Legal Question

A few years ago I was asked to take some photos of the neighborhood for the HOA website which they used. Today I get a flyer in the mail from a real estate company that has my photos plaster all over the front of the flyer.

Not that I really give a hoot but just curious if this is kosher. I didn't copywrite or watermark any of the photos, if that makes any difference.

Your thoughts ?

you dont have to register your work to become a copyright holder and be entitled to damages.

However, if you had, you' be entitled to STATUTORY damages of $150,000 per image instead of having to prove their stolen value in a court of law.

Who is HOA & did you have a contract with them? And if you did, what rights did you give them?

PhotosGuy wrote in post #18046457
Who is HOA & did you have a contract with them? And if you did, what rights did you give them?

The HOA is the Home Owners Association and I let them use the photos for the HOA website. No contract, just let them use the photos.

Copyright attaches when you take the photo. Any measures beyond that simply aid in proving your legal claims. If you don't embed copyright info in your EXIF data begin the habit now.

Reputable printers won't print photos from files with copyright data unless you are the copyright holder or otherwise have permission.

If I were you, I'd want to learn exactly how the realtor obtained the images. It's an unambiguous commercial use that I would attempt to stop ASAP. i would approach the realtor, explaining that I am the copyright holder and offer them the choice to pay for the use or desist. The realtor likely lifted the images and should know better. In the event that the HOA gave the photos away, then that's another conversation you need to have with them about the meaning of a license.

I don't always use contracts, licenses and releases, but in situations like these, the problem is foreseeable.

You may not care, but you should consider that it's not only your rights at stake. Photographers need to protect copyrights for the benefit of other photographers as well. Complacency is why we struggle with copyright today.

I'm assuming you're in the USA, since we're probably the only ones who have HOAs.

1. When you mash the shutter button, you automatically have copyright on your work. You don't have to register it.
1a. However, if you DO register it, it's way easier to go after infringers and thieves.
1b. If you put your logo or watermark on your images, you can separately go after infringers who remove your logo, even if you didn't register it.

2. Even without a contract, there's such a thing as implied license. You likely gave the HOA an implied license to use the images for whatever, either verbally or through casual emails. However, that implied license almost certainly didn't include license to transfer rights to another party.

3. The HOA reps almost certainly didn't understand that "You gave us the images, now they're ours, we can give them to anyone else, what's the big deal" is NOT how it works. Likely not intentionally malicious. The real estate company probably thinks they have the proper license to use the images.

4. You're gonna have to tread lightly here with the HOA. You likely won't be able to recover much in the way of monetary damages for unregistered images with an implied license and no contract. However, if you step on the wrong toes, the HOA reps can make your life miserable for as long as you live in that neighborhood. That's not a blacklist I want to be on.

I don't know your relationship with the HOA rep. That's going to be the big deciding factor on whether it's worth it to pursue anything for this particular infringement.

PineBomb wrote in post #18046794
The realtor likely lifted the images and should know better.

This is a possibility I didn't think about. Definitely chat with the HOA rep and ask if they gave away your images, and ask them to please not do that in the future for these or any other images.

Treading lightly is terrific advice. I didn't mean to suggest you should have a blustery confrontation. I don't know your relationship with the HOA. Perhaps you have a friend there. And you never know. A diplomatic approach with the realtor and/or the HOA could potentially result in a future revenue stream.

send a bill to the real estate company for using your images, kindly tell inform them that they are using images without permission and tell them how much they owe for each image they used and that you can and will take them to court if they dont pay as you can prove you own the copyright to the images.

You arent doing this just for yourself, you are doing this for the rest of us while getting compensation for yourself. These businesses need to understand that photos they find aren't free to use however they see fit. For real estate agents, if they can charge a 6% fee for selling a home, they can afford to legally obtain pictures.

this mindset of "i dont really care if someone uses my images" needs to stop. a business is making money off of your property, get just compensation for it.

While the HOA can make your life hell, they can only do so if you are in violation of the bylaws. They also cannot target you without including others with the same violations so I wouldn't worry. Go after the agents and make them pay a bill for the use of the images. They are making money on the sales of any properties so why shouldn't you make money as they are using your images for advertisement. Don't settle for an I'm sorry we'll remove them. they already used them and need to pay the fees.

Talk with the HOA first and get their side, politely explaining to them at some point in the dialog that the images weren't theirs to give away (if in fact they did). Once you have the HOA on your side, politely reach out to the realtor and explain to them why you are requesting compensation. The basis for your reasoning is that they weren't granted permission to commercially use your images. I'd resist using words like "violation" in the first round. I would also get permission from the HOA rep to use their name/email in correspondence with the realtor.

In the future, when allowing an external entity to use your photographs be sure to include the term "original context" in the agreement. This is often good enough to allow the customer to understand that the images are copyrighted and that their use is limited.

I am active in the HOA so there is no problem there and I ask the person who set up the HOA website if anyone had asked permission and no one had. The next question is, what amount should I bill them for. They used four of my photos and sent out probably over 200 flyers via US mail. Also any idea what a good invoice template should look like as I am retired and not in the photo business.

Below is the flyer along with one of the pictures they used.

Since you are "not in the photo business.", it would be difficult to assess a value if Ms. Broome decided to take an invoice to court.
Personally, I'd have a talk with her first, apprise her of the legalities, & see if you both can come to a solution which would include her burning any more of those brochures.

Ms. Broom will not take an invoice to court, she isn't the one who (inadvertently) broke the law. The power is in your hands, the value of your work is entirely up to you.

Just make something up. The realtor is going to make thousands on every sale, so free advertisement for them is not something I'd let stand. If there are 200 fliers out there, ask for $1 every time the image was used and be happy to make some money. I would definitely have an agreement ready to give the realtor with standard stipulations as to copyright and licensing, and for your protection.

Nethawked wrote in post #18047096
Ms. Broom will not take an invoice to court, ...

The point I tried to make was that, if he submitted an invoice for x$s, & he had no history of charging & getting that, the court might not accept his valuation of the work if the RE company disputed it.

The OP requested one. Can anyone in RE help?