Image of mine used without permission in mass email

<p>Hi all,<br>

New to this forum. Looks like a good location with active members. Glad to be here.<br>

I just ran into an interesting situation. I received a spam mass-email from a very high-end company in Scotland that owns and manages several castles. These castles are used for corporate events and the cost for a week is upwards of a half-million dollars to their clients.<br>

Anyway, the header image in the email was one that I had shot at Ackergill Castle in 2008 when I was brought along with a family for a (very expensive) family reunion.<br>

FYI: In 2008, Ackergill was owned privately by a family, and they were hosting exclusive-use corporate and family clients. In 2011 they sold the castle to a company that was buying up all the castles in the area.<br>

During the trip (in 2008), I was asked by the castle management if they could do a cute thing and print a few of my images (I had been shooting of the family) on the dinner place settings at the fancy-pants dinner table for the family. I provided them with images for the menus.<br>

The images that I had provided were apparently not deleted from the computers and when the large company took over the castle management in 2011, they found these images and used one of them this week in the mass-email.<br>

There are no documents or agreements that I had with the original owners of Ackergill, I had not granted permission for any use other than in the dinner place-settings that were specific to the family I was with.<br>

I believe that the usage of my image in the mass email was a mistake that occurred with the changing of management at Ackergill, but I think I should be compensated by the new management for infringement.<br>

What are your thoughts? How much could I charge for something like this?</p>

 

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<p>"There are no documents or agreements that I had with the original owners... ...I believe that the usage of my image in the mass email was a mistake that occurred with the changing of management at Ackergill, but I think I should be compensated by the new management for infringement."<br /></p>

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<p><br />You might be technically entitled to compensation but considering that there is no documentation and you believe it is mere error rather than intentional misuse and no apparent loss to you, I'm not sure the claim is worthy of pursuing. Wouldn't you rather notify them that future use requires permission and compensation instead?</p>

<p>In 2008, were you there as part of the family? Or were you there shooting these photos as a professional assignment. And, if so, who was your client? <br />If you were there shooting profesionally, I think you are in a reasonable position to send a letter saying these photos came from a job you shot there, how they came into possession of the castle and what you would have charged for the current usage. And ask for payment in that amount. Also point out that any future usage would require payment and the amount per use. No guarantee you'll get anything, and if they refuse there's probably not enough money at stake to make it worth pursuing. But you never know -- they might write you a check to make the "problem" go away. In either case, they would then be on notice that this is not a "found" image they can use for free, and you would be in a better position to demand payment if it is used again in the future.<br /><br /><br /></p>

<p>Hi guys, thanks for replying.<br>

I was a hired pro photographer (by the family) and the family brought me with them. The castle management knew that I was the photographer and made special accommodations for me and my work.<br>

I called the new owners of the castle today and made a request for compensation. They are discussing the terms that I set for them and will call me back. They seemed quite amicable and eager to set things right, so I guess we will see how it goes. It works in my favor that I am thought of as extended family with my client... the castle management does not want to have bad blood with a family that spends a half million dollars every two years.<br>

Maybe I'll get lucky on this. Thanks again for your input.</p>

I guess a half a mil gets you the leverage to make them pay for the innocent mistake.

<p>Don't know about over there but here stealing is not an "innocent mistake," Send them a bill. Make sure the big shots see it. That may awake some small bit of honesty there is in their corporate makeup -- if there is any. I don't use my neighbor's water when he is out of town or steal pies off his windowsill when they are cooling.</p>

<p>I actually do think they made a mistake, but that is irrelevant. They sent my photo out in a "for-profit" advertisement to around 75,000 people. They are getting a bill.<br>

We actually had a very amicable conversation. He asked me how old the photo was (in regard to how much I want to be compensated) to which I asked him how old the castles were. heh...</p>

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<p>"stealing is not an "innocent mistake," Send them a bill. Make sure the big shots see it. That may awake some small bit of honesty there is in their corporate makeup -- if there is any. I don't use my neighbor's water when he is out of town or steal pies off his windowsill when they are cooling."</p>

