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Need some help and advice with a publishing issue...


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#1 jams

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Posted 23 May 2007 - 11:27 PM

Hi all

I have just stumbled into a situation of probably my own creation, but I would love some input and advice on what to do about it now, if anything.

About a year ago, I showed a friend of mine some of my photos. He liked them and asked if he might use a few of them in some brochures and flyers for his business. I said yes because he's a good friend and his business promotes a nearby island where I used to live and work and may do so again. So, his general promotion of the place is in my best interest.

A few months later, he told me he had shown the photos to one of the business owners on the island and that they'd be interested in using some in their brochure. I told them that of course they could, but they'd have to pay me for the usage as it was not in our best interest, only theirs. They declined and used someone else's free shots. C'est la vie. (I relate this to show you all that I am not into habitually giving away my work.)

Six months ago, a local freelance journalist wrote an article on the island for one of our local magazines. He happened to come to my promotional friend for info. While there, he saw some of my photos and asked my friend if he could use them with the article. My friend asked me if it was OK and I agreed to let the writer use them for free as it was just a local mag and again was publicising the whole island. The article was published in the magazine using 3 of my shots (1x 1/4 page, 1x 1/2 page and 1x full page - a little bigger than I expected) in a 4 page article, not center page spread, nor cover shot. Sadly, the credit they gave me (my email address) was mispelled... oh well.

Now here is the issue: a couple of months ago, my friend came to me and told me that the writer was recycling the article in a national airline's inflight magazine, would I mind him using the shots again as they were just recycling the article wholesale? No excuse, but I have a lot going on right now and I just said yes after a very brief hesitation where I wondered if I was doing the right thing. Anyway, I said yes.

So imagine my surprise when I finally saw the magazine a couple of weeks ago - one of my photos was on the cover! And the article was center page spread! Wow! After the initial excitement died down, I started to think "Hang on, they just got themselves a free cover shot which they didn't ask me about." They had still used 3 shots, but they were 3 different shots to the original article (my friend may have mentioned using other shots when I said "Yes" above, I don't remember). Also, I realized they had not only cropped the shot on the cover, but they'd photoshopped the background right out, making it look kinda odd. On further exploration I find they have also used the shots broadly over the inflight mag's website. The magazine and website are changed each month.

Now, I realize that from now on I have to make double sure of what's going on and insist on the proper paperwork before it all happens, but it seems to me a bit like they've taken the mickey with my generosity here. I have never had any communication directly with the magazine about their publishing my photos nor have I signed or been asked to sign any contracts pertaining to their use. I did meet the writer once briefly at a social event late one evening and he complimented me on the photos. I honestly don't remember if we discussed using them in the second article or not, but I'm sure I would have remembered if I was told they were going to go on the cover and on the website. Other than this, the writer and I have never had any communication - he has always had my friend pass on his requests.

The other little nugget I have just discovered: the two magazines are linked by the media companies that publish them - one is a regional division of the other.

So I guess I'm asking your advice on what I should do about it? I'd love to get paid for the work, of course, but this isn't really about the money - it's about encouraging publishing companies to do what is right and fair and having them ask proper permissions before publishing and manipulating your images. It might be worth noting that I don't live in the US, UK, Europe, Australia or Singapore so the idea of running to court might not be so applicable here.

Please let me know what you think....

Jams.

#2 davichin

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Posted 23 May 2007 - 11:57 PM

Well, I think that if you admit you said "yes" and it could be understood that is a "yes, any photo in that inflight mag" then, if I were in your position, I would feel bad but my word is my word so I would not do anything about it.

Another thing is the non-asked use on the website for which I would send a bill.

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#3 philmayer

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Posted 24 May 2007 - 07:17 AM

The magazine doesn't have your permission to use the photos and they know it. But they also have more money to throw at lawyers than you do.

Before using your photos, someone from the mags photo dept should have contacted you to verify usage.



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#4 Craig Ruaux

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Posted 31 May 2007 - 07:12 AM

Couple of things here.


1 - Even if you are going to give images to someone for free, in the future you need to put in writing the terms of a license. Such as "or single use only to accompany an article on ... to appear in Provincial Fluffpiece Magazine. No other usage of these images is authorized".

2 - Look into the rights protection and registration requirements, if any, for protection of copyright in Canada. The in-flight magazine publishers have made a flagrant copyright violation by doing what you describe. I know the details of the US copyright system registration process, but don't know about Canada (I'm assuming this was published in Canada given that you are from BC).

If this were happening in the US and the images had been previously registered with the US Office of Copyrights, the magazine publishers would have just opened themselves to a substantial copyright infringement case with statutory penalties in the $100,000.00's per image (Yes, seriously, hundreds of thousands of dollars). Faced with this, they would roll over and pay you for the usage in a heartbeat.

I'd suggest politely contacting the publisher of the in-flight magazine and explaining the situation. Even if you had agreed to give the images away for free for use in the in-flight magazine (which, IMHO, you didn't), you have not given permission for them to be used on the website. It may be that the writer has misrepresented the ownership/rights that he has over the images, either through innocent omission or some more nefarious intent. You can bet your bottom dollar the writer was paid though. It may be that the inflight magazine has a "package rate" that they pay for a story and accompanying photographs, if that is the case then they paid the writer and the writer now owes you something.

Even if the magazine publisher has a package payment rate that they have paid to the writer, the usage of the images on the website is a separate issue. It may be that their contract for the pacakge states that they also get the rights to use images on the website... BUT the writer does NOT have the right to enter into that agreement for usage of YOUR images.

When explaining the situation to the publisher, DON'T use language like this:

No excuse, but I have a lot going on right now and I just said yes after a very brief hesitation where I wondered if I was doing the right thing. Anyway, I said yes.


I'd suggest instead phrasing to suggest that you and the writer agreed to market the story and images as a package. Because, really, that's what you did.
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#5 jams

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Posted 31 May 2007 - 07:44 PM

Thanks for the comments guys.

For the record Craig, this was not in Canada. I wish it had been, because I could probably enjoy an extended holiday on the result of whatever action I took! Sadly this was in Asia, the names and locations having been purposely left vague so as to avoid any legal issues from bad press.

I have a friend here who is a renowned photographer in his own right and he has similarly advised me to sit and have a friendly chat with the writer, for all the same reasons. This will be my next step. He feels that it is unlikely I'll get anywhere with the publishers depending on what they were told by the writer about the photos...

Will let you know how this develops.

Jams.

PS. My friend also got on me about the need for contracts to define terms even for free usage. The point is now well-taken and the lesson has been learned!

#6 Scuba_SI

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Posted 31 May 2007 - 11:29 PM

Thanks for the comments guys.

For the record Craig, this was not in Canada. I wish it had been, because I could probably enjoy an extended holiday on the result of whatever action I took! Sadly this was in Asia, the names and locations having been purposely left vague so as to avoid any legal issues from bad press.

I have a friend here who is a renowned photographer in his own right and he has similarly advised me to sit and have a friendly chat with the writer, for all the same reasons. This will be my next step. He feels that it is unlikely I'll get anywhere with the publishers depending on what they were told by the writer about the photos...

Will let you know how this develops.

Jams.

PS. My friend also got on me about the need for contracts to define terms even for free usage. The point is now well-taken and the lesson has been learned!


Hi Jams, I read the article on my flight last week. Some nice pics in there! :lol:

I think a way around it might be to try to get some free flights rather than financial compensation?

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