Stolen photo update.

[Crashoran]

Ok guys, tell me what you think. I have finally found and scanned the advertisement in which my photo appeared. I have sent the head of media relations an email demanding a check for compensation or I will take them court. They did not have a model release for the person, or remove the logos on the baseball equipment either.

http://img.photobucket.com/albums/v40/Crashoran/29.jpg

http://img.photobucket.com/albums/v40/Crashoran/AtmosAD.jpg

[scot079]

you have every right to compensation, but be prepared for the long, drawn outness...good luck

[CyberDyneSystems]

Atmos solutes the spirit of stealing!

[Anke]

I hope you take them for a LOT of money!! That's pretty blatant theft isn't it?! I think some creative member of staff is going to lose their job pretty soon. Good luck.

[tom1s]

Good luck. I missed the original thread. Any idea how they got the photo?

[Palladium]

Ok guys, tell me what you think. I have finally found and scanned the advertisement in which my photo appeared. I have sent the head of media relations an email demanding a check for compensation or I will take them court. They did not have a model release for the person, or remove the logos on the baseball equipment either.

http://img.photobucket.com/albums/v40/Crashoran/29.jpg

http://img.photobucket.com/albums/v40/Crashoran/AtmosAD.jpg

IMHO - you already lost the first round - again IMHO I would have made first contact thru an attorney. That way they know you mean business and the issue would probally already be settled. Has anyone collected from an infrigement without an attorney help...

[deadpass]

i can only assume in the other thread you mentioned that you had sent this image in to the copyright office?

[Charles Bogle]

It's giveaway ad to support the school yearbook or something. They didn't make any money from the ad, it was more like a donation.

If you think you're going to get anything other than possibly a tiny token payment, you're wrong.

No lawyer would take that case on speculation.

PS: They don't need a model release. It was a person performing in a public exhibition.

[SoaringUSAEagle]

How did they get ahold of this image? Also, they rotated it just a minute amount because the top bar of the face mask is straighter than the original.

[Skippy29]

they rotated it just a minute amount because the top bar of the face mask is straighter than the original.


:lol: :lol:

[BillsBayou]

...PS: They don't need a model release. It was a person performing in a public exhibition.

The person in the photo is clearly identifyable. The ad is clearly commercial in nature. You CAN NOT take a photo of someone and use it in a commercial fashion without a model release.

I'm a fairly competent juggler. If I were to be giving an exhibition of juggling techniques on public property and you took my picture, you'd be limited in how you could use that photo. Especially if I'm clearly identifyable and the featured element in the photo. An ad with me juggling and the caption "Atmos: Keeping things in motion" would be a violation of my rights of publicity.

Related article at photoattorney.com: LINK (http://www.photoattorney.com/2006_02_01_photoattorney_archive.html)

If the photo was not registered with the copyright office, you will not get much for illegal use. The person to benefit from this misuse would be the catcher in the photo and the organization for which he plays. Pass this photo off to the catcher and let them know that your photo was stolen. Further, that Atmos did nothing to contact you concerning model releases.

And get an attorney.

[Charles Bogle]

He doesn't need an attorney, unless he wants to pay one thousands of dollars to possibly get a letter of apology.

You don't understand the law. This is a case of people who have never been in the publishing world talking up a mountain out of a molehill.

You want a better outcome? Ask them to hire you for a future assignment.

[BillsBayou]

He doesn't need an attorney...

I still say get one. You'll need one that specializes in cases involving copyright infringement. Contact your local Bar Association. You've made the threat of court action. Now's the time to follow through.

[Charles Bogle]

Get one for what?

What are his damages? None.

What was the total cost of the ad? Maybe $100 or so. It's a public service giveaway.

What do you think a lawyer will get him? A million dollar settlement? This is real life, not "Deal or No Deal".

[BillsBayou]

Get one for what?

What are his damages? None.

What was the total cost of the ad? Maybe $100 or so. It's a public service giveaway.