 

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<p>That's all wonderful but, if you read Matthews comments with a bit more care, you would realize that the use had nothing to do with dishonesty or any other ill intent. Matthew finds that "irrelevant" which is his choice. Whether the family members would feel the same way knowing their patronage is used a leverage against a party with innocent intentions may be a different story. Especially considering he suffered no loss, was hired by the family and didn't bother to make even a modicum of a contract for future reference.</p>

<p>Hola John,<br>

You are making a lot of assumptions.<br>

I find it "irrelevant" because I can't prove whether they illegally used the image knowingly or not. So it is irrelevant whether I believe them or not. I CAN however prove that they used the image without my consent.<br>

I DID suffer a loss. I was not compensated for the use of my work in a world-wide advertisement. Nor was I credited. <br>

I'm NOT using the patronage of the family as a tool to wedge money from the castle owners, I don't need to. They already know what is at stake and they mentioned it themselves. I was part of the entourage and if any part of the entourage was treated unfairly for any reason, the venue would suffer the wrath of the matriarch. (not a position I would want to be in... this woman holds great power via massive amounts of disposable income.)<br>

I DON'T need to worry about a contract for future reference because moving forward there is no contract. The images are not allowed to be used for any reason. This is defined by the matriarch, not me.<br>

John, I appreciate your input, but it kind of feels like you are needlessly taking an adversarial stance. Maybe you would feel differently if one of your images appeared on the cover of a national publication, without compensation or even photo credit?</p>

<p>You won't like my answers either. I echo what John said. You found an innocent mistake and saw the cash register light up. You may be allowed to do that under the laws in Scotland but that does not mean you ought to.</p>

<p>Another issue that comes to mind is that you said you were "brought along" by the family. Does that mean they paid you for the trip or by the image. The reason I ask is that it could be that they own the image, not you. </p>

<p>Want to get more complicated? If there are family members in these photos you are attempting to sell to the new owners, do you have commercial releases from them that allow you to sell their images? Unless I miss my bet, a wealthy family would not hire you to shoot an event and then give you the rights to use their images for profit.</p>

<p>Assuming that there were family members in the photos the first call you SHOULD have made would be to the family who hired you to make certain they were OK with their likenesses being used. Since you did not do that should they object the castle is simply going to say to them that you sold the rights to them. You may feel like one of the family but if someone gets pissed off you will find out you are staff....real quick. I work with high-profile people very frequently as a photojournalist. Make no mistake....The "entourage" includes family, friends and people who get a paycheck. I would not confuse the rank structure there. </p>

<p>I don't like the way you handled it. I don't like the way you were happy to use the power of your clients to "influence" the new owners who had done nothing wrong but make an understandable mistake.</p>

<p>What I would have done is called the castle and asked for a meeting. I would have brought my portfolio and met with the new owners. My conversation would have been something like, "I see you already are familiar with my work and it seems you like it. I have had a great relationship with the Smedley-Gotpounds family; providing them with the opportunity to have their own professional, friendly and most of all discrete personal photographer. Perhaps you want to make my services available to all of your guests and special occasions? I am the guy for you. And while I am here, could you introduce and recommend me to the owners at Castle Downtheroad?" </p>

<p>But you already sold any good relations you will every have with them and any chance to do this for a few Pounds or whatever passes for money in those parts.</p>

<p>Sorry Matthew. I think you handled this inelegantly at best.</p>

<p>Hola Rick... you have a strong collection of good points and startling assumptions.<br>

1) I am in the US on the east coast. I'm not from Scotland. Why did you think that?<br>

2) I was hired to go on the trip and shoot the hell out of everything. I own the images. I provided the client with prints and albums.<br>

3) I didn't see an innocent mistake. I saw that I was not compensated for an international promotional piece on which my image was the main attraction.<br>

4) The very first thing I did when I saw the image was contact the family. If THEY had given the castle management permission to use the image, I would have closed the case. Why would you think I didn't contact the family first?<br>

