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Process for copyright infringement action


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#1 echeng

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Posted 14 August 2006 - 05:04 PM

Hello, guys. I have just found an image of mine used in a book and am wondering how to proceed. I've never had to do this before, but I'm sure it won't be the last time it happens.

I was planning on writing the publisher and including an invoice for the use in the image. I have heard that most people request 3x or 4x market value for unauthorized use.

Any tips would be greatly appreciated!

Regards,
Eric
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#2 wagsy

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Posted 14 August 2006 - 05:15 PM

Eric
I would approach them nicely at first, to see what they come back with. It may be mistake on there behalf and are quite willing to pay you for the use of the image.

If that does not work then get nasty.
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#3 echeng

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Posted 14 August 2006 - 05:17 PM

Yep. I just wrote them an e-mail asking them for production run numbers so I can invoice them for the value + infringement penalties. we'll see what happens. :blink:
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#4 peterv

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Posted 14 August 2006 - 06:41 PM

You want to send a real old-fashioned paper letter with your signature by registered mail with return receipt.

Better yet, have your agent or attorney send said letter.

Email does not usually cut it for legal stuff.

Good Luck collecting.

If it is an honest error, just go for the fee.
If they were sneaky, then treble the standard fee is common.

#5 Craig Ruaux

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Posted 14 August 2006 - 07:18 PM

IMHO, IANAL etc etc, but I have read on the subject widely.


There is no such thing as "innocent infringement" when the infringer is a content producer themselves, so f*ck that noise... a book publisher knows what copyright is and what it means, their whole business revolves around it.

If the image is registered with the Library of Congress, they are exposed to statutory damages of up to $150,000.00, plus costs.

And they will lose.

If the image is registered, send them an invoice for whatever you think is reasonable x 3, along with a contract of sale limiting their usage rights to this book only, only one printing.

From the .gov's mouth, my emphasis:

Copyright Registration

In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

    * Registration establishes a public record of the copyright claim.

    * Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.

    * If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

    * If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

    * Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies. For additional information, go to the U.S. Customs and Border Protection website at www.cbp.gov/xp/cgov/import. Click on “Intellectual Property Rights.”

Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.


I haven't pulled out these links in a while, so it is probably salient.

(You'll want broadband, these are 15-30MB quicktime files)

Rick Rickman copyright story one

Rickman story part two

Rickman story part 3, "the money shot".


(I assume you already know this stuff Eric. Thanks for the reminder that I am a couple of months overdue on copyright registrations :blink: )
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#6 echeng

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Posted 14 August 2006 - 08:50 PM

Here's what the author of the book wrote back to me:

PUBLISHER sold ad space to help offset the
cost of the printing the book and I think you can
pretty clearly see that the image is an ad for
ADVERTISER.  That image was provided by
ADVERTISER as their ad for the book.
You need to speak with ADVERTISER about how
they came to be in possession of the image and
why they used it without your permission.  The
publisher has to assume when they accept an ad
that the advertiser has obtained permission to
use any copyrighted material in it.  As a
photographer I certainly understand your position
if you feel your copyright has been violated,
however in this case neither I nor PUBLISHER are at fault.

This is BS, and I have written back stating that the publisher is responsible for the advertiser.

I happen to know the advertiser, so I'm going to approach them about it as well, but if I can't get an easy settlement out of them, I'm going to go official on the publisher.

If they continue to piss around, their names are going to come out here in this thread.
eric cheng
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#7 anthp

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Posted 14 August 2006 - 09:03 PM

Good luck Eric - keep us posted.
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#8 Craig Ruaux

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Posted 14 August 2006 - 09:06 PM

In this case I can see that PUBLISHER may have some protection from liability if they can show a contract of sale of the ad space to ADVERTISER that stated that ADVERTISER is responsible for all content and that the PUBLISHER will not be held liable... that does make it a bit curlier, but still, ADVERTISER is now very much in the wrong, and my previous comments stand, IMNSHO
Why would I take a perfectly good camera underwater??
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#9 echeng

