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Thread started 29 Aug 2012 (Wednesday) 21:41
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Blatent Copyright infringement!

 
phil1664
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Aug 29, 2012 21:41 |  #1

I just wanted to run this past a few of you to gauge your opinions (and maybe even your levels of anger?)

Last year, I was approached by a leisure company and asked to quote a price to take some photos of their sites for web and print. The agreed price was £700 ($1100). A few days later, the photography was completed, around 500 images edited and sent back to them, as well as an invoice for £700.

Six weeks later, the invoice unpaid, the manager raised issues with me (only after I prompted a response) about the "quality and composition" of the images. After many emails, this amounted to the fact that they didn't like the style in which they had been shot. It's worth pointing out here that I am not a pro and I sent them examples prior to the agreement.

The invoice went unpaid and in order to keep my blood pressure low, I walked away, thinking that I'd learn from the experience for next time.

Move on a year and I find that the company is currently using 41 of my images on its website and Facebook pages. These images have been reproduced a total of 350 times over 83 individual web pages, in various sizes from thumbnails to full size images. Needless to say, I'm far from happy and am preparing my initial contact.

Clearly there has been an infringement of my copyright as I was never paid for my work and they knew this. Yet they still went ahead and chose the images that they did like and used them anyway.

Following the ruling in the Hoffman case in January this year (http://www.bailii.org …+(+abuse+)&meth​od=boolean (external link)), I am trying to place a value on my images. Some of the images have been used many times, one in particular, has been reproduced 76 times either as a main image or a thumbnail, and I think that this shows that the company placed a high value on the image.

I'm waiting to find out if they have used any in printed brochures yet, as I've only done web based research. If they have, then I'm sure that this will raise the value of the images significantly.

At the moment, I'm looking at asking for £100 ($160) per image used plus interest. I have no doubt that there will be negotiation on this, but I'd be interested to see what others think and if they have been in a similar situation.

Many thanks,

Phil


www.minus9photography.​co.uk (external link)

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FlyingPhotog
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Aug 29, 2012 21:44 |  #2

Hire an intellectual property attorney.

Nail The Bastards.


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Ray ­ Marrero
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Aug 29, 2012 21:50 |  #3

How about a simple letter something like this:

... I noticed that you are using my images so kindly pay the attached invoice...

And then attach an invoice, feel free to increase the amount.


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jra
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Aug 29, 2012 21:53 |  #4

That really sucks.....I guess the main lesson is to never hand over the images until payment is received. As far as value, what value did your initial contract place upon the images for use?




  
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sorpa
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Aug 29, 2012 22:12 |  #5

FlyingPhotog wrote in post #14924443 (external link)
Hire an intellectual property attorney.

Nail The Bastards.

and go for the neck.




  
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Old ­ Coot
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Aug 29, 2012 22:55 as a reply to  @ sorpa's post |  #6

Get a legal representative and make sure to get screen captures of all the copyrighted material.


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abbypanda
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Aug 29, 2012 23:14 |  #7

This sucks. I notice you say you "walked away". What's that mean exactly. Did you simply stop pursuing it? Did you happen to put something in writing/ email that said by chance "ok dont worry about it" or say anything to give them the idea you were walking away and chalking it up to a learning experience?




  
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John
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Aug 29, 2012 23:42 |  #8

What's the statute of limitation in the UK?

I would contact them (preferably the same guy that you dealt with) and give them a chance to pay up. Let them know that you are willing to work things out amicably and honor the original deal as discussed.

Do not "threaten" them with a lawsuit. If they aren't cooperative, just stop communicating with them and find a local lawyer to get their recommendation.

Good luck. Keep us informed.


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Mark0159
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Aug 30, 2012 03:27 |  #9

to be honest I would talk to a lawyer and get the lawyer to send the letter. I wouldn't even deal with them.

if they were an honest trading company then they should have paid their bills like everyone else. They failed to do so and there for they have stolen your work and using your work to make money.


Mark
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Sirrith
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Aug 30, 2012 03:48 |  #10

phil1664 wrote in post #14924432 (external link)
asked to quote a price to take some photos of their sites for web and print. The agreed price was £700 ($1100)...

around 500 images edited and sent back to them, as well as an invoice for £700...

Following the ruling in the Hoffman case in January this year (http://www.bailii.org …+(+abuse+)&meth​od=boolean (external link)), I am trying to place a value on my images. Some of the images have been used many times, one in particular, has been reproduced 76 times either as a main image or a thumbnail, and I think that this shows that the company placed a high value on the image.

I'm waiting to find out if they have used any in printed brochures yet, as I've only done web based research. If they have, then I'm sure that this will raise the value of the images significantly.

At the moment, I'm looking at asking for £100 ($160) per image used plus interest. I have no doubt that there will be negotiation on this, but I'd be interested to see what others think and if they have been in a similar situation.

I haven't read the Hoffman case very thoroughly, but what I got from it was circumstances different to yours. You had a contract; Mr. Hoffman didn't, hence there was no set value for his photos beforehand.

Since you produced ~500 photos for an agreed price of UKP700, I doubt you can now go and decide to set a value of UKP100 per photo as if your previous contract never existed. I'm a bit rusty on contract law though, so I may be wrong.