5) You must have missed my last post where I said... "I'm NOT using the patronage of the family as a tool to wedge money from the castle owners, I don't need to. They already know what is at stake and they mentioned it themselves."<br>

6) Jumping back up a bit... the "Cash Registers" didn't light up any more than they would had I received a call from a client asking to pay me for image use. My only concern was being fairly compensated.<br>

7) I AM forging a new and good relationship with the Castle people from this experience. They respect the need to compensate me (apparently more than you or John do), and I am making available (for purchase) hundreds of images that I have shot of the castle. I did everything possible to create a balance between protecting my deliverables, and being fair with those whom I was dealing with. Why would you think I was having an adversarial conflict with them? I mentioned a few times that our dealings have been quite amicable.<br>

8) You don't know anything about my relationship with the family which started long before I became their family photographer. Why would you assume to know the relationship I have with this family?<br>

I'm not trying to rip anyone off... but I refuse to have my work, the copyrighted property of my profession used without my consent or compensation.<br>

If you choose to let multi-million dollar companies use your images without any form of compensation or credit, so be it. But don't criticize me for having enough backbone to stand up for myself. </p>

 

<p>agree with Rick. it could be handled way better. Or just send the bill, without much fuss, if that's the only way you see. If I were in your shoes, I'd try to establish a good business relationship with the "High End" company in Scotland, but sure, I may be wrong</p>

<p>Since the new owners have made contact with you already I think any further discussion is probably redundant unless they end up contesting your claim.</p>

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<p>Hola John, You are making a lot of assumptions.I find it "irrelevant" because I can't prove whether they illegally used the image knowingly or not.</p>

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<p>Could it beeeee, the assumption arose because your provided an actual reason for deeming it irrelevant... <em>"I actually do think they made a mistake, but that is irrelevant. They sent my photo out in a "for-profit" advertisement to around 75,000 people. They are getting a bill."</em> An explanation concerning mere usage which is completely different than the new reason given. namely proof of intentions.</p>

<p>We'll discuss the rest later.</p>

<p> </p>

Its fairly obvious I meant a genuine cost to you rather than a fortuitous opportunity to bill someone you believed as

innocent. As to the venue now being described as a the one bringing up thr fear of lost family patronage, I'll take your

word for it. Gratuitously raising the isdue twice, however, suggests it is seen as a useful tool for you which negates any

benevolence you just attached to it by virtue of who raised it first. Especially when you connected family wrath to any

unfairness by the organization. An organization you belive acted innocently.

 

Also, we know a contract is not required for of an infringement to occur. But it is a factor that tends to support the

probability of innocent intentions since the is no reference to you or ownership with others. Its good form to put licensing

in writing. As to me feeling different if one of my images were involved, I would if the infrigement seemed intentional. This

should have been obvious since that is the criteria I have referenced all along.

 

Billing the entity is not evil but its not whst I would do. Anyway you and your Matriarch sound similar in some ways.

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<p>2) I was hired to go on the trip and shoot the hell out of everything. <strong> I own the images.</strong> I provided the client with prints and albums.<br /> 3) I didn't see an innocent mistake. <strong> I saw that I was not compensated</strong> for an international promotional piece on which my image was the main attraction.<br /> 4) <strong>The very first thing I did</strong> <strong>when I saw the image was contact the family. If THEY had given the castle management permission to use the image, I would have closed the case.</strong> Why would you think I didn't contact the family first?</p>

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<p>Um, because you claimed complete ownership of the images and that you must be compensated, as repeated in claim 2 and 3, making the rush to contact the family and to see if they gave away licensing of your image, without compensation to you, utterly unnecessary.</p>

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<p>6) My only concern was being fairly compensated.</p>

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<p>False. You just told us of your additional concern which was calling the family as "<em>the very first thing</em>" you did. Indeed, it was an overriding concern since you were willing to forfeit this precious compensation "<em>If THEY had given the castle management permission to use the image</em>" despite your ownership.</p>

