34 replies to this topic

[Tobias]

Hi,

Reef Keeper Supply was using pictures (my one was the Goby one) from the University Miami Rosenstiel School Underwater Photography contest (http://www.rsmas.mia...y/2011-winners/)

http://reefkeepersupply.com/

I sent them a bill, but didn't got an answer yet, but they removed at least two pictures from the contest (including mine) from their webseite. The Pygmy seahorse is still on the page (not mine).

What would you recommend to do?

Regards
Tobias

[bvanant]

Hi,

Reef Keeper Supply was using pictures (my one was the Goby one) from the University Miami Rosenstiel School Underwater Photography contest (http://www.rsmas.mia...y/2011-winners/)

http://reefkeepersupply.com/

I sent them a bill, but didn't got an answer yet, but they removed at least two pictures from the contest (including mine) from their webseite. The Pygmy seahorse is still on the page (not mine).

What would you recommend to do?

Regards
Tobias

You complained, they removed the picture. What else to do? Nothing much IMHO. This worked as it should. Of course they should have asked first, but sending them a bill was a bit of a stretch. You might have asked them if they wanted to pay for it or at least give you some attribution.

Bill

[segal3]

You complained, they removed the picture. What else to do? Nothing much IMHO. This worked as it should.

Hypothetical situation: You go on extended vacation. Someone takes your car (or lenses, or [fill in something of value]) and uses it for weeks. You return from vacation, notice the item missing, and complain. The police find the individual and the only thing that happens is they must return the item?

Really?

[bvanant]

Hypothetical situation: You go on extended vacation. Someone takes your car (or lenses, or [fill in something of value]) and uses it for weeks. You return from vacation, notice the item missing, and complain. The police find the individual and the only thing that happens is they must return the item?

Really?

No, that is a criminal offense and they might get punished by the courts, but your recourse in civil court to collect damages on say loss of income while they had your lens is quite problematical. More importantly that assumes that the picture "has tangible value". The value is real only if you could have sold it for something and now you can't. In your example that is indeed (at least here in LA) all that would happen. You think that if a car thief gets caught jayriding in your car he pays you rent when he gets caught? It is up to the police and the courts to punish the thief; you certainly don't get rent on the item they took.
The picture was up on a bunch of websites and someone used it inappropriately. You ask them to remove it and they do. How much value did it have while it was up? Did someone buy something from ReefKeeper supply because they saw that pic? Hard to demonstrate that you were harmed by someone copying one of your pictures and using it to illustrate salt water aquariums.
What would you have done? Come to the U.S. and sue them in Washington State?
I certainly wouldn't have sent them a bill without some discussion, that seems to me to be totally rude. When stealing pictures becomes a crime then you can let the police handle it, til then I am not sure that there is a better answer.

Bill

Edited by bvanant, 16 December 2011 - 04:40 PM.

[bvanant]

Hi,

Reef Keeper Supply was using pictures (my one was the Goby one) from the University Miami Rosenstiel School Underwater Photography contest (http://www.rsmas.mia...y/2011-winners/)

http://reefkeepersupply.com/

I sent them a bill, but didn't got an answer yet, but they removed at least two pictures from the contest (including mine) from their webseite. The Pygmy seahorse is still on the page (not mine).

What would you recommend to do?

Regards
Tobias

There appear to be lots of folk using that picture for a variety of reasons
Aquarioxpg is using it selling more aquarium stuff (maybe they paid) and it appears in lots of other places. Maybe the guys that borrowed it didn't get it from the competition but from some other site (like shoppedornot)

Bill

[decosnapper]

No, that is a criminal offense and they might get punished by the courts, but your recourse in civil court to collect damages on say loss of income while they had your lens is quite problematical.

Not sure of the law on the US side of the pond, but using intellectual property without permission in the course of a business is a criminal offence here in the UK*

.....I certainly wouldn't have sent them a bill without some discussion, that seems to me to be totally rude. When stealing pictures becomes a crime then you can let the police handle it, til then I am not sure that there is a better answer.

