Local Newspaper Breached Copyright! PLEASE READ!!!

[MattyB]

hi all, i need YOUR help!! lol

the melbourne eastern local newspaper company "the leader" have printed 3 of my photos without permission! heres the story:

i am a freelance non paid photographer for COMMODORE CRUISE CLUB. a 'not for profit' club that works with red cross, scouts, police and raises alot of money for charitys. we're a good bunch of kids just out for a cruise!
i took alot of photos of the recent cruise and posted them on the internet and linked it to the CCC (commdore cruise club) forums for all to see, then the newspaper stole 3 of my photos, and printed them up in 8 different newspapers, along with upto 4 page articles SLANDERING our club and spinning a whole bunch of sh*t. trhey hate our club, and they are out to get us! even the police offered to speak with the reporter to tell her houw good we are. ARGH.

i demand revenge..

i've read up lots on the internet abotu australian copyright laws, and what i've found is

that my photos ARE copyrighted.
they ARE protected
i AM the owner of the copyright
and the newspaper DID breach the copyright when they printed them up without my permission.

Quote: Works put on the Internet are considered “published” and therefore qualify for copyright protection. A work put on the Internet is not considered public domain simply because it was posted on the Internet and free for anyone to download and copy. You need permission from the site owner to publish any materials, including photographs, music, and artwork from the site.

also, please (if you want the info, and want to help) read the info sheets here

http://www.copyright.org.au/pdf/acc/InfoSheets/G011.pdf <-- on photographers and photos.

http://www.copyright.org.au/pdf/acc/InfoSheets/G063.pdf <-- penalties, infringments, actions etc.


PLEASE! what do i do? do i go in there, ring them, get legal advice, etc etc??

i don't want a lawyer, i don't want it to goto court over 3 petty photos, i just want to get something out of it so i can give them a victory smile, and i want to intimidate them, money would be good LOL.
iu'm guessing if i plan it right, i can bluff and threaten them into agreeing to something, but to what? and how!

-matt.
THANKS

[iwatkins]

Well, you work for charity.

Therefore, I suggest you contact them and demand they publicaly retract the comments if indeed slander. In addition point out they are breach of copyright and therefore need to pay you a large sum of money that you will donate to your charities. Failing in either will result in legal action. Simple.

Ian

[MattyB]

one of the photos they stole, was one of 2 managers talking to the police, i was there. they were having a chat about how cool the rims are on the VT next to him, and the police officer was saying how he has his own SS at home, etc etc. and then he let me take photos of a model on the bonnet with the lights on,
but the paper portray's it as if the police is telling them off!!!

[Nikolas]

You're gonna have to see a solicitor I'm afraid.
Victorian law is fairly strict about this sort of thing and a nice letter from a solicitor will help.

[Nikolas]

one of the photos they stole, was one of 2 managers talking to the police, i was there. they were having a chat about how cool the rims are on the VT next to him, and the police officer was saying how he has his own SS at home, etc etc. and then he let me take photos of a model on the bonnet with the lights on,
but the paper portray's it as if the police is telling them off!!!

You sound too emotional about this.
Are you concerned about them using your photos or the editorial slant they have put on your club?
Would you have been as annoyed if the story was a positive one and they used your photos?
I would consider very carefully how you go about doing this and really a solicitors letter is your best recourse.

[IndyJeff]

I would have no contact with them. Just call an attorney, make an appointment for a consultation, this is usually free, and see what he says. He may tell you to write them and include an invoice. Then again he may not want you to establish a price guide with them as the courts may award a higher amount if no pricing has been established.

Don't try it alone first. It may end up costing you in the end. Get a professional to help you, an attorney.