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<p>8) You don't know anything about my relationship with the family</p>

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<p>We do now. We know, from your repeated discussions of the company trembling at the notion of making any perceived misstep with these people, that you consider it an important factor in your incidental dealings with others and that your otherwise absolute demands and assertions as to your intellectual property are subservient to their whims.</p>

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<p>7) I AM forging a new and good relationship with the Castle people from this experience. They respect the need to compensate me (apparently more than you or John do), and I am making available (for purchase) hundreds of images that I have shot of the castle. I did everything possible to create a balance between protecting my deliverables, and being fair with those whom I was dealing with. Why would you think I was having an adversarial conflict with them?</p>

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<p>I'm going to make an actual 'assumption' this time. Let's call it a hunch. The "Castle people" are not really eager to forge a "new and good relationship" with you to buy all these other images. Rather, they are so beholden to this most powerful and influential Matriarch/family's half a million buck expenditures (as you so thoroughly enlightened us about) that they feel compelled to do all these "fair" business transactions with you.</p>

<p>I could be wrong but, I doubt it.</p>

<p>In any event, this otherwise ordinary situation revealed a most interesting drama of twisted and contradictory explanations about a you and your family's power dynamics with a minor infringement scenario being a mere incidental backdrop. I'm sure this won't go over well but, it is what it is.</p>

<p> </p>

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<p>New to this forum. Looks like a good location with active members. Glad to be here.<br /><br /></p>

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<p>Bet you're re-thinking that now, huh Matthew?</p>

<p>Hey Michael,<br>

Heh... totally rethinking this. This is actually a great example of how difficult it can be to get a communication expressed in an anonymous forum. Especially if a receiver of the communication doesn't take the communication at face value or colors the words that I expressed with their own perceptions... leading them to make astounding assumptions that reach far beyond the message.<br>

I made a further mistake by taking offense at the attack and went on the defensive, which just seemed to add fuel the attacker. My mistake.<br>

None of this is a question about whether I agree with the comments or not, I came here to ask opinions. It is the gravity of some of the replies that were off-putting. As I mentioned, the assumptions and accusations that started being thrown around, for a lack of a better word, are truly ridiculous.<br>

John has proved quite clearly in his most recent post that there is nothing I can say or do to change his colored perception of me. "Me thinks thou doth protest too much" is coming to mind. I'm starting to think John is expressing buried guilt of his own shortcomings. I can be comfortable with that thought in seeing the way John has gone after me.<br>

"I could be wrong but, I doubt it".<br>

I guess it is time to disassociate myself with this thread. Hopefully the next time I ask a group of peers for their help and opinions, it doesn't turn into an unwarranted and inflammatory personal attack.<br>

Apparently some of the contributors to this thread need to revisit the "Community Standards" guidelines at the top of the page... "Community Standards: Please take a moment to ask yourself if what you're about to post is going to be useful to the person who asked the question."<br>

</p>

 

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<p>I'm starting to think John is expressing buried guilt of his own shortcomings. I can be comfortable with that thought in seeing the way John has gone after me.<br />"I could be wrong but, I doubt it".</p>

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<p> <br>

John repeatedly shows himself to be highly knowledgeable in these matters so it would be good for you to take a step back and read his comments more as general advice than as a perceived personal attack.</p>

<p>I think we are ready to answer the original question now. Namely, how much can be charged. My answer... Name your price.</p>

<p>http://www.amazon.com/May-Be-Wrong-but-Doubt/dp/0812966287 <em> it’s the crying need for honest, open discussion in this country—the more uncomfortable the subject, the more necessary the dialogue.</em></p>

<p>Matthew,<br>

Your actions were entirely correct in the given circumstances. A company that had no right to use your images did so for the purpose of commercial gain. The only difference between a wilful infringement vs an innocent one is the amount of extra damages over and above the amount paid for use of the image. They are still required to pay even if it was an innocent mistake and it is perfectly reasonable for you to ask them to do so. </p>

