Help, the Herald-Sun Stole My Photo

[janienews]

<p align="left">On April 1st (yes, April Fools' Day) I discovered that an article in the Extra Section p.93 "The Forecast is Warmer and Weirder" was illustrated with my photograph "Sydney Harbour Storm". This photograph was selected for hanging in Hyde Park, Sydney CBD in the 2011 Art and About contest. The small print said the organisers could only use my image for promotional purposes.</p>

<p align="left">I rang the paper and was told that David Porter was the Picture Editor concerned, and left a message on his voice mail. When I rang a second time several days later, I got voice mail again. I tried to get his direct line number and information about when he was in his office from the operator but she refused to supply any information but gave me his email address. I wrote to him ten days ago and so far no reply.</p>

<p align="left">You can see the photo in my Landscapes folder.</p>

<p align="left">What can I do? Can anyone help? I would really like to know how the Herald-Sun obtained my photograph. </p>

<p align="left"> Janie News</p>

<p align="left">9457 6269</p><div></div>

[Mattman944]

<p>The first thing to do is to be absolutely certain that they used your image. This was a dramatic event that was most likely captured by many people. Do you have a copy of the image they published? Compare the positions of the moving boats, if they matched exactly, this would be excellent proof.</p>

[paulie_smith1]

<p>Copyright Registration requirements in Australia? Check first and make sure you are protected there before anything else. A visit to an Intellectual Property solicitor may be in order as well.<br>

Do check as said above. Is it possible two photographers shot virtually the same image from similar vantage points at nearly the same time? Yes. Did they do it? That is what you need to know before anything else.<br>

If your checking shows this is actually your image the legal knowledge can only help your case. So, what remedy do you want?</p>

[danmarchant]

<blockquote>

<p>What can I do? Can anyone help? I would really like to know how the Herald-Sun obtained my photograph.</p>

</blockquote>

<p>1. As suggested above, confirm that the image is yours.<br>

2. Decide what you want. The newspaper has infringed your copyright and under the law you can sue them for damages. However the cost of doing that would probably outweigh the damages gained - for both parties. If this is indeed your image the paper's legal dept will know they don't have a leg to stand on and will almost certainly prefer to settle with you to avoid costly legal action. The amount would normally be your standard rate for the specific type of usage of an image or the industry standard. We aren't talking a million $ settlement here.<br>

Alternatively you may decide you just want a published apology and acknowledgement that it was your photo.<br>

3. If possible find out where they got the image. Phone the media contact for the exhibition http://www.artandabout.com.au/media and ask if your image has been featured on their website or sent out to the media? If it has been sent out to any media ask specifically if the Herald-Sun was one of them. Also, did the image appear online on any photo sharing sites (Flickr etc) before the paper published it?<br>

4. Phone the newspaper and ask for the name of their in-house lawyer - If they don't have an in-house legal dept ask for the name and address of the law firm that represents them.<br>

5. Send a <strong>registered</strong> letter to their legal dept and copy to the editor of the paper headed "Copyright infringement - without prejudice".</p>

<ul>

<li>Explain that they used your image on page x of the issue dated y without your permission which is a breach of your copyright.</li>

<li>That you have repeatedly contacted the paper in an attempt to resolve the matter (list the times/dates you called and what you said/what message you left).</li>

<li>Explain that you would like to resolve the matter amicably and are willing to grant them a license for the use of the image in return for AU$xxx.</li>

<li>Unless they contact you within x days you will assume they do not wish to settle the matter amicably and will then put the matter in the hands of your lawyers.</li>

</ul>

<p>Alternatively you could always join Twitter and Facebook and tweet about the fact they infringed your copyright. Obviously as that is public it is vital to ensure that it actually is your image they used.</p>

[craig_shearman1]

<p>Was this image out in public anywhere other than through the art contest where it was displayed? If the paper obtained it from the art contest organizers, and you had signed something saying the contest could use the photo, that's the end of the story. Nobody stole anything or infringed on any rights -- you signed away at least part of your rights when you entered the contest and the paper got it from them legitimately. If they came and pulled it off your own web site without permission, that's a different story. Getting on Twitter or Facebook and accusing the papers of infringement -- unless you can prove it you could be asking for a libel lawsuit against yourself.</p>

[janienews]

<p>Hi Matthew and Paulie, thankyou for your responses. Here is a scan of the article in the Herald-Sun. It's an amazing coincidence that the moving ferry is in the exact same position as in my image. I was alone outside a friend's house when I took the shot, so it wouldn't belong to another person.<br>

Hi Craig, the image has not been in public other than the art contest and the small print of Art and About does not give them to right to provide the photograph to a third party. I don't have a website, so that can't be the case; also, it was not on Photo.net at the time or any other photo sharing sites. I won't accuse the Sun-Herald on Twitter etc. but the fact that nobody will answer my query as to where it was obtained makes me very annoyed.<br>

All I really want is acknowledgement that it is my image and I also need to know how they obtained it.</p>

<div></div>

[danmarchant]

<p>Yes, that is clearly the same shot. They have just manipulated it to get the crystal ball effect.<br>

You have done the reasonable thing and given the picture editor a chance to resolve the issue. As he has ignored you it is time to escalate it to their legal dept/editor.</p>

[craig_shearman1]

<p>"The small print said the organisers could only use my image for promotional purposes."<br />You should read the small print very carefully. If the paper had run your photo to illustrate a story about the contest, I would say they were well within their rights. Is there any kind of tiny photo credit down in the corner (that we can't see in the scan here) that connects the photo to the contest? Unless there is something indicating the connection, it would be a stretch to consider this "promotional purposes' for the contest and you much more likely have something to complain about. Have you spoken with the contest people and found out whether they sent the photo to the paper?</p>

[danmarchant]

<blockquote>

<p>Unless there is something indicating the connection, it would be a stretch to consider this "promotional purposes' for the contest</p>

</blockquote>

<p>The article clearly has nothing to do with the exhibition/contest - it is an article about the weather/environment so they would have to be Mr Fantastic to stretch far enough to create a connection.</p>

[sheila]

<p>Janie<br>

If they are still ignoring you, and you wish to take this a step further, please PM me and I will give you the name of my Sydney IP lawyer who I highly recommend. <br>

Sheila</p>