Stolen images used commercially and where to go from here

[Tony.Ibarra]

Ok. So, I get the weekly athletics mailer from my school and they always include images of the teams action from the season up to date. This weeks, as shown here (http://link.paciolan.com/viewmsg.cfm?n35213s570c41116t570), contains two of my images (1st and last ones). I was there freelancing for the campus newspaper and provided the paper with about 10 shots from the game for the online gallery. These images have been re-cropped but are without a doubt my shots. The athletic dept has a staff photog, and I feel that if they want to use my images instead of his, they can pay me for my copyrighted work too. Where do you guys stand? What route should I take? I can write a letter telling them in not so nice words to stop stealing my stuff, but what I'd rather do is offer them the ability to use me should they choose, but know that there is a cost for commercial use of my work. How would you guys pursue this? Thanks for your advice.

[kaystewartphoto]

IMO the fact that you gave them the images for the online gallery, they thought that they would have the right to use them in their mailer.
Did you make it clear to them at the time of handing the images over that they were only for the online gallery? Is there any paperwork to prove this?

[Tony.Ibarra]

The images weren't given to them, the newspaper and athletic dept. are two separate entities. The web gallery features my name on every photograph and my name in the title of the gallery. The athletic dept went into this gallery and extracted the images and put them into their own publication.

[kaystewartphoto]

The images weren't given to them, the newspaper and athletic dept. are two separate entities. The web gallery features my name on every photograph and my name in the title of the gallery. The athletic dept went into this gallery and extracted the images and put them into their own publication.

Thank you for clearing this up.
IMO, i would write them a letter, nothing nasty and rude, just a plain letter imforming them that they are breachin copyright. Do not threaten them with legal advice yet, there might be a simple answer as to why this has happen. Have a look round the internet for sample letters.

[Tony.Ibarra]

That's exactly what I was thinking. My cousin just passed the CA state bar exam, and I'm going to law school next fall, so the legal aspect isn't something that scares me, but I definitely don't want to bring that into play whatsoever if I can avoid it.

[kaystewartphoto]

That's exactly what I was thinking. My cousin just passed the CA state bar exam, and I'm going to law school next fall, so the legal aspect isn't something that scares me, but I definitely don't want to bring that into play whatsoever if I can avoid it.

Good man, ive seen way to many ppl on photography forums jump to threatening ppl with legal advice etc and it doesnt get them anywhere

[Palladium]

IMO - Images that you think may have some value should be watermarked across the middle.

[johnstoy]

I also had given images to a rock band for web use only... It turns out they used one on the front and back of their CD cover... Later, three images ended up on several state highway billboards for the venue... The billboard shots look great in my portfolio... I never got compensation... Or even a comp hamburger at the venue.

[Tony.Ibarra]

IMO - Images that you think may have some value should be watermarked across the middle.

The newspaper that's using them cant have any watermarks on them. Trust me, that would have been the first step.

[Big K]

Technically, that is not commercial use. It is editorial as they are not using the photos to sell a product but to include with a story about the game.

What are the standard terms from the newspaper? Many have terms that they can use, reuse and redistribute for editorial purposes as they see fit.

If you do not have terms and a contract in writing spelling out usage you are probably SOL and any sort of pushback will just prompt them to move on to the next person who will provide them with free stuff without pushback.

Good luck and I will be following to see what happens.

[Tony.Ibarra]

I get that the newspaper I was there for is using it for editorial use.
The athletic dept. that stole them is using them to sell tickets in the mailer. Click the link, you'll see what I mean.

[Big K]

I get that the newspaper I was there for is using it for editorial use.
The athletic dept. that stole them is using them to sell tickets in the mailer. Click the link, you'll see what I mean.

That is still not commercial use. The photos are included with recaps of the game which is editorial use and they are using images of their own players, wearing their copyrighted logos, representing their own school to market tickets tp their events, I am still pretty sure this does not qualify as commercial use.

If it was commercial use, they would be in trouble with the NCAA.

