ANOTHER Copyright Question...

[kittybuddha]

I realize there are a lot of questions & answers about copyrights but I searched the

forums & haven't seen my specific question.

 

Here goes:

 

Last fall I met the editor of a women's magazine who really loved my work. She

offered me a full-page ad in exchange for shooting the next issue's cover & cover

story which I did. After that issue she asked me to be exclusive to the magazine.

She verbally offered me financial compensation in addition to the full-page ad for

future issues. I accepted her offer. After I'd shot the second issue she told me

she was no longer able to offer the financial compensation - just the ad. That was

okay with me - advertising is very expensive. As we were on location shooting the

cover for the third issue she told me she was going to have another photographer

shoot the next cover. I was so shocked I was speechless!

 

Here's the current issue:

 

Although Iﾒve attempted to communicate with her several times about working on

the fourth issue she would never directly answer my questions. Not responding to

my direct questions in emails & phone messages. At one point she told me the

reason she hadn't contacted me was that she'd heard I was leaving the area &

she didn't think I'd be available even after I'd told her I was not leaving the area.

After three weeks of her not returning phone calls I got several frantic emails from

her just before the magazine went to press. She said she wanted to let an

advertiser use some of the photos I'd taken for the magazine & although SHE

owned the copyrights she thought it would be the nice thing to do to run it by me

before she gave permission.

 

From everything I've read I'm pretty certain that, as the photographer, I own the

copyrights. Any advice?

[lightrasp1664881197]

get a lawyer

[rffffffff]

I offer little real advice because I am not sure of the specifics... This one sounds like a lawyer question... that being said, i can't imagine that anyone would assume you are really working exclusively for a magazine while running a full page ad in the same magazine. It just doesnt make sense. If they didn't offer you actual pay, too, I would assume you own the copyright on all of the images unless there was a contract in place, but thats just speculation.

 

The real reason I am responding, though, is to state the obvious. Don't work with that person ever again.

[kittybuddha]

Thanks, John & Robert I think I will get an attorney & I have no plans to even speak to this person again...

[Leonard-just-Leonard]

If you kept the original digital files all you can prove is you took the photos. The more I read on this site the more I realize one should never do any work for pay without a written contract.

 

Now you have to decide if paying a lawyer is worth the bother.

 

And yes, you own the copyright the second you press the shutter release.

[spritestress]

( I am not a lawyer and the following should not be considered legal advice)

 

You need a lawyer for many reasons.

 

Your first mistake was doing business without a written contract. No gig is

worth it without a written contract that you and your attorney have drafted.

 

It is important to understand that there is a circumstance where you might not

own your copyright to photos, it is called "work for hire", which you can expect

your defendant to claim if your spend the tens of thousands required to bring a

federal copyright suit against that magazine, et al.

 

In addition, your copyright is worthless and meaningless unless you have

registered it with the Library of Congress. Nobody can bring a copyright claim

without first registering that copyright. The copyright process registration

takes many months because the copyright office in Wash. D.C. is so ridiculously

slow, one of the most shamefully slow aspects of the federal government, IMO. By

the way, the fastest and cheapest way to register a copyright is to fly to Wash.

D. C. and register the copyright in person at the Library of Congress copyright

counter, which provides immediate service at the counter.

 

For future:

 

- learn some contract law - at least read about contract law online

 

- learn some copyright law - at least read the statutes and procedures online

 

http://www.copyright.gov/title17/

 

- develop your own contracts with an attorney and don't work without them.

 

- file copyright registrations for your photographs ASAP after each shoot, using

certified mail /w return receipt.

 

- maintain a legal defense fund because copyright litigation in federal court

will be very expensive, and a copyright is useless if an infringer thinks you

don't have the ability to litigate with them.

 

The best defense to all this is to do business only with a signed written

contract that explicitly defines your rights.

 

- - -

 

Check your states privacy and recording statutes. If one party recording of

conversations is legal in your state, get an Olympus digital recorder, and

secretly record all those business negotiates, about which jerks usually deny

their promises after the fact. Revealing the recording as evidence of their

perjury during a deposition when sued would destroy them.

 

http://www.olympusamerica.com/cpg_section/product.asp?product=1308

 

 

http://www.olympusamerica.com/cpg_section/product.asp?product=1309

 

http://www.olympusamerica.com/cpg_section/product.asp?product=1292

 

http://www.circuitcity.com/ssm/Olympus-Digital-Voice-Recorder-WS311M/sem/rpsm/oid/192564/rpem/ccd/productDetail.do

[craig_gillette]

A copyright exists when the work is placed in tangible form - "created." The author owns the copyright unless there are contractual circumstances, like employment, a contract agreeing that the work belongs to the other party, etc., are in place. From your description it seems that none of these circumstances exist. There is a pamphlet which will help you consider if there is a work for hire relationship. I doubt it but the details of the business relationship may not always be clear or easily described in a forum post.

