A business matter ... what would you do ??

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A little over two years ago, I approached a business about improving some of their existing advertising and web site photography, provided them my portfolio, and was asked to do some specific ď samplesĒ of their business with the understanding 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 answered with the reply ďweíre very busy, and havenít had time to look at themĒ - but that they would call me shortly, which never occurred. I finally let the matter drop, and stopped contacting them.

While browsing through a local magazine today, I discovered one of my shots being used as an advertisement for their business. Iím sure itís mine because of the Photoshop work, and I have retained the original file. Normally I would just call and ask if they are aware of the use of my image, but in this case, Iím getting the feeling that Iíve been used as a source of free photography. The contact person at this firm who I originally dealt with is no longer there, complicating the situation. I have written them off as a source of future business so I neednít be too concerned with how polite I am in approaching them on this.

I know I should not have gone down the ďsampleĒ road, or did anything without a written agreement, but this was in the early days of my business, and I was eager 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 lifeísí lessons - but Iím curious as to the opinions of forum members on this. What would you do ??

-- Michael Mahoney (mmahoney@nfld.com), November 29, 2001

Answers

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.

-- Charlie Strack (charlie_strack@sti.com), November 29, 2001.

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.

-- Kevin Crisp (KRCrisp@aol.com), November 29, 2001.

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.

-- Todd Caudle (todd@skylinepress.com), November 29, 2001.

Since they haven't acted in good faith: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.

-- Ellis Vener Photography (ellis@ellisvener.com), November 29, 2001.


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 (jimzpace@yahoo.com), November 29, 2001.


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.

-- Jim (jimzpace@yahoo.com), November 29, 2001.


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

-- Walter Glover (walterg@netaus.net.au), November 29, 2001.


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.

-- Jim Galli (jimgalli@lnett.com), November 29, 2001.


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

-- tim atherton (tim@kairosphoto.com), November 29, 2001.


Dear Michael

I tend to agree with the approach of gentle persuasion. However, making lemons into lemonade, you may now be able to feature their use of your work in some of your self-promotional efforts.

You may wish to read an article on the front page of the second section of this week's Wednesday Wall Street Journal. Somewhat similar, it talks about ad creators who create ads on spec. Now, I am not suggesting you do that, but the article was of interest looking at how certain people are trying to garner business. In part and quoting the Wall Street Journal, the article reads:

"Ad Creators Spend Their Own Money To Get Noticed by Working on Spec

By VANESSA O'CONNELL Staff Reporter of THE WALL STREET JOURNAL

Burke Wood, a free-lance director of commercials, recently spent $32,000 to make two ads he hopes will attract new clients. Though he hasn't told his wife yet about the expenditure, he insists the money was well spent.

In a reflection of how deep the advertising recession has struck, Mr. Wood and other free-lance and out-of-work ad executives now are churning out "speculative ads," or sample commercials for brands and products -- often at great personal expense. In his case, Mr. Wood, a 37-year-old father of two, has created a reel that includes commercials for Snickers, the candy bar owned by Mars Inc., and 1-800- Flowers, the national delivery service. Neither company has paid for the work so far. But Mr. Wood contends he has to show his abilities somehow. "Nobody is going to give you a chance unless they see you are capable," he says."

Best of luck in your efforts to win compensation or recognition.

Regards,

John Bailey

-- John Bailey (mdwphoto@aol.com), November 29, 2001.



my sense is that most of the people who have responded here are not professionals and have no idea of the amount of money involved in a client creating, and buying ad space in magazines. in general, the cost of having a professional photographer create work for an ad is about ten percent for a national ad campaign and a higher percentage for small ads. For all of you who are advocating a 'gentle approach" let's review the facts that Michael has put forth:

1.) "I made follow up phone calls and e-mails, which were either ignored, or answered with the reply "We are very busy, and havenít had time to look at themĒ - but that they would call me shortly, which never occurred."

In other words he tried a gentle approach and was blown off. having an attorney write a demand letter and do the negotiation for you doesn't have to be hostile or ungentle -- in many ways it makes for a cleaner negoiation process because your ego and the ego of the resposnsible person on the other side are removed from the process. the outcome you desire needs to be fair to both sides, even if the people who do not want to pay you get upset by having to pay you. Litigation itself should be the very last thing you or they want.

Further Michael does not currently know how else the image is being used by the client.

And let's not forget, the client is gaining financially by using your work. Not just by not paying you, but also the advertising has real tangible money making value to the client.

In short he needs to be paid. Copyright violation claims are not matters for small claims courts: it is a federal matter. Small claims court judgements still force you to go after the defendent (in the event you win) to get them to pay up. that can stretch out the process and make the whole mess worse, in my experience.

-- Ellis Vener Photography (ellis@ellisvener.com), November 29, 2001.


to the last message, true,

and I must admit to having read the initial post in a little haste.

However, it should be pointed out that for full blown litigation, you need to have a). deep pockets (you need to hire an specialised intellectual property lawyer) and b). MUST have registered copyright. Most lawyers will be very loath to take the case without the prospect of the substantial damages and protections that registration brings.

You must also decide if you are going after copyright infringement or breach of contract (and did you or didn't you have paperwork).

(PS - my small claims court experience has been in Canada where, in my juridiction anyway, a). Copyright law is vastly different from the US (generally not as much protection, but gotta love scaring abusers with "Criminal Copyright Infringement and possible time in jail...) b.) It has been for editorial misuse and the "fee" I have asked for has been under the small claims court limit and c). here, if they don't pay up, I can send the Sheriff to seize things and sell it, which onj the only occassion I did that, has led to them paying up quick!

I have also persued copyright infringement in the US, but through an Agency.

