Copyright Violation, Publishing images with out permission

[PaintballPhotography.com]

Greetings,

I am a frequent contributor to the Sports Section of this Forum. Take a look under Paintball Photos for some of my work....

I just saw a recent issue of a national paintball magazine and I was stunned to notice that they used about twenty of MY pictures without any permission, compensation or photo credit. All of my work is copyrighted and I require permission before anyone can use them for their financial gain. I did submit a photo CD to this magazine in December, but I never heard back from the magazine so I assumed they either did not like them or did not want to use them. This is the second time this magazine has used my images with out my permission or knowledge. I even e-mail them about this but they never responded. I was wondering what you guys think about this and what I should do. I am looking forward to hearing your suggestions.

Thanks

Gary
gbaum@paintballphotography.com
www.paintballphotography.com (http://www.paintballphotography.com/)

[tommykjensen]

First You should check what the magazines terms are when submitting material to them.

Many magazines state in the terms that they claim all rights on not requested material submitted to them. (This didn't sound right but I hope You understand what I mean).

[Andy_T]

Gary,

that sounds like a royal pain in the ass.

When you submitted the CD, did you mention that the images were copyrighted and that they should contact you before using them in any way?

Best regards,
Andy

[Redbird_xo]

If I were in your shoes and am sure about the validity of the case, I would...

Present the magazines with your photos and your prove of originality of these same photos to an IP lawyer and ask if he/she is going to look at it on a contingent fee basis (assuming you are in the U.S.) I presume the lawyer will evaluate the credibility of your claim and the probable remedy (compensation), if any. If the compensation is meaningfully greater than the cost of pursuing your case, you will proceed with the case.

As suggested by tommykjensen, I would also make sure if, in any way, you have "forgone" any rights when submitting your photo CD to the magazine earlier.

Good luck.

Edit: IP = Intellectual property

[PhotosGuy]

All of my work is copyrighted and I require permission before anyone can use them for their financial gain. Did you include a © 2005 etc on each image? Register the group with the © office?

[rdenney]

Did you include a © 2005 etc on each image? Register the group with the © office?

It might (should?) not matter. I've read up on copyright law a little for other applications, and there are a few principles that bear on this situation:

1. You cannot assign your copyright to another party by accident. Sending in photos for consideration does not do so even if the magazine has some fine print somewhere claiming it does. Every photograph I've had published in a magazine had to be accompanied by a form, signed by me, assigning them a limited use copyright. Copyright assignment MUST be done explicitly and in writing.

2. Copyright protections cover the manifestations of all creative work whether or not they are marked, and whether or not they are registered with the government. The only thing that changes is the burden of proof. If the item is marked, the burden of proof that the infringer infringed is on the infringer. If the item is registered, the burden of proof that the infringer is indeed the copyright owner is on the infringer. Otherwise, the burden of proof is on you.

3. A copyright notice on the front of the CD is sufficient notification of copyright. Each image does not have to be marked. Furthermore, it doesn't even have to be your copyright mark--any copyright mark will serve as notice to the potential user.

4. A person knows whether they did or did not create something. Thus, anyone who uses something they did not create is violating someone else's copyright. The law is written around this principle. All you have to show is that they knew they didn't create it.

5. Copyrights are good for the life of the creator plus some period. That period grows every time Disney gets afraid Mickey Mouse is going to lapse into the public domain, and gets Congress to approve a longer period. I think it's up to 90 years now, or maybe 120. It was originally 70 years when the law with this formular was first enacted in 1978. That means that your photographs are yours for your life, and probably the life of your great-grandchildren. Photos published before 1923 are all in the public domain, but the law that provided protection for a 28-year period that could be renewed once was changed in 1978 and went into effect in 1979.

6. Copyright protection applies to all derivative works.

To win a copyright claim, you first have to show that the magazine infringed on your copyright. If the CD you sent them had a copyright marking on it, then it's up to them to prove that they didn't infringe. If it didn't, then it's up to you to prove that they did, and you can do this by asking them to show that they created the images in question or were granted copyrights to use them.

You have to show that you owned the photographs in question. This is easy if you have the raw images in your possession, and the magazine only has the TIFF's. There's no way to produce a raw file from a TIFF file, so having the raw file is proof that the TIFF's are derivative. If they are registered by you, then it's up to the magazine to prove that you didn't own them.

If you can't prove that they infringed (i.e., you don't have the raw files any more) and you didn't mark or register it, then I would still try the lawyer letter I suggest below, but you might not win if you sue and it goes to court. Most infringement suits are lost because the copyright owner could not prove ownership.

