Discovered a client selling screen prints of my photographs – now what?

[daniel_p4]

<p>Okay, a little background first..<br /> <br /> I shoot dancers and this past fall I held a shoot where I invited a few dancers I know and some that they know to do some free-form collaborative dance shots. I invited these dancers to participate explaining that I would give them a few shots for their time which they could then use to promote themselves – with the stipulation that they gave me the photo credit. They didn’t pay me and I didn’t pay them.<br /> <br /> One of my subjects is a choreographer that wanted to use one of my photos in an email to promote an upcoming show. I saw and signed off on the email – it had my photo credit. <br /> <br /> Well, I went to the performance of this choreographer to discover a stack of numbered, “limited edition” screen prints using one of my photos large, front and center (they had applied a threshold filter to it) for sell. It had his name above my photo and the date of the performance below. Each print was signed by the poster “designer” and they sold for $30 bucks a pop. They sold several.<br /> <br /> I was never contacted about this and my name did not appear anywhere on the print. They even had one print framed with a nice little title card below with “Designed by: So and so and Printed by: So and so.” Again, my name was nowhere to be found.<br /> <br /> Though I usually do and will never forget to do again, I did not include a written terms of use with the images I gave the choreographer. All I have is a verbal agreement for photo credit on any promo materials. I, of course, did not explicitly say that they could not sell prints of my photographs. “Duh,” I thought at the time.<br /> <br /> I only briefly spoke with the choreographer’s manager/dancer after the show.. it wasn’t productive as she was surrounded by friends and family bringing her flowers. I am going to contact them to address this issue but wanted to post here fist and see what information I could gather.<br /> <br /> What is the best course of action here? <br /> <br /> As a PS, they also used one of my photos for the cover of the program without a photo credit and they called the whole event a “fund raiser” for the choreographer’s non-profit dance organization where he teaches dance. The dancers were students and were not paid. Theater was a good size and tickets were $25 – it sold out. This is not a personal friend. <br /> <br /> Thanks for the help with any information you can provide.. very, very much appreciated.<br /> <br /> -Daniel P.<br /></p>

[djcphoto]

<p>I would ask him to choreograph my fist, which would be swinging wildly by now! Seriously though, it sounds like he has a lot to lose if word of this gets out to his organisation and/or students. Just talk to him as soon as you get a chance and let him know that his usage of your images is not acceptable. That should be your first step.</p>

[cabbiinc]

<p>Contact a lawyer for legal advice. It doesn't mean you have to take anyone to court, but a lawyer will know more about the law than anyone.</p>

[tomwatt]

<p>Dan F.'s response is sound advice. All law and legal action is local/state based, so advice that's good for New York is irrelevant for Texas. It may be that an attorney sending a nice letter will accomplish everything you need, and that can often be done at low cost (if you have an attorney "friend" possibly even free).</p>

[jeff_drew4]

<p>It seems that you have a working relationship based on a degree of trust, but there is a misunderstanding. If there is anything you can do to arrange an amicable meeting with you and the "offending" party would be a good start. Do the meeting in a non-hostile location and away from the show and uninvolved 3rd parties. Based on your post, could there have been an honest mistake or an ignorant blunder? Perhaps a friendly compromise could be reached before both parties escalate with lawyers etc. Before you escalate, weigh the costs. If talks fail, you may run the risk of ill will spread by a group of people etc. BTW, I am urging diplomacy and not judging who is right or wrong. Once the legal system gets rolling, lines are drawn in the sand and future business with the dancers, manager, company and their immediate families becomes less likely to happen.</p>

[sknowles]

<p>How about the dance company (whatever it is) announce at the opening show that they're appreciative of those who produced and bought the T-shirts, but they are more appreciative of the photographer (insert your name) for the shoot and photographs. And if there is a program, you should be listed as the photographer. If then don't, go to plan B's as suggested.</p>

[david_henderson]

<p>Before I spent money on a lawyer, I'd be inclined to speak with or , if they refuse, write to the offending party , explaining that</p>

<p>Firstly their use of the image is unauthorised and was not covered by the release requested or given.</p>