[EnglishBob]

Commercial or editorial is irrelevant for the copyright and the photographers rights... that would only apply to needing releases for the use of the person's in the the pictures images.

[Big K]

Commercial or editorial is irrelevant for the copyright and the photographers rights... that would only apply to needing releases for the use of the person's in the the pictures images.

Which is why I posed the question about what terms the paper has in regards to use and reuse of photos provided to them.

Commercial use at the NCAA level does extend past model releases since being involved in a commercial usage can make them ineligible to play, but you are correct, does not matter in this discussion.

[Croasdail]

Honestly, I think you are chasing something that is pretty fluffy here. Athletics and the Newspaper are different departments of the same entity. Unless the paper is not part of Long Beach State University, they they are all part of the same org. Most photographers who donate to the universities do so for none-commercial use, meaning the university is not selling them. I mean picture end up in the yearbook, which is later sold. Is that commercial use.

The site you point to, while it does announce games, contains a bunch of other stuff. I think you would have a really hard time making the case this is commercial reuse, and if you were able to prevail, you are talking minimal amounts, and I can assure you that you will not be invited back by the athletics department to shoot anything.

So pick you battles. Take this as an opportunity to engage with the SID and set up a formal relationship with them. But accusing them of stealing, and that somehow they are not part of the same university, and that this is clear commercial use, and that you have been damaged by it, you better have an awfully big reward at the end of this.

[Tony.Ibarra]

here's the email I drafted and plan on sending to the SID. Let me know if you would make any changes to it:

To Whom it May Concern:

My name is Anthony Ibarra. I photograph as a freelancer for the Daily 49'er and have noticed that several of what I believe to be my images have been included in the most recent version of the Beach Mail article. I have not been contacted for, nor have I given permission to longbeachstate.com to use these images. I understand that the Athletic Department has contracted the services of another photographer and Stephen and I have captured similar images on many occasions. However, these images in the most recent Beach Mail article are, without question, my copyrighted property. I would greatly appreciate your professional courtesy in contacting me for written consent to use my photographs in any commercial capacity. I would be happy to come to an agreement that both the school and myself found mutually beneficial, however, I will not stand idly by as my intellectually property is stripped from the web and reused.


Sincerely,
Anthony Ibarra

[DDCSD]

Slightly off-topic, but that huge Carrot Top head cutout in the top free throw shot is hilarious.

[Croasdail]

Do you know that these images were "stripped from the web" as you say, and not emailed or provided on a shared directory made available to the athletics department?

[Big K]

I think if you have any desire to continue freelancing for the Daily 49er you should be first asking this question of Starr Belmer or Bradley Zint before you burn all your bridges. However, since you did not answer my question regarding what terms the 49er has regarding use and reuse of images and since you do not understand commercial vs editorial usage, it appears to me you really don't care what people say here and are hellbent on making this a major issue.

If you are going to send that letter, at least fix "intellectually property" in the last sentence.

While I admire your pursuit of protecting your copyright I think you are handling it in a totally inappropriate way.

Good luck.

[Tony.Ibarra]

Do you know that these images were "stripped from the web" as you say, and not emailed or provided on a shared directory made available to the athletics department?

I spoke to the sports editor and layout directors who I submit my photos to. Neither of them have put anything into any directory, and they're the only two at the publication with access to them. That, and the photos I give them still have EXIF in tact, so they can see my copyrights on the photo they have, so if they chose to re-run the shot as stock, they have my name on it for credit.

[Tony.Ibarra]

I think if you have any desire to continue freelancing for the Daily 49er you should be first asking this question of Starr Belmer or Bradley Zint before you burn all your bridges. However, since you did not answer my question regarding what terms the 49er has regarding use and reuse of images and since you do not understand commercial vs editorial usage, it appears to me you really don't care what people say here and are hellbent on making this a major issue.

If you are going to send that letter, at least fix "intellectually property" in the last sentence.

While I admire your pursuit of protecting your copyright I think you are handling it in a totally inappropriate way.

Good luck.