 

http://www.copyright.gov/circs/circ09.pdf

 

Copyright exists from the time the work is created. Registration can increase the available penalties in an infringement. It is also evidence of ownership (obviously it can be disputed but that's not a reason to not file. And claiming ownership or filing registration falsely can also be a criminal action.)

 

A copyright registration is effective on the date the Copyright Office receives all the required elements in acceptable form, regardless of how long it then takes to process the application and mail the certificate of registration. The time the Copyright Office requires to process an application varies, depending on the amount of material the Office is receiving.Registration is necessary to secure certain additional protections/or damages and to procede with legal actions. Timing of registration is important. Do not delay registration!

 

Neither her magazine nor anyone else should use the images without a clear license agrement being in place. Even if she and her magazine are fouled up, one might hope that another user might be more knowledgeable. Don't count on it. Look at the quality and variations you get in forum advice.

[john_h.1]

Don't be discouraged by the pessimistic outlook provided by Mr. Stress. Yes, there are hurdles to deal with but you are not necessarily embarking on a fight to the death. If your goals are ambitious, the potential use (magazine cover) here may rise to a point justifying that level of commitment or even be enough to inspire a contingency fee based action. If not, you are not foreclosed from the effort being worthwhile altogether. You have been played as it is, refusing to do so further may itself deter the proposed infringement. Do you really believe you got a courtesy call from this editor? If the ownership had really passed, you would have found out only after seeing you image published.

 

Contact a lawyer practicing in this field ASAP.

[kittybuddha]

Thanks again.

[spritestress]

Skyy, my purpose in my previous post was to give you some wake-up calls about conducting business, with the hope you may be better able to protect yourself and your business interests in the future. It would be nice to trust people, but the best defense against the few who 'play' the uninitiated is protective business practices. Think of protective business practices as a part of risk management, like buying insurance.

 

Craig is correct that you have copyright ownership of your photographs from the moment you create them, notwithstanding some circumstance that creates a 'work for hire' relationship, or a contract wherein you sell someone the copyright interest in one or more photographs. Usually that occurs, a specific, written transfer of copyright interested would needed, about which you would obviously have records.

 

I also believe it is important that you understand at least some of the hurdles you face if you find yourself interested in litigation. Litigtation is nasty. Litigation is usually unfair, favoring the party with deeper pockets. Litigation usually takes ridiculous amounts of time, generally measured in years. In U.S. District Court ( the federal trial court ), it often takes judges a couple months to rule on a single motion.

 

Meanwhile, I would urge you to submit registration paperwork for the disputed photographs to the U.S. Copyright office immediately, using certified mail with return receipt requested. Remember that you can register an entire group of photos with a single registration. However, it is possible to get higher statutory damages if you register photos individually, which can get expensive considering that it currently costs $50.00 for each registration submitted. As I noted in my previous post, although a copyright registration is valided/dated from the date the copyright office processes it for entry, in my personal experience, the copyright office often takes as long as six months just to return the green certified mail return receipt. This is important because there is significant case law available through Westlaw and Lexis at your county law library, which clarifies that the plaintiff must possess the copyright registration certificate in order to bring a suit for copyright registration. The federal copyright statutes also require that copyright suits be litigated in federal court, and in the defendant's jurisdiction and venue.

 

Once you get a lawyer, if you find a good one who specializes in copyright infringement, you may be able to apply pressure, and negotiate a settlement without actually filing suit. Be prepared for an attorney to ask for a retainer in the thousands of dollars just to get started.

 

For your future protection, I do hope you will develop appropriate written contracts for your business and remember to never do business in the future, with anyone, unless you have a signed written contract with them that clearly specifies your copyright ownership, which clearly specifies restrictions on the client's use of photographs that you LICENSE to them only for specific uses you make available to them. The possible parameters of photographic licenses can vary greatly. It is up to you to study the possibilities so that you can negotiate them with clients and clearly specify them in contracts.

 

Good Luck

Ms. Sprite

[spritestress]

A few more additional thoughts ...

 

Please keep in mind that attorneys are yet another group of people to be careful

of when doing business with them. Don't engage one without a well-defined,

written, contract describing what you want done, and the terms you expect.

Otherwise you might find yourself involved in two bad business situations, one

involving your own attorney, which can be worse than the slimy magazine you

already have to tussle with.

