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Thread: Copyright infringement?

  1. #1

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    Copyright infringement?

    A question for those of you with IP legal experience or opinions on such matters...

    In the late 90's I worked in the art department of a busy NYC television commercial production company. During my tenure there, one of the young directors made what is known as a "spec spot" featuring a BMW motorcycle. (For those unfamiliar with the biz, a spec spot is basically a demonstration of the director's talent made for potential clients, and is usually paid for by a management or production company who represents the director professionally.)

    In this particular commercial, a fancy BMW motorcycle weaves through the streets of downtown NY while its rider is engulfed in FLAMES. In a testament to the attractiveness of the motorcycle, when the burning rider dismounts, a crowd gathers, not to enquire about the rider's health, but to salivate over the sculpted lines of the bike. Intellectual stuff, I know.

    During the three 16 hr days we worked on that spot, I snapped a few frames with a little Nikon P&S I had at the time. I made an enlargment of one of the more dramatic shots and gave it as a gift to the director. A nice guy, he expressed his deep gratitude and promised to hang it in his office. Not long afterward I left New York to attend to family matters and lost touch with most of my former co-employees, including the director.

    Recently, however, I was perusing the website of a certain large American film manufacturer, and it turns out they liked my photograph, too. In fact, they're using it, uncredited, in the director's bio:

    http://www.kodak.com/US/en/motion/newsletters/inCamera/july2002/directingP.shtml#p

    Judging by the url, it appears to have been up since 2002. The irony here is, of course, that the image was made using a certain 50ASA film made by their main competitor... obviously not the appropriate stock, but all I had at the time. I still have the original in my archives.

    Occasionally I work on commission or license pictures I have made for specific uses, and think I have somewhat of a handle on the legalities regarding such, but I'm a little unsure how to proceed on this one.

    I was never engaged to shoot stills by any party involved, and no rights were expressed or implied. By giving the enlargement to the director as a gift, I wasn't allowing rights for re-use, was I? If not, any suggestions for what I should do?

    Thanks in advance for all replies.
    jbhogan

  2. #2

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    Copyright infringement?

    It's a dicey one to be sure... I think the first thing I would do in this case would be to send a nice letter talking about the shoot, and saying how nice a surprise it was to see your photo used. Perhaps they'll step up and do the right thing.

  3. #3
    Moderator Ralph Barker's Avatar
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    Copyright infringement?

    A couple of issues come to mind here. First is the question of your employment arrangement at the production company, and whether you actually hold the copyright. Although it sounds like these were shots taken casually, and not part of your actual job assignment, your employment contract might play a role here.

    It also sounds like either the director or the Kodak page author might have over-stepped their bounds with the caption, "ad for BMW Motorcycles". As this was not a clip from the spec spot, the caption is not accurate - particularly with respect to the inference that the ad was paid for by BMW. Something like "still from a production shot on spec with a BMW motorcycle" would have been better. That, however, is more of a trademark and representational ethics matter not directly related to your copyright issue.

    From your perspective (once you've determined that the production company doesn't own the image through some clause in your employment contract), I'd agree with Will's suggestion of playing "nice guy" with Kodak to start, though, and see how they respond. Once they know all of the background, they may well decide to pull at least the image, if not the whole bio. Advertizers and their ad agencies often get rather touchy about what might be considered misrepresentation.

  4. #4

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    Copyright infringement?

    Thanks for your reply, Ralph. Perhaps I can provide a bit more background:

    Like most (non-union) film production employees, I worked completely freelance, with no employment agreement other than to show up and do what I'm told by the Production Coordinator or Assistant Director on the morning of the shoot. In this type of arrangement, the employee is working as a sort of "day laborer," ie: you show up, you work until you're cut, we send you a check for a previously agreed upon amount. On spec spot shoots, it's always the minimum production assistant's rate ($150/day at the time, regardless of hours worked), unless you are in a position to demand more. Even the union grips/camera ops/etc work for less, 'cuz these type of shoots are always on "off days..." The idea is that you'll work miserable hours for peanuts just to stay in touch with the production company and its managers so they'll hire you for "real" shoots. It's a dreadfully effective scheme.