<p>Thanks Dan,<br>

I had talked to my lawyer about this and he said the same thing. But since I fully believe that this was an honest mistake (my gut reaction with no supporting evidence one way or the other), I chose to ask for my normal compensation for an image sale. My lawyer (who specializes in infringement cases for photographers) said I could get as much as $30k if I sue them. I'm not interested in suing anyone for an honest error. I just want to be fairly compensated at the same rate as if they had contacted me and bought the image prior to use. That said, if they had grabbed the image from my online gallery and willfully/knowingly/illegally used the image, I would have had no problem trying to sue them.<br>

Anyway, a whole bunch of lessons learned in this scenario. Luckily, the way I handled the situation seems to be sitting well with the castle management and my newfound relationship with them appears to be mutually beneficial since they are in need of updated images and I have hundreds to offer.<br>

Funny how things can work out sometimes.<br>

Thanks again for your clean and direct input.<br>

Matt</p>

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<p> Luckily, the way I handled the situation seems to be sitting well with the castle management and my newfound relationship with them appears to be mutually beneficial since they are in need of updated images and I have hundreds to offer.</p>

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<p>Good thing you are selling your hundreds of images of their castle to them. Otherwise to sell them to someone else you might have to go to them and get a property release. Your are absolutely right when you said, "funny how things can work out sometimes."</p>

<p>WTF?</p>

<p>A corporation used an image that they didn't license or own. Accident or not, demand compensation. It's not that complicated. Dan and your attorney are correct. It's entirely up to you whether you give the benefit of the doubt.</p>

<p>I’m not really an active contributor to this forum, more of a lurking in the shadows kind of guy.</p>

<p>Firstly from what I’ve read the ‘banter’ going on here, I guess should be taken as purely that ‘banter’. Picture yourself sitting in a bar popping this very question, on an open forum you’re going to get a batch of mixed responses from a whole host of people, some of which could be interpreted as potentially hostile when in actual fact that was not they’re intentions. If you we’re in a bar you could take a swig of your pint and fire a response maybe have a laugh and move on.</p>

<p>What I’m trying to say in a rather dumbfounded way is, don’t be put off asking future questions just because you’ve had a few left wing responses, discussion is good and leads to a better understanding for what could’ve been perceived as a blinkered view.</p>

<p>Sorry, I’ve a habit of talking garbage.</p>

<p>Back to your question, I don’t intend to answer it as I feel it’s been covered in quite some detail mainly initially based on assumption but it seems to have been handled well. I do however have a case for being on the infringers side of the fence, as like them I’ve also been a copyright abuser in the past (Don’t jump to conclusions just yet). This is a little different from your castle owners mind as I was skint at the time but you’ll get the idea.</p>

<p>Around 5 years ago I took over ownership of a small local entertainment agency, the kind you call up for entertainment for your party, and also supplied acts to pubs, clubs, hotels etc. Anyway this agency came with a website when I took over, and all ran smoothly enough for around 6 months until one day out of the blue a letter lands in the mail box from Getty Images.</p>

<p>It turns out what formed part of the logo for this company was around 20% of an image that Getty Images represented.</p>

<p>Getty Images we’re claiming from me a colossal sum of money for the use of this image, somewhere in the region of £4000.00 (which then was around $8000.00). To me this was initially very worrying as Getty we’re probably one of the world’s largest Stock Image sites at the time, and I didn’t have funds to fight them let alone the £4000.00 to actually pay them.</p>

<p>Anyway, letters went back and forth. I didn’t contact a lawyer as I couldn’t afford that either so I basically wrote to them myself, and long story short I got off the hook, and not because they took pity on me but because I had them by the short and danglies .</p>

<p>Lesson to be learnt here is just because you’re the photographer and you own the image and some lawyer bozo tells you that you’d be in for a $30,000 payday if you were to sue them, I’d be weary and take that with a pinch of salt, especially as he wants to get paid too.</p>

<p>All the best with your dealings with this company and I’m sure it’ll work out a good deal for everyone if you play your cards right with them.</p>