I know that photo!
April 29, 2013 9:39 AM Subscribe
My husband shoots & sells stock photos online. We recently discovered a local business has been using one of his images on their fleet of vehicles. They never bought it. He would like to get paid for it. How to proceed and is it worth it?
The photo in question is of a generic landmark. Lots of people have taken similar photos. He first noticed it a few years ago while driving and never thought much of it because it is such a generic pic. It was one of those "Huh, that looks like my pic. Nah." Then he forgot about it. A couple of weeks ago we were out shopping and when we came out of the store one of those vehicles happened to be parked next to ours. He got a good look at it.
There are certain aspects of his photo that are unmistakable despite the generic nature of the image. He manipulated/ mirrored certain aspects to fill in some spots to make it more visually appealing (making it one of a kind). This is definitely his photo. There is no question about this.
He uploaded said photo about 6 years ago to a popular stock photo website. He gets small pay outs every few months. He check his records and this local company never purchased the licence or the expanded licence for what they are using it for.
Just in case he missed it he called the local company and asked for the owner. He asked the owner where they got the photo on their vehicles because he really liked it and has been looking for a great image of this landmark. The owner said he took it himself. He said thank you and left it at that.
Should we speak to the company directly and tell them that they don't have the rights to use this image? They have it as their branding on a fleet of vehicles (50+) and have been using it for about 5 years. Should we look in to small claims court? Get a lawyer? Leave it be? We are not trying to put the company out of business or anything, but he would like to be paid for the image. The stole it from the stock photo website and cropped out the watermark. What would we even ask for as back payment? Is it even worth pursuing?
The photo in question is of a generic landmark. Lots of people have taken similar photos. He first noticed it a few years ago while driving and never thought much of it because it is such a generic pic. It was one of those "Huh, that looks like my pic. Nah." Then he forgot about it. A couple of weeks ago we were out shopping and when we came out of the store one of those vehicles happened to be parked next to ours. He got a good look at it.
There are certain aspects of his photo that are unmistakable despite the generic nature of the image. He manipulated/ mirrored certain aspects to fill in some spots to make it more visually appealing (making it one of a kind). This is definitely his photo. There is no question about this.
He uploaded said photo about 6 years ago to a popular stock photo website. He gets small pay outs every few months. He check his records and this local company never purchased the licence or the expanded licence for what they are using it for.
Just in case he missed it he called the local company and asked for the owner. He asked the owner where they got the photo on their vehicles because he really liked it and has been looking for a great image of this landmark. The owner said he took it himself. He said thank you and left it at that.
Should we speak to the company directly and tell them that they don't have the rights to use this image? They have it as their branding on a fleet of vehicles (50+) and have been using it for about 5 years. Should we look in to small claims court? Get a lawyer? Leave it be? We are not trying to put the company out of business or anything, but he would like to be paid for the image. The stole it from the stock photo website and cropped out the watermark. What would we even ask for as back payment? Is it even worth pursuing?
IAAL, IANYL, TINLA.
Legally speaking, this is a copyright violation. Even if this company purchased from someone who legitimately bought it from your husband, there would still be a violation.
The big issue here is whether or not your husband registered this photo with the Copyright Office. Registration is a prerequisite for copyright claims except for attribution rights, which does not appear to be the case here. So, he would need to register it first. Anything that occurred before registration is not actionable, so the last five years won't matter if the photograph wasn't registered.
Your husband's damages would be whatever royalty fee he would have received from the stock photo website under whatever license was appropriate for the way it is certainly being used. Since you say these are "small payouts", I wonder if it is too small an amount of money to be worth a lawsuit. This might just be worth a telephone call from your husband to this business.
In my opinion.
posted by Tanizaki at 9:53 AM on April 29, 2013 [8 favorites]
Legally speaking, this is a copyright violation. Even if this company purchased from someone who legitimately bought it from your husband, there would still be a violation.
The big issue here is whether or not your husband registered this photo with the Copyright Office. Registration is a prerequisite for copyright claims except for attribution rights, which does not appear to be the case here. So, he would need to register it first. Anything that occurred before registration is not actionable, so the last five years won't matter if the photograph wasn't registered.
