Just saw my image on a billboard without permission,,,Now what?

Discussion in 'Business of Photography' started by diane_mcg, Jun 3, 2010.

  1. Several years ago I photographed a famous person visiting a local business. I have many images from the event so proving it is mine is not a problem. I sold a copy of the image to the business owner for him to display at his business. I just saw the image, on a public digital billboard, in his billboard ad.

    I think I have several problems. The business owner buying the digital billboard ad did not contact me for permission. Had he done so, I would have advised him I, as the photographer, would need permission from the famous person to use her image to advertise his business. I feel like I am in "trouble" no matter how I approach this...and am not sure where to start..... I bet the advertising company has been paid a significant amount for this ad.

    Suggestions on where to start would be appreciated. I have had several situations lately where professional individuals purchase images, but end up copying them for additional use. Is there something simple to include with purchases to clearly state you do not have permission to copy images......
    Thanks, Diane
     
  2. You don't mention what country you're in, so it's a bit of a guess about what laws may apply ... but: typicially it's the advertiser (not the photographer) that can get in trouble for using someone's likeness like that without permission. Advertisers will frequently turn to the photographer as a potential source for that signed release document, but you're not going to be in hot water personally because someone else decided to mis-use a celebrity's likeness in an ad.

    Yes, on your last question: you need to include specific license language in the paperwork you do with your clients. The wording of such licensing can get very complex (including and excluding specific uses, time periods, morals clauses and all sorts of other things). If you join a professional society, you may be able to get some resources along those lines, or ... hire a lawyer to help you draft your routine language.

    I'm not a lawyer, I'm a caveman. This isn't legal advise, it's cave paintings.
     
  3. Well congrats!
    I had a picture on a bilboard only once! Felt great!
    Didnt really question the bilboard it was a marketing campaign where I work as a photog.
     
  4. Diane:

    What does your original contract with the business owner say about usage rights?
     
  5. I'm guessing there was no original/written contract with the business owner?
     
  6. Is there something simple to include with purchases to clearly state you do not have permission to copy images......​
    Kinda' closing the barn door after the horse is out.
    Your question is answerable once we see what your contract looked like.
    as the photographer, would need permission from the famous person to use her image to advertise his business. I feel like I am in "trouble" no matter how I approach this.​
    Nope. Wrong. The business who placed the ad is at risk unless you indicated you have releases that do not exist..
    It's a legal question and yes; in really big commercial cases, the attorneys will go after anything that moves, but you are probably quite safe.
     
  7. ... I would be flattered :)
     
  8. Bobbi:

    You'd be flattered if someone stole your work and used it without permission or compensation? Wow, that's kind of like Dick Cheney's buddy apologizing for getting shot (by Cheney) in the face...

    If the image has indeed been used without permission, which we can't really say until we can see the usage terms that were agreed upon initially between the photographer and the business owner in question.
     
  9. I think you should contact a lawyer.
     
  10. Well, you might contact a lawyer if you're concerned about being compensated for this use of your image, but at least in the US, Matt is correct: the business that chose to link the celebrity to its name is the one that is liable for misappropriation, not the photographer.
    That doesn't mean the celebrity, if she finds out about this use of her image to promote your former client's business, can't name you in a lawsuit, but if that happens, then your lawyer (you know, the one you'll retain if you are named in a lawsuit) will move to have you removed as a party.
    You're asking good questions. Can you word your contract to help prevent this kind of misuse? Absolutely. Comb these forums for other threads that talk about use, misuse, infringement, contracts. Dozens of threads here discuss the issue and provide outside reference material as well. Get a copyright and contracts lawyer to help you draft good modular contract language you can insert as appropriate.
    For now, you might consider writing the client a letter, sent certified mail & return-receipt-requested, with a copy of your original agreement governing the use of that image if you had one (if it was a verbal agreement, restate it in the letter as you understood it).
    In this letter, you could point out that your original agreement allowed only display of the image inside the establishment (or whatever it did allow), and that reproduction permission was not part of the agreement.
    You might then do one or both of two things:
    1. offer to license public reproduction of the photo in public advertisements such as billboards and other public displays for a fee, or
    2. demand that the client immediately cease reproducing and using the image in any way not envisioned within the original agreement.
    If you choose option 1 (to license the current and future public use), you might also consider stating that:
    • to your knowledge, no model release or likeness release was signed by or obtained from the celebrity,
    • the law generally requires that the party implying endorsement obtain such a release prior to using someone's image in a way that implies any kind of endorsement of goods or services, and
    • the client assumes sole liability for any action arising from his use of this image, and agrees to indemnify the photographer against any action or liability arising from his use of the image.
    You would, of course, want a lawyer to word this contract carefully for you.
    I can only imagine how loud it must have been in your head, when you saw that image on the billboard, and all those different voices in your brain started shouting things at once. What a day!
     