The email was what I drafted yesterday, when I first found out about this. The reason I posted it was because I plan on changing it based on the feedback from here. Do I even have anything worth pursuing? Is there a likelihood that they would just blow me off and continue to get them from the newspaper webpage? I'm not sure, and this is why I want to hear what everyone here thinks about it.

[Croasdail]

Just send a note saying you want to meet and discuss working together, seeing how they like you images. Stay friendly... it will get you a lot farther.... really

[Big K]

The email was what I drafted yesterday, when I first found out about this. The reason I posted it was because I plan on changing it based on the feedback from here. Do I even have anything worth pursuing? Is there a likelihood that they would just blow me off and continue to get them from the newspaper webpage? I'm not sure, and this is why I want to hear what everyone here thinks about it.

It is worth pursuing. Protecting your copyright is always a tough thing to do and even tougher in the age of electronic medium. While it may not end the way you want, it will definitely not stop if you do nothing.

My only concern would be just not burning any bridges with your newspaper gig. They should be fully behind you and support your position as they should know better than anyone the importance of copyright protection. However, sometimes those who should be fighting don't for a variety of reasons. You might even consider asking them to talk to the athletics dept. since it was the newspaper that also had their content swiped without permission.

I do wish you the best of luck and hope it turns out positively for you.

[MJPhotos24]

The others have already given good info - it's not commercial usage, it's editorial. Have you asked who publishes the 49er if there is an agreement between the two entities because looking at the website there's photos from Stephen online right now saying courtesy the athletic department. Sports editor and layout director simply might not know and if I were you I'd be asking Joanne it looks like. They may have an agreement, I know when I shot limited for my old college newspaper they could pretty much do anything - send it to the athletic department, press releases, etc. I didn't get the film back (yea, yea, FILM) and haven't seen it since I shot it and will bet any amount they didn't keep files of who took them.

I've had this situation happen numerous times, and always simply ask where they got the photos from if I know the team/paper didn't hand them over. Always check with the main source, top of the latter first.

Also, that email reads very poorly IMHO and needs a total overhaul.

[JDCPA]

Your email is contradictory in regard as to whether they are your images or not.

In the beginning you state that you believe that the images are yours.

Later on you state the images are yours without question.

You need to be consistent.

However, I agree with the others, find out the relationship with the paper and the athletic department and never go forward without the consent of your superiors to back you up. Otherwise the athletic department won't be using your images because you won't have any.

[jacuff]

What are the standard terms from the newspaper? Many have terms that they can use, reuse and redistribute for editorial purposes as they see fit.


Which is why I posed the question about what terms the paper has in regards to use and reuse of photos provided to them.

However, since you did not answer my question regarding what terms the 49er has regarding use and reuse of images...

While I admire your pursuit of protecting your copyright I think you are handling it in a totally inappropriate way.


So did he ever answer your answer on what the terms were? ;)

What most people that don't regularly submit to newspapers realize is that they often have a blanket clause that says you grant them a perpetual royalty free license to use an image editorially or that those images were created under a "Work Made For Hire" and thus the paper owns the copyright. To get around those standard terms, you have to have a separate contract that states different terms. Sounds like the OP doesn't know the terms under which he was shooting under.

[jacuff]

Unless he's got a separate contract... this looks like it applies to the OP:

you hereby agree that: (a) you specifically authorize the Site, MTVU, the Parent Companies and their Affiliates to use such Posting in whole or in part, throughout the universe, in perpetuity in or on any and all media, now known or hereafter devised, and alone or together or as part of other information, content and/or material of any kind or nature;

[Tony.Ibarra]

I am shooting as an individual, who is retaining all copyrights and granting editorial rights for web and print use to the newspaper. There is no agreement between the paper and the athletic dept to share images or editorial materials (articles, etc.)

[Mike R]

Try to use their "mistake" to your advantage. They liked your shots enough to use them over ones from their own photographer so get them to hire you.

[SPORTshot]

There is some good advice being given to you Tony. Are you even interested in shooting for the athletic department ? If you are, do you think they would be open to working with you after you send an email like that to them ? If you're not interested, send the SID an invoice for the use of your photo's and attach a quick note that you would be more than happy to allow the athletic department to use your photo's in the future (for however much you wish to charge them).