For what its worth, I think its far ruder to take and use images for commercial gain without asking. Having said that, I would have spoken to them first and tried to find out how they think they got permission to use the image...infringers are usually very good at giving up more evidence...

Rather than take a look at the issue from what Tobias has lost, it makes more sense to see what the infringer has gained. In this case, it would appear that the user has access to lots of free high quality images to advertise their wares at zero cost to their business. Licensing legitimate images takes hard cash off the bottom line, whereas infringing takes zero so the owner/shareholders win. In fact its better than that because not paying gives the infringer a competitive edge over their compliant competitors - what could be better than market distortion in the infringers favour?

From the photographer's perspective, infringement usually denies them two things; firstly, legitimate income and secondly, the moral right of attribution. By using images without attribution (a credit) the infringer may also be held responsible for consequential losses, as other infringers use their site as a handy source of free material.

I'm no lawyer, but this issue is almost certainly a matter for the civil courts. It is for this reason I register every single image with the US Copyright Office. This grants statutory damages with sufficient value to have a lawyer take the case on contingency. It really is a shame and regrettable that I have to do this, but the alternative of not protecting my work from unauthorised use is not a risk I wish to take.

Anyone can register their images, and I would urge Wetpixelers to do so. Is anyone interested in a 'How to' guide?

*S.107(2A) Copyright Designs and Patents Act 1988

Edited by decosnapper, 17 December 2011 - 02:44 AM.

[AllisonFinch]

You complained, they removed the picture. What else to do? Nothing much IMHO. This worked as it should. Of course they should have asked first, but sending them a bill was a bit of a stretch. You might have asked them if they wanted to pay for it or at least give you some attribution.

Bill

You're kidding...right? In what world is copyright infringement OK with you?

As for the company, what a bunch of sleazeballs, IMHO. I think a bill is entirely appropriate, though any chance of getting paid is minuscule. And not even an apology? Sleezebags!!

I sent the company an e-mail telling them that, at the very least, they ought to contact the photographers of the photos they stole and offer a deep apology.

Edited by AllisonFinch, 17 December 2011 - 04:58 AM.

[bvanant]

You're kidding...right? In what world is copyright infringement OK with you?

As for the company, what a bunch of sleazeballs, IMHO. I think a bill is entirely appropriate, though any chance of getting paid is minuscule. And not even an apology? Sleezebags!!

I sent the company an e-mail telling them that, at the very least, they ought to contact the photographers of the photos they stole and offer a deep apology.

I never said copyright infringement is OK with me and in fact as the holder of lots of IP (mostly patents, not copyright) I am very strongly in favor of strong IP protection. But how did the shop owner know that the pictures are copyrighted and by whom? Unless you assume that the shopkeeper knew whom to contact for licensing (or even knew that he should) at least in the U.S. he is probably guilty of "innocent infringement". There are lots of cases in this series of threads where exactly this has happened and the general consensus is that you remind the perpetrator that he is illegally using a copyrighted photo and if he wants to continue to use it then he needs to pay. I agree that it is rude to steal someones photos and not make an apology (although we don't know that he didn't apologize after he took down the picture) but simply sending a bill seems to me at least a bit harsh.

In any case on another topic I wonder how many folks condemning the store owner have only legal music/movies/software on their computers.

Bill

[bvanant]

Not sure of the law on the US side of the pond, but using intellectual property without permission in the course of a business is a criminal offence here in the UK*



For what its worth, I think its far ruder to take and use images for commercial gain without asking. Having said that, I would have spoken to them first and tried to find out how they think they got permission to use the image...infringers are usually very good at giving up more evidence...

Rather than take a look at the issue from what Tobias has lost, it makes more sense to see what the infringer has gained. In this case, it would appear that the user has access to lots of free high quality images to advertise their wares at zero cost to their business. Licensing legitimate images takes hard cash off the bottom line, whereas infringing takes zero so the owner/shareholders win. In fact its better than that because not paying gives the infringer a competitive edge over their compliant competitors - what could be better than market distortion in the infringers favour?

