How should my friend and I handle the copyright violation of one of his photos?

May 14, 2007 8:45 AM

My friend snapped a photo of me which was used for the cover of a for-profit magazine without his permission. We contacted the magazine about their copyright violation, but their offer was paltry with regard to normal rates for the use of photographs.

When called about their copyright violation, they said they were sorry and offered my friend, the copyright holder, $25 and a photo credit in the next issue. Since my friend and I work on a print product ourselves, we asked our photographers what a reasonable rate was for a front-page photo and they claimed that $1000-$3000 is a more standard rate for photographs used in the manner that they used it.

When asked about how they acquired the image, they claim that the image had been circulating in a joke email around their office and they assumed it was public domain. We don't buy that story because to use the photo for their front page, they must have taken the high-res version from Flickr. The high-res version is much too beefy in filesize to be circulating in an email. I suspect the magazine trolls Flickr all the time and uses photos without credit.

What do we do now? We've been urged to send them an invoice for what we think is appropriate for the image. The magazine is in Ohio and we are in California.

posted by bryanzera to law & government (33 comments total)

Not much of an answer but just something to think about. What license did you choose on flickr? If it's creative commons (the default I believe), you may be out of luck. All they have to do is acknowledge your work (which they have offered to do in the next issue).
posted by special-k at 8:55 AM on May 14, 2007

Call a lawyer.
posted by cellphone at 8:56 AM on May 14, 2007

Not only that, but check to see if the magazine has a model-release for the subject (i.e. you) - I suspect that you'll remember whether you signed one or not (sounds like the latter!)

I'm pretty sure that the mag has got to prove that it has a valid model release, and if they'd obtained the image legitimately through e.g. a stock image site, then this would have formed part of the contract of using the image.

Even though I'm not USian, and I detest the sue-happy culture, I'd strongly suggest that you lawyer-up!
posted by Chunder at 8:56 AM on May 14, 2007

How big a magazine? Because it sounds like a rather small one, if they are making an "assumption" that they can use art on their cover. Every publication I've worked for jumps through unbelievable hoops to ensure their art--especially COVER art--has cleared all channels.
posted by GaelFC at 8:57 AM on May 14, 2007

I'm pretty sure that the mag has got to prove that it has a valid model release

That depends on the subject matter of the pic and the purpose of the magazine. If it can in any way be construed as 'news' then you do not need a model release. For example, if the pic was snapped at a public event or during a fire, accident, protest, etc. If it is posed or in any way a private shoot, then yes, you may be able to use the model release angle.
posted by spicynuts at 9:00 AM on May 14, 2007

You should definitely send an invoice, and then you should contact a entertainment lawyer. In California, there is a good resource for people who many not retain lawyers but seek legal resolution to such disputes - the California Lawyers for the Arts. You can at least bounce your situation off them for free, and IANAL, but I'm sure you'll find you have a case.

I believe that the fact that an image is used in a joke email does not mean it's in public domain. As photographers, you have well-defended rights, and if your picture includes the fact of a person, they can get involved as well for use of their name and likeness.

Make sure you make no threats and keep a copy of every document you send or receive, and to keep things in writing.
posted by phaedon at 9:02 AM on May 14, 2007

Not much of an answer but just something to think about. What license did you choose on flickr? If it's creative commons (the default I believe), you may be out of luck. All they have to do is acknowledge your work (which they have offered to do in the next issue).

But even if it was under creative commons, it still cannot be used for profit, which this magazine did.

I think the $25 offer was insulting, and I think that you could probably get more than the $1,000-$3,000, but IANAL. I think you should definitely send them an invoice for what is a fair deal for a photographer. Make this magazine pay a fair price and realize the internet isn't a library full of free images they can use for their magazine.
posted by Becko at 9:06 AM on May 14, 2007 [1 favorite has favorites]

Copyright law is difficult to navigate without an attorney's advice. Before you have any contact with them that may weaken your case, you might want to look here for some basic information. Is your friend a professional photographer? If so he has a lot more incentive to protect his intellectual property, but even if he isn't, he should be fairly reimbursed for his work and the theives deserve some punitive consequences as well. Unfortuanately this sort of thing goes on all the time over the internet; go to any forum frequented by photographers and you will find many similar tales.
posted by TedW at 9:08 AM on May 14, 2007

I think the only realistic avenue for this is to file in their jurisdiction with a small claims court in Ohio, and hope for a judgement against them and use it to defray your travel expenses. The main hurdle here would be proving that the photos are yours, so it may be wise to spend $100 to consult with a lawyer to get their advice.

I'm not sure an attorney would bother with a full blown case due to the small amounts involved and the fact that the copyright was not registered. However it might be viable to see if an attorney will send a demand for payment on your behalf before escalating this.