[Croasdail]

I am shooting as an individual, who is retaining all copyrights and granting editorial rights for web and print use to the newspaper. There is no agreement between the paper and the athletic dept to share images or editorial materials (articles, etc.)

Ok, lets be really clear here. You are taking photos of an entity where I am sure their logo, all likenesses, the players and venue is theirs. You may own the copyright for your image, but you don't own the rights to the material you shot. You may be a private photographer, but that does not entitle you to publish, sale, or otherwise profit from shooting commercially at the university. All these will be controlled by the schools trademark, copyright, and NCAA regulations.

So before you get all chuffed and puffed, take a deep breath. It is a very small industry. Relationships are the biggest key to being successful because you will find many people can shoot as good as you. it is access to content that separates the average joe from the guy who gets ahead. Throwing hardballs, thinking somehow you are in control here, is going to get you no where.

You may win the battle, but very well could lose the war.

[DDCSD]

Mark, the first half of what you said is almost completely wrong.

[Mike R]

Mark, the first half of what you said is almost completely wrong.

There ws a post, a while back, in the transportation section. A car club was forced by FORD to cease publication of a calendar which had Ford cars in it. Even though the cars were owned by private individuals.

I guess they want their cut of the pie


There are also photo contests that will reject photos that have a corporate logo in them and websites that will not allow postigs of such photos.

It may depend on the company

[DDCSD]

There ws a post, a while back, in the transportation section. A car club was forced by FORD to cease publication of a calendar which had Ford cars in it. Even though the cars were owned by private individuals.

I guess they want their cut of the pie


There are also photo contests that will reject photos that have a corporate logo in them and websites that will not allow postigs of such photos.

It may depend on the company


Calendars are sometimes considered commercial usage when they surpass a certain print run. If they were just printing enough calenders for the members of the club, there wouldn't likely have been an issue. If they're selling them to anyone and everyone and printing a lot of them, it becomes a different issue.

[DDCSD]

Mark, the first half of what you said is almost completely wrong.

I'll clarify what I meant on this. I was typing on my phone last night and my thumbs were getting sore. :)


Ok, lets be really clear here. You are taking photos of an entity where I am sure their logo, all likenesses, the players and venue is theirs. You may own the copyright for your image, but you don't own the rights to the material you shot. You may be a private photographer, but that does not entitle you to publish, sale, or otherwise profit from shooting commercially at the university. All these will be controlled by the schools trademark, copyright, and NCAA regulations.


I don't know how commercial usage came into this discussion. The OP never stated that he wanted to use the images commercially. In fact, he complained that he thought the athletics department was using them commercially.

The photographer has every right to publish, sell and profit from the photos. Just because he is profiting from selling the photos doesn't make it commercial usage. Commercial usage would be using the images on a product or in advertising, in a manner that would imply that the subject or school endorses a product or person.


I do agree that the OP isn't going about this the right way and should figure out how to turn this opportunity into further business.

[Jeff]

A BIG name in photography can more easily say "look buddy, you used my images, you owe me". You're probably not at that point to throw your weight around.

Like most other have said. Send a note/email whatever saying "I'm glad you liked my images enough to use them in several places, let's work out an all encompassing method of compensation so you can continue to use them".

[MJPhotos24]

To Derek's last few posts - you are correct sir.

[Croasdail]

Mark, the first half of what you said is almost completely wrong.

Talk to your SID, or if you are a SID, double check your handbook. What part of a university not controlling is trademark and copyrighted material is not correct? The Universities logo, venue, and players are all subject to this. Can you point me to something that says else wise? You might also want to look at NCAA rules section 12.5.2.x... it covers several areas as well. There are more, but I don't recall the exact sections off hand unfortunately. Most schools credentials will have specific rules attached to how and when photos can be used. So to say I am completely wrong just blows me away. Please point to information otherwise.