<p>Secondly that if they make a payment of an agreed sum now they can avoid court and be given a licence to continue selling the item. You'll need a one-off sum rather than a royalty because its too much trouble to keep tabs on what they sell and wait for cheques that may never come. If it were me, in the circumstances I'd ask for $1000.</p>

<p>Thirdly that they have the option of paying you now or paying more money to their lawyer (and yours). Under the first they get to continue to sell. Under the second they don't. Give him 14 days to decide.</p>

[john_h.1]

<p><em>All law and legal action is local/state based </em></p>

<p>Are federal statutes and courts just a figment of our imagination along with the federal Copyright Act that requires infringement actions to be brought in federal district court? Maybe we don't have to file federal income tax afterall since it may apply in one state but not another.</p>

<p>Now some good news for Daniel (in the hypothetical that he actually were to seek legal remedies) is that he might avoid having to make a federal claim but one of Tom's state based breach of contract claims. Assuming his version could be proved... The damages? Probably not a grand fortune. A remedy such as an injunction preventing further unauthorized use? Probably. Will the cost and effort be worthwhile even for a state action? I'll leave that as a thought to ponder and let anyone interested research all of this this independently.</p>

<p>Don't get legal advice from internet forums. People will say anything.</p>

[tomwatt]

<p>Good catch John. Not all law, just most case and court actions. And attorney licensing. Which is what I had in mind when I wrote that... but since you're passing out legal advice (hehe), I'll write that on my tax returns next year explaining I don't have to pay!<br>

Don't get legal advice from anyone not practicing law within the jurisdiction you plan to proceed under... be that state or federal or foreign country.</p>

[david_henderson]

<blockquote>

<p>"Don't get legal advice from internet forums. People will say anything."</p>

 

</blockquote>

<p>But then of course most people contributing to this thread advise to try further negotiation first, before going anywhere near a lawyer. I imagine its OK to listen to them.</p>

[craigpjenkinsphotography]

<p>Research on the Internet for 'demand letters' and pick a style you like to copy. Send your letter to this guy's boss. Be reasonable and justify your figures. Be sure they understand if they do not send you money then you will spend some of yours in a lawyers office. Lawyers are expensive so there is no point in running to one as your first option.</p>

[tomwatt]

<p>Did the OP mention that he is in the U.S.? It makes a difference... we do get people here from all over the world.<br>

And my suggestion for an attorney included checking with a "friend" attorney... I have one in my bunch of friends, and he has several times sent a letter for free on my behalf. You'd be surprised what a difference an attorney's letterhead makes in the tone of the discussion. As far as expense goes, good camera equipment isn't cheap either, but it's hard to substitute a $25 lens for a good one and still get usable results.</p>

<blockquote>

<p>"Saying anything for years now..."</p>

</blockquote>

[alec_myers]

<p>Nobody's mentioned copyright registration in this thread yet, which surprises me. Did you register the pictures? Is it less than three months since you first "published" them? Get that registration sorted right away!</p>

[daniel_p4]

<p>Thanks for the helpful replies. To answer some questions.. I am based in New York City and yes, I would much rather settle this without having to go to court. <br /> <br /> I do, in fact, have a lawyer friend that has offered to write a letter for me but plan to speak with the choreographer's manager first (this is who made the prints). I plan to have the demand letter "handy" should talks not produce a satisfactory result. Financial compensation is the only solution I can see in this matter.<br /> So I've been asked by some people if I specifically told or wrote down that they could not sell reprints of my photographs. My answer is "no" but my reply is that as the photographer, I hold the copyright and since they never paid me a dime, transfer of copyright could have never even taken place thus making it illegal even without a written contract or terms of use. Please tell me this is correct. Not to mention that they even took credit for and signed the prints. I'm having a hard time explaining to people how this is stealing even without a contract.<br /> <br /> Now for how I see this conversation going... they will no doubt say that it was an "oversight" and that they thought they could just use the images for sale to "raise money" for the "non profit." <br /> <br /> I actually just got the phone with a mutual friend of the offending party pleading with me to not make a big stink over this. She said they have "no money" and that any money they made was for the next production and that I would just be taking money from the "community" and that they only sold three prints.. etc, etc. Oh, and that it's not like they printed my photo on the cover of Vanity Fair without my credit and that I should only shoot people with money. She wants me to "have some perspective here - they're small potatoes."<br /> <br /> Eeesh, so to say I've got a delicate situation on my hands is putting it lightly.<br /> <br /> I'm of the notion that I should at least be paid the VALUE of the prints - not what they made selling the prints. Sure, they'll say that they only sold three or something to that effect and I'll say they have the opportunity to recoup the amount paid to me by selling the rest of the prints. Whether they get to sell them or not is not my problem. <br /> <br /> My "perspective" here would be seeking around $600, not $1000.<br /> <br /> Thoughts? Thanks so much again for all the input.<br /> <br /> -Daniel<br /> <br /> Oh.. just saw the last post - no, I have not registered the photos. Yes, it's been less than three months. How could this effect my right to be the sole person able to sell my prints?<br /></p>