Your husband's damages would be whatever royalty fee he would have received from the stock photo website under whatever license was appropriate for the way it is certainly being used. Since you say these are "small payouts", I wonder if it is too small an amount of money to be worth a lawsuit. This might just be worth a telephone call from your husband to this business.
In my opinion.
posted by Tanizaki at 9:53 AM on April 29, 2013 [8 favorites]
My understanding of US copyright law is that a copyright is created at the time the work is created. Registering it with the feds is more of a formality/paper trail.
FWIW IANAL.
posted by humboldt32 at 10:03 AM on April 29, 2013
FWIW IANAL.
posted by humboldt32 at 10:03 AM on April 29, 2013
If the only place he uploaded this image is to a stock photo website, then surely that proves anyone using it knew it was not free? And if he manipulated this photo that should make ownership easy to prove? (I am not a lawyer like the previous answerer! I just thought this was an important part of the scenario, maybe one that makes a difference?)
posted by Glinn at 10:04 AM on April 29, 2013
posted by Glinn at 10:04 AM on April 29, 2013
Here is the government's FAQ on copyright infringement.
posted by insectosaurus at 10:09 AM on April 29, 2013 [1 favorite]
posted by insectosaurus at 10:09 AM on April 29, 2013 [1 favorite]
And, please be careful about legal information you get from the internet - including the answers in this post, and even including your interpretation of the resource I linked.
posted by insectosaurus at 10:10 AM on April 29, 2013 [2 favorites]
posted by insectosaurus at 10:10 AM on April 29, 2013 [2 favorites]
Is it possible for your husband to check if anyone else purchased the photo from the stock site around the same time? If the company used a third party to design their truck artwork, the purchase may be under a different company.
posted by FreezBoy at 10:13 AM on April 29, 2013 [3 favorites]
posted by FreezBoy at 10:13 AM on April 29, 2013 [3 favorites]
What would you normally charge someone for the use? $500? $5,000?
Send a request/demand letter and see where it goes. You never know, the person may not have known that the image was cribbed.
He may have just discussed it with the person who made the 'wrap' for their fleet. Either way, there's a fraction of a chance that the business owner will pay just to not have an issue.
posted by Ruthless Bunny at 10:14 AM on April 29, 2013
Send a request/demand letter and see where it goes. You never know, the person may not have known that the image was cribbed.
He may have just discussed it with the person who made the 'wrap' for their fleet. Either way, there's a fraction of a chance that the business owner will pay just to not have an issue.
posted by Ruthless Bunny at 10:14 AM on April 29, 2013
Would it be worthwhile to contact the stock photo company to see if they have their own mechanism to handle this sort of thing. After all, they too are losing money when someone steals your husband's image.
posted by sciencegeek at 10:14 AM on April 29, 2013 [3 favorites]
posted by sciencegeek at 10:14 AM on April 29, 2013 [3 favorites]
Response by poster: Don't forget, the owner of this local company claimed to have taken the photo himself.
posted by MayNicholas at 10:19 AM on April 29, 2013
posted by MayNicholas at 10:19 AM on April 29, 2013
Lawsuits are time-consuming, emotionally fraught and ugly even when they aren't expensive.
Your husband has lost nothing except a small amount of money; he is free to continue his trade and can always casually tell people the story of how his photo wound up on those trucks if he wants a bit of acclaim for his work on it.
Your husband has very little to gain except a legal fight; neither the money or the acknowledgement from the infringing company is likely to make him a more successful or capable photographer.
The owner of this company is gettable on the phone, so it's a small company. And as far as you know, he's a liar. They are not going to part readily with any money over this, especially if it means admitting any wrong-doing.
It's sounds to me like this situation isn't worth much attention, but maybe there's a nice path out of this: Have your husband take his portfolio to the owner of the business, express his sense of pride that his quality photographic work wound up used on trucks all over town, and propose that they do some actual business together the next time the owner needs some promo shots taken.
posted by chudmonkey at 10:22 AM on April 29, 2013 [3 favorites]
Your husband has lost nothing except a small amount of money; he is free to continue his trade and can always casually tell people the story of how his photo wound up on those trucks if he wants a bit of acclaim for his work on it.