[MattyB]

You sound too emotional about this.
Are you concerned about them using your photos or the editorial slant they have put on your club?
Would you have been as annoyed if the story was a positive one and they used your photos?
I would consider very carefully how you go about doing this and really a solicitors letter is your best recourse.

i'd be annoyed if they used my photo on the front page with a title 'best club in the world'.. they used my photo without my permission, and without acknoledgment under the photo, they are implying that it is there photo. (subtly).

i can't afford to take this to court, i just want them to squirm, and maybe get some cash out of it. (god knows i need cash!).

i spoke to my friends solicitor, and he had no idea about what to do, and he told me to speak to APRA, but apra told me they only deal with song writing and that general field, and they didn't give me another number to ring. lol.

i got 2 numbers for copyright advice, but they are interstate numbers.

[Nikolas]

i spoke to my friends solicitor, and he had no idea about what to do, and he told me to speak to APRA, but apra told me they only deal with song writing and that general field, and they didn't give me another number to ring. lol.

i got 2 numbers for copyright advice, but they are interstate numbers.

Ring those numbers tomorrow morning then
be clear as to what you want what you expect and what has happened.
If they can't help you then you are still left with a solicitor's letter.
Small claims tribunal is another recourse but do your homework.

[Belmondo]

It sounds like the paper has an editorial bias against your organization, so they're not going to be too concerned about fair play in your case. Probably the best thing to do is hire a lawyer and have him/her write a nastygram to the paper. They will no doubt argue that the photos were in the public domain because they were on the website, but you might at least get the pleasure of a back-handed apology, albeit in fine print at the bottom of the last page.

[blue_max]

It's a very stressful and emotional time for you and I sympathise.

You have had lots of good advice. I would just say a couple of things.

Stay calm and focussed on the issue. Write clearly and concisely in any correspondence.
Don't just sound off – tell them what you want them to do about it. It will help if you know what sort of a remedy you are asking for.

If you want a retraction and apology, then state that. If something else then be clear about it.

Hope that helps.

Graham

[IndyJeff]

Belmondo I can't see how they could argue that the photos were in the public domain. If just being published on the internet constituted being in the public domain, then AP, Reuters, Getty, Corbis or none of the other agencies would allow any of their stuff to be published on the internet.

I still say get with an IP attorney. Do a search on attorneys in your town/province who practice IP law.
I did find this AUS Copyrights (http://www.ag.gov.au/agd/WWW/securitylawHome.nsf/Page/Publications_Intellectual_Property_A_Short_Guide_t o_Copyright#5) which might answer some of your questions.

[Belmondo]

Belmondo I can't see how they could argue that the photos were in the public domain. If just being published on the internet constituted being in the public domain, then AP, Reuters, Getty, Corbis or none of the other agencies would allow any of their stuff to be published on the internet.

I still say get with an IP attorney. Do a search on attorneys in your town/province who practice IP law.
I did find this AUS Copyrights (http://www.ag.gov.au/agd/WWW/securitylawHome.nsf/Page/Publications_Intellectual_Property_A_Short_Guide_t o_Copyright#5) which might answer some of your questions.

I'm not saying the mere fact they're on the internet constitutes being in the public domain. The photos in question depict supposed police activity relating to the particular organization, and are therefore arguably newsworthy in and of themselves.

Believe me, I'm not suggesting they're right, and I'm certainly not debating you on this. I'm only saying that's what they might try to argue.

[defordphoto]

That still doesn't mean they are "free" for anyone to use. No matter what kind of photo you display on the Internet, it never places it in the public domain if you do so.

[IndyJeff]

I'm not saying the mere fact they're on the internet constitutes being in the public domain. The photos in question depict supposed police activity relating to the particular organization, and are therefore arguably newsworthy in and of themselves.

Believe me, I'm not suggesting they're right, and I'm certainly not debating you on this. I'm only saying that's what they might try to argue.


I don't see how they could even begin to launch an argument that because they were on the internet, and even newsworthy, they might possibly be in the public domain. LOL Of course they might say they just didn't know they couldn't take them.

Thing that I find unbelieveable is that they used the one photo of the cop talking to someone and used it out of context. Seems to me like the person in that photo with the cop would be looking at filing suit of their own.

