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December 3, 2008 6:49 AM   Subscribe

Is there any recourse to being cheated by a magazine that promised $$ for a scanned vintage image?

I'm an American who was contacted by a Chinese magazine about a vintage image on my Flickr stream (it's a scan, and I don't own the copyright -- I do credit the illustrator and the source of the image on my Flickr, but I really don't believe the magazine is planning on citing that information). They wanted to reprint it in their magazine and gave me a bunch of specifications for the image, and I was also told that I would be paid for my troubles. I agreed to provide a copy of the image for payment, but no further specifics as far as actual price and method of payment were discussed. I've never been offered payment for an image, or anything similar, so I thought it would be okay to figure out specifics when the image was approved. In other words, payment was implied but not finalized before I sent the image to them.

After I sent the image, I got a message that was essentially, 'Picture looks great! kthxbye!' And, I responded to that with a polite 'Hold on there, buster! Forgetting something?' Well, I did gently remind them about the promised payment, and, of course, I never got a response. And, I suppose, why should I since they already got what they wanted? Still, it disturbs me that I went to all that trouble, and they essentially got something for nothing since they won't be citing copyright or paying anyone for use of the image. I'm sure it's a lost cause, and I don't want to pursue this in a legal sense, but is there any kind of.. well, recourse? Or, is there any kind of online 'revenge' that can be enacted on them? Yes, I am an adult, and a mature one, usually. I may have handled this foolishly, but I don't appreciate being taken advantage of. I just wouldn't mind giving them a cyber slap-in-the-face or make them regret contacting me, maybe. (When I say 'revenge', I don't mean anything illegal! I just mean I want to wave my cane at them and say, 'Grr.. you whippersnappers!' and, generally, express my displeasure.)

Also, for future reference, how should their original request have been handled?
posted by anonymous to Law & Government (5 answers total) 2 users marked this as a favorite
IANAL but I was in a similar situation in the past.

If you just e-mailed or let them use something from your Flickr account for commercial purposes that may or may not be something you can take action (i.e. threaten to file a lawsuit, then actually do it). When you upload files to Flickr you choose a license for your picture--one of the licenses allows anyone to use any image you have for any purpose they want, commerical or noncommercial. The other only allows for viewing and they must contact you for further use.

However, it sounds like they saw an image on Flickr, asked you to do work to make the image more to their liking, and you did that.

If you have the e-mail that asked you to do work and stated you would be compensated for that work, then you have the makings of a lawsuit. Now, as an amount was never specified, technically they could fulfill their obligation to you for $1, but what you have to realize is you are being paid for the specific image manipulation you did for them, not for the scan itself. You did graphic design work scanning, scaling, etc. an image, and want compensation for your work.

Normally these things can be handled without an attorney. I'd start by picking up a phone and calling the company and requesting some form of compensation. If they rebuke that, then you can forward them their e-mail promising compensation and state that if need be you will retain council. Then if it's worth it to you, you can actually do that however my attorney has told me in the past that if you are suing for less than $5,000 you usually end up spending more in lawyer's fees than you win.
posted by arniec at 7:14 AM on December 3, 2008

Keep in mind -- if the image was published in the US originally pre-1923 it's out of copyright. If it was published in the US post-1923 it's still copyrighted, and you're infringing if you're posting it on Flickr in the first place, barring fair use exemptions.
posted by reptile at 8:18 AM on December 3, 2008

If it was published in the US post-1923 it's still copyrighted

No, it may be copyrighted. Things weren't automatically copyrighted then, as registration was required. The copyright term was also 28 years, so if the rightsholder failed to renew, then it is in the public domain.

You should not have done the work without even discussing the amount of payment. I think the most effective thing you could do is make a web site about how they are deadbeats. Which is to say not very effective at all.
posted by grouse at 8:24 AM on December 3, 2008

I'm sorry this happened to you. IANAL either. However, if the requester is in China, think about how much work, time, and $$$$ it will cost to find a lawyer well-versed in international law.

I would chalk this one up to experience and learn from it.
posted by Taken Outtacontext at 10:45 AM on December 3, 2008

Very difficult situation, not the least because it's in China. The standard procedure in the US is to get on the phone with the magazine, send an invoice for double the agreed-upon licensing fee, and consult a lawyer, in that order usually, increasing as each step doesn't work.

The best way to handle the original request, of course, is to get a contract with fee signed before delivery of the photos. Not usually possible with newspapers if they're looking for tomorrow's newspaper, but definitely easy to do with magazines. In my experience, however, some publishers that are trolling around online for pictures like this will balk at the contract/price and look elsewhere, which means they probably weren't worth doing business with in the first place.
posted by msbrauer at 4:31 PM on December 3, 2008

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