All in all I would say do NOT deal any further with the magazine except through an attorney or the courts.
posted by hodyoaten at 9:12 AM on May 14, 2007

To summarize the points above:

1. Your friend has the copyright for the photo, if he hasn't released it in some give-all-the-rights-away scheme like CC, then this is pretty obvious copyright violation. The means by which the picture was acquired would have tipped off ANY publishing professional that it wasn't fair-game. (and the odds that they were sending around a 300dpi, cover quality image in email is a little specious.) If the photo isn't registered, that poses a problem, but it can be registered even once it's been infringed with the same resulting (and retroactive) protection.

2. Even if he has given away the rights, unless you've signed a model release (or this is "news"), you could have a pretty straight-forward case too.

3. It's not an either/or proposition. You could smack them with both.

If you can find a lawyer who will consult for free/cheap, talk to one first. If not, call and make them a reasonable offer.
posted by toomuchpete at 9:19 AM on May 14, 2007

toomuchpete, calling Creative Commons a 'give away all the rights scheme' is fundamentally missing the point, and the subtleties of Creative Commons licenses.
posted by Happy Dave at 9:42 AM on May 14, 2007

As others have mentioned, you can
1. Invoice them and hope they'll pay
2. File a claim and get your money through the courts

Either way, I'm confident you have a solid case. If you invoice, I'd shoot for $2-$3k. If you sue, I'd recommend bigboy court as opposed to small claims. I have several friends (professional photographers) who -- though they wouldn't necessarily trumpet their litigiousness -- make a healthy living suing media outlets that use their images illegally. They frequently wrangle $25k a pop in their slam-dunk court cases. Before moving forward, however, I would make sure that invoicing for $3k doesn't preclude you from claiming more in court.

To address some of the previous posts:

I'm not sure an attorney would bother with a full blown case due to the small amounts involved and the fact that the copyright was not registered.

Copyright protection begins automatically as soon as an original "work of authorship" is created. Formal registration can only help, but a lack of formal registration does not mean it's unprotected.

If it can in any way be construed as 'news' then you do not need a model release.

If he were publishing the photo, himself as news, this would apply. But a news-related subject in and of itself does not give third parties any kind of automatic right to use the image without the creator's permission.
posted by Hankins at 9:43 AM on May 14, 2007 [1 favorite has favorites]

Typical license-violation terms in a contract for editorial photography stipulate that the publication is to pay 3 times the agreed-upon rate. Figure out the normal fee for cover usage for the publication or ones like it and triple it on the invoice you send to their accounting department. Also, talk to a lawyer as suggested above.
posted by msbrauer at 9:44 AM on May 14, 2007

I'm not sure an attorney would bother with a full blown case due to the small amounts involved and the fact that the copyright was not registered. However it might be viable to see if an attorney will send a demand for payment on your behalf before escalating this.

Sure, lawyers will take this case, but probably not on coningency. Having a lawyer handle the correspondence ups the ante and will force the magazine to take you more seriously. They can also fill you in on your rights. For instance, the lack of registration (I didn't quite catch where the op admitted to that) won't shield the magazine from liability, but your lawyer can fill you in on the details. Also, it may not be too late to register but those time clocks tick quickly. I would see a lawyer pronto if you are serious.
posted by caddis at 9:45 AM on May 14, 2007

Also, CA has very strong right of publicity laws which it would seem the magazine may have violated.
posted by caddis at 9:47 AM on May 14, 2007

Hankins, you're confusing a model release with the licensing of an image for publication. The model release is what the person in the picture (or a property release for a building, also) signs to allow picture of themselves to be used in any sort of context, including advertising. A license from the creator of the image, however, is what's needed for a picture to actually be published, in editorial or advertising or any other capacity.

As for spicynuts' point about model releases and news, there are a few ways to go about it. One rule of thumb we journalists llive and die by is that people almost always side with the subjects who have been "exploited" by having their picture published in the media, so if there's a jury involved, the subject usually wins. The cover of magazines have increasingly been considered advertising for the magazine and not editorial content of the magazine. Third, some magazines (I think "Family Circle", for one, though that's only a rumor I've heard, having never dealt with the publication) are adamant that all pictures aways have model releases from all subjects in the pictures, regardless of whether it's editorial content or not. It also depends where you are. In France, over the past few years, photographers have been fined for publishing photos of people without their permission; ``droit a l'image' is the word used for it. Here's an interesting debate among many seasoned photojournalists about recent work on youths in french housing projects and how at least one photojournalist has resorted to pixelating faces in order to use the images. His pictures would be used strictly in journalistic context, but laws and past lawsuits are such that he's decided to forgo the hassle. Here's a little bit from the photographer (right below the first picture) about his thoughts on the possibility of the UK adopting a similar law to France and what it will do to street photography.

All this is to say that the model release angle might be a viable way to pursue the problem. A lawyer will help.
posted by msbrauer at 10:06 AM on May 14, 2007

But even if it was under creative commons, it still cannot be used for profit, which this magazine did.

