Nautilus Swell - Images used without permission

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I have been trying to deal with the Nautilus Swell using my images without permission for almost one year now. They have used five different images (one photo they used twice for a total of six infringements). I have made a significant effort to come to an amicable settlement with Nautilus, but ultimately they continue to send me on a wild goose chase. I know wetpixel occasionally runs trips with them, and I am hoping someone on here can give me advise about how to move forward at this point.

 

I went on a trip with them in May of 2011. Upon returning, the dive master aboard saw pictures on my facebook page and sent the link to their office. The office asked me if I would do a blog post and include photos. I did so, but I asked that other than the blog post my photos not be used without my permission. They agreed and put up the blog post. Since then, they have used two of my pictures (for a few months each) as some of the main photos on their homepage. They have used two of my photos in their email newsletter. And two of my photos are currently up on their blog under blog posts by people other than myself. The photos on their blog are credited to me. The other four uses had my copyright cropped off.

 

The photos are all very high quality. Three of them were unique situations where I was able to capture photos that would be extremely difficult or impossible to replicate. And in my opinion they are higher quality photos than Nautilus typically uses in their marketing materials (other than when photogs contribute to their blog). According to the Internet Archive, the first infringement started approximately November 2011. I noticed it in February, and I have been trying to get compensation since then. Because I have been a customer of the Nautilus twice, I like the people involved, and I hope to be a customer many times in the future, I have asked for minimal compensation. After the first infringement I asked for $200 in credit towards a future trip, but since then there have been five more infringements. My most recent ask was for $1200 in credit towards a future trip or a $1000 check -- their choice.

 

I have been passed around to retell my story to six different Nautilus employees. Each time, it is if I am starting over completely and they don't know they are using my images. All of the people have been very poor at replying to emails, and I have had to spend a lot of time following up. My emails now are going unanswered. The latest is that Mike Lever got involved. First he told me, "I am an avid photographer myself and would be furious if I perceived that someone was using my images for commercial gain after taking the copyright off. That's stealing. I would never condone it." After a few months of no action, I set a deadline. So after 11 months of showing his employees that these were my files (11 months of back and forth and back and forth), Mike Lever's latest response is that he doesn't believe I took the photos. He asked me to watermark my raw files and send them to him as proof. He said he won't engage in any negotiation until I do so. I let him know that I am unaware of any way to watermark a raw file and I am reluctant to send my raw files because of how my photos have been repeatedly (accidentally?) misused, but that I could send him screenshots that showed the pics along with the Nikon .nef extension of the photos in my Lightroom photo library. I could also send screenshots of the pics that come before and after in the sequence. I asked him if that would suffice as evidence for him. I offered to send those to him on January 29 and as of Today, February 11, I have still received no response. I have also repeatedly asked Mike Lever to call me because some of his emailed questions suggest that his employees haven't told him the whole story, but to this point he has declined to do so.

 

I don't presume to know what is going on in the Nautilus brain trust regarding dealing with me. But it seems that their modus operandi is to be extremely apologetic and assure me that they will get the the bottom of this and resolve it fairly with me, then never follow up with me, then when I follow up pass me on to the next person. Now that I have made it to the top of the organization, my follow up is being met with accusations and denials. It is extremely frustrating. I am sure many photographers deal with this kind of thing all the time. But I never have before. So I don't know what to do next. Does anyone have any specific suggestions? Thanks,

[Ronyx 6]

All I can think of with the original file is if your copyright is contained in the metadata.

 

I agree that sending the raw file is out of the question given the events to date.

Edited February 11, 2013 by Ronyx

[decosnapper 34]

A few questions:-

Are your images registered with the US copyright office?

What jurisdiction/country does the company questioning your ownership of the rights reside in?

Is the quoted $200 use per month? Per year? Or longer?

How many images of yours are now being used?

Do the images contain your metadata? Or has this been stripped?

[gravity 0]

Hi Simon,

They are not currently registered with the US copyright office, but that is something that I will do if I can't reach an amicable agreement shortly.

 

Nautilus is a Canadian company, but their web registration and hosting appears to be in the USA (as am I).

 

The agreement I offered was meant to cover all past uses, but no ongoing or future uses. But after 11 months of back and forth. I recently set a one week deadline for them to accept my offer. They missed that deadline. So currently, there is not an offer on the table from either party.

 

Two of my images are currently on one of their sites (nautilusswellstories.com) and they both contain my metadata and my name in the filename. Two images appeared on their homepage in the past, but they took them down when I alerted them they were using my photos without permission.The metadata was stripped before they put them on the homepage. And they have used two images in their email newsletter. In the newsletter, my photos were used as part of a composite. I haven't checked, but it is doubtful that the composite would have my metadata.

 

I appreciate any input you can offer.

[decosnapper 34]

From what you have said, I think the company in question is not really taking your concerns seriously.