What do you think a lawyer will get him? A million dollar settlement? This is real life, not "Deal or No Deal".

Damages? I say let a court decide.

Total cost of the ad has NOTHING to do with the fact that it is a commercial advertisement using a stolen photo. Further, the photographer should contact the catcher and the team to let them know what happened. The catcher may feel particularly offended. HIS damages could amount to much much more than the photographer's.

I don't know how much a lawyer could get. If the photo were registered with the copyright office prior the infringement, the amount would be significant (as in thousands of dollars). As it is, in real life, multi-million dollar corporations do not get a free ride on the backs of photographers. They are not allowed to selectively pick through our photographs and steal whatever they want just because they're doing a $100 ad and we shouldn't expect much in compensation.

I say get an attorney and let him/her tell the photographer the bad news. This is not a matter for us to decide unless we're called to sit upon a civil jury.

From what I've read, the law was broken for the reasons I've cited. From what you're saying, the infraction was so minor it doesn't merit any action on the photographers part. I'm not so willing to lay down and have my rights trampled.

[rklepper]

Personally, I am not sure that a photography forum is the place for legal advice. I would definitely contact an attorney for legal advice.

[Charles Bogle]

You are in a naif's dream world.

[Woolburr]

You are in a naif's dream world.

I can barely wait to hear your views on the 5D.:rolleyes:

[Crashoran]

Charles Bogle, you need to do more research. Any person that appears in any form of advertisement needs a signed model release unless used as editorial. I can't believe you are defending whoever took my photo. So to you it's okay for agencies to steal any kind of media they want and use them in their advertisements?

[Charles Bogle]

We are not debating right and wrong. Yes, it's "wrong".

But will you collect some big judgment in this instance? No.

Not a chance in hell.

I have a 5D and it's pretty good.

[cylentka]

i can only assume in the other thread you mentioned that you had sent this image in to the copyright office?

If the photo was not registered with the copyright office, you will not get much for illegal use. The person to benefit from this misuse would be the catcher in the photo and the organization for which he plays. Pass this photo off to the catcher and let them know that your photo was stolen. Further, that Atmos did nothing to contact you concerning model releases.

And get an attorney.

Any original private creative work is automatically copyright protected, even without a notice.

I doubt damages would be very high, so probably not worth getting an attorney since the fees add up VERY quickly.

Just my opinions, here. :)

[Crashoran]

I shall be receiving payment soon :)

[BillsBayou]

You can't just come in here and say that. WE NEED MORE DETAILS!!! :D

[kevin_c]

I shall be receiving payment soon :)

Can we expect your gear sig to get longer soon? :-)

[S.Horton]

Personally, I am not sure that a photography forum is the place for legal advice. I would definitely contact an attorney for legal advice.

+1

Call someone like Carolyn (http://www.photoattorney.com) and let her handle it.

EDIT: I see your post about getting paid. Congrats on the sale!

Nice pic, too.

[rklepper]

I shall be receiving payment soon :)

Excellent. I am really glad to hear the right came out on top.

[SOT]

DETAILS!

[theague]

DETAILS!

x3 please

[steved110]

^^^ what they said!

[Crashoran]

I simply told them if they did not compensate me I would be filing a lawsuit against the corporation. That seemed to wake them up a bit

[neil85]

We are not debating right and wrong. Yes, it's "wrong".

But will you collect some big judgment in this instance? No.

Not a chance in hell.

I have a 5D and it's pretty good.


so you let the company go unpunished for blatantly stealing an image?

let them do it once and they will keep doing it. this is why there is such a thing as copyrights. its not so much a "this is going to be my big payday" as it is the principle the issue at hand.


if you are making money doing photography and then see an image was stolen you wouldnt be to happy either.


also wheres the link to the article of the photography being awarded over $1,000,000 for copyright infringement due to stealing an image of his?