[tim]

I'd talk to a lawyer. I'd also make sure to send them an invoice for slightly more than is reasonable, as an incentive not to do it again. If they don't pay it, small claims court.

[defordphoto]

As an aside, each and every photo ANY photographer shoots is automatically copyrighted as soon as the shutter button is pressed. However, your rights to sue, collect damages, etc. can be affected by how you register your photos.

Always check your local/state/province/country laws.

[GenEOS]

Invoice them. At this point I would not be reasonable. I would invoice high in this case. Images that are asked for before hand are always cheaper than ones stolen and used without contract. In the states you would not have a hard time finding a lawyer to take this case. Don't forget you are intitled to be paid for the time you are spending on dealing with this...atleast that would be tacked on to my invoice....

[MattyB]

how much would i ask? is anyone here capable of writing something up? i'm not exactly good with words :\

[MattyB]

one of my mates suggest this, but i reckon it's a bit soft and doesn't have enough ammo to scare them. (and ofcourse aren't specific on what i am after)

Dear Sir/Madam,

I am writing in regards to the articles published in the Leader Newspaper Groups articles published last week (from June 22th, 2005), specifically articles including those written by Cait Morton (‘Pick Up Your Game’), Matthew Schulz (‘Cowardly Attack’) and Siobhan Duck (‘Pick Up Your Game’).

The photographs published with the above said articles were taken by myself and provided to the Commodore Cruise Club website for viewing for members. As the photographer in this situation and subsequent owner of all said images and copyrights, publication of these photographs without permission is a breach of copyright. Although no copyright notice on individual images was placed, this is not a requirement in Australian Law.

Infringement of copyright is covered by the Australian Copyright Council guide G11, specifically:

It is generally an infringement of copyright to deal with a photograph in any of the ways exclusively reserved to the copyright owner with the copyright owner’s permission, unless that copyright has expired.

Exclusions to copyright laws include the use of images for Reviewers and Students, however your publication does not fall in this category.

As these photographs were published in a number of your newspaper groups without my permission, I expect that financial compensation is forthcoming. You can contact me on 1902-man-love

Regards

[RockSlut]

MattyB - Can I suggest a couple of things? I think your letter is on the right track.

1. Provide them with page numbers, dates of publication and publication names. Be specific.

2. You want money? Tell them how much you want, when you want it and how they can pay you.

3. They will be fully aware of Australian Copyright law. There is no real need to spell it out for them in such detail.

4. Your letter is somewhat aggressive (which is understandable given your description of the manner in which your photos were published). I would, If I were you, be less emotive in your letter. If you need to take the matter through the courts, your case will be improved by you being seen to be reasonable.

5. Finally, I would close with a subtle hint that you are willing to take the matter further. eg. "I trust that we can resolve this matter in a manner that is fair to both parties without further intervention."

I hope this is of assistance.

[IndyJeff]

I still say contact an attorney before making any contact with the paper but, since you seem determined to send them a letter do the following.

Establish a price, at least 3 times what you would have asked for if they contacted you beforehand.

At the end I would add a paragraph something to the effect of:
I will expect payment in the form of a check within 10 days made out to ____ _____. Any failiure to remit payment or respond within 10 days of this letter shall be deemed as your blatant disregard for Australian copyright law and shall be turned over to my attorney for compensation through the courts.


Be aware, here in the states and I don't know if Aus law is the same but, by contacting them asking for a price, you establish an asking price and may severley limit any future judgements.
Also don't send them one letter. Send a letter for each violation. You might even want to try and send one letter for one violation first and see how they respond. That way if you do make a mistake, you have only loused up one of the three cases, not all three. This is actually 3 seperate cases of copyright violation, treat it as such and don't jepordize all 3 cases by lumping them together.

Senario: You send them one letter for payment. They refuse and you end up in court. You win, lets say $1000. Your attorney gets $350 and you get $650.
Now you send them letters numbers 2 & 3, demanding payment for incidents 2 & 3. They all ready know that it cost them the $1000 plus their attorney fees and court costs. They may be willing to settle out of court and you won't have any attorney fees coming out of your payments on cases 2 & 3.

