Two of my pictures published wordwide without my permission/knowledge.

[Mr.Ric]

Sorry it’s a bit of an epic post!

I was working for a language school as a teacher for the previous two summer seasons. We took the children on many different excursions/activities to local beauty spots so of course I took loads of pictures. When my manager found out he was very interested and asked if they could have some copies to put on the notice board in the school. I thought this was a great idea but explicitly stated that the photos were only to be used on the notice board in the school, to which he agreed.

Over the course of my time working there one of my pictures turned up on the new student identity cards, which I wasn’t consulted about. This caused me to speak to the managing director of the school. He apologized and said it was a complete mistake. That he had seen the pictures and didn’t realize that they were mine. I accepted his apology and told him that I wouldn’t have asked for money for that use, but I would have asked them to include my name on/with the picture and that it wasn’t acceptable for them to use my picture without asking me first. He said that it wouldn’t happen again.

I'm no longer working for the school in question but out of interest I checked out the new brochure which is online. And of course it now includes two of my pictures. The school is an English teaching school based in the UK, but it is part of a multinational company based in Germany, with schools all over the world. It’s a large company and they advertise all over the world, they even have their own TV program in Germany which no doubt has also had my pictures aired on it too.

I contacted the school and told them they had not had permission to use my pictures. I didn’t really want to make a fuss because I'm in the process of moving to abroad so I just said that I just wanted £300 for their continued use. Now they've come back to me and said that since I was employed by them at the time of taking the pictures they own the pictures, they are also refusing to acknowledge that the verbal agreement took place.

I'm furious of course! But after looking into the legalities I'm troubled too. Under UK copyright law it does seem that an employer owns any pictures taken. But it doesn’t say if that’s limited to people employed as photographers or if it’s a blanket for all staff. It does however say that 'morals' still apply, and that the photographer has a right to be informed of their use and the photographers name included in the publication. If I can get someone to coberate the verbal agreement would this then take precedence?

Also, seeing as the company that actually published the pictures is based in Germany does that mean this issue is subject to German law, or would it still be British law?


Would be really appreciative of any advice/comments. I'd like to find out where I stand before getting expensive legal advice. Also I'm hoping that if I could go to them with proof they've broken the law they'll admit they were wrong and pay up. It’s not really about the money though anymore, I just them to be forced to admit they were wrong! If I wasn’t moving to Canada soon I would be sorely tempted to push for them to reprint their entire advertising etc...

[Box Brownie]

In my non legal view they are taking the p$%s.

Yes, as I understand it. If you were employed as a photographer you are (logically) taking pictures on their behalf as an employee BUT as the pictures were taken by you without that specific role and you were never commissioned by them to take such pictures then not only are you the copyright owner but also in control of how they are used. I think the grey area that could exist is that though you were not 'commissioned' you were acting in school time and they may be interpreting that as implied rights on their side.

If you can find a solicitor to give you a fixed fee consultation and as appropriate in that appointment specific advice on how to assert your actual & moral rights to those images that may the be most most economical route to go. I suspect because of possible grey areas of such copyright disputes payment potential is limited but forcing them to give you a credit and ideally some form of printed apology in the reprints etc at least should settle the matter amicably.

Just my thoughts :)

[TeeJay]

Gosh, thats a tricky one.

Have you checked your terms of employment that existed at the time. Normaly a contract will dictate that any work generated by the employee in the course of their employment will belong to the employer.

At what period of your working day were these pictures taken - and who owned the equipment being used to take the images? (I suppose they have a release form signed by every recognisable person in the images - if you were being really difficult you could hang them on that point alone, 'cos if you didn't get a release signed, they probably did't either)

There is a minefield of issues to be assessed here, and really the only route you can take is to consult a copyright solicitor. As Box Brownie states, there are many who will give you a free initial consultation; so write down the main points of focus, and take the notes along to the meeting - see what they say.

I personally think you would have a problem actualy proving you own the pics - but there again, I'm not a legal expert.

Please let us know how you get on. Good luck

TJ

[transcend]

There is nothing tricky about it. You WERE NOT employed as a photographer for them, they own nothing. Take them to court, you will win. You have originals, there is no problem proving that you are the owner of the pictures in question.