Specifically you will want to read the rules for NCAA Credentials.

http://www.ncaa.org/wps/ncaa?key=/ncaa/ncaa/media+and+events/broadcasting/broadcasting+manual/sect4/ncaa+media+credential+policy

It states "Neither the Bearer nor the entity that engaged the bearer may sell photos taken at the Events to third-party entities including but not limited to other commercial entities or the general public."

So I am scratching my head where I am totally wrong here....

The OP shooting with credentials... right?

Not trying to be pig headed here. I simply get tired of the advice around here that implies because you shot the picture means you can do with it what you will. When you are shooting a controlled event, quit often you don't have carte blanche to do what you will with those images. Not saying anyone here gave that information, but the OP seems to feel he is in much more position of power and control here then he really is.

The soft play will really serve him far better.

[DDCSD]

It states "Neither the Bearer nor the entity that engaged the bearer may sell photos taken at the Events to third-party entities including but not limited to other commercial entities or the general public."



Did you happen to read the sentence right before the one above that you selectively quoted?

Again, the OP isn't using them commercially and that was never part of the discussion. Again, the OP was not "profiting from shooting commercially" as you for some reason stated. I have no idea why you even brought that up.

You may read my other posts for a more detailed explanation.

[DDCSD]

Not trying to be pig headed here. I simply get tired of the advice around here that implies because you shot the picture means you can do with it what you will. When you are shooting a controlled event, quit often you don't have carte blanche to do what you will with those images. Not saying anyone here gave that information, but the OP seems to feel he is in much more position of power and control here then he really is.


Someone stole his photos and used them without permission. Why does he need a lecture on what he can and cannot do with his photos? You made it sound in your post that the school can do whatever they want with his photos because of the fact that their logo is in the photos and they issued him credentials. That is not true and that is what I said was completely wrong.

[DDCSD]

Specifically you will want to read the rules for NCAA Credentials.

http://www.ncaa.org/wps/ncaa?key=/ncaa/ncaa/media+and+events/broadcasting/broadcasting+manual/sect4/ncaa+media+credential+policy


And finally, did you happen to read the bolded line at the top of the page that you quoted? That is the credential policy for Championship events and has no bearing on regular season activities.


Each Individual or entity signing for or using a credential for access to any NCAA championship games practice, press conference, or other in-venue activity associated with the championship (the “Events”) and his/her/its employers (each signer, user and employer, a “Bearer”) agrees to the following:

[Croasdail]

Yes, each school issues its own credentials for its own events. Most schools keep to the NCAA rules on their own hosted events. If you want to go through this line by line, we can. The full manual is downloadable at NCAA.ORG. They are not going to muck up any compliance issues over some freelancer. What are the conditions of credentials at the schools you shoot for?

If your working with schools who are not watching this stuff closely, don't know what to say. I can tell you ACC, SEC and Conference USA schools do.

Actually, never mind. If the schools you work with don't trademark themselves, don't control the use of the images of their student athletes, have open rules about media taken in their venues, and have a different interpretation of NCAA rules regarding compliance, bonus for you. The schools I work with do. Bummer for me I guess.

Your right... no rules.... have at it Tony... and best of luck with it. I don't have a horse in this race, and therefor don't care. Cheers.

[DDCSD]

Yes, each school issues its own credentials for its own events. Most schools keep to the NCAA rules on their own hosted events. If you want to go through this line by line, we can. The full manual is downloadable at NCAA.ORG. They are not going to muck up any compliance issues over some freelancer. What are the conditions of credentials at the schools you shoot for?

If your working with schools who are not watching this stuff closely, don't know what to say. I can tell you ACC, SEC and Conference USA schools do.


So, in otherwords, you believe that the school has the right to do anything they want with any photos that are taken at their events without any form of compensation to the photographers? The schools own the photos and the photographers are required to hand them over for the school to use?

Again, did you read the line above the one that you quoted above (the one dealing with commercial usage)?