Your husband has very little to gain except a legal fight; neither the money or the acknowledgement from the infringing company is likely to make him a more successful or capable photographer.
The owner of this company is gettable on the phone, so it's a small company. And as far as you know, he's a liar. They are not going to part readily with any money over this, especially if it means admitting any wrong-doing.
It's sounds to me like this situation isn't worth much attention, but maybe there's a nice path out of this: Have your husband take his portfolio to the owner of the business, express his sense of pride that his quality photographic work wound up used on trucks all over town, and propose that they do some actual business together the next time the owner needs some promo shots taken.
posted by chudmonkey at 10:22 AM on April 29, 2013 [3 favorites]
I think he should 100% talk to a lawyer about this. A copyright is all an artist has. It's how we make money and it is our most valuable asset. I don't think you need to sue the guy, necessarily, but nor should this dude get away with what is technically theft.
You would be surprised at what you can get with a letter from a lawyer -- it seems unlikely that this would turn into an actual lawsuit, especially since you can EASILY prove this guy didn't pay to use your husband's photo (if that is indeed the case -- the people who designed the logo may have paid the license fee and he just lied and told you he took it himself because he doesn't want anyone else to use it in THEIR advertising). But I would absolutely get actual in-person legal counsel.
posted by Countess Sandwich at 10:46 AM on April 29, 2013 [6 favorites]
You would be surprised at what you can get with a letter from a lawyer -- it seems unlikely that this would turn into an actual lawsuit, especially since you can EASILY prove this guy didn't pay to use your husband's photo (if that is indeed the case -- the people who designed the logo may have paid the license fee and he just lied and told you he took it himself because he doesn't want anyone else to use it in THEIR advertising). But I would absolutely get actual in-person legal counsel.
posted by Countess Sandwich at 10:46 AM on April 29, 2013 [6 favorites]
Talk to a lawyer, but consider that the story of how the local business misappropriated his work could be worth than any potential settlement. The publicity if the local press decided to run with it could lead to way more new business than the settlement could ever provide.
posted by COD at 10:54 AM on April 29, 2013 [2 favorites]
posted by COD at 10:54 AM on April 29, 2013 [2 favorites]
If this was my artwork I would think really hard about how much fighting this is worth and asses my options in light of that. My first step would be to try to find out how much this type of license would cost if it was bought from the stock photo site.
If the amount of money you would have received as a license for the use is enough to make you considering suing over I would get a lawyer who is well versed in intellectual property and especially copyright. The statutes are complicated, for example it's not true that you have no recourse for infringement that happens before registration it only limits the type of compensation you can get.
IANAL TINLA
posted by SpaceWarp13 at 10:56 AM on April 29, 2013
If the amount of money you would have received as a license for the use is enough to make you considering suing over I would get a lawyer who is well versed in intellectual property and especially copyright. The statutes are complicated, for example it's not true that you have no recourse for infringement that happens before registration it only limits the type of compensation you can get.
IANAL TINLA
posted by SpaceWarp13 at 10:56 AM on April 29, 2013
A DMCA takedown notice can put the fear of god into people:
http://www.sfwa.org/2013/03/the-dmca-takedown-notice-demystified/
IANAL, but I worked for an organization that was on the receiving end of one of these. (The organization received photos from a third party that said it owned the photos; it did not.) It instilled panic and the organization was much more careful about copyright from then on.
posted by rednikki at 10:56 AM on April 29, 2013 [2 favorites]
http://www.sfwa.org/2013/03/the-dmca-takedown-notice-demystified/
IANAL, but I worked for an organization that was on the receiving end of one of these. (The organization received photos from a third party that said it owned the photos; it did not.) It instilled panic and the organization was much more careful about copyright from then on.
posted by rednikki at 10:56 AM on April 29, 2013 [2 favorites]
I know a photographer who solved a problem like this by negotiating with the violator for additional paid work.
I think that because this is local your husband has an opportunity to do this as well here.
Why not have your husband arrange a meeting with the violator in which your husband brings his portfolio and explains that he is thrilled that Company Owner likes his work. Depending on your husbands negotiation skills your husband can explain that when things like this go to court, only the lawyers win. That there will be costs involved for repainting the vans, that there will be legal fees, and that is bad for everyone.
