Ellen show used my photos

[russell_flynn]

<p>Recently, I shot several photos of a house fire in my neighborhood. It was newsworthy because a 15 year old boy used a ladder to rescue a 5 year old boy who was trapped in the burning upstairs part of the house.<br>

I was there before the news crews arrived, and therefore got shots of the young boy being placed in the ambulance, and the hero shaking the fireman’s hands. I sent the photos to out five local news stations with permission to use them as long as I got credit.<br>

The following day I was contacted by <em>Good Morning America</em> as well as <em>CNN</em> asking to use them. I said yes with the same need for the credit. After these went national, I decided to copyright the photos, and did so. The day after doing this, I got an email from one of the local stations asking for permission to give my contact information to the <em>Ellen Show</em>. <strong>Clearly</strong> saying that it was permission to send my contact info only. Not to use the photos.<br>

I said yes, but heard nothing from the <em>Ellen Show</em>.<br>

Well, a week or so latter I heard that the neighborhood hero was on the <em>Ellen Show</em>, so I found the clip on You-Tube. Sure enough, she used two of my copyrighted photos without asking.<br>

I contacted a local lawyer who gave me some free advise, but said that he would not take the case without money up front.<br>

Acting on his advice, I wrote a letter to the show, (asking to forward it to their legal department), and basically saying that at a minimum she was liable for three grand, so I asked for three grand to forget it all. I gave them until the first of November to respond. Well, that day is now here and I have not heard from them.<br>

Should I keep looking for a lawyer who will take it for a cut, file a claim in small claims court, or just caulk it up to experience?</p>

[daverhaas]

<p>First off - you own the copyright the minute you take the photo. Period. You don't need to file to own a copyright. Filing does make it easier to collect damages from unauthorized usage and reproduction of your images. Up to a nice 5 figure amount per image. </p>

<p>If all you're after is $3,000 - then not many, if any lawyers, are going to take that on a percentage basis. Now if you started at $30,000 or $50,000 then you might have some takers. But the real question is usage and loss of your potential revenue from the images. </p>

<p>I'd advise trying to call the Ellen Show. Get a hold of someone in their accounts payable, legal or production staff. Explain (nicely) the situation. Inform them that you have documentation stating that they did not have permission to use your photo and that you have already sent them an invoice for the amount owed to you. If they can't find it, resend it. </p>

<p>The challenge with taking them to court is what state are you going to sue them in? If you reside in VA and the Ellen show is headquartered in NY and does their business in NY, you may have to sue them in NY. Or you may get a judge that is lenient in VA and they let the case proceed. Talk to your attorney to find out what state to sue them in. Of course if you're in the same state it's easy.</p>

<p>Of course, their defense is going to be that this was a newsworthy event, and that they are in fact a "news" show, so their usage was covered under the law. </p>

<p>I AM NOT A LAWYER and this is not legal advice</p>

<p>Dave</p>

[MichaelChang]

<p>An initial demand letter from an attorney might have been more effective and not so casually dismissed; where I live, attorneys will draft one for about an hour's fee. </p>

<p>I don't think attorneys will take this case on contingency due to the small dollar amount. </p>

<p>I'd inquire with your local small claim's court for procedural details (usually posted on the web).</p>

[don_baccus]

<p>"I don't think attorneys will take this case on contingency due to the small dollar amount."<br>

<br>

Particularly since the poster allowed all sorts of other media outlets to use the photos for free, with nothing other than credit. That would be the first mistake ... in the future the OP should ask the outlet for whatever their standard offer is to freelancers in similar situations. I've only dealt with newspapers but have always been offered *something* even by small-town weeklies, even if it's only $10 or so.<br>

<br>

Anyway, it's going to be hard to show lost revenue when you have a history of giving rights away for nothing other than a credit line. The first logical response for the show's legal team will be to offer you a credit blurb on their website or the like (and one of their first actions will be to google you, which will lead to this thread, which will give them the facts regarding what you've asked for in the past).</p>

