Caught stealing image - now what?

[steve simmons]

Without advice from an intellectual property attorney all you are going to get is speculation which won't help. You should be able to call a local bar association and arrange for 30 min of consultaion for a nominal fee.

steve simmons

[Ralph Barker]

WG - what the company should have paid you for the image depends on how they are using it. Images in magazine ads, for example, are typically priced based on various elements, including the circulation of the publication(s) and the frequency and duration of use. ASMP publishes a book on photography pricing that might help you determine the basic value of the usage.

[Frank Petronio]

Your rate depends on your status and the image's usage. If you price the use of a unique, rights managed image for a similar amount of usage from a large stock agency (Getty One) that would be the bottom price. Well known and more unique work can multiple that price severalfold.

Another approach is 3 to 10% of the ad buy, remembering that companies will spend $5 to $100K on a limited B2B campaign. ASMP has the most info, and it probably makes sense to contact your local chapter to speak directly to some experienced pros in your area. They can suggest a lawyer experienced in these matters.

Don't forget that you can also go after the incompetent ad agency as well as the end client.

Make them bleed! It benefits every photographer.

[bglick]

Tim, great link you offered, many good bits of information.... here is a good description of the rights of an image, copyrighted, vs. non copyrighted. This can be read at this web site,

http://www.photolaw.net/faq.html

I pasted the sections below, as the author posted this on the bottom of the page....
Please Note: This website is designed to be read or to be sent to others in order to help inform the public about copyright law. Any reproduction of this website will constitute copyright infringement. Please respect the Copyright Act.

Q. Do I have to file anything in Washington, D.C., in order to get a copyright?

A. No. A copyright is secured automatically when a work is created. This concept is frequently misunderstood. Some people still believe that there are formalities required in order to create a copyright. This is not true. Under the latest version of the Copyright Act, neither publication nor registration with the Copyright Office of the Library of Congress is required in order to secure full copyright protection. When a work is created, it is automatically copyrighted.

Q. What is registration?

A. Although a copyright is created automatically when a work is created, there is a procedure for registering a copyright with the Library of Congress. Remember, registration is not required for copyright protection.

There are three benefits to registering a copyright. First, registration creates a public record of a copyright. Second, registration of a copyright is required in order to file a lawsuit for copyright infringement. Third, if a copyright is registered before there is an infringement or within three months after the first publication of a work, the owner of the copyright can claim certain alternate damages plus attorneyís fees. These alternate damages are called statutory damages and they can be awarded in a sum of up to $100,000 for willful infringements. The registration process itself, does not alter the fact that the owner of a copyright is always entitled to his or her actual damages plus any profits earned by the infringner. However, the suggestion that statutory damages and attorneyís fees are available can act as a catalyst for the quick settlement of a copyright infringement claim.

Ralph and Frank, good info, it gives me a sense of scale here... and there certainly is not huge money involved here, as Frank pointed out above, we want BIG COMPANIES stealing our images, well, of course, they are more privvy to the law... in this case, it's a small business. As for advertising costs, probably not much $50k?, but the project they are advertising with my image (as well as others) will generate $20M in revenue in less then a year, of course, not as a result of my image being used, but still......

[Donald Brewster]

Tim, I agree to a point. "Registration is not required for copyright protection, but is a prerequisite before United States authors can bring an action for infringement in federal court." It is still a copyright infringement. It is still a type of property conversion under state law. The difference is being able to use federal rather than state courts, and types of damages that can be plead. Registration is helpful, but all is not lost if the photo is not. Hopefully a demand letter will suffice.

http://www.pacaoffice.org/copyrightInfo/copy4.doc

[Frank Petronio]

I've had plenty of $50K ad budgets (total) that spend $5 to $10K on photography, so don't dismiss it too quickly.

[steve simmons]

There is too much info we don not know here. For example, how did they get the photo. Was it in a place that could be argued was in public domain?

The statement we want our images stolen seem to give a misleading impression. We do not want them stolen, we want them respected.

See an attorney and tell them the whole story.

steve simmons

[tim atherton]

"Was it in a place that could be argued was in public domain? " Images can't become public domain by putting them in a particular location - this is completely misleading.

Images either are Public Domain by means of one of several mechanisms, or they aren't.

Putting images up on a website, for example, does not make them Public Domain

(e.g see point #3 http://www.templetons.com/brad/copymyths.html)

[Darin Boville]

Always fun to join in an area outside my expertise...

Why not just contact them, as was suggested earlier, in a friendly way and point out that somebody on their end made a mistake (which should be your first asumption). Invoice them at a fair market price and offer to share your portfolio for future work...?

Most companies would be horrified to learn that they ripped somebody off...

Feed your lawyer only after your good faith attempt fails...

--Darin

www.darinboville.com
www.photodemocracy.com

[bglick]

Steve, the image was taken from my web site.

Darin, I do agree with your position, and I will most likely try the friendly approach first. But, it never hurts knowing your legal grounds. I will consult an attorney first, then send them an invoice with an explanation. If they do not respond, I will then pursue them legally.