Caught stealing image - now what?

[bglick]

If you find that a company has used your image in advertising, without your permission, what is the logical steps to take? To enforce such, did the image need to be copyrighted first?

[Donald Brewster]

Not giving legal advice, and I don't know what country you live in, but very generally you hold a copyright in the image upon making it, unless it was done as "work for hire", i.e., roughly speaking you were formally employed by the entity you made the image for. Registering a copyright would help prove up the claim, but it is not absolutely necessary. Logical steps would be contacting the entity and making a formal notice of the copyright infringement and a demand for payment for the work (at your usual rate) with a deadline for payment. If no response, then (1) small-claims court; or if a significant amount (2) hiring a lawyer to bring a civil action. Good luck.

[tim atherton]

"Registering a copyright would help prove up the claim, but it is not absolutely necessary"

in the US, essentially, it is. No lawyer (ASMP etc included) will touch your case unless the images are registered.

take a good hunt through these:

http://www.editorialphoto.com/copyright/

[Frank Petronio]

Yes, but you can still threaten the bejeezus out of them and usually collect a nice 2-3x windfall. So consider yourself LUCKY!

First step is to collect and document the infringement - how about posting it online!?

[QT Luong]

More details would help. Each case is different. In the US, there is a grace period of 90 days after first publication where you can still register your image and get the same benefits as if you registered it prior to publication. The second step is to check whether you still qualify, and if so, register the image. If your image is registered, you are eligible to recover court cost and punitive damages (up to 150K in severe cases), so this gives you a much bigger stick to threaten them. If your image was not registered, all you can recover are more or less the licensing fees. What you do next depends on whether your image is registered or not.

[QT Luong]

"as if you registered it prior to publication" -> I meant "as if you registered it prior to infringement".

[steve simmons]

Contact a trademark/copyright attorney to get good legal advice. Unless someone here is such an attorney all you will get is speculation.

steve simmons

[Frank Petronio]

Seriously, you want big companies to steal your images!

[bglick]

Donald, sorry, I forgot to mention I reside in USA. Since I do not sell my work for "advertising", I have no real rate structure. Is there some industry type pay scale for such? I doubt the dollar amount is significant enough to hire an attny immediately. More then anything, I am aggravated.

QT, that is great information, as this is a very recent infringement, surely within the 90 day limit. I will immediately file the copyright.

BTW, I know you are not offering legal advise, but rather steering me in the right direction. But I am curious, what exactly are the penalties for stealing an image and using it for advertising? I assume it must be somehow tied to the benefit the image helped the infringer? I can't beleive the penalties are carte blanche. In my case, the image is just a pretty landscape used in the background, somewhat fitting the theme of the advertisement, but is not specfiic.

Steve, I agree, but I try to avoid getting too deep with attny's if there isn't enough to be gained. I am still fuzzy on this.....

TYIA

[David Karp]

Steve is right. Check with the lawyer before making an appointment. Many will not charge for a first meeting.

[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.

[steve simmons]

I give up. The voice of moderation never wins here in the face of experts.

Take care of it yourself. As an attorney once said

when you represnt yourself you have an ass for a client and a fool for an attorney

30 min of consultation is cheap.

steve simmons

[bglick]

> I give up. The voice of moderation never wins here in the face of experts. Take care of it yourself.

Steve, from my post above yours.....

"I will consult an attorney first" ???????

Am I missing something?

[Ben Chase]

Gentlemen - Since Steve has suggested you speak to an intellectual property attorney, I'd be more than happy to give a recommendation.
My Gonzaga MBA intellectual property professor is also a full time IP attorney. His name is Lance Sadler and can be reached at lance@leehayes.com.

Although a lot of good advice has been given here, an IP attorney deals with these issues all the time. I would say that your best chance of success is to at least talk to one and get a game plan.

Please let us know how this turns out.

Good luck in your efforts!

Ben Chase

www.benchasephoto.com (http://www.benchasephoto.com)

[steve simmons]

I was responding to some of the other posts

steve simmons

[Paddy Quinn]

"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?"

if you are going to give advice, please try and at least sound like you know what you are talking about. This one is right out of internet/urban myths about copyright Number 3

[mark anderson]

"when you represnt yourself you have an ass for a client and a fool for an attorney"

i'm going to steal that one

mda

[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?"

if you are going to give advice, please try and at least sound like you know what you are talking about. This one is right out of internet/urban myths about copyright Number 3
>>>>>>>>>>>>>>>>>>>>>>>>>

The above was from Paddy Quin.