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Posted 14 August 2006 - 09:12 PM

Hey, Craig. I was thinking that same thing just now. Thanks...
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#10 PeterRowlands

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Posted 14 August 2006 - 09:58 PM

Hi all
As a 'publisher' I would logically have thought/hoped the advertiser should be ultimately responsible but then the legal world can sometimes ignore logic. If they are responsible that should be good news as shots used for advertising should be worth more!
Good luck with the outcome
Best wishes
Peter Rowlands
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#11 underwatercolours

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Posted 06 September 2006 - 07:04 PM

Hey Eric,

As long as I have been publishing websites I've been fighting copyright infringement. Comments here are right on the money with the posted suggestions (and thanks for the Rick Rickman links too). I've collected very similar copyright settlements without ever involving an attorney.

I've also blown-off several million dollars worth of potential income by determining that the person who stole my images (or in some cases, entire websites) wasn't worth going after. In all cases, I always contact the infringer with the nicest, most professional legally-worded letter I could possibly muster up in the heat of my rage. I've learned that nice letters don't result in payment. At best, you'll get an apology. Worst case, you're called every name in the book and might end up at the bottom of the ScubaLinx photographer ratings. In one case a well-known dive travel wholesaler from the Chicago area ultimately threatened my life!

The only people who give a squat about infringing your copyright is the legal department from the big company who did it, because they know the law, and the consequences. If you let them know that you REALLY understand your legal options, and this is WHY you register ALL your images with the copyright office BEFORE you release any of them to the public, they will know you mean business. In cases where I collected settlements, I was persistent and DID NOT back down in spite of the complaints that my 3x normal usage demand was excessive. By the way, I could find no legal backing for this demand. It seems to be an agreed-upon industry standard settlement in leu of legal action. Some ASMP photographers demand 10x, but I don't know if they actually get it.

If you had already registered this image with the copyright office before you ever published it, you're in luck. You've got a lot more legal power than if you didn't. If you did not register the image with the copyright office, do it now. Not only is it important, but it sends a signal to the infringer that you're planning to take legal action (whether you are, or not). You cannot initiate the process until the image is registered with the copyright office.

A couple of other suggestions... get Cradoc FotoQuote's (http://www.fotoquote.com) newest version of the software to build your usage estimate. The fees are higher than older versions. Be sure to add in for the fact that underwater photography is in a higher-risk bracket than say...wedding photography. Also, consider long-term consequences of any of your actions. Even though you're right, you'll be burning bridges forever if you go public with their name. Until you're absolutely sure who's responsible for the release of your image, and know for sure that they have no intention of making it right, I personally might hold off on the exposure part. I know this is hard to do, but I've also picked up some long-term clients over being "nice" about "misunderstandings" in certain situations.

Now the disclaimer... I'm not an attorney, nor do I play one on TV. So if there are any copyright attorneys out there who find what I've written here is inaccurate, please jump in and correct me. I'm just blabbing from my experience in hopes that it will help other poor, starving artists to earn a little income to pay for this horribly expensive hobby some of us call a job.

Hope this helps!

Bonnie

#12 John Bantin

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Posted 07 September 2006 - 12:31 AM

In my experience it is best to go after the party that has most to lose. When the BSAC used one of my pictures on the front of its manual but refused to discuss the issue I waited. When their bank used the picture on a credit card associated with the BSAC, I issued a court summons to the bank. The then Chairman of the BSAC, very contrite, contacted me immediately to ask how much I wanted and I was paid the following day!

When I recently sued a British national newspaper, they thought that their expert leal department would bamboozle a member of poor old Jo Public. Wrong! They spent a lot more defending the case than they eventually had to pay me!

As I heard a judge say once, it's a question of whether the defendant is worth powder and shot!

I have just written a book. I was concerned that if I cut and pasted sections of older articles I had previously written, it would be in breach of my contract to supply original work. I dutifully rewrote it. I don't know why I bothered. I read a book by another author that had cut and pasted great sections of my stuff from t'internet without any shame!

