A Business Matter ... What Would You Do?

[Mike Mahoney]

A little over two years ago, I approached a business about improving some of the ir existing advertising and web site photography, provided them my portfolio, an d was asked to do some specific ? samples? of their business with the understand ing that if the samples were suitable, they would purchase them, and I would be hired to do additional work. I took several shots , did some extensive Photoshop work with them, and e-mailed the proofs to them. There was no written agreement , nor a copyright symbol on the proofs.

I made follow up phone calls and e-mails, which were either ignored, or answere d with the reply ?we?re very busy, and haven?t had time to look at them? - bu t that they would call me shortly, which never occurred. I finally let the matte r drop, and stopped contacting them.

While browsing through a local magazine today, I discovered one of my shots bein g used as an advertisement for their business. I?m sure it?s mine because of th e Photoshop work, and I have retained the original file. Normally I would just c all and ask if they are aware of the use of my image, but in this case, I?m gett ing the feeling that I?ve been used as a source of free photography. The contact person at this firm who I originally dealt with is no longer there, complicatin g the situation. I have written them off as a source of future business so I ne edn?t be too concerned with how polite I am in approaching them on this.

I know I should not have gone down the ?sample? road, or did anything without a written agreement, but this was in the early days of my business, and I was eag er for work - today I would not touch this type of deal. My inclination is to let the matter drop, and treat it as one of life?s? lessons - but I?m curious a s to the opinions of forum members on this. What would you do ??

[Charlie Stracl]

Sue them in small claims court. They took your work without paying for it. Even if the person who knew the work was yours was no longer there, if you can prove you did the work, and they can't prove you were paid for it, I suspect you have a strong case.

[Kevin Crisp]

It may have been done in good faith since your contact was gone. Somebody else found the file, and knowing nothing of its history (and liking your work, apparently) they used it. I suggest you write a letter, describe the prior contacts, enclose the use of your work and ask for what you consider fair compensation for what you've done. If you don't get a response (or get an unsatisfactory response) take them to small claims court. If it gets that far, then remember that the letter you wrote is their main exhibit against you, so write it carefully because it can be used against you if you make any admission you'd like to take back later. Another approach would be to take the use of your work back to the place, use this as an introduction (since you do like my work and are using it...) and in a non-hostile way maybe you can finally get the work. If not, then go to small claims court.

[Todd Caudle]

I'm with Charlie on this one. The instant your finger trips the shutter, you are the proud owner of the copyright of that photo, and any derivatives of it. Written usage agreement or no, there definitely was not an agreement for them to use your photo without paying you for the privilege. I would send them an invoice for its usage, double it if they used it without a photo credit (which they obviously did), and tell them that no other photos of yours can be used EVER unless an agreed upon usage rates applies.

[Ellis Vener]

Since they haven't acted in good faith:<PFirst get all of your paperwork together, including prrof of dte of creation and any documents or phone records or e-mail exchanges of conversations wit hthe company >1.) Register the copyright NOW! You have 90 days from date of first publication or discovery of copy right violation. trying to collect without registering your copyright is a weak position. there are severe statutory damages for copyright violation.

2.) Deterrmining the extent and value of the unauthorized usage. a base line might be 3x what you would now charge to do the work. 3.) Contact an attorney who has experience in the copyright and intellectual property disputes. Have them write a demand letter that also nofiifes them of your intent to file suit. This will definitely get the attention of the company as they will have to get their lawyers involved.

4.) determine a better line you will settle for and stick to it, be sure to include your legal costs.

4.) keep in touch with your lawyer and see how things are going.

5.) Do not lose sleep over this.

[Jim Billlups]

I am n agreement with Kevin on this. I too think this would be the logical and reasonable first step. If that fails, then small claims may be your recourse. Looks like a good learning experinece though. Get it in writing in the form of a contract before any work is begun.

[Jim Billlups]

Before I get attacked for typos and spelling, here it is again Sorry.

I am in agreement with Kevin on this. I too think this would be the logical and reasonable first step. If that fails, then small claims may be your recourse. Looks like a good learning experience though. Get it in writing in the form of a contract before any work is begun.

[Walter Glover]

Michael,

Softly, softly catchee monkey! Kevin is on the right track. Sure, you should register your Copyright in the images immediately as Ellis has suggested but concurrently you should courteously approach them about the situation and at least appear to have made a reasonable attempt to secure a satisfactory outcome prior to involving the Court.

It may be a bit Pollyanna of me, but I feel there is a distinct possibility that you could get yourself a client and more work out of this - if handled properly. It is only after their response that you can truly determine whether or not you would wish to continue accepting assignments from them. In short: don't slam a door so tight that you can't open it again.

AND ... be sure to learn the lesson from this. Watermark, or otherwise secure, all samples dispatched to potential or existing clients. Only after contractual (written) agreement does the watermark come off.

Regards ... WG

[Jim Galli]

The magazine publisher was also irresponsible in using your photo's with no indication of written consent from the owner. Most publishers are wary of this and in fact the publisher may have had the user sign a release to protect himself. If that's the case then the question of ownership had already come up and the user chose to ignore it.

"A soft answer turneth away wrath....Proverbs" is always the place to start. Invoice them and copy the invoice to the publisher.

[tim atherton]

A very common occurence these days in my experience as an ediorial photographer/photojournalist, you should read some of what happens as refelcted on various lists I'm on!

Yes, registering copyright, and putting together a letter/invoice for say 3x what you would have chgarged is a good start.

So is making sure any work you send out has copright information on it (and if you send out digital files, put it in the caption info, including info about "no repreduction rights without permission etc, AnD add you email and phone number. Photographers compalin about the NY Times re-using their images from assignments without permission - it's basically down to hard pushed picturedesk staff not having the info - my info is right there on the captions and they just call me up each time they want a re-use and pay!). And make sure any paperwork/delivery memos etc you send out with images to clients reflects all this - you own the copyright, they can't use it without permission etc, there are penalties if they do (plenty of online forms at EP below)

BUT try the softly softly approach first, especially as your contact is gone - write or call the business - explain the situtation and what you want from them - gently educating them about Copyright and usage rates etc. If they seem genuine, take it from there. If they couldn't give two hoots and you don't want them as future clients - bill them usage x3 and include the information from the US Copyright Act about statutory damages for infringement etc. Then, personally, if they ignore it, I would head for a lawyer and/or small claims court (if it's under the limit for the court).

But, lawyers fees will mount up etc....

info here on copright, registration etc.

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