[Mr.Ric]

Thank you all! Some positive comments so it could be good. I think i'll have to get some legal advice regards the grey area. I need something that shows them I own the pictures outright and I think they'd back down. Its hardly a lot of money to them anyway.

I havent got a copy of the work contract at the moment. I'm trying to get hold of one at the moment to check it again. I'm pretty sure that it never stated anything about them having ownership of anything i do in work time though.

All the equipment used is mine, and I still have the originals so there is no doubting who took the actual pictures.

Regards the release I never had any, and this is something I would have looked into had they actually asked me to use the pictures for advertising. I still email the girls in the photos so it wouldnt be hard for me to get a release. I'm assuming the company has their own release as part of the t&c for attending the course so they dont need one from me to use the pictures.


I think the grey area that could exist is that though you were not 'commissioned' you were acting in school time and they may be interpreting that as implied rights on their side.

This is exactly what they are playing into. So I need to prove to them that this is not the case, which hopefully it is not. If it is the case I'll go after them on the moral rights section regards them not informing me/giving credit. If that fails i'll ask the girls to put in a complaint that they dont want their picture in the brochure and to remove them straight away.

[Mr.Ric]

There is nothing tricky about it. You WERE NOT employed as a photographer for them, they owe nothing. Take them to court, you will win. You have originals, there is no problem proving that you are the owner of the pictures in question.

This is what I would have thought would have been common sense. But after reading the following passage I'm concerned;

http://www.copyrightservice.co.uk/protect/p16_photography_copyright][/url]
Who owns the copyright on photographs?Under law, it is the photographer who will own copyright on any photos he/she has taken, with the following exceptions:

If the photographer is an employee of the company the photos are taken for, or is an employee of a company instructed to take the photos, the photographer will be acting on behalf of his/her employer, and the company the photographer works for will own the copyright.
If there is an agreement that assigns copyright to another party.In all other cases, the photographer will retain the copyright, if the photographer has been paid for his work, the payment will be for the photographer’s time and typically an allocated number of prints. The copyright to the photos will remain with the photographer, and therefore any reproduction without permission would be an infringement of copyright.
Examples:

If Bill Smith asks Peter Jones the photographer to photograph his wedding. Peter Jones will normally provide a single copy of the prints as part of the fee, but any additional prints Bill or his family and friend want must be ordered via Peter as he is the copyright owner and controls who can copy his work.
If Bill Smith engages the services of XYZ-Photos for the same job, and Peter is an employee of XYZ-Photo who instruct Peter to take the photos, XYZ-Photos will be the copyright owner and control how they are used.

[th3r0m]

As to the quote you posted in regards to UK copyright law (and I have very little experience with US law and even less (read zero) experience with UK Law, so please take with a substantial grain of salt as I could be dead wrong) it appears to me that line

"If the photographer is an employee of the company the photos are taken FOR, or is an employee of a company instructed to take the photos, the photographer will be acting on behalf of his/her employer, and the company the photographer works for will own the copyright."

The highlighted part seems to refer to photos specifically taken at the bequest of the company, whether that is your job description or not, with the second part refering to someone who works for a company whose business is taking photos. If it were to be interepreted as any photos you take under the employ of said company belong to said company, then technically any photos that you took, on or off company time would then belong to said company as it says nothing about during work hours or such. Thats where the taken FOR comes into play, ie if you were never asked to take them by a representative of the company nor offered to take them for the company, then I do not see how they could own them.

However, how the company came into posession of said photos comes into question. You never said above, but depending on how they got them that could either hurt or help you as well. If you directly gave the photos to them they may have assumed (wrongly) that it meant they were free and clear to use them as they saw fit and this could possibly be detrimental to your "case", however if they came into posession of them through a third party, then your case is more solid.

My 2 cents.

