Photo stolen and Altered by local publication, help!

July 21, 2005 6:31 AM

Related to an earlier question, but a local paper took one of my photos, altered it to remove my copyright mark, and then printed/posted it with an article.

The paper, of course, blames the band who provided them the picture, but the music editor of the publication both has my contact information, knows my capabilities and has used my images before, and should know better than to photoshop a copyright out of an image. GettyImages prices out the uses of the photo at $365 (for print and web). How do I make the best case to get that money from the managing editor of the publication?

posted by Jase to media & arts (27 comments total)

If they were the ones who photoshopped the copyright watermark out of the image, they can hardly plead ignorance.

One possibility might be to send them an invoice, along with a letter explaining the situation. Ask for payment and a correction/apology in the paper. Especially mention the copyright violation and the fact that the copyright was photoshopped out. Include a copy of the original, unaltered, especially if it's at a higher quality or is uncropped. (Eliminate any doubt that the photo is yours.) Send to the music editor, copy the managing editor, the publisher and anyone else you can think of. See what happens. Give them a chance to do the right thing. If they don't pay up and run a correction, repeat, but with a lawyer.

I'm not sure if this is the right way to go about it; it's just what I'd do if I were in your situation.
posted by mcwetboy at 6:43 AM on July 21, 2005

You mention a band. Was this a promotional pic you shot for them? That could affect your options.
posted by Thorzdad at 6:44 AM on July 21, 2005

Ah, good question. It was a live shot that I took. I was paid to shoot the show by the promoter, but the band was never given permission to use the photos. They are displayed on my website and were taken from there.
posted by Jase at 7:00 AM on July 21, 2005

What were the terms of your contract with the promoter? Did s/he pay you for the rights to the photos? Did s/he get the negatives/originals as part of the deal?

It seems to me that if you were working for the promoter, your assertion of copyright might be in question.

I'm not in any way saying that you're the one who is in the wrong...but I'm curious about some further information that might help clarify this.
posted by bcwinters at 7:19 AM on July 21, 2005

It's all digital, so negatives weren't in question. The deal with the promoter is that she gets copies of the images to use for promotion of the concert series and that I post the watermarked web sized images on my web site for her to point to, rather than having to host them herself.

We'd already clarified that I retain all rights to the images, and she did not provide the images to the band or given them permission to use them.

The publication in question should have known better than to A: accept an image with a clear watermark on it without at least doing some follow up to verify that the band had permission and B: should definitely have verified that they had permission to alter the photo for publication.
posted by Jase at 7:30 AM on July 21, 2005

Send them an invoice via certified mail. If they refuse to pay, file with small claims court.
posted by cribcage at 7:34 AM on July 21, 2005

I agree w/cribcage. Send an invoice, demand payment, file with small claims if they don't pay.

I've done it and won. The judge in my case did not order payment of what I demanded, but I won a reduced amount none-the-less.
posted by NorthCoastCafe at 8:13 AM on July 21, 2005

You will need to file that action in Federal District Court if you include a copyright infringement claim.
posted by caddis at 8:28 AM on July 21, 2005

The deal with the promoter is that she gets copies of the images to use for promotion of the concert series

Wouldn't a news story count as promotion? Did the images you gave to the promoter include a watermark or were they clear of the watermark? Are you sure the image came from the band and not the promoter?

Also, how do you know the paper photoshopped anything out of your image? Maybe the band or promoter did.

If I'm a paper, and a band or promoter gives me an image, I assume the image has clearance to be used. You might be able to make a case against the paper. I guess that's for a lawyer to decide, but it seems like your true issue is with the band or promoter.
posted by willnot at 8:41 AM on July 21, 2005

If I'm a paper, and a band or promoter gives me an image, I assume the image has clearance to be used.

Then you are foolish and setting yourself up for a copyright infringement lawsuit. Ignorance of infringement is no excuse. And it sounds like the OP knows that the copyright watermark was still there when the newspaper got it.

You might be able to make a case against the paper. I guess that's for a lawyer to decide, but it seems like your true issue is with the band or promoter.

The paper is the one that committed the infringement in the story provided, and has deeper pockets. The band may also have infringed your copyright. Sounds like your true issue is with all of them. And if the newspaper was lied to by the band, they can take it up with them as well.
posted by grouse at 8:54 AM on July 21, 2005

I checked with the promoter first and she did not provide the image and didn't know who did. The article, though, was on the band in question and not related to the concert series, so it wouldn't have been included in the use that had already been agreed to.