Here it is for you if you don't want to go back the the link that you posted:

The credential confers on Bearer a limited, non-exclusive and non-transferable license to take photographs of the Events, and to allow the entity that engaged the Bearer to take the photographs to use such photographs, only for news coverage of, or magazines, or stories about, the Events, other editorial purposes, and reprints of news pages from such entity’s publications, provided that such use is not likely to create, or does not actually create confusion in the minds of the trade or public that Bearer or its reprints or any elements therein, or the items on which they are reprinted, are sponsored or endorsed by, or are associated or affiliated with the NCAA or that the NCAA licensed Bearer to use their trademarks or copyrights.

It states the opposite of what you are claiming in this thread and does not regulate what the bearer of the credential can do with the photos beyond that they must be used for news purposes and that the usage does not imply an endorsement by the NCAA (which would make it commercial usage).


The link that you posted states that the bearer of the credential may use them for the purposes of news reporting, which is what the OP used them for.


No one here is arguing that the OP can use the photos commercially. The OP never stated that he wanted to use them commercially. Can you explain where the OP using the photos commercially entered into this discussion?

[DDCSD]

Actually, never mind. If the schools you work with don't trademark themselves, don't control the use of the images of their student athletes, have open rules about media taken in their venues, and have a different interpretation of NCAA rules regarding compliance, bonus for you. The schools I work with do. Bummer for me I guess.

Your right... no rules.... have at it Tony... and best of luck with it. I don't have a horse in this race, and therefor don't care. Cheers.

Again, what does any of this have to do with the athletic department of the school stealing and using the OP's photos?

Do the schools you work with require every credentialed photographer to hand over their memory cards at the end of the night so they can use the photos as they see fit?


The OP's photos were used by him in a news article. Surely the schools you work with allow photos to be used in news articles, don't they?

[MJPhotos24]

Mark - sorry, but I'm working in a colleges athletic department and 95% of the time handling SID duties with the rest with the Athletic Director and Assistant Athletic Director and gotta say how you're wording it is wrong. You're gearing it towards commercial when Derek is talking about editorial usage. The OP did confuse the fact that and thought it was commercial, it's not, it's editorial - so maybe you're taking it off that? Also, the reason the NCAA has those rules for championship events is because of an exclusive photography deal now with the AP I do believe.

On top of working with the SID every day - I cover a lot NCAA baseball in spring where I get issued a lot of credentials and Derek pointed out the the info above. If it was how you are stating it people on sports shooter would have their heads explode and be major news. Derek's talking about editorial usage, not commercial.

[Tony.Ibarra]

Ok, thanks everyone for your opinions, expertise and input. I've revised my email to the SID to sound much less confrontational, and hopefully they see me as more of an asset than an enemy.

To Whom it May Concern:

My name is Anthony Ibarra, and I am a student at CSULB. I am a freelance photographer covering sports for the Daily 49er and have noticed that several of my images have been included in the most recent version of the Beach Mail article. I am pleased that you find my work to be of a quality to reflect the university in the public eye. However, My concern is that I have not been contacted for, nor have I given permission to longbeachstate.com to use these images. I understand that the Athletic Department has contracted the services of a professional photographer and as such myself, I would greatly appreciate your professional courtesy in contacting me for written consent for the rights to use my photographs in any capacity. I look forward to reaching an agreement that mutually benefits both parties in the future.


Sincerely,
Anthony Ibarra
Ibarra Images

[MJPhotos24]

Mr. NAME?? (To whom it may concern is lazy - find out a name)

My name is Anthony Ibarra, I am a student at CSULB and am a freelance photographer covering sports for the Daily 49er. I have noticed that several of my images have been included in the most recent version of the Beach Mail article sent on (DATE?). Though I am pleased that you find my work to be of a quality to reflect the university in the public eye it is my concern is that I have not been contacted for, nor given permission to longbeachstate.com to use these images.

I understand that the Athletic Department has contracted the services of a professional photographer, and as such myself would greatly appreciate your professional courtesy in contacting me for written consent for the rights to use my photographs in any capacity in the future so that we can have an agreement that mutually benefits both parties.


Just would change some sentence structure - especially the opening few sentences. The rest changed some around, but definitely a work in progress and would adjust as needed. Quick edit...