[alec_myers]

<blockquote>

<p>How could this effect my right to be the sole person able to sell my prints?</p>

</blockquote>

<p>Well I'm not in the US, so my research on this topic is less diligent, but if your copyright isn't registered within three months of publication or before the infringement occurred (which ever date is later) then you can only recover actual damages. If it's registered early enough you can recover statutory damages amounting to many thousands of dollars, regardless of your actual loss. Regardless, in order to action for breach of copyright in a US court you must register the copyright anyway, whether before or after the infringement.</p>

<p>But you will want to check these details on the US Copyright Office website, or with a lawyer.</p>

<blockquote>

<p>My answer is "no" but my reply is that as the photographer, I hold the copyright and since they never paid me a dime, transfer of copyright could have never even taken place thus making it illegal even without a written contract or terms of use. Please tell me this is correct.</p>

</blockquote>

<p>Well that's possibly correct, but not necessarily relevant. You don't need to transfer copyright to them in order for them to print and sell copies, merely give or sell them a licence to do so. A transfer of copyright would have to be in writing but a licence wouldn't. Simply saying "ok, you can have these pictures to print and sell" would count, if they could get a judge to believe it. Again, you'll want to take qualified advice, which as John Henneberger says, frequently - and always correctly - isn't available on a photographer's forum.</p>

[steve m smith]

<blockquote>

<p>I hold the copyright and since they never paid me a dime, transfer of copyright could have never even taken place thus making it illegal even without a written contract or terms of use. Please tell me this is correct.</p>

 

</blockquote>

<p>Well, you could give away the copyright for free but unless you have actually transferred copyright by means of a letter, then you are correct, copyright is yours.</p>

 

<blockquote>

<p>Well I'm not in the US, so my research on this topic is less diligent, but if your copyright isn't registered within three months of publication or before the infringement occurred (which ever date is later) then you can only recover actual damages. If it's registered early enough you can recover statutory damages amounting to many thousands of dollars, regardless of your actual loss. Regardless, in order to action for breach of copyright in a US court you must register the copyright anyway, whether before or after the infringement.</p>

</blockquote>

<p>This seems to be a strange US only thing. Even if you don't register the copyright, it still belongs to you.</p>

 

[alec_myers]

<blockquote>

<p>This seems to be a strange US only thing. Even if you don't register the copyright, it still belongs to you.</p>

</blockquote>

<p>It is a strange thing, and unique to the US - but still true. You do indeed own the copyright even without registration (as the Berne Convention to which the US is a signatory demands) but your remedy in US law is greater if you register within three months of publication or prior to the alleged infringement. Daniel P - get right onto it! </p>

[john_h.1]

<p>OK, Lets talk breach of contract here, just for discussion, instead procedural heavy and drawn out infringement which you could find to be onerous. You claim that "<em>Financial compensation is the only solution I can see in this matter</em>" and that "<em>I'm of the notion that I should at least be paid the VALUE of the prints - not what they made selling the prints</em>."</p>

<p>Its time to talk remedies with this lawyer freind. </p>

<p>You told us "<em>I would give them a few shots for their time which they could then use to promote themselves – with the stipulation that they gave me the photo credit"</em>. So what might they tell you about damages? If they are in breach as you say your loss under the contract is a photo credit. Assuming one can even convince a judge that there is a MEASURABLE economic loss to that, how much is that realistically going to be? If it is hard to actually quantify to a judge, how much could potential "de minimus" damages for technically winning yield in your state? $1, $20? I don't know.</p>