 

One example of things attorneys, (like doctors/hospitals), think nothing of

doing, is sending a client an invoice whose total is five or even six figures in

size. To prevent that, it is important to require an attorney to notify you

before embarking on any task that will generate fees over some dollar amount you

should specify, so you don't get an invoice that might surprise you. Unless you

find someone who will take your case on contingency, in a civil case, remember

that the moment there is even a hint you can't pay, your attorney will withdraw,

leaving you hanging in the breeze. They are in it for the money. By the way,

attorneys usually only take contingency cases they think they can win, because

they aren't in it for charity, they are in it for the money. Actually it is sort

of a good sign if an attorney will take your case on contingency. However, on

contingency, read the fine print in the contract, their fee percentage is

usually calculated as a percent of everything collected, and then they add their

expenses, costs, and other expenditures on top of that. Expect an attorney to

take half of your judgment or settlement if you win. Consider that, and the

length of time required to litigate, before embarking on litigation. Also,

consider whether the defendant has deep enough pockets before starting

litigation. Even if you don't make that consideration, an attorney definitely

will, and will likely tell you not to bother suing a client who doesn't have

money to pay a settlement or judgment, and that they wouldn't take such a case

on contingency, because they are in it for the money.

 

Also, before engaging an attorney, check them out on:

 

http://martindale.com/

 

You can check their rating and experience level with that site.

 

To further check out attorneys ho practice in federal court, you can also get a

PACER account from the court, which enables you to browse federal district court

case in your area. Searching for and reading through cases your potential

attorney has litigated will give you a good idea of their experience level,

skill, and approach to litigation. A copyright litigator who is "for real" will

have litigated a requisite number of case in your judicial district. All court

documents in federal cases are stored as PDF files and can be downloaded for

pennies per page.

 

http://www.uscourts.gov/electaccrt.html

 

Good luck with your copyright and business problems and with your potential

encounters with attorneys.

 

Yours,

 

Ms. Sprite

[spritestress]

Skyy, you are very talented. Your impressive photographs demonstrate significant

photographic, and digital post processing skill and experience. I hope you

understand that the detailed information I have provided here is intended to

provide you with as much immediate assistance as is practical, because your work

seems worth helping you get started protecting; protecting it, yourself, your

work, and your business.

 

Below is a list of books you may want to purchase, read thoroughly, assimilate,

and put to use, so that you can get yourself started creating a suite of

contracts and related legal agreements and documents to use when conducting

business.

 

http://www.amazon.com/dp/158115206X/nmphotonet-20

 

 

http://www.amazon.com/dp/1581154771/nmphotonet-20

 

 

http://www.amazon.com/dp/1584281944/nmphotonet-20

 

 

http://www.amazon.com/dp/1584281480/nmphotonet-20

 

 

http://www.amazon.com/dp/158115254X/nmphotonet-20

 

 

http://www.amazon.com/dp/0971339899/nmphotonet-20

 

 

You can also google "contract law":

 

 

http://www.google.com/search?hl=en&q=%22contract+law%22

 

 

and start reading the countless links that provide lots of background

information about contract concepts.

 

- - - - -

 

You may also want to consider sending the magazine that you believe intends to

infringe your copyright a:

 

"cease and desist"

 

notice, in which you can demand that the magazine not use your protected work

and that you intend to protect your copyright interests. You can google: '

copyright "cease and desist" '

 

 

http://www.google.com/search?hl=en&q=copyright+%22cease+and+desist%22&btnG=Search

 

 

for examples of such notices. Be certain to send such a notice via certified

mail with return receipt requested. A certified letter such as that usually

provides an adequate scare for most people and companies to reconsider taking

advantage of the letter's sender.

 

(covering my butt)

 

If you have any questions about doing something like the above, you should of

course, seek the advice of an attorney so that you can execute something like a

"cease and desist" in an appropriate and effective manner. Remember always to

remain polite and professional, while remaining firm in such communications.

Never make idol threats and never use profanity. Consider all such

communications on the record because if you sue the receiver, the will be on the

record, they will become evidence. Consider carefully how the contents of such a

letter will be construed at a later date. A calm, matter of fact, letter that

simply and clearly states that their intended use of your work is unauthorized,

unlawful, in violation of your copyright, and that they must cease and desist or

they will incur every possible consequent legal liability, is more effective

than anything that uses fighting words or expresses anger.

 

I hope you make your present experience at least intangibly profitable to you by

taking the opportunity to arm yourself with business, contract, and legal

knowledge and tools.

