A business matter ... what would you do ??

[michael_mahoney1]

A little over two years ago, I approached a business about improving some of their existing advertising and web site photography, provided them my portfolio, and was asked to do some specific � samples� of their business with the understanding that if the samples were suitable, they would purchase them, and I would be hired to do additional work. I took several shots , did some extensive Photoshop work with them, and e-mailed the proofs to them. There was no written agreement, nor a copyright symbol on the proofs.

 

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I made follow up phone calls and e-mails, which were either ignored, or answered with the reply �we�re very busy, and haven�t had time to look at them� - but that they would call me shortly, which never occurred. I finally let the matter drop, and stopped contacting them.

 

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While browsing through a local magazine today, I discovered one of my shots being used as an advertisement for their business. I�m sure it�s mine because of the Photoshop work, and I have retained the original file. Normally I would just call and ask if they are aware of the use of my image, but in this case, I�m getting the feeling that I�ve been used as a source of free photography. The contact person at this firm who I originally dealt with is no longer there, complicating the situation. I have written them off as a source of future business so I needn�t be too concerned with how polite I am in approaching them on this.

 

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I know I should not have gone down the �sample� road, or did anything without a written agreement, but this was in the early days of my business, and I was eager for work - today I would not touch this type of deal. My inclination is to let the matter drop, and treat it as one of life�s� lessons - but I�m curious as to the opinions of forum members on this. What would you do ??

[charlie_strack]

Sue them in small claims court. They took your work without paying

for it. Even if the person who knew the work was yours was no longer

there, if you can prove you did the work, and they can't prove you

were paid for it, I suspect you have a strong case.

[kcrisp]

It may have been done in good faith since your contact was gone.

Somebody else found the file, and knowing nothing of its history (and

liking your work, apparently) they used it. I suggest you write a

letter, describe the prior contacts, enclose the use of your work and

ask for what you consider fair compensation for what you've done. If

you don't get a response (or get an unsatisfactory response) take

them to small claims court. If it gets that far, then remember that

the letter you wrote is their main exhibit against you, so write it

carefully because it can be used against you if you make any

admission you'd like to take back later. Another approach would be

to take the use of your work back to the place, use this as an

introduction (since you do like my work and are using it...) and in a

non-hostile way maybe you can finally get the work. If not, then go

to small claims court.

[todd_caudle]

I'm with Charlie on this one. The instant your finger trips the

shutter, you are the proud owner of the copyright of that photo, and

any derivatives of it. Written usage agreement or no, there

definitely was not an agreement for them to use your photo without

paying you for the privilege. I would send them an invoice for its

usage, double it if they used it without a photo credit (which they

obviously did), and tell them that no other photos of yours can be

used EVER unless an agreed upon usage rates applies.

[ellis_vener_photography]

Since they haven't acted in good faith:<PFirst get all of your

paperwork together, including prrof of dte of creation and any

documents or phone records or e-mail exchanges of

conversations wit hthe company >1.) Register the copyright

<I><B>NOW! You have 90 days from date of first publication or

discovery of copy right violation. trying to collect without

registering your copyright is a weak position. there are severe

statutory damages for copyright violation.</B></I><P>

2.) Deterrmining the extent and value of the unauthorized usage.

a base line might be 3x what you would now charge to do the

work.

3.) Contact an attorney who has experience in the copyright and

intellectual property disputes. Have them write a demand letter

that also nofiifes them of your intent to file suit. This will definitely

get the attention of the company as they will have to get their

lawyers involved.<P>4.) determine a better line you will settle for

and stick to it, be sure to include your legal costs.<P>4.) keep in

touch with your lawyer and see how things are going.<P>5.) Do

not lose sleep over this.

[jim6]

I am n agreement with Kevin on this. I too think this would be the

logical and reasonable first step. If that fails, then small claims

may be your recourse.

Looks like a good learning experinece though. Get it in writing in

the form of a contract before any work is begun.

[jim6]

Before I get attacked for typos and spelling, here it is again :)

Sorry.

 

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I am in agreement with Kevin on this. I too think this would be the

logical and reasonable first step. If that fails, then small claims

may be your recourse. Looks like a good learning experience though.

