Question on Photography concept rights and copyrights

[jvinlove]

Ok i hope that someone can help me with this one. i did a photoshoot of a vehicle that was to be used in a magazine layout and i had the owner sign a photo release so that i could use the photos how i see fit. the owner snapped a photo while i was shooting detail shots of the vehicle. and as it turnes out the photo the owner shot is now being used exclusivly on a vendor website and was used in an advertisement handbill. i was soliciting the images to many editors for use in a magazine and now that the image is being used commercially it has comprimised everything i was doing to get the images published. do i have any rights because of the layout and way that i set up the shoot? can i make them remove the image since it is
my concept? would they owe me damages for what i would not be able to sell the images for now?
please let me know

this is the image the vendor is using
http://www.candidmemoriesonline.com/photos/715631246_PDmxh-S-1.jpg

and this is my image
http://www.candidmemoriesonline.com/Individual-Car-Shoots/Challenger/Slammed-3/665553755_jUGjH-S-1.jpg

[P51Mstg]

I've never had this one come up before......

My guess.........

If you shot the photo and he later saw it and duplicated the setup/pose, there is a copyright violation.......

But if he grabs a camera during your photoshoot and snaps one, then it probably isn't.......

Bear in mind that you happened to get an angle similar (note location of grass in infield, etc) to that one, you may not have gotten anything even close to it........ You can look at it as this car parked on the track with a pretty standard 3/4 shot........

I'd say you are SOL..... (on the other hand, you may want to talk to a real lawyer who does this kind of work and see if anything can be done. Carolyn Wright is a good one at www.photoattorney.com (http://www.photoattorney.com); Me I'm a retired lawyer and semi pro photographer).......

Best wishes...

Mark H

[Shootfilm]

I doubt there is anything you can do about it now. The shot is pretty standard and required no real engineering or anything special. I would ammend your contract for future shoots. Possibly not allowing cameras at all or making any photos taken by a company rep your property. I doubt the latter would be enforcable but might prevent it from happening.

SF

[jvinlove]

I did have permission from the racetrack director to take cars out to the track for shooting, this is something i had to obtain as they would not grant permission to the individuals that owned the cars. dont know if that helps?

[Shootfilm]

I did have permission from the racetrack director to take cars out to the track for shooting, this is something i had to obtain as they would not grant permission to the individuals that owned the cars. dont know if that helps?

I doubt it but the track may take issue since there was no property release.

SF

[DDCSD]

It would be my guess that you have a case. Think about it, you set up the area, posed the vehicle, got all of the permissions for use of the area and what not.

If you were on a movie set with a camcorder standing behind the cameraman recording everything, you couldn't take that footage and sell it as being your movie production.


My personal (not an IP lawyer, or any type of lawyer) opinion is that I honestly think you may have a case if you were to chose to pursue it.

[jvinlove]

yeah i would like to pursue it, just not sure of what direction if i had a case, not only did it cost me obviously to setup all of the photoshoot but now i have lost out on the publishing in a national magazine as well as lost out on that being my photo in the advertisement

[Shootfilm]

yeah i would like to pursue it, just not sure of what direction if i had a case, not only did it cost me obviously to setup all of the photoshoot but now i have lost out on the publishing in a national magazine as well as lost out on that being my photo in the advertisement

Give Perkins Coie a call. Just google them.


SF

[MJPhotos24]

Friend of mine was hired by a magazine to shoot two players together for the cover, so he set it up, took the shot, etc. Turned out some guy with a 400 was shooting from the side/back/somewhere basically right over his shoulder and sold it to the magazine first....nothing he could do about it he said but wondered if he ever tried. I know he never submitted to that magazine again and told 'em off pretty good which was probably not the best idea but he already was a team photog for a major team so the little they offered wasn't a big deal.

I did make someone remove a photo last year of 3 draft picks I set up, shot. He shot from the side and was selling it - Ebay made him remove the photo immediately because it was my set up - so maybe something to it. IP lawyers know the answer.

[jvinlove]

i appreciate the help, it is madening to know that i went through all this and a simple point and shoot has me floored on this image

[P51Mstg]

Well, I have a few other thoughts on it.... I can say that I doubt the property release angle will fly. (Lets see,,,,,,, Did you have a release from the track in writing to shoot there? If not then chances are the other person didn't need one either). Were there there signs saying NO PHOTOS?

I don't see trademarks infringed upon (no big DRINK COKE sign in the back).

As far as the track only letting you there; well, did they RESTRICT anyone else from getting out there to shoot? Probably not, so no trespass problems there....

Next, after you sue and the owner of his car tells all his racing buddies, what an #$%^&*&^ you are, will you mind losing that business?

Also before you get to the lawyer....... Can you tell us (or write it down for yourself) exactly how much money you lost on this? Thousands of dollars or $10's of thousands.....

Most photographers I know aren't real flush with cash. When the lawyer says, I need a $5000 retainer against $300 an hour and IF You win and get attorney fees, you may well get some, most, all or none of that back..... Are you going to pull out the check book, write a big one and say go for it?

Lots of choices.....

Let us know what happens..... I do wish yout he best if you pursue it.

Mark H

[jvinlove]

a follow up to you p51 I was the only one who had the approval by the track to be on the track. i had a verbal ok from the track manager that i would take one car at a time and they had to follow my golf cart at 5mph max on the track. if you where not with me you where prohibited from being on the track. as far as a loss of money its tough and you are right it will cost more to retain a lawyer to fight this as i am sure i would have only made about 400-500 from the images.

the company made flyers and handed them out at the biggest car show in the USA ,, the SEMA show so its tought to say monetarily what was lost.

i did consut a IP lawyer who said i definatly had a case. and what i intend to do is ask the company to pull the images respectfuly as well as offer to sell them the entire set.

so we will see where that takes me.

[wyofizz]

Turned out some guy with a 400 was shooting from the side/back/somewhere basically right over his shoulder and sold it to the magazine first....
I did make someone remove a photo last year of 3 draft picks I set up, shot. He shot from the side and was selling it - .

The number of low lifes in this world never ceases to amaze me.
:mad:

[bwolford]

You can inform the publication that the shot they are using was by a photographer without a property release. That will probably stop future use, but unless the property owner is willing to take action not much more will happen.