 

[don_baccus]

<p>Unless the [uS] law has changed, court awards for copyright violation when the copyright is not registered are limited to actual loss of revenue. Registered copyright ... lost revenue + up to three times punitive damages. Still, if you've not last revenue, 3x$0=$0. I think a lawyer (IANAL but have worked far too often with lawyers on contract and similar issues, as a business owner, etc) would be likely to point out to you that establishing that you intended to charge this show, unlike the others, would be difficult to establish in court. It looks like greed after the fact ...</p>

<p>Also, if you want a lawyer to join in on some action for a contingency fee, talk to the lawyer *first* before offering a settlement figure to the other party. That's a HUGE no-no. This is similar thinking to Michael's pointing out that a demand letter from a lawyer might've been more effective than your contacting them directly.</p>

 

[russell_flynn]

<p>Thanks for the response guys.<br>

There are a few other facts that I would have added last night, but it was late and I was beat.<br>

This attorney I talked to (three times) did a bit of digging for information or past legal presidents. Although he is an intellectual attorney, he has never come across a situation quite like this. While most didn’t “fit”, there was one that clearly went in the favor of the photographer, and the newspaper had to pay up. The one thing I’m very happy about is the fact that I copyright protected the photos before she used them. According to the attorney, had I not done this, the most I could have recovered is $200.00 per photo. (Known as actual damage). However because they were copyright protected prior to, she is on the hook for punitive damages as well. (Not to mention criminal charges) This is anyplace between $750.00 to $150,000.00 per photo. The only reason I offered to let her off the hook for three grand is because the lawyer said I should first offer to settle this between us picking a number where she “won’t push back”. I figured a low number like that was the best and quickest way to get this over with. The lawyer did say that he could write the letter, and said it would carry more weight, but at $350.00 per hour, and a quote of an hour needed to write it, I decided to write it myself. Mistake? Probably. But I simply don’t have it. <br>

Now that the November first deadline has passed, I’m loaded for bear, but unsure of which way to start. I find it hard to believe that here in Portland Oregon, there is not one lawyer who will take this case. Not for three grand, but as much as the court will award. <strong>What is the limit in small claims court? Her mailing address is in Burbank CA., will she have to show up in Portland if I file here?</strong><br>

Very pissed off about her cold shoulder but very unsure of which way to go.<br>

In response to this morning’s postings….The attorney touched on the “show damage thing”, and while the fact that the photos were offered for credit only, the real point is that the choice of charging or not is up to me for each use, and while I had not charged anything up to that point, I might have charged her. (In fact, I had planned to do just that). Also, because she failed to even give me the credit, it undermines the actual ownership of the photos, which hurts the future potential income from the photos. Also. Before she used them the interest and requests to use the photos was strong. After she used them it completely dried up.<br>

As for “It looks like greed after the fact ...” It seems to me greed has nothing to do with it. It’s simply a matter of my copyrighted material being used without my permission. Isn’t that what this copyright thing is all about?<br>

Thanks again for all your input guys. I was starting to feel somewhat alone here.</p>

[MichaelChang]

<blockquote>

<p><em>"I find it hard to believe that here in Portland Oregon, there is not one lawyer who will take this case."</em></p>

</blockquote>

<p>Russell, you already made a demand for $3k so I'm not sure how a judge will view a larger claim in court, if that's what you're considering. </p>

<p>Unfortunately these things take tremendous amounts of time just for someone to fully digest your story, assuming you have it compiled in writing in an organized fashion with names, dates, contact information and correspondences to corroborate with your version of the facts. It gets more complicated once you initiate a motion of any kind. </p>

<p>I think you were fortunate to have found an attorney willing to share such a comprehensive free-consultation, and the $350 for a demand letter would have been money well spent. Your option now is either to backtrack with a new demand letter from the attorney, which might be the better option, or do your research and be prepared to be consumed by the time and effort necessary to entertain the alternative. <br>

</p>

[craig_shearman1]