Get it in writing in the form of a contract before any work is begun.

[walter_glover]

Michael,

 

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Softly, softly catchee monkey! Kevin is on the right track. Sure,

you should register your Copyright in the images immediately as

Ellis has suggested but concurrently you should courteously

approach them about the situation and at least appear to have

made a reasonable attempt to secure a satisfactory outcome

prior to involving the Court.

 

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It may be a bit Pollyanna of me, but I feel there is a distinct

possibility that you could get yourself a client and more work out

of this - if handled properly. It is only after their response that you

can truly determine whether or not you would wish to continue

accepting assignments from them. In short: don't slam a door

so tight that you can't open it again.

 

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AND ... be sure to learn the lesson from this. Watermark, or

otherwise secure, all samples dispatched to potential or existing

clients. Only after contractual (written) agreement does the

watermark come off.

 

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Regards ... WG

[jim_galli4]

The magazine publisher was also irresponsible in using your photo's

with no indication of written consent from the owner. Most publishers

are wary of this and in fact the publisher may have had the user sign

a release to protect himself. If that's the case then the question of

ownership had already come up and the user chose to ignore it.

 

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"A soft answer turneth away wrath....Proverbs" is always the place to

start. Invoice them and copy the invoice to the publisher.

[tim_atherton2]

A very common occurence these days in my experience as an ediorial

photographer/photojournalist, you should read some of what happens as

refelcted on various lists I'm on!

 

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Yes, registering copyright, and putting together a letter/invoice for

say 3x what you would have chgarged is a good

start.

 

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So is making sure any work you send out has copright information on

it (and if you send out digital files, put it in the caption info,

including info about "no repreduction rights without permission etc,

AnD add you email and phone number. Photographers compalin about the

NY Times re-using their images from assignments without permission -

it's basically down to hard pushed picturedesk staff not having the

info - my info is right there on the captions and they just call me

up each time they want a re-use and pay!). And make sure any

paperwork/delivery memos etc you send out with images to clients

reflects all this - you own the copyright, they can't use it without

permission etc, there are penalties if they do (plenty of online

forms at EP below)

 

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BUT try the softly softly approach first, especially as your contact

is gone - write or call the business - explain the situtation and

what you want from them - gently educating them about Copyright and

usage rates etc. If they seem genuine, take it from there. If they

couldn't give two hoots and you don't want them as future clients -

bill them usage x3 and include the information from the US Copyright

Act about statutory damages for infringement etc. Then, personally,

if they ignore it, I would head for a lawyer and/or small claims

court (if it's under the limit for the court).

 

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But, lawyers fees will mount up etc....

 

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info here on copright, registration etc.

 

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http://www.editorialphoto.com/copyright/index.html

[john_bailey1]

Dear Michael

 

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I tend to agree with the approach of gentle persuasion. However,

making lemons into lemonade, you may now be able to feature their use

of your work in some of your self-promotional efforts.

 

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You may wish to read an article on the front page of the second

section of this week's Wednesday Wall Street Journal. Somewhat

similar, it talks about ad creators who create ads on spec. Now, I

am not suggesting you do that, but the article was of interest

looking at how certain people are trying to garner business. In part

and quoting the Wall Street Journal, the article reads:

 

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"Ad Creators Spend Their Own Money

To Get Noticed by Working on Spec

 

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By VANESSA O'CONNELL

Staff Reporter of THE WALL STREET JOURNAL

 

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Burke Wood, a free-lance director of commercials, recently spent

$32,000 to make two ads he hopes will attract new clients. Though he

hasn't told his wife yet about the expenditure, he insists the money

was well spent.

 

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In a reflection of how deep the advertising recession has struck, Mr.

Wood and other free-lance and out-of-work ad executives now are

churning out "speculative ads," or sample commercials for brands and

products -- often at great personal expense. In his case, Mr. Wood, a

37-year-old father of two, has created a reel that includes

commercials for Snickers, the candy bar owned by Mars Inc., and 1-800-

Flowers, the national delivery service. Neither company has paid for

the work so far. But Mr. Wood contends he has to show his abilities

somehow. "Nobody is going to give you a chance unless they see you

are capable," he says."