  11. Thanks for all of the comments. As I am sure you could guess, there was no written contract.
    I knew the celebrity was scheduled to be visiting and filming at the restaurant, and there were no photographers there. Since I was a regular customer, having breakfast and had equipment in the car, I grabbed my camera and started shooting. The business owner purchased an 8x10......and I gave the business a free print of the staff with said celebrity..... This was 6 years ago.... and she is even more popular now.
    The idea that the ad company is getting $8000 (according to the rates posted on their website), with no permission, does hurt a bit. But had they requested permission, I would have contacted the said celebrity for permission, and I do not think she would have agreed to use THAT photo.
    While I have been wanting an image on a billboard, this was not quite what I had in mind. It is also a digital billboard, and the image does not look that great.....
    A legal document/ brochure to explain "don't copy this photo"... must exist. I do provide images to charities, and nice guys.... but I still do not want them reproduced with out my involvement. When they copy them poorly, I look bad that way too.
    I know I have seen something printed, as a brochure, that explains buying an 8x10 does not mean you own the photo..... I shall hunt thru the forms area. I do have copyright mentions on my website, but obviously that is not enough. People even call asking how to copy an image off the website, as they would rather not buy one........
    Thanks for your 2 cents worth.....I know there is a lesson in here somewhere, but I am not quite sure what it is...
    And yes, Ivan, it was quite an experience to be driving near my home, and get the first look of the billboard.... I had to go back the next day to be sure I really saw it.....and get a photo of it! Photographing digital billboards is not easy.
    Thanks again.
    Diane
     
  12. Diane,
    I'm enjoying the image of you, standing at the side of the road, trying to take a photograph of your own photograph on a billboard while shaking your head in dismay. (I infer, from the fact that you have carefully not named the celebrity here, that you would not be willing to post your photo of the billboard, but just in case, we'd love to see it.)
    You wrote:
    I know I have seen something printed, as a brochure, that explains buying an 8x10 does not mean you own the photo..... I do have copyright mentions on my website, but obviously that is not enough. People even call asking how to copy an image off the website, as they would rather not buy one....
    I know there is a lesson in here somewhere, but I am not quite sure what it is... ​
    One lesson, which you, yourself, articulate, is: even when people know they're wrongly stealing an image, they will still do it. Finding even the best language that "explain 'don't copy this photo'" is not enough to prevent copyright infringement. It's certainly good to spell out precisely what a client may (and in some cases may not) do with a photo in your contract, but there's little use in trying to over-educate clients about copyright.
    What usually is enough to stop infringement is a letter articulating the prior agreement, even if it was not in writing, and a demand that the infringer immediately cease the infringement. The lack of a written agreement in this case doesn't hurt you as much as you might think: to defend against your claim of infringement, the business owner would need to prove that he had permission to copy and display the 8x10 you gave him, which is hard to do without a written contract (and is not implied by your provision of a free print). Nothing else you've said here implies you transferred permission or copyright to the business owner, so unless something else transpired, the burden of proof would likely be his, not yours.
    Would you kindly let us know what you do, and how the business owner responds if you initiate contact with him? Those of us who've followed this thread will be interested in the outcome, if it is appropriate for you to discuss it in a public forum. And others will be better able to learn from your experience if you return to tell us how things turn out.
    Best wishes!
     
