Multinational Corp. Copyright infringement

 
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hollandtom
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Joined: 23 Sep 2008
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PostPosted: Sat Apr 25, 2009 12:14 am    Post subject: Multinational Corp. Copyright infringement Reply with quote

Wanting some advice or any past experience.

About two years ago I did a spread for a well known US mag of an athlete. At the end of the shoot, I gave the athlete a disc saying you she could use the images for her myspace and personal web page.

I have since found my images of her on her sponsors web page -- A very large multinational corporation who makes ski goggles and mountain bikes.

The conversation so far has been:



Dear "omitted"

I understand that you are the contact responsible for buying images for your website. Attached is a story of "omitted" the mountain bike rider photographed by Tom Holland here in Australia.

These images are my copyright so we need to discuss a usage for these images. This is quite urgent as I have not been approached before publication.
---------------------------

From "omitted"

This entire story was furnished by the athlete, we had nothing to do with sourcing the copy or the images. Its so damn old now that it isn't doing anything for our brand or her image. The story got less than 150 clickthroughs before archived. Your beating a dead horse. Plus the responsible party was let go here. You pointed it out, we withdrew the story, it was never used for advertising or to sell a single item. "omitted" sent it to us to post on her team page. We haven't gained a single cent from posting the story on our web. If we are charged I will only send the bill onto her. Not sure that is the desired result. Please advise. Adrian

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Dear "omitted",

It really doesn't matter where you got the images, what matters is that a multi-national corporation has posted to it's site a remanufactured story featuring my images . I am in fact American and am familiar with the copyright laws in America which you have nonchalantly breached.

The images are two years old and very sellable. You have lowered the value of these images by your unauthorized use thus resulting in a financial loss to myself.

I do not syndicate images as though they are a banner ad, click throughs are irrelevant.

"omitted" is the responsible party, not the individual who used to work there.

You may send the invoice to your accounting Dept, as "omitted" did not furnish the lay-out, nor did she upload them to your server.

Regards
---------------------

From "omitted"

Please provide:

Proof of use for "omitted" marketing
US Tax ID
Price for unlimited use of images 728w x 72dpi
Price for web use of images 728w x 72dpi
Price schedule for all image use
Tomís email conversation with "omitted" on or around Feb 16th, 2008 where she was given these images to distribute
The terms for said images when distributed to Niki
Contact information for Tomís legal representation
-----------------------------------------------
Dear "omitted",

Please find your requested information below.

1) Proof of "omitted" marketing -- Attached

2) SS for 1099 purposes only:
"omitted"

3,4,5) I am billing for one year's use of attached images -- not unlimited use. In my pricing structure there is no difference between web or print use. Unlimited use compromises a 500% surcharge to the fee structure. All prices are decided by myself and through negotiation. Very generally a one year license for one image is $2,000.00.

6,7) A disc was supplied to the talent with a very clear verbal stipulation that the images were to be used for her modeling portfolio only and were not to be used for any commercial purpose in anyway shape or form.

Cool At this stage I am not going to involve my US lawyer as I hope to be able to work things out amongst ourselves.


cheers,

Tom Holland
0414 459 607

------------------------------------------------------------
web address: http://www.tomhollandphoto.com
email: info@tomhollandphoto.com



-------------------------------------------



I have not heard back from them?
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tcphoto
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Location: Atlanta, Ga

PostPosted: Sat Apr 25, 2009 1:23 pm    Post subject: Reply with quote

You shot an editorial job on an athlete and you handed her a CD of the images that day? Did the magazine have an expectation of first use of the images? It's great the the offending company is paying for the use of the images that the athlete gave them but I find your actions to more offensive.
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James Cook
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Joined: 21 Nov 2008
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PostPosted: Sat Apr 25, 2009 3:01 pm    Post subject: Reply with quote

Quote:
A disc was supplied to the talent with a very clear verbal stipulation that the images were to be used for her modeling portfolio only and were not to be used for any commercial purpose in anyway shape or form.


A verbal stipulation is worthless. Was there anything in written format on the disk? Were the images marked as copyrighted? How could anyone find out how to contact you if they wanted to license usage? Counting on an athlete's memory and understanding is naive and unfair to all parties.

I'd have to agree that YOU have not handled this well. Your approach, in my opinion, has not shown a lot of tact.

If I were in "Omitted"'s shoes I'd be inclined to tell you and the $2,000 fee to go jump. You have no legal footing whatsoever if the images bear no markings. US Copyright law requires you to register the images before first publication if you're to get punitive damages and to recover legal fees. Otherwise all you're entitled to is the value of the usage no matter what you spend on legal fees.

You've declared that your fees are "decided by myself " which certainly invites them to challenge your decision on $2,000.

You're not in a position to make demands if the disk had no mention of ownership or copyright. You're dependent on their goodwill and it sounds like you're probably killing that rapidly.
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hollandtom
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Joined: 23 Sep 2008
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Location: Sydney

PostPosted: Sat Apr 25, 2009 10:35 pm    Post subject: Reply with quote

Well, I always give talent images to use for their portfolio -- don't you? The offending company was well aware who shot the images as they also pilfered some of the written story from the magazine who credited me. If a company has some images handed to them -- it is their responsibity to gain permission for use of the images.

