My stupidity to be trusting

[ccommins]

A few years ago I went to a vineyard and took pictures, They turned better than I imagined they would, the owner

purchased prints for all of his stores, needless to say I was thrilled. I emailed them some of the pictures (at their request)

so they could use them on their website, on the condition that my name be mentioned as the photographer. Now I am

seeing my pictures on brochures (10,000 to be exact), their website and other wine websites. I am sure you know where

this is going. This is a hard lesson for me because I trusted these people. My theory, always have a contract, no matter

who or how long you have known them. Thanks for letting me vent.

[andylynn]

What did you talk about with them at the time? It might be perfectly innocent, with them thinking you were letting them

use it for promotion in general (maybe as part of the deal with them buying prints?) which it sounds like is what they're

doing. Are they still giving you credit?

[bobatkins]

<p>You have a contract. Oral contracts can be binding especially with some sort of evidence to back them up. You don't have to have a formal, written, signed contract.</p>

<p><a href="http://www.expertlaw.com/library/business/contract_law.html">http://www.expertlaw.com/library/business/contract_law.html</a></p>

<p>Get an email trail. Email them and say you didn't ever give permission for such usage and see what their response is. If they admit you didn't, then you have additional evidence. Do you have their old email where they requested permission for website usage. If you do an they don't mention brochures and other uses, you have even more evidence.</p>

<p>Note that they don't have a written contract either. If you sue for copyright enfringement, you may well have a case, especially if they allowed other people to use your image on other wine websites. Even if you agreed to them using it on theirs, that does not give them the right to sell or give it to others, nor does it mean they can use it for anything else they want to. You still own the copyright on the image.</p>

[sarah_fox]

<p>I agree with Bob. Without any contract, they're using your photos without any evidence they have permission to do so. I would think that's actionable. It seems to me the burden of proof would be on them.</p>

<p>I would approach them cordially, though, and point out to them that they might not have understood the photos didn't come with those usage rights, but that you are happy to sell them those rights. If they decline to pay you a fair rate, then you can take them to court and probably win.</p>

[unangelino]

<p>As Sarah says, your approach is very important. Start out by saying you're glad to see they're still so pleased with your photos. Then, tell them you'd like to discuss the new ways they're using the images (in the printed brochures and other websites). This should prime them for the ensuing conversation.</p>

<p>Also, be very clear about what you'd like from them: Do you want a new and more formal agreement respective to acceptable use? Do you want more credit for the images? Folding pictures of dead presidents?</p>

<p>My guess is that if they seemed like nice folks when you started, they'll want to treat you fairly now that they've derived so much benefit from your work.</p>

<p>In addition to the email trail, I would also print each website where your images are displayed and, of course, keep copies of those printed brochures.</p>

<p>You know, just in case all of their niceness has vanished.</p>

<p>Good luck.</p>

<p> </p>

[john_h.1]

Copyright, contract and legal issues aside, what was the trust broken? Most people don't know about usage issues. Were they expressly forbid from other uses? Were you not credited on the brochures? Are you incurring an actual loss? I'm not defending the use but wonder if you might be able to make the best out of something that might not have had nefarious intent.

[bobatkins]

<p>Their stupidity is no defense. Neither is ignorance of the law.</p>

<p>Obviously if they simply made a mistake and are prepared to come to some mutually agreeable arrangement, then no harm done. However if they aren't cooperative, they are accountable for their breech of your copyright if you decide to pursue the matter</p>

[ccommins]

I know that approaching this subject, presentation is important. They know about copyright laws, they needed my permission to use one of the pictures for a newpaper article, the writer of the article gave me credit for the picture. When asked about usage of the pictures on their website, posters and wine label, I told them they could use them for the website, but anything else we have to have a contract. It was never mentioned again. I was not given credit on the brochures, yes John I feel that I have taken a loss, recognition and monetary. I also understand that 10,000 more brochures are to be printed. I need to speak to them before the next printing.

[MathewDH]

<p>Carol,</p>

<p>The first step is to find the original files for all of the pictures and submit them electronically for a copyright registration. $35 if done online. The digital camera should have recorded on the file the actual date(s) the images were taken. There also is a chance the company filed for a copyright on these images and it would need to be checked out.</p>

<p>Obtaining a copy of the printed brochure and other free materials they offer would be concrete proof of the image(s) usage.</p>

<p>Then talk to an Intellectual Property lawyer about the issue of unauthorised usage of the images.</p>

<p>If you gave them permission to use the images only on the website, that is the only right you granted. No permission was granted for use in printed materials of any kind or other uses beyond the website.</p>

<p>Good luck...Mathew</p>

[andylynn]

<p>Here we've got a client who has permission to use the images on their web site, and did pay for the prints they wanted for their stores, but they use them in other promotions and they're stupid? I know this forum always sides with the photographer getting paid, but there's an element of reasonableness here.</p>

<p>Carol, unless the winemakers happen to be E&J Gallo or some other very large business like that (and I don't think they are), or lawyers who quit the city life to go into the wine business, if they've gone beyond the license you gave them they've almost certainly made an honest mistake. And without knowing the contents of the communications, none of us can actually say that they're wrong. Talk to them, be nice about it, bring in the lawyer only if needed, and keep in mind that it only takes a few seconds to find out what vineyard you're probably talking about.</p>

[bobatkins]

<blockquote>

<p><em>When asked about usage of the pictures on their website, posters and wine label, I told them they could use them for the website, but anything else we have to have a contract. </em></p>

</blockquote>

<p>Well, either they are stupid (or maybe "dumb" would be a better term), didn't listen, didn't understand, are willfully ignorant or just don't care. It's hard to say at this point. They certainly deserve the benefit of the doubt, so assume they just didn't listen/understand. However people who are in business should have some concept of intellectual property rights, especially if they are going to use someone else's intellectual property in connection with their business.</p>

<p>The fact that their "lack of understanding" benefited them financially is certainly a point to be taken into consideration. Could be an honest mistake, but then again...</p>

<p> </p>

[ccommins]

Thank you everyone for your suggestions. I have decided to discuss this with them and if they won't give me credit for my photographs, I'm just dropping the whole thing. I feel taking them to court would only hurt my business since they are so well known & liked. Bob, it could be an honest mistake and we might be able to come to terms. (lets hope) But if not, I should have known better, the words of PN members echo in my head always have a contract!

[woolly1]

You might suggest an exchange of goods. Wine for services.

 

A lifetime supply of wine for as long as they use the

photos. Little real cost to them, a vote of confidence in their product and you get a nice warm glow ;)

 

Are bartered goods taxable in the USA?

[trent_dietsche]

<p>I agree 100% with Andy. Do not burn bridges and go on a rampage of legal proportions. Just send a polite email explaining your position and see what they say. You may even be surprised if they offer to pay you for the usage. Right now you have a happy customer. If you go off half cocked and threaten to bring in a lawyer with no warning, your customer will no longer be so happy. Honest mistakes happen, and honest people are usually willing to try to correct the mistake.</p>