When I then sent an email to the band members, the music editor, and the managing editor, the music editor at the publication admitted to being the one to assume that the use was legit and order the image be altered to remove my copyright.

You are correct in that some of the blame lies with the band, but publication had the duty of care to vet the image. What's worse, in my mind, is that I'd had a very similar conversation with the same music editor not two weeks ago over their use of my photos (used for stories in the past but mis-credited due to, again, assumptions) and my concerns therein. Blame was shifted in that conversation as well.

Basically, their shoddy procedure (or lack thereof) got them into this mess. Blaming the band, IMHO, is just a shameful way of trying to weasel out of their job.
posted by Jase at 9:08 AM on July 21, 2005

What's the distribution numbers on the paper? If it's a daily with a fairly wide circulation, you might want to stretch your wallet out a bit in preparation for the windfall. The newspaper is responsible for making sure everything it publishes is above-the-board, and if they were the ones to photoshop out the copyright, they must have some seriously shiny brass balls.
posted by Civil_Disobedient at 9:17 AM on July 21, 2005

the whole point of them paying for you to take photos was so they could be used to further their careers.

seems to me that they agreed to bad terms and your just being .... well not the fairest of dudes. I agree with Grouse on this one

The deal with the promoter is that she gets copies of the images to use for promotion of the concert series

Wouldn't a news story count as promotion? Did the images you gave to the promoter include a watermark or were they clear of the watermark? Are you sure the image came from the band and not the promoter?

Also, how do you know the paper photoshopped anything out of your image? Maybe the band or promoter did.
posted by crewshell at 9:21 AM on July 21, 2005

also, its not like they were selling the photos at their concert... it was in a Newspaper for goodness sake
posted by crewshell at 9:22 AM on July 21, 2005

seems to me that they agreed to bad terms and your just being .... well not the fairest of dudes. I agree with Grouse on this one

WTF? I have said nothing remotely like what you say you are agreeing to.
posted by grouse at 9:27 AM on July 21, 2005

Just to clarify- are you upset because you weren't given credit, or are you upset because you're not getting profit?

If it's the former, I understand completely- in my business (teaching) that's what we call plagiarism. By the way, who was given credit for the photo? (Usually right below the photo they will say who took it).

If it's the latter, I have to say I don't have much sympathy for you. You got paid to take these pictures in the first place- shouldn't that be enough? Furthermore, nobody's directly profiting from the photos- like crewshell points out, it's not like they are selling the pictures at their shows.
posted by elisabeth r at 9:30 AM on July 21, 2005

the whole point of them paying for you to take photos was so they could be used to further their careers.

seems to me that they agreed to bad terms and your just being .... well not the fairest of dudes

Perhaps you don't understand the issue here or what I've been saying, crewshell, but my problem isn't with the band. I've spoken with their manager and we're square. The band (and quite a few others, both locally and nationally) is using the unaltered watermarked images on their own site at no cost to them. I'm very giving with my images and would have been happy to provide them with one that was suitable for publication and permission to use it if they'd asked ahead of time.

My problem is with the publication for doing something illegal. Actually doing two things illegal to be technical. They published a copyrighted image without permission (that they thought they had permission isn't an excuse, the copyright on the image was a dead giveaway) and altering the image for publication (again, they assumed permission but have enough experience to know better).

It's a weekly news/arts paper, similar though much smaller, to the Reader in Chicago. I pulled their circulation numbers from their site and plugged it into the pricing wizard on GettyImages to arrive at the $ amount I mentioned above.
posted by Jase at 9:33 AM on July 21, 2005

You got paid to take these pictures in the first place- shouldn't that be enough?

Of course not.

Furthermore, nobody's directly profiting from the photos- like crewshell points out, it's not like they are selling the pictures at their shows.

The newspaper is directly profitting. Photos sell papers.
posted by Civil_Disobedient at 10:04 AM on July 21, 2005

Make sure you document everything.

Keep a log of who you talked to at the paper, the time, their responses and what you told them.

If you haven't been keeping a log then go back and write everything down while your memory is still fresh and make sure and log everything from now until the issue is settled.
posted by bshort at 10:10 AM on July 21, 2005

Grouse ..

