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Firstly apologies for being a lurker/non contributor but I have a situation on which I would appreciate your help/advice/experience.

In Issue 27 of Underwater Photography magazine I used a picture taken during the SeaShepherd Antarctica campaign against Japanese whaling activities. This was in response to a press release e mail from SeaShepherd. I am a supporter of this organisation and have included previous articles promoting their activities and encouraging donations.

I have now been contacted by the photographer requesting payment of approx $3900 for using the image in breach of his copyright.

I have removed his image from the article and will now have to consult a media lawyer but I thought I would contact you first in case anyone has any experience of this sort of thing.

I guees my questions are

1. Is a press release deemed to be copyright free?

2. If not is $3900 a reasonable request to make?

Best wishes

Peter Rowlands

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Hello Peter.

Sorry to hear that, I would of thought a press release is just that, all the info is for the press to use to spread the world.

 

Second, it is for a good cause and obviously the guy who took the pic may care more about making a buck than the saving and spreading the word about saving Whales.

 

If it was me and I put some stuff out for a press realease, and the pics / story turned up in article some place else then who cares, especially if it was for a good cause.

 

I would contact Sea Shepherd and ask for their thoughts, as I would of thought any publicity of what they are doing is good for them. Maybe it would be better for them to have a different photo person for future trips, one who is more interested in the cause than making a buck.

 

Good Luck

Paul Wags

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Peter,

 

Was the picture distributed with the release or acquired from some other source?

 

If it was distributed with the release and there was no mention of the need for a separate contract for the picture, you should be OK. Press releases are copyright free. That seems to be the whole point of making one in the first place, right. To get it published in as many places as possible....

 

If you want, send me the entire release via email (timppa(a)ahomaki.net) and I can walk it through with some media/lawyer friends over here.

 

timo

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Sorry to hear about your situation, Peter. And it is interesting to hear about the issue from the otherside. We photographers are usually the ones who feel we get badly treated.

 

From the outside (and therefore admitedly not knowing all the facts) it does seem that the photographer should really be taking this up with the charity Sea Shepard - because they distributed his image on a press release (implying it was free to reproduce).

 

I am also shocked by the amount he is asking for - although I accept that this is probably a opening bid and I am sure he is hoping for a more realistic settlement.

A typical full page repro in a top dive magazine would be about 10% of the amount he wants - say $400. UWP is a free magazine, and has a lower circulation that the biggest dive magazines. Furthermore you didn't use the image full page (you never do in UWP). So a fair price (ignoring the fact it was from a press release) is 1/4 of a big dive magazine full page repro - say $100. Which is kind of at odds with $3900.

 

Hopefully Sea Shepard will be able to suggest a solution - as the whole problem seems to be there making for including the image on a press release.

 

Alex

 

p.s. I just checked UWP Issue 27 to see the image (and to be honest to see who the photographer is) and I can't find it. Darn - should have downloaded the issue earlier. ;)

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Thanks for the prompt response guys. The SeaShepherd link is http://www.seashepherd.org/news/media_060123_1.html SeaShepherd press release and I used the image captioned "The Nisshin Maru changed course,

heading for a collision with our ship"

As you will see, other images contain copyright info.

I am going to ring SeaShepherd's Media office when they open and will keep you posted.

I hope I'm not breaking any confidentiality but the photographer is a Mr Pawel Achtel who I think is based in Australia.

I'll keep you posted re SeaShepherd's response.

Best wishes

Peter Rowlands

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Yes Peter he is in AUS and looks like he has all the $$$ toys...

 

His site is here....

 

Keep us posted...

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Look forward to hearing what Sea Shepherd says.

 

The Farley Mowat is in Melbourne at the moment and we plan on going to take a look on the weekend.

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I have just spoken to Paul Watson (it was 5am his time. Sorry Paul!) of Sea Shepherd and before I had fully explained the situation he knew exactly to whom I was refering. Paul is faxing me the release form that the crew members signed and he informed me that Mr Achtel was a crew member on this trip.

I will keep you informed and must get off line now as my broadband is down and I'm reduced to dial up so must hang up and await Sea Shepherds fax.

 

I will keep you informed.

Best wishes

Peter Rowlands

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Crikey, sounds like he really doesn't get the whole copyright thing.

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furthermore, I think it's pretty low trying to profiteer from activities carried out with a noble organisation like Sea Shepherd.

 

everyone needs to earn a living, but trying to stuff the magazines who spread Sea Shepherds message in good faith is inexcusable.

 

This guy owes Sea Shepherd and UWP a big apology IMHO.

 

Steve

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Just had a quick look at his sight..In one pic it looks as though he's wearing a 'flak jacket' How suitable..

 

I second Steve's apology view..

 

Dive safe

 

DeanB

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Peter,

 

Don't feel to bad... this isn't the first (nor will it be the last time) that Mr PA will sue someone for alleged copyright infringement... he seems to make a living out of it!

 

He's very 'popular' down here in Oz....

 

cheers,

Dave

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Pawel used to be active on DiveOz. Anyone know why he left?

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Pawel used to be active on DiveOz. Anyone know why he left?