I do know that images can inadvertantly end up in the public domain and then be used. I never said anything about the internet or web site.

My advice all along was to get advice from an expert in the field, No one here is an IP attorney as far as I can tell and not quilified to give advice. These referral sevices may give you 30 minutes of advice for something around 25.00 to 35.00. If afterwards you contact them yourtself you will have a broader knowledge base in trying to work out an agreement.

steve simmons

[tim atherton]

Steve

"Was it in a place that could be argued was in public domain?"

and

"I do know that images can inadvertantly end up in the public domain and then be used."

Steve - could you please explain your understanding of how placing images in a certain place can lead to them inadvertantly becoming Public Domain?

[tim atherton]

"You are not hearing anyone here speak from the actual experience of having an image stolen."

I have persued several infringement (i.e. "image theft") cases over the years - some with regard to my own work, others on behalf of some of my then agency photographers.

Some resolved more successfully than others - all eventually settled out of court by the infringer.

[jnantz]

hi darin

while you are right, some companies want to do the right thing, there are others
who will deny all wrong-doing after stealing your work and publishing it.

tim a. is on the money - no lawyer will touch a case without a copyright registration -
i learned this the hard way.

[Donald Brewster]

Steve:

Nothing anyone has said has precludes or counters your advice. Yours is very good advice. The other posts provided the requested possible logical steps. Nobody was giving legal advice or pretending to. I don't understand your position.

Don

[steve simmons]

Don

No one here is an attorney yet some are quoting passages of the law and giving advice. They are doing so without understadning all of the nuances of the law and the situation. Some of the info is anecdotal, again with a full explanation of their context or without understadning evrything that led up to the alleged theft.

steve

[steve simmons]

again with a full explanation of their context or without understadning evrything that led up to the alleged theft.

I meant to say without a full explanation

steve

[tim atherton]

Steve,

I'm still interested in your anecdotal comments on Public Domain.

Stanford Law Library has a very clearly set out site on Public Domain:

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/8-a.html

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/index.html

I'm still trying to figure out which of the following, for example, your vaguely worded scenario could fit into:

"There are four common ways that works arrive in the public domain:

expiration of copyright: the copyright has expired.
failure to renew copyright: the owner failed to follow copyright renewal rules.
dedication: the owner deliberately places it in the public domain.
no copyright protection available: copyright law does not protect this type of work. "

Otherwise your comments are just plain miselading

[bglick]

> The advice you gave earlier is not great. As I see it, there has been much "legal" advice given here by well-intentioned less-than-qualified people. I don't want to speak harshly, but if this is a serious matter to "wg" (why don't you use your full name?),

Michael, I use initials as too many people had my first name...is that an issue? Regarding the "only experts should give advise" issue..... This same theme followed through in many other threads, people toss out opinions, experiences, thoughts, etc. This somehow offends some posters, as the contributors are not experts in a given field. But if only experts could comment on everything in life, there would be no chatter in these forums and in our day to day lifes, and how often, does some simple advise make someone think about heading in a certain direction, and often motivating them to seek a professional? In my experience, it happens quite often.... Often in the past, I have been given better advise / solutions / remedies by people who have been through a similar experience vs. a so called expert in the field.

But the point I have made before, and will reinforce again, let the people who read the threads decipher through the posts and the credibility of a poster - as it is an "open" forum. Yes, there will be some bad information, but the same is true in life, and we don't stop people from talking to each other over a beer...the person involved simply makes decisions based on the issue at hand. So I for one, appreciate people contributing information to my threads. In this case, a few posters alerted me to some very useful information I was not aware of, and therefore changed my course of action.

As in this case, I have spoken to an attny, and a prelim. game plan has been laid out, and yes, I will surely keep the group posted on the outcome, although it may be some time, but I am sure others here could benefit from my experience.

[steve simmons]

It is my understanding that if work appears in public without the proper notification of a copyright or trademark then protecting it becomes more difficult. I have said all along that an attorney should be consulted and that those of us who are not IP attorneies should not give legal advice. Referring to web sites and passages from the law does not a lawyer make. If you are an IP attoeny Tim please tell us. If not,, well............

steve simmons

[tim atherton]

Steve,

you seem to be adept at calling the kettle black - you are consistently giving incorrect and misleading information

[Richard Kelham]

Mark

'"when you represnt yourself you have an ass for a client and a fool for an attorney"

i'm going to steal that one

mda'

No need – it's so old it's probably out of copyright!

[steve simmons]

Tim

Are you an IP attorney?