[Croasdail]

The basic test would be were you on the clock while taking these pictures even if not expressly hired for that task. If you received compensation for that time - they have a right to what you produced during that time since you received compensation. You have sold those hours of the day to that company. They are buying your time - and what ever you do on that time is part of your job - directly or indirectly - is subject to a claim by them. That is why it is so strongly advised that people not do any personal jobs while on the clock. Engineers and scientist have lost patent rights on pet side projects this way. Now you can't get in trouble for taking the shots as it sounds like your employer knew you were doing it. On the other hand, it the shots were taken when you were on your own personal time and off the clock, even if on company property, then the images are yours. I used to manage a bunch of engineers in Reading and over in Dublin, and we made this very clear to them to keep things apart for their own protection.

If all you are talking about is 300 pounds/$600 us, and you were taking these pictures while on the clock, you have a slight chance of winning, but it will surely cost you more then that to find out. I would chalk it up to lessons learned and ask then if you can then use the companies name as a client reference you can use in your own promotion. This seems hardly worth a nasty battle.

[Mr.Ric]

"If the photographer is an employee of the company the photos are taken FOR, or is an employee of a company instructed to take the photos, the photographer will be acting on behalf of his/her employer, and the company the photographer works for will own the copyright."

The highlighted part seems to refer to photos specifically taken at the bequest of the company, whether that is your job description or not, with the second part refering to someone who works for a company whose business is taking photos. If it were to be interepreted as any photos you take under the employ of said company belong to said company, then technically any photos that you took, on or off company time would then belong to said company as it says nothing about during work hours or such. Thats where the taken FOR comes into play, ie if you were never asked to take them by a representative of the company nor offered to take them for the company, then I do not see how they could own them.

I noticed the same thing. But i'm pretty sure my boss won't budge if I goto him with this, its too much of a grey area with the wording. I think to take that route would require a trip to court and I dont have time/money for that really. I was hoping for some piece of law etc that I could show them that proves they are without doubt in the wrong, I believe that way they'll admit they were wrong and appoligise.

However, how the company came into posession of said photos comes into question. You never said above, but depending on how they got them that could either hurt or help you as well. If you directly gave the photos to them they may have assumed (wrongly) that it meant they were free and clear to use them as they saw fit and this could possibly be detrimental to your "case", however if they came into posession of them through a third party, then your case is more solid.

My 2 cents.

Sorry I should have been more clear regarding the path of the photos;I gave the pictures to my boss, under agreement they were only to be used for the notice board (verbal, but heavily stressed. It was only a bit of fun back then and was just glad they weren't tring to stop me taking pictures, lesson leant there!).

The pictures were on the schools network, which were found by the MD and sent off to the head office in Germany. They used one picture for the background of the student ID card (giving to every student in every school), this summer our school (the smallest) had about 20000 students, there are about 15 schools accross the world so that a lot of students with my picture in their wallet! About 4 months later the pictures were used by head office in the brochure.

[Mr.Ric]

The basic test would be were you on the clock while taking these pictures even if not expressly hired for that task. If you received compensation for that time - they have a right to what you produced during that time since you received compensation. You have sold those hours of the day to that company. They are buying your time - and what ever you do on that time is part of your job - directly or indirectly - is subject to a claim by them. That is why it is so strongly advised that people not do any personal jobs while on the clock. Engineers and scientist have lost patent rights on pet side projects this way. Now you can't get in trouble for taking the shots as it sounds like your employer knew you were doing it. On the other hand, it the shots were taken when you were on your own personal time and off the clock, even if on company property, then the images are yours. I used to manage a bunch of engineers in Reading and over in Dublin, and we made this very clear to them to keep things apart for their own protection.

If all you are talking about is 300 pounds/$600 us, and you were taking these pictures while on the clock, you have a slight chance of winning, but it will surely cost you more then that to find out. I would chalk it up to lessons learned and ask then if you can then use the companies name as a client reference you can use in your own promotion. This seems hardly worth a nasty battle.

The pictures were taken on the clock. Allthough it could be argued they were taken on my break (we get 45mins unpaid for every 6 hours worked), but due to the nature of the job on activities you never actually take a proper break, just lots of small breaks during the trip. (Once when the airports were shutdown due to the suspected bombing attempts we had to spend 3 whole days in heathrow airport looking after the students trying to get them on a flight, after this they try'd to deduct the 3 hours a day breaks + they found out we managed to actually sleep on the 2nd night so they tried to take off the 4hours extra for that! They really are lovely people).