<p>I'm not a lawyer but I've worked for news organizations both as a photographer (selling pictures) and editor (buying pictures). Been out of the business for a while, but my guess is if you had offered a photo like this to a local paper or TV station and asked to be paid their standard freelancer's rate, you probably would have received somewhere around $100. Maybe lower in a small market and a little higher in a large market. Once you gave them away to the first few programs, including a national show, you branded yourself as just a viewer contributing photos and being happy to see his pictures and name on TV. That puts you in a very different position than a professional photographer who was paid by everybody else and is now claiming to be ripped off.<br />Had you gotten $100 from each of the other organizations, it would be very reasonable for you to send an invoice to the Ellen show asking for $100. Asking for $3,000, or claiming the photos are worth $150,000, you won't be taken seriously.<br />How did the Ellen show get your photos? Presumably not from you, so they probably have not seen a version that has your copyright notice embedded. Which, even though you do own the copyright from the moment the image is created, makes it difficult to provide that they knowingly violated your copyright. They will argue that they picked it up from one of the other shows, believing in good faith that it was a "contributed" photo from a viewer not seeking payment.<br />As others have noted and you have found out, there's not enough money at stake here to make it worth a lawyer's time. I would write this off to experience, and be happy to be able to put the local shows, GMA and Ellen on your photography resume.</p>

[daverhaas]

<p>To answer your most recent question: If you file in OR and they are in CA, yes, they or a representative (Lawyer) from the show will have to show up in OR on the date in the court documents - otherwise the judge will find them in default and they will have to pay, regardless of the legal merits of your case or the defense.</p>

<p>Once you file the papers, you are given a copy of them to serve on the defendant. In small claims courts, it is up to the plaintiff to serve the papers on the defendant. Typically 30 - 60 days is given to serve the papers. You can serve them yourself in person, have a Sheriff / Police Officer do it (for a fee), or in some instances do it by mail (Certified / Registered letter). All fee you incur for the filing / serving of notice may be added to your total damages, as well as any lawyers fees.</p>

<p>Dave</p>

[john_h.1]

<blockquote>

<p>You don't need to file to own a copyright. Filing does make it easier to collect damages from unauthorized usage and reproduction of your images.</p>

</blockquote>

<p>It does more than make it easier, you can't even file a claim in court without that.</p>

<blockquote>

<p><strong>What is the limit in small claims court? </strong></p>

</blockquote>

<p><br />The question is irrelevant since infringement claims must be filed in Federal District court.</p>

<blockquote>

<p>In small claims courts, it is up to the plaintiff to serve the papers on the defendant.</p>

</blockquote>

<p>For the reason stated above, it doesn't matter what small claims service of process procedures are. Unless there is breach of contract claim being pursued instead of infringement which doesn't apply to the facts presented here. Had there been an offer of use for $3000.00 communicated before the use, then there would be a breach of contract issue if payment were not made.</p>

<p> </p>

[john_h.1]

<blockquote>

<p>I find it hard to believe that here in Portland Oregon, there is not one lawyer who will take this case. Not for three grand, but as much as the court will award.</p>

</blockquote>

<p>I find it very easy to believe. Not only was alleged infringing use claimed to be worth only $3000.00, it was valued, in previous transactions of similar nature, as being worth absolutely nothing of any pecuniary value. </p>

<p>While there are highly emotional responses described over the use, practical matters suggest its time to consider chalking this one up as a lesson learned.</p>

<p> </p>

[don_baccus]

<p>"As for “It looks like greed after the fact ...” It seems to me greed has nothing to do with it. It’s simply a matter of my copyrighted material being used without my permission. Isn’t that what this copyright thing is all about?"<br>

<br>

You're not paying attention to the context of my comment. If you sue, you're going to have to establish loss of income. In this case, since you've been giving away rights, including to "The Today Show", if I understand correctly, and now claim "I intended to charge her ...", well, good luck establishing this in a way the judge will believe isn't just, as I put it, greed after the fact.<br>