From the photographer's perspective, infringement usually denies them two things; firstly, legitimate income and secondly, the moral right of attribution. By using images without attribution (a credit) the infringer may also be held responsible for consequential losses, as other infringers use their site as a handy source of free material.

I'm no lawyer, but this issue is almost certainly a matter for the civil courts. It is for this reason I register every single image with the US Copyright Office. This grants statutory damages with sufficient value to have a lawyer take the case on contingency. It really is a shame and regrettable that I have to do this, but the alternative of not protecting my work from unauthorised use is not a risk I wish to take.

Anyone can register their images, and I would urge Wetpixelers to do so. Is anyone interested in a 'How to' guide?

*S.107(2A) Copyright Designs and Patents Act 1988

I wonder if Tobias has registered his pics; they appear on other similar websites in other languages (Portuguese for one).
Bill

[bvanant]

[quote name=

What would you recommend to do?

Regards
Tobias

[/quote]

My first response was really aimed at being practical. People's pictures get "borrowed" all the time and generally the guy doing the borrowing has no intention of even paying stock fees for the picture so my recommendation was to ask him if he wants to purchase the rights and if so here is my price (or maybe at least give you some attribution if you would be happy with that). To me that is the practical answer. Of course if you have registered your photos with the US Copyright office then you have a more serious possible recourse. I think that there may be lawyers in Washington State (where the Reefkeeper guy is located) who would take a civil lawsuit on contingency (meaning they keep like half of what they win for you) and if the picture is registered then the penalty per picture can be $150,000 which would be worth at least thinking about but if you haven't registered the photo then you can only collect what you actually could have billed which will not be worth a civil lawsuit for most lawyers.

Bill

[decosnapper]

.....But how did the shop owner know that the pictures are copyrighted and by whom?

Again, consider it from the other viewpoint; how could the shop owner be confident in knowing the images had been declared free of copyright by the rights holder?

Unless you assume that the shopkeeper knew whom to contact for licensing (or even knew that he should) at least in the U.S. he is probably guilty of "innocent infringement".

Do you have a specific example of case law that demonstrates successful "innocent infringement" defence with commercial gain?

There are lots of cases in this series of threads where exactly this has happened and the general consensus is that you remind the perpetrator that he is illegally using a copyrighted photo and if he wants to continue to use it then he needs to pay. I agree that it is rude to steal someones photos and not make an apology (although we don't know that he didn't apologize after he took down the picture) but simply sending a bill seems to me at least a bit harsh.

Paying for future, ongoing use once an infringement is discovered is hardly best practice for discouraging the very act of infringement in the first place. To date, every infringer I have dealt with has paid up for retrospective use and all have been unwilling or unable to pay for ongoing use. All have paid retrospective license fees. In one instance, it took two infringements of my work for them to realise just what 'retrospective' means, but they have not (as of today at least) made the same mistake.

As recommended in the previous posting; register your work with the US Copyright Office. I register my work as a matter of course. I have not looked at doing this, but you can register published works on a fast track system and one of the reasons given for the fast track is impending legal action. Is anyone aware of any cases whereby the photographer has found infringement, registered their images and then gone after the infringer?

As I write this, I started to wonder if would it be OK to find out what patent you hold and start exploiting the idea. Maybe only agree to pay for ongoing use when you find out? Wouldn't you want compensation for the benefit gained up until that point? What if a "oh whoops! Sorry!" is given, the patent infringement stops? If there is no further use it follows there is no ongoing benefit and therefore no need to pay up?

Until photographers take their creative efforts and the subsequent infringements thereof seriously, why would we expect anyone else to do the same?

In any case on another topic I wonder how many folks condemning the store owner have only legal music/movies/software on their computers.

I do.

Edited by decosnapper, 20 December 2011 - 12:55 AM.