[FUBAR247]

So if your getting a payment for your picture, did you get a signed model release for the player so your picture could be used comercially, or does this mean that player can now threaten a lawsuit against both you and Atmos for using his image for comercial gain :)

[skapur]

So if your getting a payment for your picture, did you get a signed model release for the player so your picture could be used comercially, or does this mean that player can now threaten a lawsuit against both you and Atmos for using his image for comercial gain :)

Thats a very good point.

I dont understand one thing. How can we prove a fact that "This picture is taken by me". Can someone explain?

[neil85]

you would have a copy of the original that would be compared to the copy or "stolen" image.

theres a lot of characteristics that can be compared to determine if they are the same image

[BillsBayou]

So if your getting a payment for your picture, did you get a signed model release for the player so your picture could be used comercially, or does this mean that player can now threaten a lawsuit against both you and Atmos for using his image for comercial gain :)

The photographer has not misrepresented the photo. The photographer cannot be held responsible for misuse of a stolen photo. If I have a gallery on the web of my work and someone comes along and steals the photos, I've done nothing wrong. I'm allowed to display my work as a portfolio.

The person in the stolen photo has every right to sue when they can easily be identified in a photo where they are the subject of the shot. If the photographer had sold the photo, he/she would be obligated to tell the purchaser that there is no model release for the photo. This would leave the purchaser with only editorial or other non-commercial use. As this was an advertisement for their company, it is 100% commercial. As they stole the photo, the model has every right to expect compensation.

[FUBAR247]

But.... :D

The photographer has basically sold the rights to that image to Atmos by accepting a payment from them without contacting the model in the picture, wouldn't this fall under the same scope as the photographer stealing the models image for comercial gain without his consent?

or

if the model had been given a copy of the photo by the photographer and that model then gave the image to another party for comercial use would that mean the model would need to get the approval of such action from the photographer beforehand and if so wouldn't the photographer of this image have needed to contact the model before accepting payment for use of the image?

Not trying to be awkward or anything just trying to see where each parties obligations lay, because as the moment it looks like this company used a phographers picture for comercial advertisment, the photog seen his image used and said that the image is stolen and that no model release was signed, sends an email off, gets offered a payment that he accepts then everything is all rosy yet the model probably dont know sweet FA about his image being used, doesnt the photographer have a moral obligation to notify that model that his image has been used, and that he has received payment for the use of that image, after all without the model there would be no image :)

[BillsBayou]

But.... :D

The photographer has basically sold the rights to that image to Atmos by accepting a payment from them without contacting the model in the picture, wouldn't this fall under the same scope as the photographer stealing the models image for comercial gain without his consent?


Not at all. The photographer has no control over how a sold photo will be used. What is important is how the photographer represented the photo. If the photographer sold the photo and the purchaser makes a poster to hang in their office, the purchaser has not done anything wrong. If the purchaser uses the photo in a publication in an editorial sense, there is still nothing wrong. If the purchaser slaps a company name on the photo and uses it in an advertising campaign, the photographer is blameless and the purchaser holds all the liability.

or

if the model had been given a copy of the photo by the photographer and that model then gave the image to another party for comercial use would that mean the model would need to get the approval of such action from the photographer beforehand
(http://www.better-english.com/easier/theyre.htm)

100% correct as stated. If the model receives a copy of the photo and nothing else, the model must get permission to have prints made from that copy no matter what the use.


and if so wouldn't the photographer of this image have needed to contact the model before accepting payment for use of the image?

(http://www.better-english.com/easier/theyre.htm)

It depends on the circumstances of the taking of the photograph. If photography is allowed on private property (in this case, the ballpark), the photographer owns the photo. The model has a right to control how that image is used commercially. The model cannot prevent the sale of the photo to anyone SO LONG AS THE PHOTOGRAPHER IS TRUTHFUL IN REPRESENTING THE PHOTOGRAPH.