WTF? I have said nothing remotely like what you say you are agreeing to.

I made my statement

seems to me that they agreed to bad terms and your just being .... well not the fairest of dudes.

Then stated that

I agree with Grouse on this one

I said i agree not inferring that you made the above statement but instead made the statement BELOW the sentence, the one I QUOTED from you and put in italtics.. geess

Jase & Civil
You know i didn't look at it from the angle that the "newspaper" was making money, more of an angle from the band... I can see where your coming from more now.

In a related note I had a friend (acutally more of an associate) who shoot some video of a skate boarder friend of his doing tricks someone the tape got on some TV show (he gave his friend the DVD) and the guy saw it on TV! he called them up and they made and offer to settle it (granted it was like 1000, i think he countered and got 1250 or something) slightly connected.
posted by crewshell at 10:22 AM on July 21, 2005

If I'm reading you correctly, you've had this problem with the newspaper before. If so, you might be able to get a lot more than just the fee you've mentioned (if obtaining the maximum amount of money you can is your primary concern). Even if credit is what you crave, the fact that you've discussed this issue with them previously and still have problems is troubling. I'd consult a copyright lawyer if I were you. If you don't have the funds for a lawyer, see if there is an organization like the Volunteer Lawyers for the Arts in your area that might be able to give you some free advice or counsel.
posted by EatenByAGrue at 10:30 AM on July 21, 2005

I looked at your profile, and while there's no Cincinnati-specific location, there are a couple of VLA chapters in Ohio, one of which might prove helpful:

Volunteer Lawyers and Accountants for the Arts-Cleveland
c/o The Cleveland Bar Association
113 St. Clair Ave., Ste. 100
Cleveland, OH 44114
[phone] (Lawyer referral service)

Toledo Volunteer Lawyers and Accountants for the Arts
c/o Arnold Gottlieb, Esq.
608 Madison, Ste. 1523
Toledo, OH 43604
[phone]
[phone] Fax
posted by EatenByAGrue at 10:33 AM on July 21, 2005

I said i agree not inferring that you made the above statement but instead made the statement BELOW the sentence, the one I QUOTED from you and put in italtics.. geess

Again, WTF? I never said what you "quoted" me as saying. That was willnot. Are you a thomcatspike sock puppet or something?
posted by grouse at 10:39 AM on July 21, 2005

Wow I apology for my MISTAKE and I'll also take this moment to APOLOGY FOR YOUR RUDE NAME CALLING .

Ask MetaFilter is as useful as you make it. Please limit comments to answers or help in finding an answer. Wisecracks don't help people find answers. Thanks

Jase if you have had similar incidents in the past and they proved to be unresponsive I would start communicating with them through registered mail. Paper trail is always best.
posted by crewshell at 11:00 AM on July 21, 2005

Uh... right. Anyway, you probably already know this but you don't need registered mail for this kind of letter. Certified should be fine.
posted by grouse at 11:45 AM on July 21, 2005

crewshell writes "its not like they were selling the photos at their concert... it was in a Newspaper for goodness sake"

Jase is still entitled to credit if that was his deal. Heck I've done newspaper work where the only thing I've got in compensation was credit for the picture.
posted by Mitheral at 12:33 PM on July 21, 2005

As a former newspaper editor, I can think of two reactions to this if I was the editor in question: If the error had been inadvertent -- or if my graphics people, in a last-minute rush, had pulled the image, cropped it and posted it -- I would apologize and pay our standard rate for a freelance photo.

If I was a dick -- and, especially as I had already talked to you about this, this sounds like what is happening -- I would blame the band, my graphics dep't, etc.

Bottom line: Any editor worth their carbon knows the publisher -- aka my boss & the guy who signs my paycheques -- us legally responsible for every last drop of ink and shred of paper in every issue. We are on the hook for using your image without proper attribution or payment.

All editors want to keep their publisher happy (or, more accurarely, happy enough that they never stick their nose in the newsroom.) Write a polite letter to the publisher explaining the situation. Chances are, the publisher won't want this headache on their desk and will cut you a cheque (and chew out the editor for being a jackass.)

If that doesn't work, send the publisher a lawyer's letter promising to sue them into the stone age.

Good luck.
posted by docgonzo at 3:08 PM on July 21, 2005