Also, time spent on taking the photograph in work time = ~5secs focusing,check exposure then press shutter. Processing time (in my own hours unpaid) + burning to cd =~5mins. So by that reasoning surely they'd owe me a percentage of the photo! Or does it not work like that...

[TeeJay]

There is nothing tricky about it. You WERE NOT employed as a photographer for them, they own nothing. Take them to court, you will win. You have originals, there is no problem proving that you are the owner of the pictures in question.

Out of curiosity, but whereabouts in the world is "on the crapper" situated?

[rhys]

European court action can be complex. UK solicitors offer a no-win-no-fee setup so find a good copyright solicitor - preferably one that hates language schools.

It does not surprise me that a language school should do this. They're mostly pimps at best and criminals at worst in my experience.

[basroil]

since they pay you as a language teacher, not a photographer, they should only have rights to your work as a language teacher (at least that's the way where i currently live). since they did not pay you for your time as a photographer, you are most likely entitled to the full rights of that photograph. if you where willing, talking to a copyright lawyer would be the best course to take, though then you'll have to force that school to accept a bigger fine to cover legal fees.

[matt1987]

if you need help with any translations i'd help you just bring it on, i've been living here for quite some time now. can i ask what the name of the company is? i'm just curious ;)

[tcphoto1]

I would strongly suggest that consult an Intellectual Property Attorney. It costs you nothing to outline your situation and I believe that you would be pleasantly surprized by their response. If they think that you have a case they would likey take it on contingency. You were employed as a teacher, not a photographer.

[jaybird]

Canadian law and UK law don't differ too much, so these ideas may have some relevance. Since the amount you are trying to claim is not that substantial, you would not have to push a full-blown case, but go through small-claims court. For these types of cases, people normally represent themselves, if they have to appear in court. Often, the judge will simply read the supplied testimonial and judge immediately. If you have to appear in court, they would as well. It would cost them more than what you are asking for them to retain a lawyer for the case than to just pay you.

As for your side: since the company is fairly large, and multinational, they would certainly need to have a signed contract for the use of the image. Since they do not, and you have the originals, it would be impossible for them to prove that they paid for the right to use those images. They would have no contract, and their accounting department would have no record of a payment for such a contract even if they claim to have "lost" it.

If you file the claim and have proof of their illegal use of your images, they will need to prove that they did have consent. You would also need to prove, or illustrate, the damage done.

[Reefbone]

I wonder if in fact the people in the photo did give a release? If they didn't, it might help to have more plaintiffs when looking at a pro bono lawyer/solicitor.

[Croasdail]

since they pay you as a language teacher, not a photographer, they should only have rights to your work as a language teacher (at least that's the way where i currently live). since they did not pay you for your time as a photographer, you are most likely entitled to the full rights of that photograph. if you where willing, talking to a copyright lawyer would be the best course to take, though then you'll have to force that school to accept a bigger fine to cover legal fees.

It sounds logical... but it doesn't work that way. If you used any resources of the company in any way - ie the students in the photographs - then they have a legal leg to stand on. The point is, while your employeed, you are hired to do their work. If your argument is that while you were being paid your were not doing work on their behalf, this opens up all kinds of other issues. If you are hired as an engineer, but took pictures at work of a work related subject, and were on the clock as an engineer - but now want to claim that the images are your personal time.... it really doesn't put the you in a very good position. I understand your logic, it is sound. But the other argument can be made if you are hired to teach from 8-5, then you had better be teaching or doing something related to your job, or on a break. You can't claim random time outs throughout the day when your not "on the clock". If you are on break, then be on break and don't use the companies resources for your own personal use. I am just speaking here of the hard line way the law will look at this. Not the logical way most people live, and most companies accomidate.

The legel merrits of this case are rather minimal in both directions, and the level of potential damages are miniscule. You would also have to prove a pattern of behavior to get punitive damages. The company will simply explain that at worst this was a misunderstanding. Hardly something you are going to get a lot of money from, even if the OP prevails. This rushing to "sue the bastards" approach is largely a really bad business decision. It should always be a last recourse.