 

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Best of luck in your efforts to win compensation or recognition.

 

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Regards,

 

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John Bailey

[ellis_vener_photography]

my sense is that most of the people who have responded here

are not professionals and have no idea of the amount of money

involved in a client creating, and buying ad space in magazines.

in general, the cost of having a professional photographer

create work for an ad is about ten percent for a national ad

campaign and a higher percentage for small ads.

For all of you who are advocating a 'gentle approach" let's review

the facts that Michael has put forth:<P>1.) <I>"I made follow up

phone calls and e-mails, which were either ignored, or

answered with the reply "We are very busy, and haven�t had time

to look at them� - but that they would call me shortly, which never

occurred."</I><P>In other words he tried a gentle approach and

was blown off. having an attorney write a demand letter and do

the negotiation for you doesn't have to be hostile or ungentle -- in

many ways it makes for a cleaner negoiation process because

your ego and the ego of the resposnsible person on the other

side are removed from the process. the outcome you desire

needs to be fair to both sides, even if the people who do not want

to pay you get upset by having to pay you. Litigation itself should

be the very last thing you or they want.<P>Further Michael does

not currently know how else the image is being used by the

client.<P>And let's not forget, the client is gaining financially by

using your work. Not just by not paying you, but also the

advertising has real tangible money making value to the

client.<P>In short he needs to be paid. Copyright violation claims

are not matters for small claims courts: it is a federal matter.

Small claims court judgements still force you to go after the

defendent (in the event you win) to get them to pay up. that can

stretch out the process and make the whole mess worse, in my

experience.

[tim_atherton2]

to the last message, true,

 

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and I must admit to having read the initial post in a little haste.

 

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However, it should be pointed out that for full blown litigation, you

need to have a). deep pockets (you need to hire an specialised

intellectual property lawyer) and b). MUST have registered copyright.

Most lawyers will be very loath to take the case without the prospect

of the substantial damages and protections that registration brings.

 

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You must also decide if you are going after copyright infringement or

breach of contract (and did you or didn't you have paperwork).

 

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(PS - my small claims court experience has been in Canada where, in

my juridiction anyway, a). Copyright law is vastly different from

the US (generally not as much protection, but gotta love scaring

abusers with "Criminal Copyright Infringement and possible time in

jail...) b.) It has been for editorial misuse and the "fee" I have

asked for has been under the small claims court limit and c). here,

if they don't pay up, I can send the Sheriff to seize things and sell

it, which onj the only occassion I did that, has led to them paying

up quick!

 

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I have also persued copyright infringement in the US, but through an

Agency.

 

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Tim A

[kcrisp]

I read the original post as relating a problem in getting a response

to the original submission, not that an attempt had been made

informally to call them on the unauthorized and uncompensated use of

the image. As I read the original post, two years passed between the

submission and the discovery of the use of the photographer's work.

Again, given the turn over at the potential client, it could be a

completely innocent error on the part of the potential customer.

Attorneys love people who want to threaten or -- better yet -- sue

before trying to work something out reasonably. A suit should be the

last resort, only undertaken after the failure of everything else

reasonable you can think of. A threatening letter which immediately

takes the matter from the hands of somebody non-legal who doesn't

really want a problem and who doesn't want to hire a lawyer and gives

it to someone who likes to litigate often doesn't advance the cause

much. Certainly a copyright action can be filed in federal court,

but under many many circumstances even a successful plaintiff has to

pay their own attorneys' fees. The fees which can result from

litigating a federal court case can boggle your mind. (Hence the

expression "making a federal case out of it.") I took a class in

business litigation and the professor started off the first session

by telling us there was no such thing as business litigation because

it is always bad business to litigate. Certainly an overstatement,

but that observation is true far more than it isn't. If Michael

thinks that the fair value of his work is within the jurisdiction of

the small claims court ($5000 or so most places, but this varies)

than that is a quick and easy way to go that does not involve

lawyers. At least in my state, the defendant isn't allowed to hire a

lawyer to represent them/it. I didn't mean to imply (and none of the

peace-niks did) that Michael hasn't been wronged and that he

shouldn't do something about it. If you start off with a suit, you

better make sure (in the immortal words of Spinaltap) that your "amp

goes to 11."