I have said that I am not and the "lega"l advice I have given is to see an IP attorney. You keep citing passages and referring to web sites as if you understand the law. If you are not an IP attorney you knowledge is not complete and comprehensive.

Now, lets let the individual work with an attorney. I am glad he/she is doing so.

steve

[Paddy Quinn]

Steve,

You are quite simply incorrect.

There is no requirement for a work to be marked as copyright ( e.g (C) - date etc) for it to be protected. Nor is the lack of such a symbol a defence for copyright infringement (it is also not directly linked to the legal concept fo Public Domain - the two are somewhat different and slightly seperate things and your comments only add more confusion to the issue)

In a slightly similar way to Registration (or lack thereof) it can have an effect on such things as amount of damages in an infringement case. But it is not a requirement for copyright protection.

And yes Steve, I have worked in Intellectual Property law in the past (including writing briefs for reform of copyright legislation).

I think I recall something about removing motes?

[Ben Chase]

Steve - FYI, I sent you another email last evening to largformat@aol.com. Please check your spam filter. It should come from chase (AT) spamcop (dot) net.

Group - Apologize for this being off-topic.

Ben C

[David Karp]

There are many good sources of information on the web regarding intellectual property rights. There are also books on the subject for lay persons. Nevertheless, this is a complex area of the law. There are many attorneys who specialize in intellectual property law and do nothing else. There are many outstanding lawyers who will not touch an IP matter and will refer their clients to an intellectual property lawyer. There is a reason that experienced lawyers will not give advice on this subject and refer clients to specialists.

It seems to me that there is very little information available on this thread upon which a person could rely to determine whether the advice given is consistent with the law.

Of course, you don't have to know anything about the law to negotiate a resolution to a dispute. It is done all the time in business. The problem is that you might not know how good a deal to reasonably try to achieve if you don't know the legal foundation for your claim.

[Joe Smith]

"when you represnt yourself you have an ass for a client and a fool for an attorney"

only a lawyer could come up with that one LOL

[Wayne]

I have never seen Steve make more sense or give better advice than on this thread. Some people are desperately trying to create an issue where there is none.

[tim atherton]

"Steve, I agree, but I try to avoid getting too deep with attny's if there isn't enough to be gained."

"I will consult an attorney first, then send them an invoice with an explanation."

" As in this case, I have spoken to an attny, and a prelim. game plan has been laid out . . . "

Michael,

I don't quite see what the problem is - almost a day has passed during that time

wg asked for advice - got some, took it into consideration, changed his approach and went from thinking he might not need an attorney to realising it would be a good idea, to actually talking to one.

Seems like a natural course of action to me (and of course he's not going to tell us his game plan now).

He didn't tell us that in the first place because he responded to the advice he got on here and changed his direction accordingly. It seem pretty clear - molehill not mountain

[robert_4927]

Actually Joe I think it was Ben Franklin who said that.

[robert_4927]

Correct that ...It was Lincoln

[bglick]

> I guess you are now saying that you have consulted an attorney and that you have a game plan that you are not sharing. Okay, that's fine; but why didn't you make that clear from the beginning? If you are confused, you are also confusing.

Michael, I was preparing a response to the question you posed, but then noticed Tim Atherton answered the question better then I could have....thanks Tim... When I first posted this question, I had no background in this area....now, less then 24hrs later, well, I sure learned a lot, and much of this started with generous contributors to this thread. So although consulting an attny is never bad advise, these forums are also very helpful, as sometimes it motivates someone to contact an attny.

As for not revealing the game plan.... I am not being secretive... but based on the situation, the public nature of this forum, and the timeleness of the situation, I was advsised to stay quiet for now. As I mentioned previously, there is probably no big bucks here, but certainly enough to enforce my rights..... and when this ordeal concludes, I will surely write a thread on the entire story, how it was discovered, how it unfolded, what the advice was and the enforcement measure (s) implemented, how the infringer responded, how it settled, etc. Fair enough?

As with most of these situations, they can often take on a life of their own. I think it's interesting how communicating with others who do the same work can influence our position on subjects such as this. When I made this post, I was aggravated, but probably would have entertained a tiny settlement to end it. Then after a few posters raised certain issues, it really made me think about how much time, energy, expertise and money I have sunk into my photographic endeavors. And when someone unlawfuly uses an image, its not the time and expense of that one image, but rather the time and expense of what it takes to produce images that people desire to use. So I have an entirely new take on the subject. Sort of like a song writer, who spent 30 years writing songs of little value, then one gets stolen, becomes a hit, and the infringer wants to pay him/her for the time spent to write that one song. So again, I thank many of the posters for their contributions.