Your husband can then say that he doesn't even want to be paid for the photo, but he does want payment now for some job in the future which your husband can specify.
Maybe the company needs photos for a brochure or a web site or whatever. If your husband plays this right, he could end up with a regular gig and a good reference and no lawyer fees at all.
Good Luck!
posted by jazh at 11:01 AM on April 29, 2013 [1 favorite]
I think that because this is local your husband has an opportunity to do this as well here.
Why not have your husband arrange a meeting with the violator in which your husband brings his portfolio and explains that he is thrilled that Company Owner likes his work. Depending on your husbands negotiation skills your husband can explain that when things like this go to court, only the lawyers win. That there will be costs involved for repainting the vans, that there will be legal fees, and that is bad for everyone.
Your husband can then say that he doesn't even want to be paid for the photo, but he does want payment now for some job in the future which your husband can specify.
Maybe the company needs photos for a brochure or a web site or whatever. If your husband plays this right, he could end up with a regular gig and a good reference and no lawyer fees at all.
Good Luck!
posted by jazh at 11:01 AM on April 29, 2013 [1 favorite]
Don't forget, the owner of this local company claimed to have taken the photo himself.
I bore that fact in mind when preparing my first reply. It's an irrelevant fact. I, too, have been known to lie when a stranger calls me up asking questions.
Here is the calculus for your husband: "is the profit I would have earned from a legitimate sale of my photo more or less than the costs of registering the photo with the Copyright Office, legal filing fees, court costs, and attorney's fees?" I think I know the answer to this question.
It is true that copyright is now created at the moment the work is placed in a fixed format, but there is no right to sue without registration. No registration with the Copyright Office, no lawsuit.
If you are determined to go through with legal action, you are going to have to do it pro se because I cannot imagine that it is worth any lawyer's time or worth the attorney's fees for you. Assuming I were to take this case, I would want a minimum of $5,000 as a retainer, and then you still get to pay my commercial rates. So, I think think your husband should just have a chat with the owner.
In my opinion.
posted by Tanizaki at 11:04 AM on April 29, 2013 [1 favorite]
I bore that fact in mind when preparing my first reply. It's an irrelevant fact. I, too, have been known to lie when a stranger calls me up asking questions.
Here is the calculus for your husband: "is the profit I would have earned from a legitimate sale of my photo more or less than the costs of registering the photo with the Copyright Office, legal filing fees, court costs, and attorney's fees?" I think I know the answer to this question.
It is true that copyright is now created at the moment the work is placed in a fixed format, but there is no right to sue without registration. No registration with the Copyright Office, no lawsuit.
If you are determined to go through with legal action, you are going to have to do it pro se because I cannot imagine that it is worth any lawyer's time or worth the attorney's fees for you. Assuming I were to take this case, I would want a minimum of $5,000 as a retainer, and then you still get to pay my commercial rates. So, I think think your husband should just have a chat with the owner.
In my opinion.
posted by Tanizaki at 11:04 AM on April 29, 2013 [1 favorite]
Don't listen to anyone who tells you it isn't worth at least trying to get payment or credit for your artwork. Go speak with a lawyer or two for an opinion in your jurisdiction.
A demand letter or a DMCA takedown might do the trick, and it is worth having a lawyer draft and send one or the other, at any rate.
Why wouldn't you pursue this?
Your husband takes photos for a living, he should get familiar with how to proceed when he discovers someone has used one of his images without paying for it.
posted by jbenben at 11:34 AM on April 29, 2013 [2 favorites]
A demand letter or a DMCA takedown might do the trick, and it is worth having a lawyer draft and send one or the other, at any rate.
Why wouldn't you pursue this?
Your husband takes photos for a living, he should get familiar with how to proceed when he discovers someone has used one of his images without paying for it.
posted by jbenben at 11:34 AM on April 29, 2013 [2 favorites]
I can't answer your main question but just wanted to echo Tanizaki's thought that the owner could have been lying to get you off the phone when he said he took the photo.
