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DPChallenge Forums >> Business of Photography >> More Thieving - This time commercial
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08/06/2006 11:03:10 PM · #1
I need some quick feedback on this one as I am going to have to make a move fast...

Here is the situation ... I did a series of images for a dance troupe last year with the intent that they would be used as art for their upcoming CD. Because my wife is associated with the studio I did it on the basis of "just give us (my stylist and me) photo credit on the disc". They did. Life was good.

Today my wife was at a seminar presented by a 3rd party that was selling an instructional DVD featuring the troupe that I had done the original shots for... Guess what? ... There are my images...slightly modified... but without any question MY images and NO CREDIT AT ALL given. I am LIVID.

I believe that the producer of this new disc needed art and went to the owner of the studio and she just handed over the files.

My first reaction is to go the cease and desist route and go after them for infringement (All my images are Federally copyrighted) but here is the rub...

I am doing a project for the studio starting tomorrow that has the potential of 5 to 7 grand of revenue in portrait sales... that would be a major hit to the bottom line to walk away from that.

My wife is as torqued if not more that I over the lack of credit given (aka the theft of the images) ... the is a instructor at the studio and is about ready to walk on GP (general principal)

I am between the rock and hard place on this one ... Do I throw down the gauntlet on this on the high holy ground of infringement or do I chill and raise the issues after the events ... or am I worked up into a fine lather over nothing?

advice and insights are welcome and appreciated .


08/06/2006 11:06:09 PM · #2
Question one: What does your contract say? Question two: Did you give them full-sized originals on CD?
08/06/2006 11:07:58 PM · #3
Can you request that they add the credit to the instructional DVD?
08/06/2006 11:08:57 PM · #4
Originally posted by Melethia:

Can you request that they add the credit to the instructional DVD?


If there is really that much money involved, I would try to go this route first...
08/06/2006 11:14:23 PM · #5
Originally posted by Melethia:

Can you request that they add the credit to the instructional DVD?


I thought that too, probably just a misunderstanding on the studio's part on just what they were allowed to do with the files. But if you explain that you saw the DVD and saw that your pictures were being used but you were not being given credit, could it be corrected, it could avoid a lot of angst and hard feelings. Don't assume anything until you can talk to the studio about it.

Deannda
08/06/2006 11:22:30 PM · #6
Originally posted by idnic:

Question one: What does your contract say? Question two: Did you give them full-sized originals on CD?

The licence granted "one time use"

Full size images were provided for use on the original DVD

Follow up ...

The images that were provided were "knocked out" so that the designer of the CD cover could do backgrounds that worked with the design

Message edited by author 2006-08-06 23:29:05.
08/06/2006 11:23:23 PM · #7

Two things... one, have you tried just talking to them first before you all walk away? Maybe they didn't know and will do what they can to make it right to you.

Two, you say your images are copyrighted, which here in the US is true as soon as you create the images... BUT, do you have them Registered with the Copyright Office? If you have them Registered, you have a whole lot more power behind you should you have to go the cease and disist route. If you don't have them registered, you can still do that and you can still sue them for infringement... but the costs all come out of your pocket. And sometimes being successful depends on who has the deepest pockets. If you have your images registered and you tell them (and give them the registration number as proof) they will probably meet your demands before you even start. The reason being, with the images registered, if you take them to court and win, then they get to pay ALL court costs and legal fees. This can run up to $50k depending on how far it goes, not even counting any judgements against them. If they deal with copyrighted images as a matter of course, they are going to know what having registered images means.

The cavet to registering and getting the above special protection, is that you have to register them within 90 days of being published (this is sold, leased, rented, etc., just giving them away might not count as being published but you would have to check) or BEFORE the infringement occurs. You still have to register them before you can take any legal action though, you just won't get the special provision. Registration starts the day the Copyright Office gets the images, although it will take about 3 months to get your certificate of registration and registration number. It takes 3 months after that before they show up in the online Copyright database.

