Photo used in local magazine with no credit or compensation.

[bazz farazz]

<p>I was browsing through the latest issue of a local magazine and came across an article about a local summer event that I had photographed. I'm a close friend of the coordinator of the event so I allowed him to use my pictures for the events Facebook page which all had my name in the corner of pictures. Well, this local magazine had taken my picture from the Facebook but had cropped my name off the photo and had given me no credit for the photo or compensation for it. I was totally unaware that the photo was used until I saw it in the issue. Do I have any legal rights here to ask for any sort of compensation since my name was cropped off? </p>

[john_h.1]

<p>Overview: http://www.copyright.gov/</p>

<p>Plus criminal penalties: http://www.copyright.gov/title17/92chap5.html#506</p>

<p> </p>

[mariosforsos]

<p>Normally, I would have said the same as John did, but with Facebook in the middle, I'm not sure the situation IS the same. You really need to look again into Facebook's terms and conditions because, unless I'm mistaken, there are terms in there that do not offer the same amount of protection (they actually strip some of it away). What I'm trying to say is that, based on those truly messed-up terms, the magazine may claim they did not know it was a copyrighted image and so on and so forth...</p>

<p>Check it out VERY carefully before you do anything - better, have a lawyer check it for you.</p>

[steve m smith]

<blockquote>

<p>What I'm trying to say is that, based on those truly messed-up terms, the magazine may claim they did not know it was a copyrighted image and so on and so forth...</p>

</blockquote>

<p>A magazine should know better than this.</p>

<p>Whilst Facebook's terms and conditions allow it to display uploaded images in multiple positions (i.e. other people's Facebook pages) it does not transfer any rights to anyone else. e.g. the magazine.</p>

<p> </p>

<blockquote>

<p>better, have a lawyer check it for you.<br /><br /></p>

</blockquote>

<p>Don't waste your money. That will probably cost more than any compensation you might get from a small scale local magazine.</p>

<p>Legal proceedings should be a last resort option. Rather than charge in with a lawyer in tow, just send a letter pointing out the situation and make a suggestion for a suitable usage fee.</p>

[john_h.1]

<p>I agree with Steve.</p>

[tony_clark]

<p>I laugh when someone comments that it would cost so much to pursue a Copyright violation. Most Intellectual Property Attorney's will take a strong case for a percentage of the settlement. I have done just that for a small case and it was settled quickly. I'd suggest searching one out and share your situation with him or her. Yes, what the magazine did was wrong and I would pursue compensation.</p>

[craig_gillette]

<p>So while they should know better than to use an image without clear permission, are you sure they grabbed the FB image or could they have gotten it from your friend the event coordinator - who already had permission for use of the picture? Was he clear on any restrictions you may have had?</p>

<p>So yes, there may well be an infringement there may still not be enough at stake to do much more than request payment for use of the image. You also have the problems of the impact a hassle might have on your friendship, the relationship of the event to the magazine, etc.</p>

[scott_ferris]

Facebook terms and conditions,

 

" When you post User Content to the Site, you authorize and

direct us to make such copies thereof as we deem necessary in

order to facilitate the posting and storage of the User Content

on the Site. By posting User Content to any part of the Site, you

automatically grant, and you represent and warrant that you

have the right to grant, to the Company an irrevocable,

perpetual, non-exclusive, transferable, fully paid, worldwide

license (with the right to sublicense) to use, copy, publicly

perform, publicly display, reformat, translate, excerpt (in

whole or in part) and distribute such User Content for any

purpose on or in connection with the Site or the promotion

thereof, to prepare derivative works of, or incorporate into

other works, such User Content, and to grant and authorize

sublicenses of the foregoing."

 

If you give somebody permission to put your images on Facebook they then have the right to do anything they want

with them. By granting the events people the permission to put the images on their Facebook page you also gave away your rights, they can crop your name off, strip out metadata, remove copyright and watermarks. You have no legal recourse. If you didn't register copyright before they were published any claim you might have had is severly lessened.