This statement is wrong. One variation of Creative Commons' licenses is "noncommercial", but not all Creative Commons licenses have that restriction. A Creative Commons license without the "noncommercial" clause permits commercial use.
posted by mendel at 10:07 AM on May 14, 2007 [1 favorite has favorites]

IAAL ... if you make them an offer make sure it is "without prejudice to anyand all other rights or remedies which you fully reserve" ... so if they knock you back you can still try for a higher number ... the key phrase here is your offer is made in the spirit of settling the dispute ... but if you do not settle then all gloves are off. J
posted by jannw at 10:16 AM on May 14, 2007

For all of us aspiring photographers who have work online just waiting to be snatched, what magazine was it, by the way?
posted by parmanparman at 10:20 AM on May 14, 2007

And can we see the photo? I'm very curious but understand if you don't want to link for some reason.
posted by jenfu at 10:30 AM on May 14, 2007

msbrauer: Hankins, you're confusing a model release with the licensing of an image for publication. The model release is what the person in the picture (or a property release for a building, also) signs to allow picture of themselves to be used in any sort of context, including advertising. A license from the creator of the image, however, is what's needed for a picture to actually be published, in editorial or advertising or any other capacity.

Ah, perhaps I wasn't clear enough :) What you've written in regards to model releases is correct and certainly one angle to pursue the matter if the stronger copyright angle falls through. But that's my point: regardless of whether the infringing party has a model release for the person in the photo, it's all entirely moot if the photographer does not provide usage rights -- which he didn't. Even if the photo is of a public, news-related event, it's newsworthiness does not automatically grant usage rights to media outlets. It might reduce the need for a model release, sure, but it has no relationship to the fundamental copyright.

This was just a little aspect of spicynuts' post I thought warranted clarification. I realize it was written in response to the model release statement/question, but I wanted to make sure there wasn't any confusion about how the newsworthiness affected the copyright (i.e., not at all).
posted by Hankins at 11:48 AM on May 14, 2007

If you're going to pursue this as a copyright violation, be aware that the statutory damages for something like this are 100 times the rate you're suggesting the photographer charge. This is also "per violation," so if they're publishing a magazine, then those statutory damages apply to each copy of the magazine. You'd need a lawyer to make claims like this, but a free consult with a copyright lawyer will inform you of your options here. I guarantee you the magazine will take you seriously once you start taking them to court for $150,000 per copy of the magazine they distributed with your unlicensed image.
posted by rhizome at 11:48 AM on May 14, 2007

And on rereading the question, if you could research back issues of theirs and find unattributed flickr photos being used then you could probably get them to start shitting gold twinkies a lot quicker and without a lawyer.
posted by rhizome at 11:59 AM on May 14, 2007 [1 favorite has favorites]

Statutory damages is one of those things you need that pesky registration for. All the more reason to hurry to get specific legal advice to your facts. It may not be too late to register. (you can always register, but you don't reap the full benefits if you do it late) here are the basics, but you want more than that, talk to a copyright attorney in CA pronto
posted by caddis at 12:18 PM on May 14, 2007

The default license type on Flickr is none (all rights reserved). Unless your friend specifically changed that setting, he retains the copyright to his image.
posted by designbot at 12:18 PM on May 14, 2007

Here's the license that comes up from my Flickr page for public photos (I haven't changed it from the default).

Noncommercial. You may not use this work for commercial purposes.
posted by russilwvong at 12:23 PM on May 14, 2007

What to do if you've been infringed.
posted by designbot at 12:23 PM on May 14, 2007

Here's the license that comes up from my Flickr page for public photos (I haven't changed it from the default).

That's interesting. I don't remember changing my default either, but my photos simply say "© All rights reserved."
posted by designbot at 12:29 PM on May 14, 2007

I recall having to change a pref to retain all rights to my photos, designbots. The default was some cockamamie creative commons thing, probably the one that russilvwong linked.
posted by ikkyu2 at 1:04 PM on May 14, 2007

The default on Flickr is, as designbot says, All Rights Reserved. Creative Commons is something you have to enable.
posted by wackybrit at 1:11 PM on May 14, 2007

(I state this as someone who joined a few years ago, perhaps they enable it by default nowadays?)
posted by wackybrit at 1:12 PM on May 14, 2007

If I might make a suggestion, someone should call their office, posing as an advertiser, and find out what numbers they claim for their circulation (they'll cheerfully boast this to anyone who wants to buy some space). This is to prevent them from trying to lowball you later, "We're just a poor magazine with a circulation of a couple thousand."

Then, freaking nail them to the wall.
posted by adipocere at 6:34 PM on May 14, 2007

I think the only realistic avenue for this is to file in their jurisdiction

Shouldn't he be able to file in his own jurisdiction? He hasn't agreed to sue them in their jurisdiction.
posted by oaf at 4:44 PM on May 15, 2007