[Az2Africa]

Since they seem to enjoy using your photos so much, I would also make them throw in a press pass along with the payment if they wish to use your pics in the future!!:lol:

[PhotosGuy]

I agree with the above, but you have more than one weapon to use. Don't forget the "Slander" club! At the very least you should get a printed retraction, no? At the most, you should be able to file a complaint against them.

[Nikolas]

one of the photos they stole, was one of 2 managers talking to the police, i was there. they were having a chat about how cool the rims are on the VT next to him, and the police officer was saying how he has his own SS at home, etc etc. and then he let me take photos of a model on the bonnet with the lights on,
but the paper portray's it as if the police is telling them off!!!

We get the progress leader where I live (boorondarra) and there was no article like you describe.
What is the name of the paper you are referring to which area of melbourne?

[jukas]

I agree with the above, but you have more than one weapon to use. Don't forget the "Slander" club! At the very least you should get a printed retraction, no? At the most, you should be able to file a complaint against them.

I wouldn't even mention the slander towards the club. That is something the organization or individuals involved would need to persue themselves. That doesn't mean I wouldn't be happy to suggest it to them if I were the photographer, especially to the fellow and cop whose picture was used out of context.

You've been given some excellent advice on this thread, and assuming that at least an inital consult is free I would definately talk to a IP lawyer before contacting themselves. If that doesn't get you where you want to be I'd suggest mixing suggestions from IndyJeff and others.

If you are going to send them a letter be sure to pay attention to the following:

DO establish your price. I would aim for triple to quadruple what you would normally think. If you simply state "I expect compensation" they may cut you a $7 check. As soon as you cash it you have established what that breach is worth. You set the price. You can always work down, but you can never work back up.

DO word your letter is a calm professional manner. If you outline the issue(s), provide facts and reasonable demands you are much more likely to have a favorable outcome even if you need to go to court. You will be taken far more seriously if you act in a business like manner than if you send them an upset, emotionally charged letter.

DO provide them with specifics. Date of publication, page number as well as proof that the images are your original work. Do provide them sections to relevant copyright laws but don't quote entire paragraphs. You will still be showing you know what your rights are, but don't do their homework for them. On the offchance they really don't know what the copyright laws are, let their staff attorny earn his retainer and do their own homework.

DON'T give them an unrealistice price. If you send them an invoice for $10,000 there is no way you will hear a response. Make your price high enough that you are comfortable with it, that they will feel some culpability, but not so high that its cheaper to fight it. Depending on the size of the newspaper, and their attornies it could cost over $1k for them to just fight it. If you price yourself right, it's easier for them to just make it go away.

DO include an invoice in your letter. Specify terms for payment (Net 10, 15 or 30). Date both your invoice and letter. Have your mail delivered to the publisher via certified mail if there is an AU equivilant of it. If you have to end up taking it to court you will want proof of delivery. If a mailroom clerk signed for it, and them decided to roll a joint with it instead of deliver it, that's their problem, not yours.

I agree with both Indyjeff and Rockslut. Let them know you are perfectly willing to take it to the next level if they choose to ignore your invoice. Again do it calmly and professionally. I'd lean towards Rockslut's idea of "I trust that we can resolve this matter in a manner that is fair to both parties without further intervention.""

DO keep very well documented records for yourself. If you end up having to go to small claims court being calm and having the facts easily available at your fingertips can only work in your favor.

In the US images should be registered within 90 days of creation in order for a judge to award maximum damages. While all images are copywritten unregistered images in the US will usually get you a much smaller settlement. If the AU copyright laws are similar I would suggest you register those images ASAP assuming you are still within the timeframe.

Decide if you are really willing to follow through or not. They may very well ignore your request and then it's either sh*t or get off the pot. If you call them on it and they blow you off and you don't follow through you will show them that they can get away with this, and who knows how many other photographers they'll do it to.