  13. And of course...calling Ian the wrong name is not nice of me...Sorry..
    I am still undecide what to do. I did call the corporate offices of the billboard company to determine what their policies are on use of images. They mentioned their contract (hmmm that contract word again) states they are protected if the business owner has misrepresented their rights to images. I did not give details about the city to the advertising firm...but in our discussion they were very clear I had the right to have the billboard taken down. It was their opinion the business owner was the person most at risk.....
    I am still unsure how to proceed. When I am photographing public events, and post images to my website, people are free to buy a print. There is no written contract anywhere. Perhaps the place for the "contract" like all of the big businesses...is in the agreeing to the "terms and conditions" ....or you can not order from this website. Most of the time, when I see the box, and know that "yes" is the only option, I agree. I do not always read it, and when I do, I do not understand half of it.
    I appreciate being able to brainstorm options. All of the options I have thought of, do not contribute to more/repeat business for me... I think I would be seen as the person making a big deal out of it...
    And while I probably should not post the images directly....is there a way we can email forum users privately?
    I am always amazed at how much information ends up on the internet. for example, will this discussion be brought up when I google myself? I have had posts to other websites show in the google listings.
    Thanks again.... Diane
     
  14. This forum is very likely to show up if you Google yourself, yes. You can email forum members by clicking on their name in the thread (you'll notice the names are blue links), which will take you to the members' Photo.net page, where you can send a message.
    I agree that belligerence can damage your future business prospects. But respectful, non-hysterical communication might accomplish your goals without causing hard feelings. Instead of a letter, a simple phone call to the business owner might be enough. Perhaps something along these lines:
    "Hi, Bob, remember me? I took that photo of you with [the celebrity] six years ago. I just about drove off the road over the weekend when I looked up and saw it on the billboard on I-95 [insert friendly chuckle]. When I saw it, I thought, 'I need to warn Bob about that!' because I certainly never obtained a release for commercial use of her image, and unless you did, that celebrity can take action against you for use that implies endorsement. I wanted to alert you to that fact."​
    You might leave it there, especially if "Bob" takes this as a friendly warning and says he will just take it down immediately.
    Or, you might continue (and you might decide whether to stop or keep going based on his reaction to this first part of the conversation). If you continue, it might sound like this:
    "Second, Bob, I was really happy to give you that print for display in your business, but if you wanted to copy and distribute my photo publicly like this, you and I would need a license agreement for you to use the photo this way...
    ...[Bob interjects]... Yeah, I know you must have thought that, but no, just giving you the photo didn't mean you could copy it this way. I'm ...
    ...[Bob interjects again] .... No, Bob, I'm not upset, I just want you to understand that, since you and I never discussed this kind of use, putting it on a billboard or a print ad isn't a part of our agreement. I'm a photographer -- this is what I do. My fee for this kind of use would be $xxx. For that fee, I'd be happy to provide you with that license if you want to continue to use the image, or you can just call the billboard folks and pull it. Would you like to think it over and get back to me?"​
    Not that I've had that entire conversation in my head, or anything. :D
    If you do negotiate an agreement with him, you'd still make it clear, in your written license agreement, that you do not have a release for his commercial use from the celebrity, and you'd include in the agreement wording that establishes his sole liability for commercial use, his indemnification of you and his agreement to pay your legal expenses if any, among other elements that your lawyer would include.
     
  15. Thanks Ian,,
    I love people that can write! Your "conversations" are very useful. I would be happy to give you credit for you words if I can use them!
    I also had more thoughts about my website, as it is frequently the beginning of the ordering process. I had a long talk with my website company and they were helpful with ideas on how and where to put "terms and conditions". (Thanks to Tom at morephotos) I am already beginning to draft the words for that......
    And, I work part time for a law office...so once I know what I want to include.....I am sure I can confirm my conversation with "Bob" in writing....
    And since you have so helpful, can I ask one more question.... How do I change my listing on Photonet to show only my first name?
    Thanks,
    Diane
     
  16. You're welcome to use those words or derivations thereof and take full credit for them yourself. :)
    I'm afraid I have no idea how or whether you can change your name to reflect only your first name. It's possible you'll just need to delete this account and create a new one. But moderators may be able to tell you more.
     