Of course, one of the problems underwater photographers face is that the world is awash with pictures taken by amateurs who are flattered to see their work published and require no other payment!

I buy my own photographic kit. Diving equipment manufacturers and diving services suppliers get even-handed treatment from me whether they choose to advertise in the publications I write for or not. All the equipment I get on loan is returned as soon as it is finished with. Did you know you can now get Diver Mag as an iPad/Android app?

 

#13 Stewart L. Sy

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Posted 08 September 2006 - 10:25 AM

Hi Eric,

I successfully sued a local company when they used my image without permission on their website. Proof is in the pudding they say and ultimately, they printed the image. My plaintiff said that they were given the image by someone else (an advertiser I knew), however, until they can show that they have anything in writing from you that you authorized them to use the image, they're pretty much SOL. However, you say you know the advertiser, you'll need to consider what your agreement was with this advertiser. I was fine as my agreement to my advertiser said that any use other than their own website and brochures, required written permission from me.

1 diff with Canadian law is that we do not need to register our images, however, as you hold the original file, it shouldn't matter...except in maybe the final award of fines.

Good Luck!

Stu

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#14 TheRealDrew

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Posted 30 December 2006 - 06:17 AM

Hey, Craig. I was thinking that same thing just now. Thanks...


Not sure where you stand with this, but the contract between the publisher and advertiser means nothing to you - in other words they cannot point to this and say talk to thwe advertiser.

It is simply a way for the publisher to get indemnified in case the advertiser screws the pooch and provides the publisher with material that is not cleared.

#15 John Bantin

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Posted 30 December 2006 - 07:38 AM

Not sure where you stand with this, but the contract between the publisher and advertiser means nothing to you - in other words they cannot point to this and say talk to thwe advertiser.

It is simply a way for the publisher to get indemnified in case the advertiser screws the pooch and provides the publisher with material that is not cleared.


Correct! The publisher (not the author) is responsible and will be indemnified by the advertiser.

I buy my own photographic kit. Diving equipment manufacturers and diving services suppliers get even-handed treatment from me whether they choose to advertise in the publications I write for or not. All the equipment I get on loan is returned as soon as it is finished with. Did you know you can now get Diver Mag as an iPad/Android app?

 

#16 Steve Parry

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Posted 02 January 2007 - 10:59 AM

I often wonder about copyright law. Can anyone either explain the basic ground rules or direct me to a website that would do the same ?

I am based in the UK so copyright based on UK/EU law would be preferable, but as we are all on the net, I suppose our pictures could end up being used without authorisation anywhere in the world. Would you then have to bring action in the country where the defendant is based or in your own country ?

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#17 John Bantin

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Posted 02 January 2007 - 12:02 PM

I often wonder about copyright law. Can anyone either explain the basic ground rules or direct me to a website that would do the same ?

I am based in the UK so copyright based on UK/EU law would be preferable, but as we are all on the net, I suppose our pictures could end up being used without authorisation anywhere in the world. Would you then have to bring action in the country where the defendant is based or in your own country ?

Steve Parry



http://www.opsi.gov....880048_en_1.htm

It's not a difficult read. Applies to UK though if a breach occurs in Scotland you have to pursue it there.

I buy my own photographic kit. Diving equipment manufacturers and diving services suppliers get even-handed treatment from me whether they choose to advertise in the publications I write for or not. All the equipment I get on loan is returned as soon as it is finished with. Did you know you can now get Diver Mag as an iPad/Android app?

 

#18 Graham Abbott

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Posted 09 June 2007 - 11:02 PM

I'm just looking through this thread, I'm keen to hear if this has ever been resolved?

I personally would have thought it was the advertiser who was in the wrong.

Think about it this way, an advertiser sends you a simple advert, lets say it's a banner to be used on a website. In the banner are a few images and one of them has not been authorised, the publisher or web master wouldn't really know this.

I had a Bali dive operator use my images in his brochures for advertising his Bali trips. I only gave him the images to promote my live aboard trips on his website, the images were not from liveaboard destinations, then he used them to go and promote Bali trips!