<br>

Regarding damages, again, IANAL but I know for a fact that when I was actively marketing my images, registering a copyright means you can get treble punitory damages, in other words the amount is entirely based on your financial loss.</p>

[don_baccus]

<p>JohnH:</p>

<p>"It does more than make it easier, you can't even file a claim in court without that."<br>

<br>

This appears to be true for federal court only. It's also news to me, ignore what I said before, though it leaves open small claims, state, local, and etc courts. <br>

From wikipedia:<br>

<br />"Not required to obtain copyright protection, but required for domestic copyright owners to bring a suit for copyright infringement in federal court. Not required for a federal court's <a title="Subject-matter jurisdiction" href="http://en.wikipedia.org/wiki/Subject-matter_jurisdiction">subject-matter jurisdiction</a>, however, as established through the Supreme Court decision in <em><a title="Reed Elsevier, Inc. v. Muchnick (page does not exist)" href="http://en.wikipedia.org/w/index.php?title=Reed_Elsevier,_Inc._v._Muchnick&action=edit&redlink=1">Reed Elsevier, Inc. v. Muchnick</a></em>.<sup id="cite_ref-29" ><a href="http://en.wikipedia.org/wiki/Copyright_registration#cite_note-29">[30]</a></sup><sup id="cite_ref-30" ><a href="http://en.wikipedia.org/wiki/Copyright_registration#cite_note-30">[31]</a></sup> Registration establishes <em>prima facie</em> evidence of facts contained in registration certificate if made within five years of first publication. Copyright owners are precluded from collecting statutory damages and/or attorney's fees for any infringement occurring before registration"<br>

<br>

Hmm, ok, attorney's fees as well as statutory (not based on actual) damages are only available for violation of registered copyrights, my bad before.<br>

<br>

Anyway, registration certainly makes litigation much easier.<br>

<br>

For the OP - the fact that you can't find a lawyer to take the case doesn't say anything about lawyers in our mutual home town, but rather speaks to the merit of the case and the ease of winning a judgement that would make it worth the lawyer's time.<br>

</p>

 

[john_h.1]

<blockquote>

<p>JohnH:<br /> "It does more than make it easier, you can't even file a claim in court without that."<br /> <br /> This appears to be true for federal court only. It's also news to me, ignore what I said before, though it leaves open small claims, state, local, and etc courts.</p>

</blockquote>

<p>Federal District Court has exclusive jurisdiction over copyright infringement claims. No other courts, including the ones you listed, have jurisdiction to hear such claims. The quote provided in your post does not even address that issue. Moreover, the <em>Reed Elsevier</em> case cited concerns an exception to the registration requirement when a class action is filed by registrants. There is no class action situation here. You're giving people incorrect information.</p>

[john_h.1]

<blockquote>

<p>It seems to me greed has nothing to do with it. It’s simply a matter of my copyrighted material being used without my permission. Isn’t that what this copyright thing is all about?</p>

</blockquote>

<p>I forgot to add to the prior transactional financial value of the imagery being zero as to why attorneys can be disinclined to take such a case, it doesn't help that there is also now a worldwide public record in the form of an online posting, by the aggrieved party, suggesting the issue is a matter of principle over financial detriment or exploitation. I would be surprised if a lawyer took this case since the prospects of contingency fees based on potential damages looks so dim. </p>

[albert_richardson1]

<p>Why not just take the credit? Ellen has a nationwide audience. Put the photos on your own website - you own them after all - "As seen on the Ellen Show." Give yourself the credit for her production staff having chosen your work to show the nation. Your photos led them to a hero they didn't mind honoring on daytime TV. Promote the hell out of it.</p>

<p>Suing someone can be an awful lot of time and trouble for very little reward. Think of it as taking the low road in this case.</p>

<p> </p>

[ron_erwin1]

<p>I agree completely with Albert Richardson's advice. You might even contact the show and ask that they mention your name and contribution on air.</p>