  17. July update...
    As Ian requested, I would like to add a few details of my adventure with seeing my work, originally on a billboard, without my permission.
    I dont know if I mentioned I contacted the billboard national office with general questions on their policies on photo use on billboards. The corporate office was very professional. I did not originally give them any information on the celebrity or the business in the billboard. I did give them the state I live in.
    As it turns out, a local coupon advertiser, purchased the billboard on behalf of the business owner. By now, the billboard company has figured out which images were used and pulled the billboard down withing 24 hrs of my first call when I did not identify who I was by name (only the photographer). When I had another call with them weeks later, they explained they they could not use the images without proper consent, and apologized. They also identified the person as a customer of theirs, and they did explain to her they would not use the images.
    In the mean time, it was suggestion in an earlier post that I register with the copyright office, which I did. A couple of weeks pass and I get a coupon magazine in the mail.....2 of my photos in print ads. the yellow book arrives,,,,,2 of my images in print ads.... a couple of local websites......with my images on them.
    I have been collecting the print ads as I find them, and printing the websites homepages where my images appear. The pile is getting larger.
    I am not sure what to do next. I am sure I could get the websites involved to take the images down, but the print ads are another issue. Is it possible one coupon selling person could be responsible with the business owner for all of this advertising?
    My concern continues to be, that , depending on what I do, there would be more negative PR about me, than the business owner.
    I now have clear terms and conditions on my website, that people must agree to, before they can view photos.... A bit late, but a great addition..... (thank More Photos....Tom, for all of your help in getting that on my website)
    Must I assume there is no way I will receive payment for any of this use? If the celebrity did not give permission, can still ask for the photo use to be paid for, and stopped?
    I am posting this here, so Ian can help us, once again, learn......Thanks Ian....
    Suggestions, thoughts, appreciated.
    Diane
     
  18. March 2011 update..... The saga continues. After noticing several of my images being used without permission last summer, I have just received a slick coupon in the mail, which contains yet another photo of mine with the celebrity in the restaurant. Again, no contact with me, no request for commercial use.
    I do not have releases from the celebrity, and the photos sold to the restaraunt owner was for person use, not commercial use. The prints are being scanned and used by a local coupon shopper owner. I would like this commercial use of my images to stop.
    Since I do not have persmission from the Food Network celebrity to use her image, I can not give permission for use to the restaurant owner and ad agency owner.....
    How do I end this? Thanks
     
  19. Spearhead

    Spearhead Moderator Staff Member

    Since I do not have persmission from the Food Network celebrity to use her image, I can not give permission for use to the restaurant owner and ad agency owner.....​
    Leaving aside the rest of the issue here, this is not your problem. Releases are required of the publisher, not the photographer.
     
  20. Right -- the issue of obtaining a release is not your burden. Only the party publishing a likeness is obligated to obtain a release for commercial use or other endorsement purposes. The celebrity may or may not be fine with the implied endorsement, but it's not the role of the photographer to address that concern.
    (There is sometimes some confusion among photographers about this. Many photographers obtain releases from subjects, but they do so to facilitate the sale of those images to publishers who do not want to have to go to the trouble of contacting the subject to obtain a release, themselves. In most cases, it is easiest for the photographer to obtain a release because the photographer is physically present with the subject. But there is no liability for a photographer when an unrelated publisher uses an unreleased photo, except perhaps if the photographer falsely claimed or implied that he actually had a release.)
    Your interest is in being compensated for the unlicensed commercial use of your photograph, or perhaps in halting such use. First, sending an invoice to the printer is often an effective and low-cost way to obtain payment. Include a letter noting the unlicensed use and the scope of the license the printer will enjoy once payment is made, as well as perhaps a statement indicating that payment will resolve liability for the unlicensed use.
    Second, you seem to have a problem with the restaurant owner, and not with individual publishers, so it is probably time to contact the owner to remind him that the original license was for personal use, and to instruct him to cease using the photograph in commercial printing of any kind.
    Keep us posted!
     