When I am at work, very busy, and some random stranger calls me up with some random question I don't know the answer to, I'm liable to give some random answer to get them off the phone.
posted by ZabeLeeZoo at 11:43 AM on April 29, 2013 [2 favorites]
When I am at work, very busy, and some random stranger calls me up with some random question I don't know the answer to, I'm liable to give some random answer to get them off the phone.
posted by ZabeLeeZoo at 11:43 AM on April 29, 2013 [2 favorites]
Response by poster: Thank you for the thoughts so far. We will look in to what it would have cost them to have purchased the image for their intended use.
This is the sort of company that would not require additional images in the future, so no negotiating for future work (think of them as a plumber who doesn't do advertising materials).
Would a DMCA notice apply to wrapped commercial vehicles?
posted by MayNicholas at 11:44 AM on April 29, 2013
This is the sort of company that would not require additional images in the future, so no negotiating for future work (think of them as a plumber who doesn't do advertising materials).
Would a DMCA notice apply to wrapped commercial vehicles?
posted by MayNicholas at 11:44 AM on April 29, 2013
Also, a business with a fleet of 50+ trucks can and should pay the professional who created the image they use to brand themselves.
OP, even if the advice in the end is to draft the appropriate letter(s) yourself and send them, then do that.
posted by jbenben at 11:46 AM on April 29, 2013 [1 favorite]
OP, even if the advice in the end is to draft the appropriate letter(s) yourself and send them, then do that.
posted by jbenben at 11:46 AM on April 29, 2013 [1 favorite]
Think the possibility that Jamaro suggested is worth considering: That the owner took a picture of the landmark, and that whoever is responsible for painting the trucks made a substitutions. Consider also that this third party may have purchased the necessary rights in their name and that paperwork wasn't filled out correctly.
Nevertheless, if it is indeed your husband's photo, and he wasn't compensated, I think it is worth at least considering pursuing recourse. That decision should be taken with an estimate of at least a few numbers: 1) what should your husband have been paid for the photo? 2) what might he be able to get from a successful lawsuit? 3) How much would it cost to mount a lawsuit (including distraction/time lost). 4) What would it cost the potential defendant to defend against a lawsuit? 5) What would it cost the potential defendant to replace the artwork on their fleet of trucks and anywhere else they might use it?
My guess is that the cost and risk of mounting a lawsuit wouldn't be worth likely damages recovered, but it may well be worth escalating the issue with a letter from a law firm with the goal of reaching a quick settlement.
Another thing to consider for negotiating a settlement: Does the local business provide a good or service that you yourselves might need.
posted by Good Brain at 11:59 AM on April 29, 2013 [1 favorite]
Nevertheless, if it is indeed your husband's photo, and he wasn't compensated, I think it is worth at least considering pursuing recourse. That decision should be taken with an estimate of at least a few numbers: 1) what should your husband have been paid for the photo? 2) what might he be able to get from a successful lawsuit? 3) How much would it cost to mount a lawsuit (including distraction/time lost). 4) What would it cost the potential defendant to defend against a lawsuit? 5) What would it cost the potential defendant to replace the artwork on their fleet of trucks and anywhere else they might use it?
My guess is that the cost and risk of mounting a lawsuit wouldn't be worth likely damages recovered, but it may well be worth escalating the issue with a letter from a law firm with the goal of reaching a quick settlement.
Another thing to consider for negotiating a settlement: Does the local business provide a good or service that you yourselves might need.
posted by Good Brain at 11:59 AM on April 29, 2013 [1 favorite]
Nthing what Jamaro and Good Brain have written because I don't see how a downloaded comp of a stock photo--usually a very poor resolution--could be sufficiently enlarged and used to wrap a vehicle.
Do you have any records of this image being sold? It's also possible that it was bought and used (legally) by a designer for a one-time use, eg a brochure for this business that you never saw, and then the owner took the artwork to a sign painter and told him to use it on the trucks. All the time thinking that it was his photo (because clients are like that).
posted by TWinbrook8 at 1:11 PM on April 29, 2013 [1 favorite]
Do you have any records of this image being sold? It's also possible that it was bought and used (legally) by a designer for a one-time use, eg a brochure for this business that you never saw, and then the owner took the artwork to a sign painter and told him to use it on the trucks. All the time thinking that it was his photo (because clients are like that).
posted by TWinbrook8 at 1:11 PM on April 29, 2013 [1 favorite]
Another thing to consider: It could be the mistake of the stock photo agency, not the small business, so don't rule that possibility out.
posted by Vaike at 1:13 PM on April 29, 2013
posted by Vaike at 1:13 PM on April 29, 2013
Your husband has very little to gain except a legal fight;
Hardly. The potential penalty for copyright infringement is huge*. In the United States, statutory damages are set out in 17 U.S.C. § 504 of the U.S. Code. The basic level of damages is between $750 and $30,000 per work, at the discretion of the court.