 

Probably best that anyone replying to that consult legal advice first :lol::lol:

 

Sorry to hear of this issue Peter and hope its resolved soon at minimal cost.

 

Aengus

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Hi all

Many thanks for your responses both on and offline regarding this situation. They have been most helpful.

Just to update you, Sea Shepherd have kindly faxed me the relevant "Sea Shepherd Crew Confirmation Form" dated 5th November 2005 which Mr Achtel has signed and agreed "Yes, I acknowledge and understand that the copyright on all photographs and other media, including photographs taken by me using my own equipment, belong to Sea Shepherd as described in the photo policy (refer to c14). c14 clarifies the situation in more detail.

I take copyright seriously (and obviously so do Sea Shepherd) so this Form is reassuring to me. However, I am not a legal person.

I am sending the form to Mr Achtel's lawyers in Sydney today and will let you know the outcome.

Best wishes

Peter Rowlands

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Excellent news Peter.

 

I would imagine it would be very tough for him to now demand payment given the "confirmation form" you described.

 

Really looking forward to hearing the outcome.

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Good News there Peter.

I think he may have burnt his bridges with them now.

 

Hope it all gets knocked on the head.

 

I was thinking we all could maybe kick in abit to help you out if it went the other way.

 

Cheers :lol:

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Good News there Peter.

I was thinking we all could maybe kick in abit to help you out if it went the other way.

Or just kick PA instead! :lol: :lol:

What a nuffy!!

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Dear Peter,

 

While the photographer in this case appears to have signed away copyright (a mistake at best), in most cases press releases photos are not copyright free for uses other than the press release - the image needs to stay in form with the text.

 

Your use of the image is a secondary use and different from the press release. Splitting hairs maybe but that is what a lawyer will do and faster than I was able to. So whatever we think of the Photog. and his approach to the world and business, this is something a quick call to Sea Sheperd would have prevented, BEFORE, the picture was used.

 

By the way Peter, did the release form from Sea Sheperd note that copyright was held only by Sea Sheperd or that it was shared? That may be an angle you will see next from your friend down under.

 

Now how can we sink the Japanese whaling fleet?

 

Paul

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Hi Peter

 

Long time no sea.

 

Not to give advice regarding this particular case but just to reiterate what I heard a judge tell your brother once:

 

Under English Law, (The Copyright etc Act of 1988) Copyright is enshrined with the author until 75 years after his demise. It cannot be sold or given away but it can be licensed for use in a particular way for a defined period of time (not imperpetuity). Therefore, it is risky to use any art supplied by a third party unless you have proof that its copyright has been licensed to that person for onward use and that person will indemnify you against action by the artist.

I thought that as a publisher, it was best you were aware of that.

Incidentally, under British Law, misapropriation of Copyright is akin to misapropriation of the contents of someone's bank account, although matters are usually settled amicably outside the Crown Court!

 

Best wishes

 

You are doing a good job, by the way.

 

JB

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By the way Peter, did the release form from Sea Sheperd note that copyright was held only by Sea Sheperd or that it was shared? That may be an angle you will see next from your friend down under.

 

Hi Paul

c14 clarifies that "...all media belongs to Sea Shepherd Conservation Society which is the sole owner of the copyright to the media."

I hope this clarifies things.

Best wishes

Peter Rowlands

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...so it looks like should the author bring an action against you, you will holding hands with Sea Shepherd Conservation Society in the defendant's side of the court. I suggest you contact the plaintiff with details of the Sea Shepherd statement and I bet that will be the last you hear of it. Take my advice and do not waste any money on lawyers until the writ arrives! The fee a lawyer demands will make the original demand look puny. If you lose the case, you will then have a good case for recovery of the money against Sea Shepherd. I am sure that the plaintiff would not wish that to happen.

JB

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Hi Peter

 

I believe that in the UK copyright can only be reassigned in writing - that is to say signing away copyright to another party has to be formally carried via a written document - and this is quite probably normal practice by most other countries too! In your specific case I assume that the copyright law applicable may well be that of the country in which the vessel from which the photograph was taken, or on which the photographer was based, was registered (having been involved in a messy insurance claim against a vessel registered in Barbados, owned in Canada and for which the contract to be on board was specific in its requirement of the use of Norwegian law to settle disputes and against which the threat of action in a US court was used - and the incident involved was of course in a British Overseas Territory!) and I can quite confidently say that a lawsuit in such a case would be far from simple - even to the extent of determining which authority should in fact hear it!

 

If any sort of copyright document was signed then I can't see a claim of this sort going very far without a very expensive legal team becoming quickly involved. As the photographer is highly likely to be on exceedingly shaky ground having signed such a document, I can't see you having a problem over what you may be able to show is a potentially excessive claim.

 

Personally, I virtually NEVER sign away copyright, but then I rarely request punitive fees and do so only when I am satisfied that a DELIBERATE breach took place or a user has little intention of paying. This has rarely happened.

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suggest you contact the plaintiff with details of the Sea Shepherd statement and I bet that will be the last you hear of it.

 

Hi John

I have forwarded the Crew Confirmation Form to Mr Achtel's lawyers and am awaiting their reply and am reassured by your bet!

Regards

Peter

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