 

 

Good luck,

 

Sprite Girl

[Jerry_]

If you are in "business," you could prepare an invoice for the magazine using the photos you "gave" to them. If unpaid, you have a income tax entry for bad debt, providing you are collecting "income" and have the usual business expenses during the tax year.

 

 

 

Written contracts are easy to understand: verbal agreements are tough to understand a month or two later.

[spritestress]

Having noticed something additional in your original post . . .

 

You may want to consider sending a copyright "cease and desist" notice to the

advertiser that your magazine intends to allow to infringe on your copyrighted

work. The advertiser may be unaware that you own the copyright, not the

magazine. The advertiser may be just as liable as the magazine if they infringe

on your protected work. Notification to the advertiser also gives you an

opportunity to twist a little justified screw into the corpus of that magazine.

The magazine may lose that advertiser's business!

 

You may also want to consider that this thread is searchable in Google, as are

your connections and associations with that magazine. The people at that

magazine can quickly and easily discovery this thread, and consequently the

actions you may be contemplating.

 

Good luck getting busy covering your bases . . .

[willpridham]

Do you have any paper trail whatsoever indicating the work you have been doing? I think this may be trickier than you realize as although you took the photos, the court could see the advertisement as payment of services, especially if you were exclusive to the magazine. Exclusive usually means, that those images belong to the editor (hopefully, she can't prove that you were exclusive), whereas if you just did one photo shoot on contract, then it is easier to argue that those are your images. The court may decide that the safest thing to do is not allow anyone to use the images for commercial or portfolio purposes.

 

I would retain a lawyer and get the lawyer to make contact with the editor of the magazine. Explain to the lawyer that you don't want to play hardball unless needed and that you want an amicable solution to the problem.

 

I wouldn't say another word to her (let your lawyer do the talking). This may scare her into dropping the whole issue. Be prepared to follow through though if it doesn't. If you do have to talk with her, do it by email and keep paper trails. Another important thing to note is that if you send her and email, always request and receipt (setting in your inbox) when it arrives AND when she reads it. If you don't, she can claim that she didn't get it.

 

I've had my own issues in the past about ethics and legalities (not along these lines) and quite frankly, the photography business can bring out the worst in people. I hope you get a solution to this! We're all rooting for you.

[walter_dufresne]

"The copyright process registration takes many months ..."

 

Not quite, and not any more. There's good news in recent months. Registering copyrights in the USA is now fast, cheap, and easy with a

high-speed internet connection and a credit or debit card.

 

We submitted another bulk registration on Monday, our fourth this month on behalf of ourselves or our clients, via the Library of Congress's

"electronic copyright office" program at http://www.copyright.gov/eco/beta-request.html and it's worked wonderfully. The astonishing part is

that the *effective* registration date *is* Monday, because:

 

01. they've got the money ($35.00)

 

02. they've got the the electronic paperwork (Form VA), filled out online, and

 

03. they've got a copy of the work (several dozen tiny .jpg versions of the big camera raw files).

 

Once all three pieces are in place *that* becomes the effective date of the registration, even though it's taken the US Register of Copyrights

about six weeks to mail us the paper certificate.

 

I once heard a New York lawyer mimic Lyndon Johnson, arguing that an *un*registered copyright is about as useful as a bucket of warm piss.

He said that magazine publishers *know* this and use it to their advantage: they're damn sure to register the copyrights to their compilations

(the magazine itself) while simultaneously working with photographers who won't register.

[sarah_fox]

As has been pointed out, you have the copyright unless you assign it to someone else by a WRITTEN agreement. As there is nothing in writing between you and the magazine, YOU own the copyright. You have the original images to prove it.

 

I'd personally tell the editor that you will grant permission for limited use of your image (specifying time, number of copies printed, or whatever) for a given fee. If you see the photograph published without your permission, you have up to three months from the publication date to officially register your copyright to fully protect yourself (althought the sooner you register, the better). With a properly registered copyright, you can file suit for copyright infringement, claiming not only the fee you suggested, but also punative damages.

 

You will of course need an attorney. I am NOT one. I've only read a book. Therefore you need to ask your attorney whether I am correct in the above advice, and you will need to follow your attorney's advice, NOT MINE (since I might be wrong.) Isn't potential liability fun?

 

Good luck!

[sowarmag]

Not to re-iterate what's already been mentioned, but of course you need a lawyer. However for future work, whenever you submit any photos for inclusion in a magazine, always go for a written agreement (in most countries, email should suffice) that outlines who owns the copyright, and what you're getting in return. In some cases (when the people you're dealing with aren't too trustworthy), you might consider printing out low-res thumbnails of the photos you're releasing for publication on the contract itself.