    Anyway, in this particular case, there were never any written or verbal agreements made between me and the production company other than where and when to show up... So, unless there were some way that by working I was conceding ownership of images I made during the shoot, I feel that I'm the rightful copyright holder. Is this line of logic sound?

    Thanks again-
    jbhogan

  5. #5

    Copyright infringement?

    My two cents,
    Unless you signed away your rights to the image - you still own it. HOWEVER, if you don't have it officially copyrighted then you'll have a tougher time collecting from them. Do you still have the original? Since the company in question is big and the fine for such misuse is also big ($150,000), I'd seek a qualified attorney.
    Good luck,
    Paul

  6. #6

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    Copyright infringement?

    IMO, the answer is actually quite simple. You were working for the production company, and as their employee you were paid for your time and for what you produced while on their clock. Unless your terms of employment specifically said that YOU retained copyright to your work, then anything you produced on company time belongs to the company, including the copyright.

    So, if you can present a convincing case that you took the photos on your coffee breaks, you might have a claim to the copyright. If not, then probably not.

  7. #7

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    Copyright infringement?

    Have you lost anything from this admittedly impromptu shot being published on the web? Did the director have any way to get in touch with you. Did you sign the back of the photo? Did he know you well enough to know you by name? Was anyone trying to violate your copyright?

    You did a nice thing a number of years ago and gave "a nice guy" a print of one of his interesting spots. I think that that's very cool. Now, years later, you find it being used in a somewhat commercial though certainly not mainstream way (note that its not on the directors personal site). It's been at that location for 3 years.

    My suggestion is that you forget about it. Or maybe call the director and have a laugh over it. Maybe he'll offer you a gig to shoot some production stills. If you harass kodak, they remove it claining that they had no knowledge of copyright issues and that it came from the directors private collection. It does you know good, kodak no good, and the director no good. As it is you had the enjoyment of showing it to all of us and we thought it was cool.

  8. #8

    Copyright infringement?

    Just a few points of clarification:

    At the moment of creation, which in the case of photography means when the film is exposed (you push the button) the image is now in tangible form and is copyrighted. That is, you control how it is copied and/or used.

    Only after registration of the image with the Library of Congress does any infringement and/or statutory damage issues become part of the legal situation.

    Ownership of a print does not transfer copyright to the owner of the print so the director had no legal basis to give them permission to give it for this usage. The law specifically spells out this point.

    In the absence of paperwork to the contrary, the shooter is the owner of the copyright. The exceptions to this are when, as an employee, it is in the regular scope of your duties to produce photographs or you have signed a "work for hire" agreement. In these cases, your employer owns the copyright to any photographs you create in the course of your employment duties or in the case of the WFH, you signed them away forever.

    In your case, I would contact the "offending" party, explain you are the copyright owner of the image and explain that would like them to compensate you for the usage. Be prepared with an amount beforehand, be polite and business-like and you will get a lot more cooperation from them. This is probably a case of unintended infringment. Be professional in your dealings with them and I am sure they will be as well. It does them no good to make this more than what it is.

    Best regards,
    Randy Becker

  9. #9
    tim atherton's Avatar
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    Copyright infringement?

    Also, Register the image right away regardless

    And at least contact a copyright attorney (if you are in NY etc try Ed Greenburg ecglaw@aol.com at Greenberg & Reicher, LLP who is an expert )
    You'd be amazed how small the demand is for pictures of trees... - Fred Astaire to Audrey Hepburn

    www.photo-muse.blogspot.com blog

  10. #10
    tim atherton's Avatar
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    Copyright infringement?

    Oh - and make and save screenshots of the infringement
    You'd be amazed how small the demand is for pictures of trees... - Fred Astaire to Audrey Hepburn

    www.photo-muse.blogspot.com blog

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