<p>You also feel that you can recover the purchase price not merely profits. Lets say you actually can obtain more financial compensation than the value of your credit loss. If you sold those prints on your own, would you have made the purchase price or the net price. Unless you get materials and all for free, its going to be the net. Well, there' this thing about contract remedies of putting the breached party where they would have been. If you would only have made netted profit, how are you going to argue to a judge that you also lost money you would have had to spend anyway? Did they net your $600.00 btw?</p>

<p>Then there is the issue of proving the case. </p>

<p>Verbal contracts? The claims you suspect of limited sales even if profits are recoverable in contract law? Is this a strong case to go all the way to court with?</p>

<p>I am not giving you legal advice. I am giving you question you might ask an attorney to discuss with you. I am also suggesting that you do consult with an attorney before poceeding with discussions and actions despite the comments here. After talking with an attorney, you can be informed about the situation.</p>

<p>If it were me, and this is my personal opinion about me and not for you, I would talk cease and desist and explore ways that the relationship could be mutually beneficial in the future... in writing.</p>

 

[alec_myers]

<p>John, can the OP claim to have entered into a contract when there was no consideration?</p>

[craig_gillette]

<p>One could probably argue that they had a contract, there was an e-mail, the OP approved a particular use. Both parties got something. One could use the image, the other had the assurance that the use would include recognition. So it seems the use is outside of the area agreed to.</p>

[sd_woods]

<p>You at very least deserve credit for taking the pictures, they surely should give you that out of common decency</p>

[tomsmalling]

<p>Just because you "gave" them copies of the images does not imply that you've given them your entire copyright on the image - which you do still own. And it certainly doesn't give a third party the right to make a derivative work from your images without first obtaining permission. Search for <strong>Shepard Fairey </strong> on the internet, and read about his fiasco with the Obama illustration - same concept.</p>

<p>With this said, I would take the high road on the matter and educate the offenders on using others' work for their own gain - get permission! Otherwise, I wouldn't waste much more time on the matter because it is "small potatoes" in the scheme of things.</p>

[patrick j dempsey]

<p>How does someone with "no money" get large prints made? Someone had some money, and they thought a good way to invest it was to steal your work. It's not like these people are working in real estate or dentistry. These are people in the art community and copyright is an issue for EVERYONE in that community. Your mutual friend's complaint that you are taking money from "the community" sounds like a rather selfish attitude. As if you are not part of the artistic community, and as if her little slice of the artistic community is more important than yours. Tsk tsk. The fact remains that there is a person here claiming to be a manager. This so-called manager apparently knows nothing about copyright or the definition of promotional materials. Either that or he is aware of them and believes that because they are non-profit that they are above the law in terms of copyright. </p>

[john_h.1]

<p><em>"John, can the OP claim to have entered into a contract when there was no consideration?"</em></p>

<p>No.</p>

<p>There was consideration given on both sides however.</p>

<p>A unilateral offer containing consideration of imagery was made. The offeree accepted by taking the benefit of the offer while having an opportunity to reject it and knowing the offer came with an expectation of compensation (consideration) in return. <em>Restatement of Contracts 2nd, Sec. 69(1)(a)</em> The photo credit was the return consideration.</p>

<p>Since the photo credit was not assigned a monetary value by way of a liquidated damages clause or other means, the amount that can be recovered is a practical concern. An infringement action is a big hassle. Discussing corrective behavior with the organization to resolve this issue should be seriously considered.</p>

<p>"Caveman" or not, this is not legal advice.</p>

[Stock-Photos]

<p><strong>First and foremost, Dan, don't let the situation stress you out.</strong></p>

<p><strong>This might be the best advice so far!<br /> </strong></p>

<p>Calculate, as best you can, what you would have charged for said use. Consider adding in an unauthorized use fee. Send the offender the invoice via registered mail.</p>

<p>I have collected payment from violators of <a href="http://www.saugus.net/Photos/copyright_notice.shtml">my copyright</a> several times, by doing just that.</p>

<p>Read <a href="http://www.krages.com/copy1.htm">attorney Burt Krages Enforcing Your Copyrights</a> paragraph.</p>

<p> </p>