To the suggestion that you might get the subjects of the pictures to join you in this suit, there are all kinds of legal hurdles here to. If the image is not of them, and they are incidental to the image - part of a large group, then you don't have much. Now if they were the main subject of the image, and their contract with the school doesn't provide for their image being used, then you have something else. But then you become incidental to the issue or even complicite. You are the one who is responsible for obtaining the release, and when you first granted rights to post the images on the notice board, you are the one who was responsible for obtaining any permission from the subjects to post those images. This could come back at you just as much or more then it helping your case with the school.

How many days off your real job are you willing to spend in lawyers offices or in the court to get what you valued as 300 pounds. Do you have any history of selling images that even substantiates the value of these image near what your estimating them to be. Not trying to be mean here... but if your going to sue, your going to have to prove they were worth what you claime them to be worth. Have you sold images before for usage like this? The court may find they are worth everything you want, or they find them more in line with microstock. You just don't know.

[Mr.Ric]

Well it seems its still a big grey area! Thank you all for your input.

I've written to the school with details of why I think the pictures belong to me, and stated that if we dont come to an agreement by next week i'll be going to the small claims court. I don't know if I will or not but I'm looking to show them that i'm serious about the issue and they shouldnt just try and fob me off.

I can see the point that the pictures were taken in work time so the employer would have a right to part of the photo. But equally after finding out I was taking pictures they could have told me to stop but instead they asked for copies under the agreement that they were for the noticeboard only. I think this agreement should really take precidence.

[Croasdail]

Logically and emotionally I agree with ya. Particularly if they are being jerks about it. Sometimes though you just got to ask yourself how much is the battle worth it to you. If anything, you could get an order of asking them cease using the images. It would give ya some satisfaction.

Good luck with it!

[tcphoto1]

I would not go to Small Claims Court, I believe that it is a much larger settlement. If you have no experience in this matter find someone that is. You have nothing to lose by seeking an Intellectual Attorneys advice. You are the creator of those images and they made the chose to use them without your permission.

[Mr.Ric]

Well, finally some progress in my favour I believe;

I would appreciate your answer as to whether the monies you are requesting would be as an indemnity against defective authorship (i.e. enabling us to continue using the photographs ad infinitum) - or amount to a sale of copyright of the photographs you specify. I am willing to reach an agreement with you, but I need yourt answer to this question.

So I guess it looks like there willing to settle. What I'm looking to do is give them permission to use the photos for the brochure, whilst keeping the copyright with myself. Can I just write that down with details about the payment etc and have both myself and the company sign it? Or do I need to get hold of something a little more professional???

[tcphoto1]

I would send an Invoice for the use to date and not authorize continued use without an agreement. You painted yourself into a corner by quoting a price. Now you need to find out exactly how they want to continue using your images. You can determine a fair rate by the answers they give you. Once you have a realistic rate you will followup with an Estimate stating the Use, your fee and the length of time they are authorized to use the images. Remember that the images have value and you can resell them a number of times as long as they are useful.

[Mr.Ric]

I see where you're coming from its a bit late now. From the start I told them I would be wanting £300 for the continued use of the pictures and I don't really want to go back on what I said.

That being the case, i've just gotten an email from the company offering £200 for the continued use of the pictures. I'm in the process of drafting an email stating that I'm only going to accept the £300. He says that its unreasonable to expect him to pay the full fee when no fee was dicussed before they used the pictures! I think he's forgetting they never informed me they were going to use the pictures in the first place so how was I supposed to give them a quote beforehand!!!

Does anyone know of somewhere that has downloadable contracts? I need something quite specific I think so I'll prob need to tailor it a bit anywhere but it would be good to see a standard one to use as a starting point.

Specific points I need it to cover are:-
Permission to use the two photographs in brochures, but keeps the copyright with me.
I am not in possession of a model release, the school actually has this as the contract states that pictures of the students may be used in advertising. Not quite sure if this would need stating or not but I think its important.


Thank you all a lot for your input! Its helped me keep my resolve and taught me a lot.

[Croasdail]

Awsom news on the settlement. I hope it comes out completely the way you want it. And really good news you were able to do it without going through the legal process.