[bvanant]

As I write this, I started to wonder if would it be OK to find out what patent you hold and start exploiting the idea. Maybe only agree to pay for ongoing use when you find out? Wouldn't you want compensation for the benefit gained up until that point? What if a "oh whoops! Sorry!" is given, the patent infringement stops? If there is no further use it follows there is no ongoing benefit and therefore no need to pay up?

In terms of innocent infringement, our patent guys said to look at Maverick vs. Harper but that was for songs, not for photos and the penalty ended up at $200 or something like that but that is a moot point.

Somehow I have given the impression that I am for stealing and infringement, I am not; but what do you do if you haven't registered your work and you send a bill and never hear? If you have an attorney on retainer you might threaten to sue or make bad publicity for the infringer but practically if you never hear what are your options (unless you are an attorney with not much to do).

As for my patents or patents in general the rules are quite different but if you start to make money with them (I can send you a list) then someone will give you a call; not me they are all assigned to my employer. Practically, if you are using them in an individual medical practice for example then you are most likely safe since suing your customers is bad business. Unlike copyright though the ignorance argument actually works in patent infringement since you can collect punitive damages only for willful infringment.

In any case, I still don't understand what in a practical sense you can do if some small business owner uses a picture he got from somewhere on the internet if you haven't registered it and he refuses to return your emails.

Bill

[decosnapper]

In terms of innocent infringement, our patent guys said to look at Maverick vs. Harper but that was for songs, not for photos and the penalty ended up at $200 or something like that but that is a moot point.

Interesting example, and thanks for sharing it. And interesting too that the damages have gone up to $750 - according to this link. Perhaps what is most telling is this statement; The Fifth Circuit explained that it did not matter whether Harper knew her conduct was illegal. In other words, 'didn't know' was not accepted as defence. Whilst it is very risky to mix judgements and expect the same, it does give insight as to how the judges consider the law and interpretation thereof.

....Somehow I have given the impression that I am for stealing and infringement, I am not; but what do you do if you haven't registered your work and you send a bill and never hear?.....

Well there were times when I got the impression...but that may say more about me than how it was written...I think we are pretty much in agreement Bill...please read on...

........
In any case, I still don't understand what in a practical sense you can do if some small business owner uses a picture he got from somewhere on the internet if you haven't registered it and he refuses to return your emails.

In practical terms you are 100% right as I suspect there is nothing you can do, the horse has already gone so bolting the stable door will be of questionable benefit...things are a little easier here in the UK and its straightforward to demonstrate to a business they need to settle up quickly - and for more than the basic fee based on flagrancy, criminality, accounting for profit and consequential losses - that most, in my experience, do just that. In the US, I realise things are somewhat different and perhaps its not so easy...

Here's the steps I take:-

1. Register everything with the USCO
2. Embed metadata in every image that leaves the office PC.
3. Web use - metadata + visible watermarks. Not just a simple assertion of rights like "Image © Simon Brown. All rights reserved" but a big spoiler.
4. Assert my moral right to attribution on everything published.

None of this will prevent an infringement, but it does reduce the risk (good for creators and users alike) and if things have gone wrong a remedy may be available.

On point 3, occasionally people moan it ruins the image...but I do remind them they can see the image in a magazine if they care to buy a copy...or I can sell them a print. In both instances they will probably have to end up paying me, either directly or indirectly, but the choice of free is there too.

As a recommendation, I would encourage everyone to at least do step 1. I do tend to find that few one care about seeing their creative endeavours used for whatever purpose.....until something goes wrong...and it invariably does.

[Tobias]

Wow, what a discussion. Thank you very much guys for bringing this topic forward so much. :-)

Let me try to comment some of the questions:

You complained, they removed the picture. What else to do? Nothing much IMHO. This worked as it should. Of course they should have asked first, but sending them a bill was a bit of a stretch. You might have asked them if they wanted to pay for it or at least give you some attribution.