Plaintiffs who can show willful infringement may be entitled to damages up to $150,000 per work. Defendants who can show that they were "not aware and had no reason to believe" they were infringing copyright may have the damages reduced to $200 per work.
*Under 17 U.S.C. § 412, statutory damages are only available in the United States for works that were registered with the Copyright Office prior to infringement, or within three months of publication.
N.B. The stock photography company may have registered this as part of their service.
posted by Gungho at 1:50 PM on April 29, 2013 [4 favorites]
Hardly. The potential penalty for copyright infringement is huge*. In the United States, statutory damages are set out in 17 U.S.C. § 504 of the U.S. Code. The basic level of damages is between $750 and $30,000 per work, at the discretion of the court.
Plaintiffs who can show willful infringement may be entitled to damages up to $150,000 per work. Defendants who can show that they were "not aware and had no reason to believe" they were infringing copyright may have the damages reduced to $200 per work.
*Under 17 U.S.C. § 412, statutory damages are only available in the United States for works that were registered with the Copyright Office prior to infringement, or within three months of publication.
N.B. The stock photography company may have registered this as part of their service.
posted by Gungho at 1:50 PM on April 29, 2013 [4 favorites]
I live in Europe, which makes quite a difference in this sort of area, but still...
A couple of years ago, my wife randomly spotted one of our photos in a commercial magazine. We had taken it a few years before, put it on our blog and uploaded it to Flickr (under a creative commons non-commercial share alike license).
I emailed the editor with a firm but friendly "Hello! You've printed my photo without permission—that's not cool. Please pay me!" and he immediately apologised and offered me a small but reasonable (based on the limited usage he had made of it) amount of compensation.
No lawyers, no stress, fun story to tell people at parties.
posted by ZipRibbons at 2:47 PM on April 29, 2013 [1 favorite]
A couple of years ago, my wife randomly spotted one of our photos in a commercial magazine. We had taken it a few years before, put it on our blog and uploaded it to Flickr (under a creative commons non-commercial share alike license).
I emailed the editor with a firm but friendly "Hello! You've printed my photo without permission—that's not cool. Please pay me!" and he immediately apologised and offered me a small but reasonable (based on the limited usage he had made of it) amount of compensation.
No lawyers, no stress, fun story to tell people at parties.
posted by ZipRibbons at 2:47 PM on April 29, 2013 [1 favorite]
The big issue here is whether or not your husband registered this photo with the Copyright Office.
It's not a big issue, the copyright violation already took place. In cases like this, usually I've known photographers to send a letter prepared by their lawyer (a generic one they can use in any instance) asking for a realistic payment before proceeding through legal channels. Usually it's in the range of a couple hundred bucks, something that would be easier than fighting it for either side.
posted by mathowie at 2:53 PM on April 29, 2013 [2 favorites]
It's not a big issue, the copyright violation already took place. In cases like this, usually I've known photographers to send a letter prepared by their lawyer (a generic one they can use in any instance) asking for a realistic payment before proceeding through legal channels. Usually it's in the range of a couple hundred bucks, something that would be easier than fighting it for either side.
posted by mathowie at 2:53 PM on April 29, 2013 [2 favorites]
Talk to a lawyer. You need to find out the legal answer to two questions: one is, of course, how (and how much) you can make them pay.
The other question is, CAN you make them pay, since they've been publically using that image, without any previous objection from the photographer, for the last six years --- basically, is there a statute of limitations?
Lawyer, stat.
posted by easily confused at 3:24 PM on April 29, 2013
The other question is, CAN you make them pay, since they've been publically using that image, without any previous objection from the photographer, for the last six years --- basically, is there a statute of limitations?