[steve m smith]

<blockquote>

<p>If you didn't register copyright before they were published any claim you might have had is severly lessened.</p>

</blockquote>

<p>Only if you are in the U.S. (which you and the O.P. probably are).</p>

 

<blockquote>

<p>I laugh when someone comments that it would cost so much to pursue a Copyright violation. Most Intellectual Property Attorney's will take a strong case for a percentage of the settlement.</p>

</blockquote>

<p>Perhaps, but this isn't a strong case and the settlement is likely to be small. Therefore your percentage will be very small.</p>

[Jerry_]

<p>Here is one way to settle the issue. If you are in the photography business, and you want a income tax deduction...simply make up a invoice to the magazine for "use of your photography" -- if the magazine does not pay -- keep a clean copy of the invoice for your federal income taxes. It goes as a bad debt or unpaid invoice. [if in doubt, contact a CPA.]</p>

<p> </p>

[craig_gillette]

<p>Facebook doesn't have the right to do anything they want with them. The limits are clearly spelled out. They are expansive but not unlimited. Nor is Facebook the problem here. The local magazine apparently got the image from Facebook. There isn't the least indication Facebook gave them the image nor that the image was used by/for Facebook nor that the use was authorized by Facebook. </p>

[scott_ferris]

<p>Craig,</p>

<p><em>"to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing."</em></p>

<p>That bit is written after the <em>"on or in connection with the site"</em> bit. It will take a few people with much deeper pockets than most to pay for a lawyer to fight the terms of use as laid out.</p>

<p>As most read it, if you authorise somebody to place one of your images on their Facebook account, you have given Facebook the right to sell that image, and to prepare derivative works, you have given them an unconditional, irrevocable right, and a shared copyright.</p>

<p>Now who knows what deal the magazine publishers have with Facebook, if any, but the point is, Jeffery is no longer the sole copyright owner, nobody needs his permission to do anything to his image if they get the permission of the other copyright holder, or even if they just don't infringe on the other copyright holders terms of use.</p>

<p>The problem here is, however innocuously it happened, the copyright of Jerrey's image is not clear cut and he is not the sole owner. If he were to chase the publishers and they do have a deal with Facebook he would almost certainly not win. The terms of use, particularly as pertaining to uploaded images, became rather a hotbed for social media sites after the<a href="http://www.jeremynicholl.com/blog/2010/05/03/afp-steal-photos-then-sue-photographer-2/"> Haiti earthquake</a>, that is when many of them were re-written to include the newest grabbing clauses.</p>

[craig_gillette]

<p>Actually, this is what their terms state (the current posted today version revised April 26, 2011):</p>

<p>http://www.facebook.com/terms.php</p>

<p><strong>Sharing Your Content and Information</strong><br /> <br /> You own all of the content and information you post on Facebook, and you can control how it is shared through your <a href="http://www.facebook.com/privacy/">privacy</a> and <a href="http://www.facebook.com/editapps.php">application settings</a>. In addition:</p>

<ol>

<li> For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your <a href="http://www.facebook.com/privacy/">privacy</a> and <a href="http://www.facebook.com/editapps.php">application settings</a>: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License"). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.</li>

<li> When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).</li>

<li> When you use an application, your content and information is shared with the application. We require applications to respect your privacy, and your agreement with that application will control how the application can use, store, and transfer that content and information. (To learn more about Platform, read our <a href="http://www.facebook.com/policy.php">Privacy Policy</a> and <a href="http://developers.facebook.com/docs/">Platform Page</a>.)</li>

<li> When you publish content or information using the "everyone" setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).</li>

<li> We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).</li>

</ol>

<p>They don't claim ownership nor do they state they are licensed to do whatever they wish with it. BTW, they can't claim ownership of copyright because that requires a written transfer.</p>

[craig_gillette]

<p>The OP also suggests the the user took the image from FB, not that FB gave, sold, sub-licensed or anything else. FB is not a part of this.</p>

[scott_ferris]

<p>Craig,</p>

<p>We are obviously not reading the same English. Your latest copy is just as frightening.</p>

<p>You would allow this? By default</p>

<blockquote>

<p> <em>"you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License"). "</em></p>

</blockquote>

<p><em> </em>That is authority to do whatever they like with it. Try finding any other professional service with a similar clause that pro photographers sign up to. 500PX is currently the photo website creating a buzz amongst pro photographers, here is their terms</p>

<blockquote>

<p>"<strong>By uploading your photographic or graphic works to 500px you retain full rights that you had prior to uploading</strong>. We will do our best at protecting copyright, see next section for details.<br /><br />By submitting photographic or graphic works to 500px at <a href="http://500px.com/upload">Upload</a> page to your profile you agree that this content fully or partially may be used on 500px web-site for promotional reasons (such as photos at <a href="http://500px.com/">home page</a>). By doing so, 500px will comply with the <a href="http://laws-lois.justice.gc.ca/eng/acts/C-42/index.html"><strong>Canadian Copyright Act</strong></a>, which means your work will be properly attributed or quoted. No photographic content, emails, and other private information will be sold for any reasons by 500px."</p>