- Sorry, but I totally disagree. If someone took you lense without your knowing for weeks and then you recognize and you ask him to give it back and he does. Do you find that is ok? There is no difference if it's a lense or my picture. Both is my property.

I certainly wouldn't have sent them a bill without some discussion, that seems to me to be totally rude.

- And you don't find it rude that they took my picture without asking me?

There appear to be lots of folk using that picture for a variety of reasons
Aquarioxpg is using it selling more aquarium stuff (maybe they paid) and it appears in lots of other places. Maybe the guys that borrowed it didn't get it from the competition but from some other site (like shoppedornot)

- Can you please sent me the links to the sites which are using my picture? How did you find them?

I wonder if Tobias has registered his pics; they appear on other similar websites in other languages (Portuguese for one).
Bill

- No I don't have registered my pics. Usually you don't need to do that (at least in Germany) because your copyright is anyway applied to your pictures by default.

But how did the shop owner know that the pictures are copyrighted and by whom?

- EVERY picture has a copyright and you can't use the picture as long as it's not clearly stated that they are FREE to use. When a picture displays on a photo competition, it's a fact in my eyes that they are copyrighted. If you drive too fast on a highway and get cought by police it doesn't matter if you tell the officer that you didn't know what the speed limit was. You have to pay for this "crime". Same with my picture. It doesn't matter if and how much more money they did with my picture or not. The stole my picture and this is a fact.

I agree that it is rude to steal someones photos and not make an apology (although we don't know that he didn't apologize after he took down the picture) but simply sending a bill seems to me at least a bit harsh.

- No, I didn't got any email or apologize from them. Again, I don't find my acting very rude, considering they stole my image.

As a recommendation, I would encourage everyone to at least do step 1.

- Thanks for the recommendation. Just in theory, if I would have registered my image in this case. I would still need to go to court to get my bill paid?

Anyway, in Germany it is quite regular to sent a bill to the one who has "stolen" an image without asking for it in prior. So I tried the same with this store in the US. At least they took the picture of their page which leads me to the fact they they got the bill. ;-)

Many thanks again
Tobias

Edited by Tobias, 21 December 2011 - 01:57 AM.

[johnjvv]

- Can you please sent me the links to the sites which are using my picture? How did you find them?

Tobias,

Drag and drop a JPEG format image into the search bar of Google Images and it will show you places where the image is used. There were various articles where the images came up and accredited to you however there were a couple with none, most notably a blog called babe fart but also a magazine which did not give you a mention as far i could see...

[decosnapper]

Wow, what a discussion. Thank you very much guys for bringing this topic forward so much. :-)

You are most welcome.

- Thanks for the recommendation. Just in theory, if I would have registered my image in this case. I would still need to go to court to get my bill paid?

There are no guarantees on being paid even with USCO registration. What it does do is mean a lawyer will be interested in working on contingency and the best resolution for all is agreement/payment before getting anywhere near the courtroom. Even if you end up in court the company could cease trading...or use any method of avoiding the court judgement. Its not cast-iron, but that applies to life in general really.

For what its worth, I would not contact an infringer if a USCO registered image was used without permission. Depending on the circumstances, it would go straight to the lawyer. After all, the infringer didn't have the courtesy to ask did they?

Anyway, in Germany it is quite regular to sent a bill to the one who has "stolen" an image without asking for it in prior. So I tried the same with this store in the US. At least they took the picture of their page which leads me to the fact they they got the bill. ;-)

Here in the UK we are somewhat envious of German copyright law, particularly with respect to moral rights. In my experience, German publishers understand what the can and cannot do...and treat creative endeavours with respect. This may make sending a bill effective. It usually needs two letters here in the UK to ensure payment is forthcoming...at least that's my experience.

Google Image Search is indeed useful.

Edited by decosnapper, 21 December 2011 - 03:58 AM.

[bvanant]

Wow, what a discussion. Thank you very much guys for bringing this topic forward so much. :-)

Let me try to comment some of the questions:


- Sorry, but I totally disagree. If someone took you lense without your knowing for weeks and then you recognize and you ask him to give it back and he does. Do you find that is ok? There is no difference if it's a lense or my picture. Both is my property.