If you are doing commercial work, or work that could be used for commercial use and not registering, you are not protecting yourself. It takes about 15 minutes to fill out the form and create a CD of images to be registeed and costs $45 per form (the price just went up a couple of months ago). You can register a group of images on the same CD as long as they meet the same criteria (all unpublished or all published, all by the same author, etc.). If you aren't registering your images, you really should check into it. I've been infringed on 3 times, the first time I didn't have them registered and I couldn't afford to fight her lawyers. After that I had my images registered and I made a good chunk of change without a battle. Talking with a IP lawyer can do you a lot of good as well.

Mike
08/06/2006 11:24:14 PM · #8
Originally posted by Melethia:

Can you request that they add the credit to the instructional DVD?


I was thinking about this ... but the DVD is currently being sold ... about 100 copies today alone ... and mail orders have not been done yet from what I have been told.


08/06/2006 11:27:25 PM · #9
Originally posted by MikeJ:

Two things... one, have you tried just talking to them first before you all walk away? Maybe they didn't know and will do what they can to make it right to you.

Two, you say your images are copyrighted, which here in the US is true as soon as you create the images... BUT, do you have them Registered with the Copyright Office? If you have them Registered, you have a whole lot more power behind you should you have to go the cease and disist route. If you don't have them registered, you can still do that and you can still sue them for infringement... but the costs all come out of your pocket. And sometimes being successful depends on who has the deepest pockets. If you have your images registered and you tell them (and give them the registration number as proof) they will probably meet your demands before you even start. The reason being, with the images registered, if you take them to court and win, then they get to pay ALL court costs and legal fees. This can run up to $50k depending on how far it goes, not even counting any judgements against them. If they deal with copyrighted images as a matter of course, they are going to know what having registered images means.

The cavet to registering and getting the above special protection, is that you have to register them within 90 days of being published (this is sold, leased, rented, etc., just giving them away might not count as being published but you would have to check) or BEFORE the infringement occurs. You still have to register them before you can take any legal action though, you just won't get the special provision. Registration starts the day the Copyright Office gets the images, although it will take about 3 months to get your certificate of registration and registration number. It takes 3 months after that before they show up in the online Copyright database.

If you are doing commercial work, or work that could be used for commercial use and not registering, you are not protecting yourself. It takes about 15 minutes to fill out the form and create a CD of images to be registeed and costs $45 per form (the price just went up a couple of months ago). You can register a group of images on the same CD as long as they meet the same criteria (all unpublished or all published, all by the same author, etc.). If you aren't registering your images, you really should check into it. I've been infringed on 3 times, the first time I didn't have them registered and I couldn't afford to fight her lawyers. After that I had my images registered and I made a good chunk of change without a battle. Talking with a IP lawyer can do you a lot of good as well.

Mike


Good advice Mike ... I send a DVD (or CD) to the copyright office on a monthly basis and have for a long time

08/06/2006 11:36:52 PM · #10
I like Mike's suggestion.

Get the images registered first. Then go and ask them about it...

Don't get angry, just ask them questions. Say nothing about getting angry the first time. Just find out as much information as you can about the entire process of who was doing what and who made the decisions to put the disc together, who is handling the retail/wholesale accounts etc... Who made the decisions about the suggested retail pricing...

Then when you are done, instead of telling them "I'll see you in court", tell them that you were surprised to see things the way they are and need to do some more consideration about how to proceed seeing as the licence did specifically state that the images were only for one-time use... Ask them to do the same, then ask them what time would be convenient to call again to ask some more questions...

It just might happen that in the interim few days, they will review their policies and discover that there was an oversight and re-check their budget...

That's probably the best route as it will start getting them prepared for the financial hit...