</blockquote>

<p> Quite a difference, no grabbing, no licensing. Further, do you know how to delete a Facebook account? You can't. You can say you have deleted it, but if you then try to log in a few months later it is all still there.</p>

<p>FB might, or might not, be a part of this, my point was, Jeffery is not the only body able to licence the use of his image if it has been legally posted there by anybody. FB don't need to claim ownership of copyright, they have been granted a licence to do whatever they want by the act of uploading, in so doing the uploader agrees to that.</p>

<p>Now, until we know how the magazine received the images we are just hypothesising. As I said, my point really was to be careful of website TOS and any grabbing clauses in them, not that FB had sold Jeffery's images to the magazine.</p>

<p>Yes, Jeffery has a claim against the magazine. In his position I would send them an invoice for comparable rates. Local magazine, inside images, freelance on spec, half a page, less than $100. If the images had been copyright registered then he could have claimed statutory damages too (well over $100) but I fear that FB issue would rear its ugly head in case arguments. </p>

[craig_gillette]

<p>They can use it "on" Facebook or "in connection" with Facebook. They aren't licensing it off to random local magazines.</p>

<p>Your aversion to Facebook is irrelevant to the problem here. The same problem would occur if he'd posted to pbase, flickr or any other host. The OP said the image was taken without permission. It would not be an argument in any legal case. The copyright owner has the exclusive right to authorize copies. Copyright law doesn't say that because he lets Party A make copies he can't seek an infringement action against Party B.</p>

[steve m smith]

<p>I agree with Craig. They are just covering themselves for display on their own pages. Facebook is a multi million dollar business. It isn't interested in getting a few extra dollars selling low resolution copies of photographs.</p>

<p>It is much more likely that someone will copy a photograph from your Facebook page rather than Facebook selling it and that in itself is very unlikely too. However, if you're really paranoid about it, the obvious answer is not to use it.</p>

<p> </p>

<blockquote>

<p>Now who knows what deal the magazine publishers have with Facebook</p>

</blockquote>

<p>I think we can assume it's no deals at all. And the low resolution images on Facebook will be of no interest to a magazine. </p>

[Spearhead]

<blockquote>

<p> you have given Facebook the right to sell that image, and to prepare derivative works, you have given them an unconditional, irrevocable right, and a shared copyright.</p>

</blockquote>

<p>In addition to what Craig says, it's worth pointing out that the word "irrevocable" is not part of it. In fact, they tell you how to revoke it - you delete it. The license ceases to exist. So there is no way they can sell it because they would have to end the usage by another entity immediately.<br>

<br />I don't know why people keep ignoring this. It's simple - they obviously can only display it on their own site. They can't just stop any possible sub-licensees from using it the minute after it's deleted by the owner.</p>

[scott_ferris]

<p>Well Craig, Steve and Jeff,</p>

<p>If you are happy with the wording, keep posting your images there. I never have. My point had never been that Facebook and similarly worded TOS sites were selling images, my point was always that you do assign them licensing rights.</p>

<p>Just as an aside, Flickr DO NOT have a licensing clause in their TOS, neither do 500PX. The difference between them and Facebook and Tweetdeck/Twitter, is that with the latter people can copy your image to their feed, you can remove your image from your account, you can not remove your image from their server if somebody else has a link to it, you cannot ask them to remove it either.</p>

<p>Now, before you all tell me I am wrong yet again, ponder this <a href="http://sports.yahoo.com/tennis/blog/busted_racquet/post/Caroline-Wozniacki-was-out-with-Rory-McIlroy-las?urn=ten-wp2331">Yahoo story</a> seeing as <a href="http://www.tweetdeck.com/twitter/Omes_Tennis/~cixIk">the poster specifically removed</a> the two images. Or <a href="http://notyourtypicalgirl.com/2011/05/19/so-i-was-on-a-plane-to-florida/">this one</a> seeing as how the unemployed lady seems to have been surprised by the wide coverage it got, not the offers she was receiving for its use. Funniest bit about the second story is that <a href="http://www.nasa.gov/mission_pages/shuttle/shuttlemissions/sts134/multimedia/gallery/gallery-index.html">NASA took the same image</a> (but through a clean window!), number 34 in the gallery, and, if I read it correctly, comes under the FOIA so is free to use. </p>

<p>Twiter/Twitpix/Tweetdeck,Facebook and others have re-licence grabbing clauses in their TOS, if you believe your images, poetry, prose, ideas or thoughts are worth money, even if you don't but want to sell them, posting them on any site that has such a clause is a stupid thing to do. </p>