Six weeks later, the invoice unpaid, the manager raised issues with me (only after I prompted a response) about the "quality and composition" of the images. After many emails, this amounted to the fact that they didn't like the style in which they had been shot. It's worth pointing out here that I am not a pro and I sent them examples prior to the agreement.

This is a potential problem, though as long as your 500 photos are in line with the quality of your prior work and most importantly the examples you sent them, it should be fine.

What is clear however, is that there has been a potential breach of contract law, and of copyright law too.

I say potentially because of this:

abbypanda wrote in post #14924759 (external link)
This sucks. I notice you say you "walked away". What's that mean exactly. Did you simply stop pursuing it? Did you happen to put something in writing/ email that said by chance "ok dont worry about it" or say anything to give them the idea you were walking away and chalking it up to a learning experience?

If by walking away, you could have reasonably given them the impression of implied permission to use the photos, you are in trouble.

FlyingPhotog wrote in post #14924443 (external link)
Hire an intellectual property attorney.

Nail The Bastards.

Do this.

Old Coot wrote in post #14924700 (external link)
Get a legal representative and make sure to get screen captures of all the copyrighted material.

Do this too.

aIpha wrote in post #14924839 (external link)
What's the statute of limitation in the UK?

I would contact them (preferably the same guy that you dealt with) and give them a chance to pay up. Let them know that you are willing to work things out amicably and honor the original deal as discussed.

Do not "threaten" them with a lawsuit. If they aren't cooperative, just stop communicating with them and find a local lawyer to get their recommendation.

Good luck. Keep us informed.

But only after doing this.

The limitations act will not come into play here, as he has 6 years to take action from the date of the infringement.


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Phil ­ V
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Aug 30, 2012 05:06 |  #11

There's a few issues here:

You're 'not a pro' but you entered into a contract to shoot for money - sorry but that makes you a pro.

You invoiced £700 - what was that for? just shooting or image use?

The 2nd point is very important, if you were expecting them to pay for proper image licensing, that means you can go after them for a better loss of earnings. If you were happy to let them use all the images for £700 - you'll not get much more than that from them.


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phil1664
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Aug 30, 2012 06:54 |  #12

Some fairly good points there, thanks.

Just to add a little, so far, I've downloaded all the content I can from their websites, showing use of the images as they appear. This way, if they remove the site I can still show that they were used.

Abbypanda - My final email to them was a requirement to make payment or I would issue legal proceedings against them. There was nothing to indicate that I was letting the issue go. Unfortunately, my Father died suddenly a week later and priorities changed. But I have never given them the impression that they may go ahead and use the image. They actually sent the discs back to me.

Alpha - Limitation in the UK is 6 years from the point of realisation, so I'm well within that.

Sirrith - you've made a good few points and they're quite helpful! As you can imagine, I only see this from my point of view, hence this post for a dose of reality!

The circumstances of the Hoffman case are not similar but the ruling over here is very relevant. Whilst it does not make mention of any fee agreed for his original photos, by its very omission, little weight is placed upon it. With regards to the original price I quoted, that was for a few days shooting and a return of images on CD for their use. Yes, it does make the images look very cheap when you look at the number delivered for the price agreed. However, they refused the images and refused to pay for them, thus they have rescinded the contract between us and it is no more. As such, any price per photo held within that contract is also rescinded. They have breached the contract. However, as we all know, what is a good photograph and what is a bad photograph (given that both are at least technically correct) is a very subjective thing.

Out of interest, the Hoffman ruling worked out to be £131.57 per image.

With regards to the quality of the examples I supplied, the final work was an improvement on this. The company basically decided that they didn't like the composition of the shots more than anything. There are other issues that they hold a certain responsibility for, such as not providing models and props as requested, but that is all irrelevant now as the whole batch were refused and returned.

As for walking away and giving them implied permission, this is clearly dealt with in the Hoffman ruling:

The fact that the defendant may have thought that it had permission to use the images is not a defence to infringement under s16. Thus if the defendant did carry out one of the acts provided for in s16, the fact that they thought they had permission is not relevant.

Phil V - A fair point re not being a pro. Perhaps I should have said that I occasionally carry out paid work but have a full time job elsewhere.


As it stands, I did learn a little something from this and purchased insurance. However, they say that whilst my policy will cover me if I infringe anothers copyright, it will not cover me if someone breaches mine! However, a few useful hints came from it and I shall use them as I progress.

At this stage, I'll be drafting my letter for sending as soon as I've found out if they are using the images in print. After, I'll keep you updated on here.

Many thanks for your comments, they are all helpful, even the ones that seem to think that I won't get much out of this! But if anyone has anything else to add, please keep 'em coming!

Phil


www.minus9photography.​co.uk (external link)

Feedback always welcome!

  
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golfecho
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Aug 30, 2012 07:25 |  #13

Old Coot wrote in post #14924700 (external link)
Get a legal representative and make sure to get screen captures of all the copyrighted material.

^^^ THIS - ASAP ^^^


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cdiver2
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Aug 30, 2012 07:42 |  #14

FlyingPhotog wrote in post #14924443 (external link)
Hire an intellectual property attorney.

Nail The Bastards.

Ditto this is the best advice you have had. Do not have any further contact with them.




  
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Numenorean
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Aug 30, 2012 08:01 |  #15

you actually sent them photos BEFORE getting paid? There's your problem.


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Blatent Copyright infringement!
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