14 replies to this topic

[DerekB]

I had my image stolen from me by Omer, and used in two issues of hawaii skin diver magazine and possibly others for advertisement.

Speaking with lawyers now. They want to negotiate for me ( at a cost) over the phone first. From your guys experience, what is the success rate of lawyer negotiations? How hard is it to find a lawyer that will work on contingency?

Here is the image
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[Nick Hope]

You could talk to Carolyn Wright and Evan Andersen at photoattorney.com. I have had some success with them working on a contingency basis. Pls mention I sent you.

[BigJeff]

How did they get the image? (It maybe something the rest of us can learn from)

[decosnapper]

I know a UK-based contingency lawyer - and one who considers the world to be their target market.

PM me if you need their details.

[DerekB]

How did they get the image? (It maybe something the rest of us can learn from)

All the experienced photogs are going to laugh, because I made some cherry mistakes.

1. was asked by a friend to help him with a photoshoot. ( he is sponsored by omer).
- since he was a friend I didn't even think about a work release form.
- since he was sponsored by omer, and has the vice president of the company on speed dial I assumed it would be better for him to inquire about the images.

2. A few months later I was told the images where no good and they were going with a different approach.
- Pretty bumed I left it as that and forgot about the images, ( still cherry I didnt understand the importance of registering them)


Lessons learned:
NEVER give a file to anyone and if you do add some form of legal mumbo jumbo making it explicitly clear they dont have any rights to the photo.
ALWAYS register your photos at least every 3 months. That way the thief's are liable for court fees

Edited by DerekB, 18 September 2010 - 12:13 AM.

[Drew]

Before you start incurring legal costs, have you spoken to Omer and attempt to settle this without legal help? Most times, a financially viable company will pay, esp if their ad department messed up with the images. It could be as simple as a mistake. Let them know what is happening (perhaps through your friend to the VP) and see what they say. Send them an invoice with your rates + a damages amount and they'll probably want to negotiate from there, so set it higher.
Good luck.

[DerekB]

Before you start incurring legal costs, have you spoken to Omer and attempt to settle this without legal help? Most times, a financially viable company will pay, esp if their ad department messed up with the images. It could be as simple as a mistake. Let them know what is happening (perhaps through your friend to the VP) and see what they say. Send them an invoice with your rates + a damages amount and they'll probably want to negotiate from there, so set it higher.
Good luck.

I've tried to contact omer on several occasions. I've been ignored and shrugged off. As well as received threats of counter suits for asking for to much... Which is a joke as I asked a measly 1130$ for a 1 page advertisement spread. At this point its obvious they stole my image and have no remorse for doing such, It shows a blatant disrespect for underwater photography and freedivers in general.

[james]

Not to mention the guy was laying on the reef!

Good luck w/ your suit/recovery though - it stinks that they stole the images - know they stole them - and refuse to pay.

James

[DerekB]

Not to mention the guy was laying on the reef!

Good luck w/ your suit/recovery though - it stinks that they stole the images - know they stole them - and refuse to pay.

James

What really stinks is that I cant find an attorney who take the case on contingency. So its going to cost me 15 grand. Which is complete bullshit. Why should justice only be enforced when you can afford it? As its registered with the copyright office I don't understand why no local attorneys will take the case. Saying "You have a very valid case but my company..... will not allow me to take this on contingency."

[Autopsea]

Sorry if I don't help, but I don't understand something :

Lessons learned:
NEVER give a file to anyone and if you do add some form of legal mumbo jumbo making it explicitly clear they dont have any rights to the photo.
ALWAYS register your photos at least every 3 months. That way the thief's are liable for court fees

Are our photos not automatically registered from the moment we take it, by law?
I though, without doing anything in particular, any company that would use any of my photos without permission would just have to pay for it, when in front of the law, if they cannot prove they had the permission to use it.

am I wrong?

[Andy Morrison]

If I'm not mistaken you have 3 months from date of publication to register them, or something like that. Check into it as it may not be too late to register them. Good luck and I hope you get what you're owed.

[TheRealDrew]

Sorry if I don't help, but I don't understand something :



Are our photos not automatically registered from the moment we take it, by law?
I though, without doing anything in particular, any company that would use any of my photos without permission would just have to pay for it, when in front of the law, if they cannot prove they had the permission to use it.

am I wrong?

Basically in the U.S., copyright exists at the time you take the photograph. Registration helps with damages.

From the Copyright Office in the U.S. (http://www.copyright...circs/circ1.pdf):

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 regis­ tration. 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 five 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 three months after publica­ tion 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 pro­ tection 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.

[Wishbone]

Sorry to hear about your problems Derek.
You can try some of these phones if you're in the US:
1176 Jensen Drive, Virginia Beach, VA 23451 p.757 428 4744 f. 757 428 4155, Toll Free 800 853 1911

Ask for Mark Labocetta - he's the US OMER representative and a very nice guy from my experience. He participates in the DeeperBlue.net forums too so you can PM him there.

I hope this helps to settle the issue. It's hard to believe a company of this scale would steal a photo, but hey - another spearfishing company kind of never paid for mine...

[DerekB]

Sorry to hear about your problems Derek.
You can try some of these phones if you're in the US:
1176 Jensen Drive, Virginia Beach, VA 23451 p.757 428 4744 f. 757 428 4155, Toll Free 800 853 1911

Ask for Mark Labocetta - he's the US OMER representative and a very nice guy from my experience. He participates in the DeeperBlue.net forums too so you can PM him there.

I hope this helps to settle the issue. It's hard to believe a company of this scale would steal a photo, but hey - another spearfishing company kind of never paid for mine...

I've talked Marks father.
Laboccetta sr. Was A DICK! he threatened to "burry me" told me my photos where not worth anything. From speaking with Laboccetta Sr. its obvious Omer has no respect for the US LAW, Or for PHOTOGRAPHERs.

Also wishbone. If you do a quick google search on deeper blue you'll see that Omer has a pretty bad reputation of people skills.



waiting for a response in Lou of the " Cease and desist" letter.



Does anyone have experience here about representing ones self in court with cases like this?

[allen]

Send them a bill with notice that they have 30 days to pay. If no pay, then go to small claims court you can represent yourself. It will suck for them cause you can sue locally and they will need to send some to tell their side of the story. If no show then you get a default. Getting payment after that may take another suit but at that point they will paying lots of expenses. Good luck.