Copyright infringement... my email and their response

[SBCmetroguy]

Well this is a topic that comes up quite often and something I've dealt with myself in a couple of situations. So here's the short version of my story:

A large radio media company owns SEVERAL radio stations in my area and quite a few of these stations' websites were using a defaced copy of one of my photos. I immediately drafted the following email and sent it to the person in charge of this company's local operations:

Dear Mr. [name withheld]

I am writing to you for the purpose of bringing to your attention the unauthorized usage of a photograph which belongs to me. The photograph in question is a very broad, colorful view of the Shreveport riverfront at dusk. At the time of this writing my photograph is being prominently displayed every few seconds in a scrolling advertisement located on the websites of numerous radio stations operated by [name withheld] Broadcasting.

This photograph - which I stress to you is my own copyrighted material and is in no way public domain - was not only copied from my online portfolio, but was also used without my permission. To make matters worse, my photograph was then defaced with text as well as other images and used to advertise a "radio rewards" program.

Unfortunately this is not the first time I have had to deal with a situation such as this, and I am highly doubtful that it will be the last. People obviously do not understand that not every image posted on the internet is public domain to be copied and used without permission. Overall I believe it shows a gross lack of professionalism on the part of whomever put together the advertisement.

I have spent thousands of dollars and countless hours for the love of this art; and while I am flattered by frequent requests to use my work, I am equally disgusted when I find that my work has been copied and used without my knowledge or express written consent. In perusing the websites of numerous [name withheld] Broadcasting radio stations, I observed a common Terms of Use page (examples of which can be found at [URLs withheld]). The following text is an excerpt from one of the referenced Terms of Use pages:


Use of Material On the this Website
The information, artwork, text, video, audio, or pictures (collectively, "Materials") contained on the this Website are protected by copyright laws. You may only access and use the Materials for personal or educational purposes. You may not modify or use the Materials for any other purpose without express written consent. Except as provided below, you may not reproduce, republish, post, transmit or distribute any Materials on the this Website.
You may print Materials on the this Website for personal or educational purposes only, and you must include any copyright notice originally included with the Materials in all copies.

Any computer software downloadable or otherwise available from the this Website is licensed subject to the terms of the applicable license agreement.

The Materials included on the this Website have been compiled by its owner from a variety of sources, and are subject to change without notice.
All media files on the this Website are protected by copyright laws. You may not, under any circumstances, reproduce, record, publish, publicly exhibit, or distribute any media files (including, but not limited to, .jpeg or .gif files) made available for viewing on the this Website without express written consent. You may not link directly to any .jpeg or .gif file located on this server, and you should not attempt to "pass-off" any of it's content as your own work.
The text quoted above implies that all artistic works ('artwork, text, video, audio, or pictures') found within the interlinked pages belong to that station and [name withheld] Broadcasting. This may be true of many or most artistic works within those pages, but as I have pointed out to you this is simply not true with the image in question which was copied from my personal collection.

For your reference I have attached a comparison image which I created to show my original photo below the advertisement being used on numerous Shreveport area [name withheld] radio stations' websites.

I kindly ask that you immediately contact the responsible individual or group and have this image removed from all [name withheld] Broadcasting media. I also ask that this image be disposed of in a timely and effective manner and that my works never be copied or used in the future without my express written permission.

I feel confident that we can resolve this issue according to my terms and I look forward to your response.

Sincerely,

[my name]


Okay, so earlier this afternoon, before I could even check my email (can't check personal email at work) I checked their websites and found that my photo had been removed. I felt a huge burden had been lifted off my shoulders because I knew this meant that they were not going to put up a fight.

But when I checked my email this afternoon I found this response from him. The email was very nice and the very last sentence shocked me to say the least:

I am going to have the image removed from our sites as soon as I can have our Webmaster take care of it. This is an unacceptable practice by any employee in our company and please accept my apologies. While I am not a photographer, I am a writer and do voiceovers, I certainly respect the copyrighted protection of production and creativity.
I have not seen the photograph until now. Would you be willing to license it to our company, it's quite impressive?

Okay, so my question would now be... how do I respond? I would love to license the photo to him and make something from it, but I have no idea how to go about this. I have no contract or terms as I've never licensed any of my photos before. Also now that he and I have gotten the copyright issue out in the open and he's fully aware that I will fight if done wrong, should I show him more of my works which I feel he might be interested in purchasing a license for?

For the record this particular photograph is far from my favorite but I do like the colors in it. Here is the comparison I made for their reference. I marked out some text and images at the top which could identify them.

[rossdagley]

lol - all that trouble to hide the radio station name, then you post the image ;)

Edit to add: I hit the damn post button before finishing my reply -= that'll teach me to be clever.

I think you can turn this situation around nicely. I'd have a scour about for how much the image is worth to them, and licence it to them :) This could end up in your favour.