Lawyer, stat.
posted by easily confused at 3:24 PM on April 29, 2013
It's not a big issue, the copyright violation already took place.
Actually, it is an issue of prime importance. The reason is because until the copyrighted work is registered, a lawsuit for copyright infringement cannot be brought, as I explained in my first comment that you quoted (except for the part where I talked about the registration requirement). Since I have recently been encouraged to "show my work", the relevant section of the Copyright Act is 17 U.S.C. §411(a), which provides "[e]xcept for an action brought for a violation of the rights of the author under section 106A (a)...no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title."* (emphasis added because it seems to be needed). In legal talk, copyright registration is what is called a "condition precedent". That means it is something you need to do before you can file a lawsuit. OP's husband cannot bring a lawsuit until he has registered the copyrighted work. Furthermore, once he does this, any infringement that occurred before registration will not count in the lawsuit.
In my opinion. (which is based upon my experience practicing law)
*the OP does not describe a 106A claim
posted by Tanizaki at 5:08 AM on April 30, 2013
Actually, it is an issue of prime importance. The reason is because until the copyrighted work is registered, a lawsuit for copyright infringement cannot be brought, as I explained in my first comment that you quoted (except for the part where I talked about the registration requirement). Since I have recently been encouraged to "show my work", the relevant section of the Copyright Act is 17 U.S.C. §411(a), which provides "[e]xcept for an action brought for a violation of the rights of the author under section 106A (a)...no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title."* (emphasis added because it seems to be needed). In legal talk, copyright registration is what is called a "condition precedent". That means it is something you need to do before you can file a lawsuit. OP's husband cannot bring a lawsuit until he has registered the copyrighted work. Furthermore, once he does this, any infringement that occurred before registration will not count in the lawsuit.
In my opinion. (which is based upon my experience practicing law)
*the OP does not describe a 106A claim
posted by Tanizaki at 5:08 AM on April 30, 2013
Response by poster: He had a chat with a lawyer. They said it wasn't worth pursuing. Yes, there is the copyright issue & so many other factors that would require a good deal of time. The payout wouldn't be worth it.
We have learned a valuable lesson anyway- copyright officially at upload.
Thank you all for the information!
posted by MayNicholas at 5:19 AM on April 30, 2013
We have learned a valuable lesson anyway- copyright officially at upload.
Thank you all for the information!
posted by MayNicholas at 5:19 AM on April 30, 2013
As an artist, this is depressing news. Thanks, Tanizaki--will have to look into registration. OP, I would still suggest getting a photo of one of the trucks to use in your [husband's] personal portfolio.
posted by Eicats at 11:32 AM on April 30, 2013
posted by Eicats at 11:32 AM on April 30, 2013
MayNicholas,
I just saw your update (was wondering what happened).
You can go ahead and contact the company yourself, but carefully.
There is a great blog, Lorelle on WordPress, with coverage about copyright theft, including step by step advice you can take. When I discovered some work had been stolen by a newsletter, I contacted them and demanded that they remove the items or pay, using some of Lorelle's advice. They bitched and moaned and claimed that they gave credit so it was "OK", but then they removed it, because they were fearful of a legal case. They don't need to know that you're not able to get a lawyer involved.
I would also get the stock image company involved, too - you might write first and say that if they do not arrange payment, you will contact the company directly. They may wield a much bigger stick than you would.
posted by mitschlag at 11:01 AM on June 17, 2013 [1 favorite]
I just saw your update (was wondering what happened).
You can go ahead and contact the company yourself, but carefully.
There is a great blog, Lorelle on WordPress, with coverage about copyright theft, including step by step advice you can take. When I discovered some work had been stolen by a newsletter, I contacted them and demanded that they remove the items or pay, using some of Lorelle's advice. They bitched and moaned and claimed that they gave credit so it was "OK", but then they removed it, because they were fearful of a legal case. They don't need to know that you're not able to get a lawyer involved.
I would also get the stock image company involved, too - you might write first and say that if they do not arrange payment, you will contact the company directly. They may wield a much bigger stick than you would.
posted by mitschlag at 11:01 AM on June 17, 2013 [1 favorite]
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posted by Etrigan at 9:43 AM on April 29, 2013 [1 favorite]