  21. Dec 2011 update..... I continue to come across my images being used commercially, without permission or payment. I did a rough list, and have at least 25 uses. Phone books, coupon ads, slick shopper ads, travel website.
    I wrote my own cease and desist letter (very polite), and asked for $300 per image use. ($7500). I asked for a response in writing, and gave a deadline of Dec 26, 2011. I included the copyright registration number in the letter.
    No response.
    I am retaining an attorney tomorrow. I am finally willing to put some money into this, and I think it is time I get paid for use of my work.
    Will keep you posted....Suggestions appreciated....
    Diane
     
  22. Wow. Twenty-five uses despite a cease-and-desist.
    I look forward to hearing what your lawyer suggests. (Be sure you're talking to an intellectual property attorney, particularly one with copyright litigation experience.)
    Did you send your letter by registered mail? Did you by any chance call the offender to gauge his reaction?
    Still interested.
    Ian
     
  23. No, The letter I just sent was the cease and desist.....but included my "bill" for the useage.
    I sent the letters to both home and business, 2 copies to each address, with one copy having a delivery confirmation.
    I did not speak to him directly after I had dealt with his "advertising" person. According to the billboard people, one of their customers does advertising. She was the contact with the billboard people and she was involved in several of the coupon shoppers. She shared the message that the business owner's remarks were "sue me".
    After re reading some of your earlier info, I decided this was not a simple mistake.
    I will inquire about litagation experience. She did mention which court would be involved....and the expense. I got her name from a newspaper photographer that has used her several times..... Her letters and his invoices are sent to photo offenders....
    Not sure if you recall I also work part time for an attorney..... I do not want to be foolish, and do not have lots of money..... but want to invest some money in seeing what the next steps are.
    It is my understanding that my original offer is off the table now that he has ignored me, and not sent me a check.... My next concern is if I have to have circulation information on all of the uses, and if I should buy a photo pricing software. I want to do as much of the leg work as I can.....and save the attorney for the important stuff....
    I just read about looking up the business with the Sec of State....which I will do next...I read somewhere that the business has gross revenue of $400,000 a year.... That seems crazy to me.....a small restaurant....
    Diane
     
  24. Not sure whether you're saying you think $400k gross is surprisingly high or surprisingly low, but to make a marginally decent living for the owner, you've got to gross at least $250 if you have one employee, and add maybe $75k per employee after that, so I'd say $400k gross for a restaurant means it's a really small restaurant.
    Anyway, regarding whether your offer is off the table: that depends on whether you made an offer or sent an invoice. If your letter stated that it was an offer to settle for that amount, and that the offer expired on the 26th, and if he didn't send payment to you (i.e., put it in the mail) by that date, then you can probably view it as being "off the table."
    By contrast, if your letter stated or implied that it was an invoice with a due date of the 26th, then it may not be so much off the table as a matter of delinquent payment. But whether your invoice was for a previously agreed-upon or foreseeable amount (as opposed to an amount devised by you after the fact) may be relevant as well. I say this only because it is quite common for someone to "pay an invoice" after receiving a lawyer letter, which in this instance may discharge his obligation to you for past infringement, depending on the language you used.
    I do rather enjoy watching what happens when people who say "sue me" start getting what they ask for. Keep it coming, so long as your lawyer doesn't mind (be sure the lawyer gets the link to this thread).
     
  25. Hire a new attorney and send her to this thread.....A bit bold, but so is deciding my work should be paid for, not stolen. Is this discussion a problem, or could it be?
    I just found some UCC leins......Not sure what they are, but there are leins against the business and the owner....
    My letter was intended to be the stop, dont use images anymore, and I consider a fair way to resolve the problem would be to pay me for the useage. I did imply the offer was extended until the 26th, send me a check, and if not, I would seek legal counsel.....or something like that....
    I also listed the useage of the images by where they were used and the approx date.
    Some items have page numbers included, or websites.
    I have copies of everything I listed in the letter.....
    Yes, restaurant is small. I would say maybe 8 employees ? (I have a photo of that too....)
    But very busy......very busy.....
     

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