Then, once you have proven that they infringed, you have to show that their infringement caused you commercial damage. If you have sold images to other magazines, the agreement you signed on doing so will established your commercial expectations for the photos. If the magazine has a standard rate that they pay, then they should have paid that to you. If photo credits are a typically given in that magazine, if you've received photo credits in other magazines, or if your letter to them with your submission indicated that you expected photo credits and compensation, then that should get thrown into the mix as well. You'll need legal help to determine the value of the loss imposed by the infringement, and whether you are due any additional damages.

If it's a small-time magazine, a letter from a lawyer with a demand for reasonable payment and a statement in a future issue of the magazine providing credit will probably get a favorable response. The demand should be fair and firm, it seems to me. In return, you'll provide them with a limited-use copyright agreement to make their use legal. A big magazine might fight it just to keep their staff lawyer busy, but a small magazine will have to rent their lawyer and won't want to do it without a lot of confidence.

This is not legal advice--you can only get that from a lawyer and I'm not one--but it is what I think I know and what I would do.

Rick "noting the profound difference between copyrights, patents, and trademarks" Denney

[Barb42]

rdenney is right - call them. If they don't give the right answers, call a lawyer. If you don't defend yourself, no one else will do it for you. You might consider just sending a bill with your lawyers letter.

[andygrif]

I remember a situation in my last job where one of my (more moronic) employees used a scan of an inside shot of a Nina Simone album.

Whilst it was a grey area using the CD cover in the publication using the imagary inside was a big no-no.

The publication was to go with the inflight entertainment we produced, so we were playing a track from this Nina Simone album.

Out of utter coincidence, the tog who took this famous photo happened to flying internationally via the airline (who will remain nameless).

Needless to say she wasn't best pleased to see her shot in print, not even a credit for her name let alone a paycheck.

She was obviously a realy pro, her attack was short, sharp and effective:

Cease and desist, withdraw all copies (obviously this isn't possible) or we'll sue your underpants off. Either that or pay me $1,000 within 7 days to avoid action.

Needless to say we paid up, and quite right too.

Of course she was smart, and knew that we'd be unlikely to deal again with her due to the nature of our business - we didn't commision photo shoots or buy-in stock shots.

You need to think hard as to your approach.....you have a speciallist area of photography, the publisher shares that niche, so suing could well make sure that you will never get a shot published through them ever again, and of course publishing is a small industry, so you might start to generate a bad name for yourself if you scream and shout....I know it's not fair, but trust me that's how media works.

Personally I would think long and hard as to your options, make sure you contact them, preferably ask to meet with the picture editor of the magazine, explain the situation, ask their take on it and come to a compromise....above all remain calm and level headed at all times.

If you don't burn your bridges you may well find yourself on the receiving end of lots more work from them.

[despot]

There there might be some useful info on this thread on the FM forum ...
http://www.fredmiranda.com/forum/topic/228703

[IndyJeff]

I just hope you registered the images.


Read this story to see what can happen when you violate a copyright, or are violated.....BUSTED (http://biz.yahoo.com/prnews/050606/dam034.html?.v=15)

[PhotosGuy]

If you don't burn your bridges you may well find yourself on the receiving end of lots more work from them. :D:D Third time is the charm? The check would probably bounce! ;)

[gastroboy]

so how do you go about copyrighting your pictures? Do you need to take everyone of them to the copyright office and register there or is it more of an implied copyright...you stick the (c) thing on your pic and thats it? you own copyright? (assuming you can prove its yours - EXIF data etc???)

[gastroboy]

okay just saw the answer on the internet. nevermind.

look here if other ppl wanna know..(for Australia though)

http://www.copyright.org.au/pdf/acc/InfoSheets/G011.pdf

[Wazza]

Lucky for us in Australia and New Zealand, copyright protection is immediate upon taking the images. We don't have to rely on registering the actual individual images such as in the States to get monetary damages etc. Pretty silly. I wonder where this money goes for registering images anyway. More tax for the governments? :P

That's really shocking anyway, that they would use those images without asking, and I hope there is no conditions of use on their site, when you sent them the disc, explaining the images become the property of their own, once received.

[gastroboy]

gary, you should call them up and let them know in a friendly manner that you hadn't realised that they decided to use your photo's because you haven't negotiated the price yet. Since you are in a fairly specialised field, you shouldn't be using the cease and decist tactic becuase you may want their $ in future. If all goes pear shaped, then sue their asses off, they are not worth dealing with anyway.

[PhotosGuy]

Do you need to take everyone of them to the copyright office Simple & cheap way is to register a full CD of images as a group of work in the US so, "We don't have to rely on registering the actual individual images such as in the States to get monetary damages etc."

