that he would not use the images for anything other than social media. Now I don't know the exact legal wording... ...There may not be an actual copyright infringment, but there is most definitely a breech of contract; that much I know.​
    Actually its the opposite according to the story. See the posts above. Unauthorized use of one's image is automatically infringement absent fair use ect. Merely discussing, in a contract governed by different state's laws, what is covered in the contract doesn't automatically mean other activities are a breach if it not expressly made a breach. Especially when one does not know the "legal wording" involved.
    The OP also didn't mention whether or not he was credited for these images; that also comes into play when determining whether it was breech (breach?) of contract or infringement.​
    As to a breach of contract, it only matters if credit was a material term to be performed in a the contract. As to infringement, it is either an infringement or it is not whether or not credit is given.
     
  37. if the images are registered you could always sue him under intellectual property laws. You won't get nearly as much money​
    If they were registered, that triggers statutory damages which is the holy grail for recovering "much money" so its the actual opposite of what is said above. Particularly if it can be shown if it was a willful infringement. Its a factor in determining whether pursuing an infringement matter is desirable or practical.
     
  38. As for registration of a Copyright consider this.
    Basically, if you begin any infringement action before registering your Copyright you will have un-leashed a very mean but toothless dog, he will be all bark and no bite.
    Registration is easy (on-line e-file) and very inexpensive.
    Nothing gets the attention of the other side’s legal department faster then including the USCO registration number of your Copyright within your claim.
    Wayne
     
  39. Speaking as someone from a country which does not have a registration system, I can understand its value in determining ownership of an image but I fail to see how it can have any bearing on the amount of damages awarded.
    If you can prove ownership in another way e.g. you have the negative or the original file from which the disputed image is cropped from perhaps, then an infringement is an infringement and its seriousness is nothing to do with it being registered or not.
     
  40. Speaking as someone from a country which does not have a registration system, I can understand its value in determining ownership of an image but I fail to see how it can have any bearing on the amount of damages awarded.
    Because failing to timely register a Copyright limits the amount one can collect and in most cases that amount is well below what it would cost to bring an action against the infringer, therefore the dog can bark but it cannot bite.
    Wayne
     
  41. Because failing to timely register a Copyright limits the amount one can collect​
    I know it does. I don't understand why it does.
     
  42. Steve Smith wrote:
    Speaking as someone from a country which does not have a registration system, ... I fail to see how it can have any bearing on the amount of damages awarded. .... an infringement is an infringement and its seriousness is nothing to do with it being registered or not.​
    Steve, in the US, you could receive actual damages, which if I'm not mistaken (and John will correct me if I am) can be related to your standard billing rates and the profits you can prove the infringer made, and these are what you are probably talking about.
    But in the US, you can ALSO, as a separate matter, receive statutory damages which are damage amounts established by statute primarily for the purpose of simply deterring copyright infringement. These are entirely unrelated to the magnitude of your actual injury. These amounts typically vastly exceed actuals, and are what make a lawsuit possibly worthwhile. One prerequisite for seeking these statutory damages is registration.
     
  43. One prerequisite for seeking these statutory damages is registration.​
    So if someone who has a Flickr account and posts images to it who doesn't know anything about copyright or registration finds that a company has downloaded a picture and used it in some sort of advertising, cannot get statutory damages even though they can prove ownership?
    But again, I know that is the case but I don't know why.
     
  44. They can do substantially what they could do in the UK, but they can't get the additional damages made available by statute to those who register.
    Not having played a part in the design of that statute, I can't tell you all the reasons why Congress established the rules they established, but I imagine one reason for that structure is to steer those types of damages, which can be truly huge, toward major infringement cases, rather than to one-off infringers. Nevertheless, as in most other areas of the law, knowledge of one's rights and how to secure them is valuable, and in this matter can be worth hundreds of thousands of dollars.
     
  45. Not having played a part in the design of that statute, I can't tell you all the reasons why Congress established the rules they established, but I imagine one reason for that structure is to steer those types of damages, which can be truly huge, toward major infringement cases, rather than to one-off infringers.
    I think the truth lies somewhere between your answer and mine. ;-)
    The laws where written by attorneys who decided if one doesn’t want to cut the Government into a piece of the action then they can take their “rights” and…
    Wayne
     
  46. Wayne, I don't understand your point, exactly. If your comment refers to the filing fee for registration, it is a nominal fee and doesn't support a cynical view of the process. If the fee were a few hundred dollars, I might agree, but I doubt registration fees fully cover actual operating expenditures of the Copyright Office, or if they do, they do so only barely.
    I am cynical about the absurdly long duration of modern copyright, which is heavily influenced by lobbyists (particularly by Disney) and is absurdly long. But I don't think the government "cut of the action" in registration is of any significance under the current structure.
     
  47. Why is everyone even bothering to answer this post? ( Like me) LOL The OP's post doesn't add up. How does someone who charges what they say they charge have so little Business, copyright sense? I very much doubt they are paying the money to register their images when they have no idea about the law on it.
    It's mostly been covered except to say that to pursue this for anything above industry standard usage fees (statutory damages) means federal court and the expenses involved with that. AND winning isn't the same as collecting.
     
  48. I am cynical about the absurdly long duration of modern copyright, which is heavily influenced by lobbyists (particularly by Disney) and is absurdly long.​
    Which will probably get longer when Mickey Mouse approaches his out of copyright time.... again.
    http://www.wired.com/politics/law/news/1999/01/17327
     
  49. As stated by David Phipps AND winning isn't the same as collecting.
    So very true, in many cases a judgement is only worth the paper it is written on or as the old saying goes, you can't get blood from a turnip.
    Wayne
     
  50. << I am cynical about the absurdly long duration of modern copyright, which is heavily influenced by lobbyists (particularly by Disney) and is absurdly long.>>
    Spoken like someone who hasn't spent a lifetime building up stock images so they can retire comfortably and their family and heirs can benefit from all their hard work.
    (I fall into that category with you but still see why it's fair)
     
  51. Spoken like someone who hasn't spent a lifetime building up stock images so they can retire comfortably and their family and heirs can benefit from all their hard work.​
    ...or like an intellectual property lawyer who understands full well the hard work involved in amassing a stock image catalog and appreciates its significance and value, but who also places value on works entering the public domain after a suitable duration of exclusivity to the author, which I judge to be shorter than a human lifetime, rather than considerably longer.
    Perhaps our difference of opinion comes not from your knowledge versus my ignorance, but simply from the fact that I place a higher value on works entering public domain after a couple of decades than you do.
     
  52. Stock photos are hardly the same as the "brand" and business that all started with a mouse. However, instead of complaining that you can't make and sell your own Mickey stickers to sell at the swap meet, there's nothing in the laws to preclude anyone from releasing their own intellectual property to the competition at any point in time.
    Photographers, for the most part would be better off trying to gain support for a "small claims" copyright infringement resolution instead of seemingly wanting to leech off other's success.
     
  53. Thomas,
    You want to "teach him a lesson"? I think a small part of you is regretting that you didn't charge him appropriately to begin with. While you may have a case here, you're going to need an attorney who believes so as well. Lawsuits are NEVER a sure thing. Good luck.
     

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