Not trying to be awkward or anything just trying to see where each parties obligations lay, because as the moment it looks like this company used a phographers picture for comercial advertisment, the photog seen his image used and said that the image is stolen and that no model release was signed, sends an email off, gets offered a payment that he accepts then everything is all rosy yet the model probably dont know sweet FA about his image being used, doesnt the photographer have a moral obligation to notify that model that his image has been used,

No. The photo itself was stolen. That is a concern to the photographer. The model in this photo has no idea if the photo was taken by a private individual or a representative of the advertising company. His issue begins with those concerns.



and that he has received payment for the use of that image, after all without the model there would be no image :)

True about that last part, but the model is only due compensation on the USE of the photo; not the taking of, or sale of, the photo.

[Crashoran]

They took the photo from my online portfolio web album.

They are not paying me for rights to use the photo, they are paying me because of the crime committed.

[BillsBayou]

They took the photo from my online portfolio web album.

They are not paying me for rights to use the photo, they are paying me because of the crime committed.

They may want you to fill out a form that says otherwise. If you get a check, they'll most likely have you sign a form that gives them the right to use that photo including prior use. If you get such a form, you'll need to decide if you're getting paid enough for the photo. Since you seek punitive damages on a photo that has not been registered with the copyright office, you won't get more than a court would levy ($1,000 or so). Most likely, they'll try to give you a fair market use price (considerably less).

[LBaldwin]

They took the photo from my online portfolio web album.

They are not paying me for rights to use the photo, they are paying me because of the crime committed.

I agree, the image, and the rights to the image were not sold. This was monitary damages for an infringement.

No release was requried prior to the infringment because of the images status as editorial. Now the infringing party may still have liability to the subject for use without prior release.

I still think that Crashoran should contact Carolyn Wright re: this issue.

Les

[Crashoran]

Actually I told them what I wanted and they didn't refute the price or anything. They told me I'm going to have to sign something - but if the model finds out about this I shouldn't be held responsible. I hope not.

[LBaldwin]

Actually I told them what I wanted and they didn't refute the price or anything. They told me I'm going to have to sign something - but if the model finds out about this I shouldn't be held responsible. I hope not.

Before signing anything in the way of a release, MAKE SURE you have a good attorney look at it. There may be some verbage that transfers any liability of the subjects release directly back to you. Then that amount of money will not seem worth it.

Like I said send an email to Carolyn Wright before you get into deep kimchee.
I have met her, and have her book. She is a great person and will eat their lunch if need be. She will also look out for your best interest.

Les

[Tee Why]

I can't believe that there are companies out there are that this dumb, stealing images and using them for ads. This is asking to be sued.

Hope you are justly compensated for the theft of your image.

[LBaldwin]

I can't believe that there are companies out there are that this dumb, stealing images and using them for ads. This is asking to be sued.

Hope you are justly compensated for the theft of your image.

Images, music, lyrics, beats, movies, TV shows, scripts you name it. If a company does not have to DO any actual work, and can steal your creation and slap their name on they will.

Several magazines will do it, newspapers will too. Most are willing to chance it knowing that they money they make off of it will far out weigh what they MIGHT have to pay should they get caught.

I did a shoot for a modem company, they got sold a few times. I had a bullet proof license lock on the envelope of trannies, and the trannies them selves. Guess what they changed the name of the product in PS added a few Doodads and dropped it into a RF sunset. But what they did not know is that I watch the trades my images go into and place little tell tale objects somewhere in the image that is not likely to be seen or removed.

My buddy who is a fantastic IP lawyer presented them with cease and desist order, a invoice and a blueback all in the same day. The company was asian owned and did not respond at first. My buddy had their CEO served at the golf course in front of all his hi falutin amigos. They sent me a fat check the next day. Turns out the Ad they placed with the image was to used in Trade show booths 10x in the same year. The ad itself was 70k for the year in the various trade mags.

So the story goes guard your copyrights, you never know when it will pay off.
The company? Went sneakers up a few months later, the new products they took to market caused too many fires <vbg>
Les