[C.S.I.]

I thought when you sent in images into a magazine, whether it be a contest, etc, theres usually a clause that states that the images become property of said magazine or periodical, and that you will also not get images back......

[rdenney]

Lucky for us in Australia and New Zealand, copyright protection is immediate upon taking the images. We don't have to rely on registering the actual individual images such as in the States to get monetary damages etc. Pretty silly.

You should read U.S. copyright law before saying such things. As I outlined in my post, U.S. copyright law also provides copyright protection from the moment of creation. The only thing that is affected by registration is the burden of proof of some aspects of the copyright.

Rick "who thinks the U.S. law is, if anything, too protective, but who also knows that bringing legal action anywhere is expensive and risky" Denney

[ssim]

Very interesting thread. I've always felt that this was another good reason to be shooting RAW. Being able to produce the original RAW file would be undeniable proof of ownership. In this case I would heed the advice of those that recommend that you approach them but not with both barells blazing. No sense burning your bridges if you don't have to.

I've noticed that some of my images on pbase have been linked when I know for a fact that I haven't done it. I wished there was some way of tracing this.

[CyberPet]

Send them a bill (check the rates for published photos at some photo professional site). State in which issues they were publishes and on what pages. You could even photo copy the pages and make an X beside each of your photo's.

I think the copyright laws are pretty much the same world-wide. You have the right to your images and texts the second you create them. If you can produce and show up the originals (which you hopefully can, unless you lost them), case is closed. No need to register anything.

Although, a good thing is to use services like the ones that puts a "tag" in the image with your copyright info... but that only works on online images, since you really can't check a file of a photo in a printed magazine.

Hope for the best!

[CyberPet]

PS. Since the serial number is saved in the EXIF-info in the new cameras (not sure about 10D and 300D, but the new 20D and 350D has that feature), you can just show them your camera serial number and dig out the EXIF-info. Case closed once again.

[PaintballPhotography.com]

Wow, what a wealth of information, you guys are not only great but a valuable resource ! Thanks so much. I decided to approach this as many of you suggested by being nice and calling the editor of the magazine with the intention of not “burning any bridges”. The editor stated that he was not responsible for photos that are submitted with an article. He said the he just assumed that the author of the article took all the pictures so he was not responsible and it was not up to him to determine where the photos came from. What a bunch of BS, this was IMO a very stupid thing to say; I tried to remain calm as you all suggested and explained to him that I was delighted to see my work published in magazine again but since he used my images perhaps he should pay me. He agreed and a check is in the mail. He is going to print a correction in the next issue of his magazine. He even hired me to photograph the next big tournament and wants to keep using me for his magazine. According to him his magazine is going to do a six page spread of my work in an upcoming edition.

Well since I am a new comer to getting paid for my photography, I have learned a lot here. I have been shooting paintball pictures for about two years now and this month I have had almost forty of my images published in two magazine this month …WOW. I guess I have arrived …

What is a typical rate to charge for such work? I think it may be had to determine because what I do is so specialized

BTW check out some of my images in the sports section…
http://photography-on-the.net/forum/showthread.php?t=76568

Thanks to everyone who posted,
Gary
www.paintballphotography.com

[Seamless]

You should read U.S. copyright law before saying such things. As I outlined in my post, U.S. copyright law also provides copyright protection from the moment of creation. The only thing that is affected by registration is the burden of proof of some aspects of the copyright.

More accurately, not at the moment of creation, but when the work becomes fixed in a tangible medium. Thus a "photograph" that consists of an image projected on a wall in a darkened room is probably not a copyrightable work, nor would music that is performed but not somehow recorded (written melody or audio recording) be copyrighted.

The primary benefit of registration is the way damages and attorneys fees are awarded.

[andygrif]

He agreed and a check is in the mail. He is going to print a correction in the next issue of his magazine. He even hired me to photograph the next big tournament and wants to keep using me for his magazine. According to him his magazine is going to do a six page spread of my work in an upcoming edition.


That is a very good result....well done! Glad it all worked out for you.

[PhotosGuy]

The editor stated that he was not responsible for photos that are submitted with an article. He said the he just assumed that the author of the article took all the pictures so he was not responsible and it was not up to him to determine where the photos came from. What a bunch of BS, this was IMO a very stupid thing to say; :D;) Yeah, & he knew it, which is why he paid!
Good for you!

[EOSAddict]

PS. Since the serial number is saved in the EXIF-info in the new cameras (not sure about 10D and 300D, but the new 20D and 350D has that feature), you can just show them your camera serial number and dig out the EXIF-info. Case closed once again.

It does on the 300D too.