[don_baccus]

<p>"I forgot to add to the prior transactional financial value of the imagery being zero as to why attorneys can be disinclined to take such a case, it doesn't help that there is also now a worldwide public record in the form of an online posting, by the aggrieved party, suggesting the issue is a matter of principle over financial detriment or exploitation. I would be surprised if a lawyer took this case since the prospects of contingency fees based on potential damages looks so dim."<br>

<br />Well, we agree on this. I said the same.<br>

<br>

As to being able to file in federal court, I'm old enough to remember what i was told before earlier US Law was circumvented by international convention.<br>

<br>

And I apoligized for my misunderstanding.<br>

<br>

So sorta STFU.<br>

</p>

[don_baccus]

<p>"Federal District Court has exclusive jurisdiction over copyright infringement claims."<br>

<br>

And you say one can't sue, yet copyright protections exist (well, you don't say the latter, only the law does).<br>

<br>

So you're saying that no one has any right to restrict use of their creative works unless they register them, because one can't sue?<br>

<br>

This wasn't true when I was younger and licensing images.<br>

<br>

What you're saying is copyright, absent registration, has absolutely no value whatsoever.<br>

<br>

Defend that, please.<br>

</p>

[Uhooru]

<p>Regardless of liability issues which can be complicated, you will have prove your damages and there doesn't seem to be any. I agree with Craig Sherman.</p>

[russell_flynn]

<p>Well guys. I must say that this has been an education! I can't tell you <strong>ALL</strong> how <strong>VERY</strong> much I appreciate your input.<br>

While I've been into photography for many years, this is my first taste of the business end of it. I guess the moral of <em>my</em> story is live and learn. Too bad! I had visions of that 300mm 2.8 lens in my bag! lol.<br>

It's not the first time I've shared my photos with the local news stations. I was there a few months back when the Portland fire department fished a guy out of the Willamette River (alive). I asked about payment before offering them for free, and was told that they don’t do that. After reading some of what you have written here, I can’t help but wonder if they played me.<br>

As for adding this to my resume. I’m really not interested in being a photo journalist. I might be a bit dim here, but I can’t think of anything else I could benefit from doing that. Although I have to admit. It’s pretty cool seeing my work go national.<br>

To answer the question of how the Ellen show got my photos. When the local station emailed me asking permission to send my contact information to Ellen, it was done on the original email with my photos embedded. I assume that they simply forwarded that email to Ellen. I think someone with Ellen saw the word “permission” along with my photos, and off they went, never taking the time to read that I was only giving permission to send my contact information. An honest mistake, but one I would not expect a big time syndicated show to make. I guess I should have removed the photos. Again...Live and learn!<br>

Thanks again all. This is my first time using this forum for my questions, and I have to say I’m not at all disappointed with the response.</p>

[bobbollinger]

<p>Russell, I am a lawyer, and I work on contingency fee all the time, but I would not consider taking a case under those facts. I would instead advise you to take Albert's advice, and make the most out of the situation in that fashion. Good luck to you. </p>

[Ian Taylor]

<p>Agree. Not worth the hassle to chase, and the chance of getting them to acknowledge you is almost zero.<br>

"As Seen On Ellen" is a great idea. </p>

[russell_flynn]

<p>I guess I have to agree. It's not what I had dreams of, but I'm really not "out" anything (other than the $35.00 copyright fee).<br>

I just added the fact it was shown on the Ellen show on my web page. <a href="http://www.flynnphotography.net">www.flynnphotography.net</a> if anyone cares to take a peek.<br>

Thanks guys!</p>

[Ian Taylor]

<p>It doesn't seem to be on the front of the website, where it probably should be.<br>

While you are at it a couple of suggestions:<br>

- Lose the counter, with only 278 views it doesn't make you look very pro<br>

- Fix your title tag ("Blank Title - HOME" right now) and upload a favicon<br>

- Lose the bit about images looking "fuzzy"<br>

Just my 2 cents</p>