- And you don't find it rude that they took my picture without asking me?


- Can you please sent me the links to the sites which are using my picture? How did you find them?


- No I don't have registered my pics. Usually you don't need to do that (at least in Germany) because your copyright is anyway applied to your pictures by default.


- EVERY picture has a copyright and you can't use the picture as long as it's not clearly stated that they are FREE to use. When a picture displays on a photo competition, it's a fact in my eyes that they are copyrighted. If you drive too fast on a highway and get cought by police it doesn't matter if you tell the officer that you didn't know what the speed limit was. You have to pay for this "crime". Same with my picture. It doesn't matter if and how much more money they did with my picture or not. The stole my picture and this is a fact.


- No, I didn't got any email or apologize from them. Again, I don't find my acting very rude, considering they stole my image.


- Thanks for the recommendation. Just in theory, if I would have registered my image in this case. I would still need to go to court to get my bill paid?

Anyway, in Germany it is quite regular to sent a bill to the one who has "stolen" an image without asking for it in prior. So I tried the same with this store in the US. At least they took the picture of their page which leads me to the fact they they got the bill. ;-)

Many thanks again
Tobias

In the US and everywhere that has signed the Berne convention treaty copyright is automatic but in the US (as I understand it) if you have registered you are eligible for up to $150,000 for each photo while if you don't register the most you can collect is what the infringer would normally have paid and that might be only $100 or so. In the first case since there is money involved lawyers will/might do some work. In the second case they will not be wanting to help so much.

By the way, it is indeed a magnficent picture, you are to be congratulated, I am jealous.
As for using it illegally, there is also a website in portuguese that is using the same pic to sell aquarium stuff as well.


Bill

[Paul Kay]

Try using an image from a major Photo Library and getting away with it - I suspect that if there is a reasonable chance of a viable amount of money being extracted from the user, then it will be. Usage of images is now becoming ever more like the supply of many other goods and services and, where feasible, usage will be charged for just like anything else. If someone has had use of an image, then, if its viable, then they can be made to pay for it. This year, changes in my Agencies have brought home to me how lax I have been in the past and why this has had to stop as things have shifted and become far more rigid in terms of image supply, exclusivity and, at the end of the day, fees. I'm not sure that I'm terribly enamored with the changes, but I can't see avoiding them if I want to keep making a living as a photographer and keep supplying stock in the future.

[bvanant]

In practical terms you are 100% right as I suspect there is nothing you can do, the horse has already gone so bolting the stable door will be of questionable benefit...things are a little easier here in the UK and its straightforward to demonstrate to a business they need to settle up quickly - and for more than the basic fee based on flagrancy, criminality, accounting for profit and consequential losses - that most, in my experience, do just that. In the US, I realise things are somewhat different and perhaps its not so easy...

Here's the steps I take:-

1. Register everything with the USCO
2. Embed metadata in every image that leaves the office PC.
3. Web use - metadata + visible watermarks. Not just a simple assertion of rights like "Image © Simon Brown. All rights reserved" but a big spoiler.
4. Assert my moral right to attribution on everything published.

None of this will prevent an infringement, but it does reduce the risk (good for creators and users alike) and if things have gone wrong a remedy may be available.

On point 3, occasionally people moan it ruins the image...but I do remind them they can see the image in a magazine if they care to buy a copy...or I can sell them a print. In both instances they will probably have to end up paying me, either directly or indirectly, but the choice of free is there too.

As a recommendation, I would encourage everyone to at least do step 1. I do tend to find that few one care about seeing their creative endeavours used for whatever purpose.....until something goes wrong...and it invariably does.

[Tobias]

Thanks dor the recommendation regarding google images. Didn't know that yet. Used Tineye so far.

Bill, it would be great if you could sent me the link to this aquarium site from portugal, please.

Many thanks in advance.
Tobias