Cheers to Ya.

[jaypie77]

Are there punitive damages for these things in the UK? Here in the US, violating copyright like this would entitle you to not only your typical fee, but a steep penalty as well.

[chakalakasp]

I see where you're coming from its a bit late now. From the start I told them I would be wanting £300 for the continued use of the pictures and I don't really want to go back on what I said.

That being the case, i've just gotten an email from the company offering £200 for the continued use of the pictures. I'm in the process of drafting an email stating that I'm only going to accept the £300. He says that its unreasonable to expect him to pay the full fee when no fee was dicussed before they used the pictures! I think he's forgetting they never informed me they were going to use the pictures in the first place so how was I supposed to give them a quote beforehand!!!

Does anyone know of somewhere that has downloadable contracts? I need something quite specific I think so I'll prob need to tailor it a bit anywhere but it would be good to see a standard one to use as a starting point.

Specific points I need it to cover are:-
Permission to use the two photographs in brochures, but keeps the copyright with me.
I am not in possession of a model release, the school actually has this as the contract states that pictures of the students may be used in advertising. Not quite sure if this would need stating or not but I think its important.


Thank you all a lot for your input! Its helped me keep my resolve and taught me a lot.

This is exactly why you talk to an attorney first. No offence, but the way you went about resolving this was rather retarded if you were trying to actually recover damages and get them to stop using the photo. You were probably looking at a 4 or 5 figure settlement, had you actually contacted a solicitor. A web forum is not a suitable replacement for professional legal advice.

[raathistle]

Does anyone know of somewhere that has downloadable contracts? I need something quite specific I think so I'll prob need to tailor it a bit anywhere but it would be good to see a standard one to use as a starting point.

The AOP has a whole section of downloadable forms, inculding T&Cs, invoices estimates and a sample license. They are all free and available to non-members as well

http://www.the-aop.org/home.htm

Click on latest news and they are at the bottom.

If they are using it in the quantity you suggest I would think that £300 for use to date is really a minescule amount, and that any further use should be charged at a fair market rate (assuming you own the copyright, which I think you do, due to them taking your breaks from your wages).

I would suggest the license on their site would be extremely useful to you as it defines exactly what usage they are allowed and for how long.

Good luck

[Croasdail]

This is exactly why you talk to an attorney first. No offence, but the way you went about resolving this was rather retarded if you were trying to actually recover damages and get them to stop using the photo. You were probably looking at a 4 or 5 figure settlement, had you actually contacted a solicitor. A web forum is not a suitable replacement for professional legal advice.

4 or 5 figure settlement based on what? The jump form 300 to 10,000 pounds is a huge one, and being able to prove a pattern of behavior that justifies such a huge damage.... I would be very impressed to see the case that substantiates that level of claim. Please expand upon your rationalization of this statement. Are you saying the income derived from these images justifies this, and direct linkage can be established?

[ssim]

You were probably looking at a 4 or 5 figure settlement, had you actually contacted a solicitor. A web forum is not a suitable replacement for professional legal advice.

I will agree that those coming to forums seeking advice are coming to the wrong place. There is such a wide array of advice and alot of it appears to be misleading.

Most lawyers will give you your first hour of consultation for free. In fact in my area there is a section in the phone book of lawyers that will do exactly that. I would think that within that first our you would get a good indication of what course of action you should follow.

It is pretty easy for people that hide behind anonymity on the internet to give you advice that makes you think you have landed a windfall when in fact it might not be so. Take the logical steps that will help you resolve this in an amicable manner.

[chakalakasp]

I should qualify that I don't know at all if you could actually get a 4 or 5 figure settlement out of this; I am only guessing based on the fact that apparently the usage is very large (worldwide) and done by a large company (multinational). Big pockets. If, indeed, you don't have a claim, that's something you'll find out in the first hour of discussion with whichever solicitor you call, as ssim mentioned.

I guess what's troublesome is that you came here wanting to know how to stop a copyright infringement and get the infringer to pay up, and have instead talked yourself into a corner where you're offering the infringer a complete copyright buyout for the laughable sum of 300 quid. This kind of thing is why IP attorneys exist.