Local Paper & Publicity Photos

[benjamindbloom]

I was recently informed that my local newspaper (circulation ~50,000) printed a

photo of mine that was provided by a third party (a band.) The band had the

right to distribute my photo and use it as they saw fit as long as they inserted

a photo credit where it was used. When the band provided the photo to the paper,

they clearly asked "Please credit Ben Bloom for the photo."

 

Last fall, I had a similar experience with the same paper (different parties

involved) and immediately contacted the paper. My request at the time, because

of how the photo was provided, was for them to reprint the photo with a proper

credit. To their credit, they responded promptly and reprinted in a location

that I consider appropriate for the correction.

 

This time, being their second offense, I send them a pleasant email with an

invoice attached. In my conversations with them, their argument is that the

photo was provided as a publicity photo from the band and they don't credit band

publicity photos as the assumption is that the band had obtained rights to

distribute this photo for promotional reasons. If photos are submitted with a

"Must Credit" they will credit, but not with "Please Credit."

 

My argument is that the band held up their end of the deal by requesting that a

photo credit be applied upon publication. The fact that it was phrased "Please

Credit" vs. "Must Credit" seems irrelevant to me; I can't control the words that

someone else uses. In addition the EXIF information in the JPG has my copyright

in it along with a link to my website.

 

Now, the person at the paper I'm speaking with has claimed that in 11 years, my

photos are the only ones that have caused problems for them. She is considering

marking anything with my name unusable. Now, I feel I was very reasonable in my

request for the reprint on the first photo. I also feel like I am within my

rights to request payment on this photo. While I don't want my photography

marked as unusable by the largest paper in my region, I also don't want to roll

over.

 

The rule of thumb I have read in the past is 3x normal rate for photos that were

used outside of their terms of use. Is that reasonable? Any comments?

 

I'm unsure of how to handle this, but feel like I'm in the right.

 

Thanks,

-Bn

[ellis_vener_photography]

Sorry, Ben but they don't owe you anything except maybe what you got the last time.

[benjamindbloom]

Ellis,

 

Do you say that because of the deal I struck last time? Or because of the nature of the photograph?

 

Thanks,

-Ben

[nigel d]

Why did you bill the newspaper? It was the band that broke the terms of your agreement. The newspaper owes you nothing; if you are going to bill anyone, bill the band. But why not just settle for correction?

[ellis_vener_photography]

Because of the nature of how it was supplied to them. Now you know how the credit tag must be worded (yes they are being persnickety beyond what I'd call reason but look; let's say youswantto shoot more bands. They submit them to the paper, and the paper says "we won't run his photos" boom you lose the exposure i nthe papers and the managers ofthe bands youwantto hire you start looking elsewhere because their job is to get exposure for their clients.

 

You are in a service industry. At some point you just have to make it easy for the client.

 

And how much money are we really talking about here? It isn't like this is the cover of "Newsweek" or "Rolling Stone".

[benjamindbloom]

So let's say I roll over on this and agree to disagree with the paper - I think they violated my copyright, they think that following their standard practice is acceptable.

 

How would I prevent this from happening in the future? I can't ensure that people submitting photos will use exact wording "Must Credit." I'm a realist & recognize that if a band has a photo that someone wants to publish, the band is going to provide that photo and say something like "Hey, put a photo credit in for our photographer." If I submit the photos to the publication, I'm more comfortable that the terms will be honored (as I have experienced.) Isn't there some responsibility on the paper's part to ensure that they follow the usage terms for the photos they're receiving.

 

I have considered only supplying watermarked low res images and requiring them to come to me for high res versions. That works for some types of publications, but not for newspapers or anything with a tight deadline. I don't want to be a roadblock when a fast turnaround is required.

 

What if I add a strip to the bottom/side of each high res image I provide with basic usage terms and contact information? That way it could be cropped off at publication time and no one can say they're not aware of the terms of use.

 

Nigel - I don't see the band at fault here. I provided them a photo under the terms that they credit it where used. They provided it to the paper and requested a credit, as I would have expected them to. The fact that they used "Please" instead of "Must" is irrelevant to me as exact wording isn't going to be known by most of the people that will be submitting my photos.

 

I appreciate the discussion. I really do want to find an amicable solution to this and am looking for options to resolve this situation with the paper and to avoid it in the future. My goal with this type of photography right now is not to make a lot of money off of it, but I do want to be credited where my work is used.

[alec_myers]

"Please Credit" vs. "Must credit" is an enormous difference. You've no moral or legal right to invoice the newspaper as you have no contract with them and I can quite see why they think you're a PITA (sorry to be blunt but it's true.) Write this one off to experience, use less ambiguous wording next time, and make friends with the staff at the paper on whose goodwill you are completely relying.

[john_h.1]

"You've no moral or legal right to invoice the newspaper as you have no contract with them"

 

If we follow Alec's logic... A third party can give me some images belonging to Alec and I can publish them all I want, without penalty or obligation, simply because Alec has "no contract" with me.