Tim A

-- tim atherton (tim@kairosphoto.com), November 29, 2001.


I read the original post as relating a problem in getting a response to the original submission, not that an attempt had been made informally to call them on the unauthorized and uncompensated use of the image. As I read the original post, two years passed between the submission and the discovery of the use of the photographer's work. Again, given the turn over at the potential client, it could be a completely innocent error on the part of the potential customer. Attorneys love people who want to threaten or -- better yet -- sue before trying to work something out reasonably. A suit should be the last resort, only undertaken after the failure of everything else reasonable you can think of. A threatening letter which immediately takes the matter from the hands of somebody non-legal who doesn't really want a problem and who doesn't want to hire a lawyer and gives it to someone who likes to litigate often doesn't advance the cause much. Certainly a copyright action can be filed in federal court, but under many many circumstances even a successful plaintiff has to pay their own attorneys' fees. The fees which can result from litigating a federal court case can boggle your mind. (Hence the expression "making a federal case out of it.") I took a class in business litigation and the professor started off the first session by telling us there was no such thing as business litigation because it is always bad business to litigate. Certainly an overstatement, but that observation is true far more than it isn't. If Michael thinks that the fair value of his work is within the jurisdiction of the small claims court ($5000 or so most places, but this varies) than that is a quick and easy way to go that does not involve lawyers. At least in my state, the defendant isn't allowed to hire a lawyer to represent them/it. I didn't mean to imply (and none of the peace-niks did) that Michael hasn't been wronged and that he shouldn't do something about it. If you start off with a suit, you better make sure (in the immortal words of Spinaltap) that your "amp goes to 11."

-- Kevin Crisp (KRCrisp@aol.com), November 29, 2001.

And if Michael looses in court, guess who pays the defendantís attorney fees... Michael does. The odds are that if it ever got to court, both of you would probably be unhappy with the outcome. Try the gentle approach. Look at this as a valuable learning experience. I think we are talking more about principal rather than the money here. Perhaps it times to put it to rest and move on.

-- Jim (jimzpace@yahoo.com), November 29, 2001.

Thanks for the responses, I really appreciate the information - as a point of clarification, I had contacted them over a period of eight to nine months after the initial samples, thus moving the time period from my last contact with them to the actual use of the image to be about sixteen months. Also, although my contact person is no longer with the firm, at least one other senior person was aware of my initial agreement with them, although not directly involved. My gut tells me they are trying to get something for nothing, and it's not a simple clerical error or not knowing where the image originated.

I've decided to invoice them for the image, with a covering letter outlining copyright, asking for the return of the other samples, and state no further use of any images without prior arrangement. If I don't receive payment in 90 days it's off to the lawyers. Some of you may see me as softhearted, but I'd still like to give them a chance to pay up before going legal.

-- Michael Mahoney (mike.mahoney@nf.sympatico.ca), November 29, 2001.



30 days tops, do the math for them; i.e., if I don't receive payment from you by December 29, 2001...

-- Kevin Crisp (KRCrisp@aol.com), November 29, 2001.

Have you also given notice to the publication where your images appeared that they will be subject to a possible Federal Copyright infringement suit? Whether they knew or not, NAME THEM in the complaint. Name the people you talked to as individuals as well as on behalf of the company, corporation or any other entity involved in any way. Name the pre-press house & the printers as well. Get them all involved & a settlement will be more likely.

Now go to the websites of the major pro organizations and take a good look at the paperwork that needs to accompany all submissions to protect all parties, not just you. Editorial Photographers has one of the best and it is a good starting point.

But, if you haven't, send them a bill and make sure it covers all the usage you know about with a request for copies of all uses the images have seen. Make it 3-10 times the highest normal use for the images in the publications you find the images in. If you get the line from the company about "this is good advertising for you", then find the page rate for advertising in the publications and bill 3to 10 times that full rate. After all, advertising costs & they are the ones who just set the billing rate... what it would cost you if you put your work in ads.

Don't back down. You say it doesn't matter if you get tough because they aren't likely to use your services again so make sure you charge full freight for what they used plus penalties for the usage they stole. After all, it is theft, isn't it?

-- Dan Smith (shooter@brigham.net), November 29, 2001.


Michael,

I have just read your response to the responses. I would advise caution.

Certainly, you must invoice the offending party but think twice before writing your own interpretation of Copyright Law and a ball-by-ball account of the unfortunate history of this farce. You are too close to the matter and your passions will cloud your judgement. They will determine by your manner and acumen what sort of challenge they face. The more you tell them about yourself the better armed they are!

Exhorbitant financial claims are bound to prompt their inactivity and delay the process while they consider what to do with such capricious demands. Seek a fair remuneration for the use of the photographs within 7 days and never forget the lesson you have learned.

If they do not respond to your satisfaction within the prescribed period THEN contact the Publishers, and all other parties in the chain of production and rattle their cage.

You must first make a written claim for them to ignore before any attempt at legal recourse is effective. The first question a magistrate would want to know is what attempts you made to secure a peaceful settlement.

Had they gained access to your photograph(s) by covert means it would be fair to go in with both guns blazing, but that is not the case. You gave them access to the material yourself and, having established that communication, it would be considered essential that you pursue normal business practice to gain satisfaction. That is: an Invoice.

I've operated as a commercial photographer since 1965 and have seen and experienced two philosophies in action with regard matters like this. The dog-with-a-rag-in-its-mouth approach where folk often limp away having shot themselves in the foot; and the studied, steady approach complying with accepted business procedures and following a course of reason and logic and satisfying the expectations of the judiciary which gets the folk in power (ie: The Court) on your side.

Calculated restraint ... WG

-- Walter Glover (walterg@netaus.net.au), December 02, 2001.


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