Lastly -- how in the hell are my actions offensive? I guess cakes don't often ask you if they can have a shot for their portfolio =)

The images were given to the athlete after the publication of the magazine.

neither of you have been conducive to an open discussion.
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Last edited by hollandtom on Sun Apr 26, 2009 3:45 am; edited 1 time in total
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Mike
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PostPosted: Sat Apr 25, 2009 11:32 pm    Post subject: Reply with quote

Maybe the mag thought the athlete had taken care of the rights seeing that they gave a 'package' to the mag, but since relying on the athlete to protect your images from publication didn't work, it seems like you should continue a dialog with the magazine, or contact a US lawyer if you are serious about getting paid.
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hollandtom
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Joined: 23 Sep 2008
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PostPosted: Sun Apr 26, 2009 2:24 am    Post subject: Reply with quote

Actually the magazine didn't do anything wrong. The athlete gave the images to her sponsor who then posted my images to their sites and stole some of the interview from the magazine who I will also be contacting. What I find annoying is that that company of this size should know better and have some sort of protocol before posting images to their site. What is almost as annoying is that I posted asking if anyone had any past experience in the given situation. the feed back offered was "offensive".
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Mike
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PostPosted: Sun Apr 26, 2009 3:16 am    Post subject: Reply with quote

I misread the post and thought the magazine was liable but I guess it's the sponsor who is to blame. And the athlete for giving the images to her sponsor without any guidance on the copyright.
Yes, the company should have checked the meta data on the image to find out who you were and the limits on reproduction rights. Either they didn't, or they ignored it or there was no info.
Sounds like you might have a decent copyright infringement case provided that you registered the images, but since you valued the image at $2000 that is probably the maximum a court would award.

OTOH don't get all pissed off and insult the people who were offering advice even if you disagree with it. That is offensive to me...
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hollandtom
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PostPosted: Sun Apr 26, 2009 3:43 am    Post subject: Reply with quote

I am pretty sure I was patronized after asking for stories of a similar experience -- I am past suffering fwits & fools.

Although, I will suffer a fool if they are paying me =)
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James Cook
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PostPosted: Sun Apr 26, 2009 3:02 pm    Post subject: Reply with quote

If you took my reply as offensive, it wasn't intended to be although I remain critical of your role in the transaction as you've presented it. That should not stifle an open dialog about it. I assumed that your request for advice or experience would be for honest opinions. I can't believe that you've built the impressive portfolio that you have without taking some criticism along the way.

You have added some more info about why Omitted should have known better and no doubt they should have. Regardless, unless there's still missing info, you left yourself vulnerable. And, just as we have troubles on forums like this in understanding the intended tone behind written words, in reading your notes to Omitted, in his/her shoes I would interpret your tone as overly aggressive.

Quote:
I always give talent images to use for their portfolio -- don't you?
No. They're not owed anything by me. They're getting the exposure. I don't recall that I've ever given my subjects images (and I don't shoot cakes) except for those that have modeled for a fine art project of mine. They get a print. I do follow up with a letter to subjects from assignments to say thanks for their time and that the images are available for licensing. That has resulted in a fair number of licensing sales and sometimes the subject becomes a new client.

I fault a very high percentage of us in this profession in that we're careless with our digital images when it comes to branding and copyrighting. No matter how hard I try, I still leave the barn door open on occasion too.

Handing your subjects a CD of the take seems equivalent to leaving the keys in your car unless you're including some indication that they're yours and they're copyrighted. Sooner or later you're going to have a theft. When it occurs you have to share the blame.

I certainly wish you luck in collecting a fee. It sounds like you may have had them ready to pay you something, but if they know much about US copyright they know that your demand for $2,000 has no legal footing. Trying to put myself in their shoes when you sent your last email, I'd probably be inclined to ignore you too. You're asking for a lot of money, in a bad economy, for something they didn't budget for and for something they apparently feel had little value to them. It's not hard to imagine them becoming the kind of client that starts demanding all rights, from photographers that they may hire, in order to avoid future hassles.

If they did rip off the magazine's copy, there probably is a legitimate copyright suit there. That would depend entirely on the magazine's desire to pursue it though - and whether or not you have any evidence such as screen shots to show it on the web site.
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hollandtom
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Joined: 23 Sep 2008
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PostPosted: Mon Apr 27, 2009 6:26 am    Post subject: Reply with quote

Hey James, thanks for the reply. I am pretty angry as I have never had my images ripped off and to me the guys first letter back after asking if he was repsonsible for paying was rude ie your beating a dead horse and some guy that used to work here ripped you off. I suppose if he been even a tad apologetic, I would have been able to hold the reins in a bit tighter -- but to blame everyon else and not take any personal responsibilty for the actions of his company were fighting infuriating.


Anyway, I'll keep you posted -- my cousin is a patent lawyer who is familiar with Copyright, and although it doesn't allow for for statutory damages, the new millenium digital rights law will make life a bit of hell for them as well.

If it was some fansite with a teenage author my response would have been different but when an online marketing manager of such a big company tells me I am beating a dead horse well I might just need to figure out way to turn him into a horse =)
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