 

Following the logic further... as long as the publisher does not obtain the images from the copyright holder, the publisher has unfettered power to publish the images all because the publisher had no contract with the photographer. Heck, the third party can outright steal the images and sell or give them to the publisher and the phtotographer has "no moral or legal right" to invoice or make other demands of the publisher simply because the photographer had "no contract" with the holder. The image theif can disappear or die and the publisher use the imagery for years free of charge if you follow this all the way. the copyright holder can do nothing except complain on photo.net or something.

 

Somehow I do not believe Alec will adopt this "no contract" theory if his images were published by others without permission.

 

I do agree with Alec and others as to the practical business matter vs. the legal issues. Benjamin can win the battle here but easily lose the war by being banned.

[alec_myers]

"If we follow Alec's logic... A third party can give me some images belonging to Alec and I can publish them all I want, without penalty or obligation, simply because Alec has "no contract" with me."

 

John, you're misconstruing what I said. I didn't say it was fine to publish without permission - I said it's not permissible to send an invoice. A breach of copyright is a tort, for which (as the saying goes) the remedy lies in an action for damages (or in the first instance, a "dear sir unless" letter) - not a matter of contract for which an invoice should be sent. The upshot is the same: to avoid a legal action some money up front is demanded - but the basis on which the money is sought is entirely different.

[john_h.1]

"the remedy lies in an action for damages (or in the first instance, a "dear sir unless" letter) - not a matter of contract for which an invoice should be sent."

 

Such a response is seen from time to time and a sometimes sucessful practice. Telling someone that there is no "moral or legal right" to do so without suggesting alternate means of making a demand gave the impression that you assert there is no remedy.

 

An invoice can be a means to make a demand. A demand need not be in some exact format. A tort demand usually comes with a letter and a list of monetary losses. Sending an invoice with a letter of explantion is the same thing essentially. To say that the poster can't do this gives the impression he can not send a letter with a itemized list of monetary losses which is basically what you embrace in your second post. Demands in both torts and breach of contract claims both usually feature a letter and a list of losses.

 

You seem to be placing form over substance. That's where the confusion lies.

[alec_myers]

"You seem to be placing form over substance. That's where the confusion lies."

 

I'd assert that the form is very much the substance. Sending me a piece of paper headed "Invoice" for something I didn't order and I'm afraid it goes straight in the trash. Send me a solicitor's letting saying I've breached your client's copyright and claiming damages and I'll sit up and take notice. In the first case you look like you're "trying it on" and deserve to be ignored, and in the second you look like you know what you're talking about.

[larry_moore]

Our local paper, currently owed by The Wall Street Journal, soon to be by Robert Murdoch does not credit ANY photographer other than their staff photographers.

 

Any image provided for press use is credit "photo provided".

 

They make clear that they make no copyright assertion based on publication. Their legal team asserts with great force that this is a public service and NOT an employment or use issue.

 

Some small papers will credit a photogrpaher but they pay no one for photos so that is a poor trade off.

 

The use of Press photos has traditionaly been without attribution and without assertion of copyright.

 

You might want to go onto the ASMP site there is a ton of historical information regarding use/rights for press release images.

 

I don't think you stand any chance of payment for the photo nor should you expect it. You were lucky to get a reprint which was probably done to get you to stop calling BUT free publicity for your services based on the credit is a thing of the past.

 

If they have not asserted copyright then you don't have much of a stance. In the future you could try placing your credit as part of the image either on the file or print and you might find that it gets printed because no one noticed.

 

My students often have asked what is the difference between a professional photographer and an amateur and my response is always that the pro gets paid before ever making an exposure and knows what to expect to receive and an amateur hopes that some one will pay him after the fact.

 

Brooke Moore

[john_h.1]

"In the first case you look like you're "trying it on" and deserve to be ignored, and in the second you look like you know what you're talking about."

 

First you said there was "no right" to send an invoice. Now the assertion is that its just not impressive. This is an additional form over substance position.

[benjamindbloom]

Seems like we've got an interesting side-discussion going on. I wrote a letter describing my situation which I submitted with my invoice. In retrospect, it may have been better to not attach the invoice but spell out what I expected to resolve the situation within my letter.

 

So, I thought I would follow up to give a little closure to the thread. I've spoken with the paper multiple times, and with multiple people. I understand how their mistake was made, and they've admitted that it was a mistake and should have published the credit. I have decided not to pursue payment of the invoice even though I feel like I have the right to. As much as I wanted closure on this issue, it was more important to me that they take some action to prevent it from coming up in the future. They have convinced me that they will take steps to obtain more formal usage rights for images that show up without any supporting documentation.

 

Interestingly enough, this situation may open some doors for future work. I don't know whether this was based on the merit of my work or more of an apology, but I am willing to have the conversations and see what the future may bring.

 

Thanks for your advice and discussion.