Deal with infringment 1 first, then #2 and 3.. you may want to consider having your solicitor friend write the letter on their letterhead. Be sure you read the fine print on any compensation/settlement you are offered. Be sure by signing a settlement agreement or cashing a check that you aren't signing away your rights on the other two images, that you aren't transfering your copyrights to the newspaper, etc.

[tim]

Also, don't make the letter combattive, make it impartial and not at all emotive. If you make a reasonable request for payment they're more likely to pay it than a letter accusing them of deliberate copyright violation. It could just have been a mistake, and they may be happy to give you payment for use of the images.

[IndyJeff]

Bloo I can't cite the case but, there is a precedent on a case in which the plaintiff asked for $150 per image on a 2 image violation. The defendant basically plead not guilty. In the end the judge found for the plaintiff but, he found the damages to be at $150 per violation. The usual price the magazine paid was more along the lines of $325 but since the plaintiff had established the price, the defense argued that a price had been asked and they agreed to pay it, but not admit guilt to copyright violation and the judge went with it. The judge didn't like it but he admonished the plaintiff for not seeking legal council and playing lawyer himself.

If my memory serves me correctly it was a case filed in Illinois back in 91 or 92. It seems to me like it was a magazine based and distributed locally in Chicago.

Of course what we are dealing with here is a case in the Commonwealth of Australia and the laws are a bit different.

[Wazza]

Bad lucky there Matty.

Fortunately, for Australian and Kiwi copyright owners, there is no need to register images, to claim full breach of laws, and requesting monetary damages. As IndyJeff pointed out, that is local law, and check with local law etc. There is basically no way they're entitled to share those images, without the permission of the site (if no name given), or your name if shared on the page they were originally on.

Well, I'm no attorney, and have no experience, so all I will say is go get the bastards, I certainly would be peaved off if that happened myself.

[S230]

Hi Matt, you should look at this from a different point of view. Maybe someone from the newspaper company thinks it’s time that you deserve a big fat cheque ($$$) 

First off, as mentioned by other members, you do sound a bit emotional about this. Right to the point, it is best advice to get an attorney/lawyer (someone Professional) to help you out. There are some lawyers that will take a cut of the profit if they win and this way you don’t have to shell out any cash. They usually look at the case first and deem it’s worth taking.

I had heard of blunders within a publishing company. It’s possible that someone may had simply just come across your photos, copied it temporary on the hard drive and maybe someone else came across it and thought it’s great to publish without common sense . Sometimes the editor themselves are so busy that this could had fallen through the crack.

From what you had described about slandering and if the police is willing to testify for you, then you definitely have a strong case because police are generally more credible than you and I. How did the police react when they saw this article? I hope you didn’t get busted or given a hard time because they thought it was your doing…. 

Pay day. I would not get too emotionally wrapped up because the damage is already done. Now what you should seek is damage control. Do you want money or do you want an apology? Some people, a simple apology and follow-up article to tell the truth may be more rewarding than money (depending on amount). In your case, you said there are three photos. You should talk to other members of the club and see if there are benefits to negotiate with the newspaper. Remember, they are a much bigger entity than your group and it’s better working along side and using them than to go against them.

Have you considered bartering for free advertisements in certain pages for your club, etc? Advertising is very expensive but to them, the cost is minimal. You can negotiate to get an “X” amount of “Free” advertisements. Make sure you get it in writing. You did indicate you are for charity and work for many organizations such as scouts and police that raise money. You can flip all this to your benefit using the newspaper as your helper. Ie.. if the police is offering free “child seat inspection”, you can advertise for the police and with your photos in it. This way you win in many ways. You get your photos published, you don’t pay anything and the cops will like you. Hopefully the next time you get pulled over for speeding, etc, they may let you off the hook.. 

Hope this suggestion will help. 

[d'homme]

I would check the rules of the site you posted. Make sure it doesn't say that posting your photos you relinquish your rights?