Just goes to show using a heavy fist isn't always the best way - if you'd threatened to send in the lawyers at the first step, they almost certainly wouldn't have replied like that :)

[SBCmetroguy]

The image was posted for the sake of my question on how to respond. The radio station's name is nowhere on the image and I certainly feel free to use the image as I choose since it was created from my very own work.

[stathunter]

Tell them to run 10 radio spots advertising your business in exchange for use of it for 30 days.

[SBCmetroguy]

I don't have a business yet... I've been taking my time to put together a plan and everything else I need so I haven't hit officially done that yet.

But when it comes down to licensing, especially since they have already used my photo for quite some time for free without my consent, I see a way to make a few extra bucks to go toward getting my business started and off the ground.

But in the meantime I'm doing everything as an individual. I'm basically just wondering what to offer him in the way of a price and a licensing agreement. This is a metro area of about 400,000 but the radio stations my photo would be advertised on reach a good distance outside of my metro area. Their listening area very well could have a combined population of up to 1 million people.

[thekid24]

How do you feel about having a radio station named after you?:p Kidding!

[dwaynefoong]

you have handled the issue professionally (without screaming lawyers and all that), bravo to you! :)

i've learnt something new today

[Binning]

Since its a radio station, is their only use on their website? Website use only would be one price and would vary depending upon how long the license lasts (1 year, 2 years). If they wanted to use it in print advertising, then the price goes up.

What are people's reactions to a one-year web only use license for $500?

[SBCmetroguy]

I just emailed him back to ask his intended uses for the photo and on how many websites he would want to use it. This company operates quite a few radio stations in my area so I have a feeling he would be wanting to use the image on all websites, as they were already using it on 3-4 of their websites. I will wait to see what he says regarding intended usage.

[turaund1]

try one of these. contact an advertiseing or promotion company explain everything the way you did to us then ask for advise on letting them use it. or contact your local PPA (professional photography Association) they should have someone who could advise you

[S.Horton]

Get this:
http://fotoquote.com/

Quote it, send a contract, they sign, you get paid.

Congrats!

[blackshadow]

Register (it's free) as a customer with a big stock agency like Getty Images and see what they would charge for this type of usage and then work out your pricing based on that.

[SBCmetroguy]

Get this:
http://fotoquote.com/

Quote it, send a contract, they sign, you get paid.

Congrats!


I am still planning on buying this but I can't right now. Just paid for an upcoming vacation (an Autumn photography trip into the mountains) and am a little strapped for cash right now because of it. I'll have to go about this another way but I will end up getting fotoquote eventually.

Thanks for the info. :)

[S.Horton]

^^ Blackshadow's right, or you can log-on to Photoshelter, check out their cost calculator as well which, I think, is a fotoquote-based alg.

[cory1848]

Been a few months, Can I ask what the outcome of this was?

[Yella Fella]

im in a slight similar situation, was this settled for a price then

[LBaldwin]

OK first they need to pay for the infringement. Typically this is three times the cost of usage for an image of this quality. For an image like this a business would expect to pay between 1500 and 2000 for 1 year usage on all of the different websites. So this should be approx 4500 to 6k for the infringment. However if the image is not registered with the copyright office punitive damages may be hard to get. My suggestion is to contact Carolyn Wright at http://www.photoattorney.com/ and get her opinion. There is plenty if great info on her website as well.

Get the image registered ASAP and then talk with the radio station. I can see this image getting you a nice tidy sum of cash.

Les

[Hatch1921]

http://blinkbid.com/ Free use for 14 days... unrestricted. Very nice program! You create the bid...with restrictions or whatever... they buy your services/photo license... you make some money... use a little bit of the cash to buy the program and everyone wins. :)

Just a thought.
Hatch

[SBCmetroguy]

I probably should have billed them for the time the photo was used, but I let it go. I forced them to remove it and left it at that. In the event this ever happens ago, I'm not going to be as nice.

[NickSimcheck]

So they didn't want to pay or what?

Details man!

[Jon Foster]

I was hoping you were able to license them the picture... What happened?

Jon.

[Collin85]

I was hoping you were able to license them the picture... What happened?

Yeah.. talk to me!

[SBCmetroguy]

Actually they did ask about licensing it and I emailed them about it. Never even got into pricing, etc. He asked about it, I told him to give me details, and I never heard from him again on the subject.

Then about a week later I saw my photo still being used on one of their websites so I emailed him again. This time I was extremely stern and stopped just short of threatening (because I don't like to threaten until I've spoken with an attorney first.) Anyway it was the mistake of the webmaster, the goofball just oversees far too many websites. Within 12 hours the final photo was taken down and I let it go. To be completely honest it hadn't crossed my mind in quite some time, until I came across this thread again.

I might just shoot him an email out of the blue to open up dialogue once again. I've been selling usage licenses lately to other companies so I've gotten better at it. I'm tempted to add the simple fact that I was being very nice by not invoicing him for the time during which my photo was used without permission, but I don't want to resort to that.

[kevie]

i think a link to your work/site plus some compensation would be really good.