[jim6]

And if Michael looses in court, guess who pays the defendant�s

attorney fees... Michael does. The odds are that if it ever got to

court, both of you would probably be unhappy with the outcome.

Try the gentle approach. Look at this as a valuable learning

experience. I think we are talking more about principal rather than

the money here. Perhaps it times to put it to rest and move on.

[mike_mahoney]

Thanks for the responses, I really appreciate the information - as a

point of clarification, I had contacted them over a period of eight

to nine months after the initial samples, thus moving the time period

from my last contact with them to the actual use of the image to be

about sixteen months. Also, although my contact person is no longer

with the firm, at least one other senior person was aware of my

initial agreement with them, although not directly involved. My gut

tells me they are trying to get something for nothing, and it's not a

simple clerical error or not knowing where the image originated.

 

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I've decided to invoice them for the image, with a covering letter

outlining copyright, asking for the return of the other samples, and

state no further use of any images without prior arrangement. If I

don't receive payment in 90 days it's off to the lawyers. Some of you

may see me as softhearted, but I'd still like to give them a chance

to pay up before going legal.

[kcrisp]

30 days tops, do the math for them; i.e., if I don't receive payment

from you by December 29, 2001...

[dan_smith]

Have you also given notice to the publication where your images

appeared that they will be subject to a possible Federal Copyright

infringement suit? Whether they knew or not, NAME THEM in the

complaint. Name the people you talked to as individuals as well as on

behalf of the company, corporation or any other entity involved in

any way. Name the pre-press house & the printers as well. Get them

all involved & a settlement will be more likely.

 

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Now go to the websites of the major pro organizations and take a good

look at the paperwork that needs to accompany all submissions to

protect all parties, not just you. Editorial Photographers has one of

the best and it is a good starting point.

 

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But, if you haven't, send them a bill and make sure it covers all the

usage you know about with a request for copies of all uses the images

have seen. Make it 3-10 times the highest normal use for the images

in the publications you find the images in. If you get the line from

the company about "this is good advertising for you", then find the

page rate for advertising in the publications and bill 3to 10 times

that full rate. After all, advertising costs & they are the ones who

just set the billing rate... what it would cost you if you put your

work in ads.

 

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Don't back down. You say it doesn't matter if you get tough because

they aren't likely to use your services again so make sure you charge

full freight for what they used plus penalties for the usage they

stole. After all, it is theft, isn't it?

[walter_glover]

Michael,

 

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I have just read your response to the responses. I would advise

caution.

 

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Certainly, you must invoice the offending party but think twice

before writing your own interpretation of Copyright Law and a

ball-by-ball account of the unfortunate history of this farce. You

are too close to the matter and your passions will cloud your

judgement. They will determine by your manner and acumen

what sort of challenge they face. The more you tell them about

yourself the better armed they are!

 

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Exhorbitant financial claims are bound to prompt their inactivity

and delay the process while they consider what to do with such

capricious demands. Seek a fair remuneration for the use of the

photographs within 7 days and never forget the lesson you have

learned.

 

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If they do not respond to your satisfaction within the prescribed

period THEN contact the Publishers, and all other parties in the

chain of production and rattle their cage.

 

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You must first make a written claim for them to ignore before any

attempt at legal recourse is effective. The first question a

magistrate would want to know is what attempts you made to

secure a peaceful settlement.

 

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Had they gained access to your photograph(s) by covert means it

would be fair to go in with both guns blazing, but that is not the

case. You gave them access to the material yourself and, having

established that communication, it would be considered

essential that you pursue normal business practice to gain

satisfaction. That is: an Invoice.

 

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I've operated as a commercial photographer since 1965 and

have seen and experienced two philosophies in action with

regard matters like this. The dog-with-a-rag-in-its-mouth

approach where folk often limp away having shot themselves in

the foot; and the studied, steady approach complying with

accepted business procedures and following a course of reason

and logic and satisfying the expectations of the judiciary which

gets the folk in power (ie: The Court) on your side.

 

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Calculated restraint ... WG