Not sure I’d call it a win. Maybe resolution is more like it.
Almost two years ago I photographed an assignment for a client. Those images were then published with a feature story by the client.
Well, the subject of that feature story in turn took those images and used them on their blog.
I had no idea.
Monthly, I do a search for my images online to find unauthorized uses. Generally, I don’t have issues, but most folks don’t realize that the copyright information is embedded into the actual images which make it easier to find when people use our work online.
Seventeen months after the photo assignment I was doing my monthly search and found a blog post with my images on this company’s website. Seems that the basic info had been stripped away from the images making them a bit harder to find in a basic search.
So, here I find two of my images on the site in a blog post as well as one of those images being used as the featured post photo. The site also included the reporters feature story without permission. Once I realized it was unauthorized I made a frame grab. Why? To make note of the date and to show my work on their website. That’s potential evidence. For down the road…if necessary in a copyright infringement lawsuit.
From wikipedia, the definition of copyright infringement is “the use of works protected by copyright law without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works.”
That is exactly what happened in this case. Company B took my images from Company B, who paid me to make pictures at Company A and placed those images on Company A’s website. It’s a clearcut violation and easy to prove. Remember, I have evidence in the frame grabs.
If the copyright is registered with the US Copyright office before the infringement or within three months of first publication, the owner of the copyright may be eligible for up to $150,000 per image in statutory damages and attorney’s fees from the copyright infringer. Remember that! $150,000. Per. Image.
So, I reach out to these folks via email. In the email I explain that my work is on their website and if they have purchased a license to use the images on the site to please provide that proof. I already know that they did not purchase a license since it would have to go through me. So, I hit send. Email sent.
A week later I try again via email.
I then found the Facebook page for these folks. Reach out then by Facebook message.
Finally a response.
They did apologize for the unauthorized use and ask that I send them an invoice. I do send them an invoice. Although since the work had been online for over a year and a half the price for the unauthorized usage was substantially more then it would have been normally. After sending the invoice, I wait. And wait. And wait.
One month goes by, then another. All the while, I’m emailing these folks and getting blown off. Sending invoice reminders. Nothing. This goes on about 6 weeks. I then email them and let them know I’d like to resolve this without taking them to court. Again…nothing.
About three weeks later, I start preparing myself for the court battle. Gather all of my evidence, which had been frame grabbed as soon as I first saw the images on the site without permission. My plan at this point is to reach out to the NPPA legal team and see where they can help with this issue. They would usually be able to recommend a copyright attorney in my area.
That didn’t happen. It wasn’t necessary.
In a last ditch effort, I had emailed the contact person at the company that had used the images without permission. It said, “Are we going to resolve this, or will I have to take legal action?”
In a matter of minutes, I received a response that claimed the email had gone to spam. They’d like to take care of this as soon as possible. Can they send a check?
I sent an address with instructions on who to make the check payable to to make sure they had the information needed. Three days later, I have a check in hand for the amount that I had been requesting for 3 months. Now, if they were having trouble receiving my email, they sure hadn’t had an issue receiving the invoices. The amount was correct. Leading me to believe that what happened in the past three months is that they must gave spoken to their attorney and found that since my images were registered with the copyright office I could seek up to $150,000 in damages for each infringement. Now that is something I was trying top avoid. Sure, $150,000 per image sounds great, but my goal was to be fair. They, as well as myself, are small businesses. I didn’t want to hurt a small business. The other thing is it very well could have been a long drawn out court battle, which no one wants. Especially me. I want to make pictures not battle for the rights to images.
The good news is that I was paid. The bad news is that it keeps happening. Most people don’t or can’t understand that they can not just take someone’s work and post it on their website without permission.
We need to educate folks about copyright law.
This has happened to me before, and is one of the reasons that I do look online once a month to protect my rights. I don’t like doing it, but it has to be done. I love making pictures, but do not want to be giving the work away for free when my daily cost of doing and staying in business is as great as ever.
Most times I walk around with $5,000 worth of gear just to make a single picture. That doesn’t even begin to address other costs of doing business. There’s health insurance, liability insurance, vehicles, insurance, computers, software, etc… The list is almost endless.
Granted the company finally paid for the unauthorized use, but I had to invest so much time and effort into protecting my rights I don’t really feel like a winner.
I just want to make pictures and not have to worry about protecting my copyright. Problem is that in this day it is almost impossible.
They key here for photographers is to make sure you register your copyright. It gives you a lot more ammunition if an infringement ever happens to you.
Know your rights. Protect your copyrights.
So, instead of a win I’ll just call it a resolution, until next time.
US Copyright Office
NPPA Article by Attorneys Alicia Calzada and Mickey Osterreicher
Suing for Copyright Infringement? 10 Things to Consider
PPA Copyright Resources