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


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<p>hi,<br>

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).<br>

it came out to my attention that he is using the images outside the release - with a commercial purpose.<br>

one of the images is used in his book as a author shot on his book that is sold in Barnes and Nobles.<br>

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.</p>

<p>i have not received an email note or anything about this. everything has been out there for at least a year.<br>

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?<br>

i am pretty pissed as you can imagine. this is a lot of money that could be in my pocket.</p>

<p>please help me, how to get money from him? I figure i should have a lawyer contact him.<br>

how much money can i sue him for?<br>

please help.</p>

<p>thank you</p>

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<p>Get all of your documentation together - including releases, contracts, etc... </p>

<p>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. </p>

<p>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. </p>

<p>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. </p>

<p>How much? That's up to you. </p>

<p>Dave</p>

 

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<p>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.</p>

<p>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.</p>

<p>perhaps consider taking him/her to The People's Court or Judge Judy... he/she could use the free exposure.</p>

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<p>thanx David,<br /> yes I am in US. my images are all copyright.<br /> 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!.<br /> i simply don't understand and want to learn him the lesson. <br /> what an idiot!</p>

<p>sorry.. I know I am mad. that is why I want my lawyer to handle it.</p>

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<p>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.<br>

Not a great starting point for a suit.</p>

<p><Chas></p>

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<p>Please check out http://thecopyrightzone.com/ for real advice. </p>

<p>But in the meantime...</p>

<p>1) Register your copyrights. Do that now. if you don't register your copyright you don't have much legal leverage.<br>

Copyright registration instructions can be found at http://www.editorialphoto.com/copyright/</p>

<p><em>2) 'i want to know how much i can sue him for? i mean if it is worth it"</em><br>

<em><br /></em><br>

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. <br>

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.<br>

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. </p>

<blockquote>

<p><em>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.</em><br>

<em>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.</em><br>

<em><br /></em></p>

</blockquote>

<p>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. <br>

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. </p>

<p> </p>

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<p>Steve - </p>

<p>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. </p>

<p>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.<br>

<br />Dave</p>

 

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<p>"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. <br />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."</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

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<p>"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.</p>

<p>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.</p>

<p>And the best place for legal advice is with a lawyer that has experience in the entertainment business.</p>

<p>Good luck!</p>

 

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<blockquote>

<p>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.</p>

</blockquote>

<p>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.</p>

<p>there is also: <br>

http://pdnpulse.com/2010/09/hachette-loses-round-in-copyright-case.html<br>

http://pdnpulse.com/2010/09/photographer-wins-129k-against-pornographer.html<br>

http://www.pdnonline.com/pdn/news/After-Flouting-Print-1163.shtml<br>

justto name a few.<br>

and as I suggested before check out<br>

http://thecopyrightzone.com/</p>

 

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<blockquote>

<p>"Copyright" does not exist automatically.</p>

</blockquote>

<p>Yes, it does as soon the image is created.</p>

<blockquote>

<p>You have to apply for and register your copyright.</p>

</blockquote>

<p>No. You don't. Although it is needed for for infringement actions and certain remedies and is helpful as evidence.</p>

<blockquote>

<p>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.</p>

</blockquote>

<p>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.</p>

<p> </p>

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<p>Ellis,</p>

<p>Yes... people have won copyright infringement lawsuits before. That was never a question. I'm a bit perplexed what your point is.</p>

<p>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"</p>

<p>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.</p>

<p>Perhaps the copyright law provides for punitive damages... you seem to know more than me; does it?</p>

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<p>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.</p>
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<p>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. </p>

<p>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.<br>

@ Brian, I apologize for mischaracterizing your words. <br>

@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. </p>

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<blockquote>

<p>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.</p>

</blockquote>

<p>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.</p>

<blockquote>

<p>No. You don't. Although it is needed for for infringement actions and certain remedies and is helpful as evidence.</p>

</blockquote>

<p>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.</p>

<p> </p>

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<blockquote>

<p>I don't know why registration should make any difference as the crime is the same, registered or not</p>

</blockquote>

<p>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.</p>

<p>However you have not contacted them to present your position and, until you do, you haven't even got a civil dispute.</p>

<p>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.</p>

<p>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.</p>

<p> </p>

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<blockquote>

<p>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.</p>

</blockquote>

<p>Registration <em>is </em>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. <br>

if you are friends with any attorney , especially one who specializes in intellectual property law (copyrights, patents, trademarks, etc.) , ask them. </p>

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