If you don't do that, then they will swing all over the place with their responses because they will have no idea what their budget allows and might feel cramped and confrontational in that position....

just my 2 cents.
08/06/2006 11:46:15 PM · #11
first, take a deep breath...

ok, you've been smoked. it happens to all of us sooner or later. this time, let it go. sure, talk to the studio and let them know they shouldn't have done that, but they probably weren't out to intentionally screw with you.

next? well, you've gotten some good tips so far. at the very least, going forward, make sure your clients are on the same page with you as to what they can and can't do--and let them know that there is a cost associated with slip ups.

along these lines, most of the studios i'm associating with provide the clients with unlimited, perpetual licenses. depending on the situation, there may be some restrictions here and there, but for the most part, the clients are left with the feeling that they paid good money and they got the goods. the studio doesn't have to be always on the lookout to see how they got smoked and the client doesn't have to feel like they're going to be paying forever.

while it might be worth it to see if you can get credit for what did, don't hold your breath. it just might not be worth it, especially with what you stand to lose. seems to me it would be better to be better prepared in the future.

just my 02
08/07/2006 12:04:55 PM · #12
I'm not a lawyer, so take this with a grain of salt...

You said that the studio was using your photos under contract, but a 3d party also used them. You may go after the studio on contract infringement, but you said you didn't want to do that.

The 3d party seems to be violating your copyright. Write a letter to thier legal department asking about the origin of the photos and mention your concerns about the copyright violation. Nolo press should have a good template letter, or a good lawyer should be able to craft one.

Sending a polite inquiry into the matter should raise some flags, but not get your client terribly upset (assuming the 3d party even tells them). If the inquiry comes from a lawyer, they will take it seriously.

As far as the shoot goes, how do you get your money? If its on a per picture sold basis, how will you prevent theft of your images so that you will realize the $5-7K you expect? (They already stole your images, how do you prevent it from happening again?)

Message edited by author 2006-08-07 12:06:49.
08/08/2006 09:08:29 AM · #13
Here is a followup - Thanks for everyone's input ...

It seems that the studio owner was working with the promoter on the instructional DVD and several "workups" of the dvd art was sent back and forth. 2 sets of corrections ago my © information was added ( she showed me the illustrator files with out any hesitation)

It seems that the promoter screwed up the last couple of updates and ran with a old version.

The studio owner did not know that the DVD was made available for sale. She is also pissed because some of her information is missing from the packaging.

We (the studio owner and I) will be talking to the promoter today to come up with a resolution.

what a mess !


08/08/2006 09:11:39 AM · #14
Originally posted by hankk:

I'm not a lawyer, so take this with a grain of salt...

You said that the studio was using your photos under contract, but a 3d party also used them. You may go after the studio on contract infringement, but you said you didn't want to do that.

The 3d party seems to be violating your copyright. Write a letter to thier legal department asking about the origin of the photos and mention your concerns about the copyright violation. Nolo press should have a good template letter, or a good lawyer should be able to craft one.

Sending a polite inquiry into the matter should raise some flags, but not get your client terribly upset (assuming the 3d party even tells them). If the inquiry comes from a lawyer, they will take it seriously.

As far as the shoot goes, how do you get your money? If its on a per picture sold basis, how will you prevent theft of your images so that you will realize the $5-7K you expect? (They already stole your images, how do you prevent it from happening again?)


The prints from the portrait shoots will be ordered onsite and the performances will be done online so I am confident that this is going to be the profit range ... it was about that last year.


08/08/2006 09:53:36 AM · #15
Originally posted by nomad469:

Here is a followup - Thanks for everyone's input ...

It seems that the studio owner was working with the promoter on the instructional DVD and several "workups" of the dvd art was sent back and forth. 2 sets of corrections ago my © information was added ( she showed me the illustrator files with out any hesitation)

It seems that the promoter screwed up the last couple of updates and ran with a old version.

The studio owner did not know that the DVD was made available for sale. She is also pissed because some of her information is missing from the packaging.

We (the studio owner and I) will be talking to the promoter today to come up with a resolution.

what a mess !


I imagine that the best solution at this stage is to
a) insist that the credit is added immediately so that any newly created DVDs are correctly credited
b) negotiate a fee for previous and future use of your images
c) negotiate a penalty fee (if you feel it appropriate) for unauthorised/ uncredited use to date (or alternatively just up the charge you ask for b)
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