 

Here's what I think* what I would do;

 

Because the company is Canadian, I don't think having the images registered with the US Copyright Office will help in this instance. As the images have been published (albeit without your consent) then the likelihood of secondary infringement is far higher than if the images remained on your hard drive, I would still register them. I think* the images would need to be registered as published works.

 

I think* the fact that embedded metadata is present, detailing your contact information, then this is proof enough. But this actually misses the point somewhat and you are being fed a touch of BS. I think* that in all cases, the user of the image must be prepared to provide evidence of a right to use for the image in question. This is why when I hear the "can we get a CD of your images?" I shudder somewhat for both parties...neither side are really looking after their own interests...but I digress. As there has been no evidence of a right to use then I would ignore any request to provide RAW files. The onus remains firmly on the user, not the creator, but as a matter of course I would be prepared to demonstrate proof of ownership and declare that on a Letter Before Claim (read on).

 

Here in the UK, I issued my very first Letter Before Claim for an infringement that may well end up going through the Patent County Court Small Claims Track. The infringer had been unresponsive, so after 14 days I issued the letter and within 2 days their solicitor had given written acknowledgement of receipt. I share this partly to help our UK friends, but also to give a clue as to what I think* the next step should be; start to consider legal action.

 

The issue will, I think*, come under Canadian law. I have no idea of the process or legal requirements in Canada....and having wrestled with the 'simple' UK process I would not want to get involved with it myself. So I would try and find if there is a possibility of a no-win-no-fee lawyer taking the case, or finding if https://www.imagerights.com/ would take up the matter for me, and hand it over to them.

 

I think* you have tried to settle amicably, but the company in question would appear to have little interest in responding in kind. There has to come a point where if all other means have failed, the only recourse is legal. It never fills me with joy to take such course of action, but neither do I appreciate being ignored, fobbed off or refused payment for my creative endeavours. So I am dammed if I do, and starved if I don't.

 

Best of luck. I would be interested to know what you find out about Canadian law, so if you get a mo an update would be useful.

 

*I'm not a lawyer...what I think might not be based on any known legal framework. Take this advice as you see fit...no warranty expressed or implied!

[Paul Kay 51]

Does anyone have any specific suggestions? Thanks,

Yes. In such situations, the FIRST thing that you should do is to send an invoice - stating exactly what usage the invoice covers. If the image user then falsl to pay you can look into legal action to enforce. Also print out and retain copies of AlLL correspondence as, should things go so far, courts love detailed and comprehensive evidence that you have tried to act reasonably and have explained the situation throughout. In this particular situation my guess is the Canada has a system similar to the UK's 'small claims court' mechanism for the recovery of 'small' amounts and its probably available on-line. Make yourself conversant with how this operates and if you need a follow up letter after your invoice 'pay by' date, clearly detail the next steps which you will take to enforce so that it is clear that you are not simply 'trying it on'. I once had only to quote the reference of the form used to submit a claim to the small claims court to obtain payment..... clearly the (now ex-) customer had been there before.

[decosnapper 34]

I once had only to quote the reference of the form used to submit a claim to the small claims court to obtain payment..... clearly the (now ex-) customer had been there before.

 

 

UK-specific comment follows; Since a ruling (last couple of years) forced by some clever lawyers in the BBC infringement cases cannot be heard in what we know in the UK as the Small Claims Court. The BEEB lawyers argued that Small Claims was for contractual enforcement and as the images were infringed, no contract existed. Sending in a invoice does not create a contract either...the infringer can ignore it.

 

So we are forced to use the Patent County Court to seek redress. There is a small claims track (<£5k) that keeps costs down for both parties. If anyone wants or needs specific advice, just PM me.

 

Using the UK Small Claims Court might work if the parties are unaware of the ruling, but if they are slippery you will be back at square one having spent time wandering down a blind alley I'm afraid.

Edited February 13, 2013 by decosnapper

[Ronyx 6]

I found this on the CAPIC website.

 

". . . the work must be created by a person who is a citizen or resident of Canada, or connected with another country that adheres to the Berne Convention or a similar international copyright treaty, or is first published in such a country. Canadian copyright law applies to works in Canada. If a work created in Canada is used in another country, then that country's copyright law applies.

 

There is no requirement to register copyright work in Canada. Purchasing a certificate of registration can provide proof that the work is protected by copyright and that the registered owner is the owner of the copyright in that work. "

 

http://www.capic.org/resources.html?screen=bp&t=bp_section&chapter=What+You+Sell

Edited February 13, 2013 by Ronyx

[Ronyx 6]

The CAPIC page noted above contains a lot of good information on Canadian copyright law and would be good to read through. One item that may or may not lead some where is the Canadian Copyright Licensing Agency (CANCOPY). While this agency manages electronic and digital rights for its members, it could still be worthwhile contacting them in the event they can provide advice.

 

Best of luck and keep us informed of your progress.

[Stewart L. Sy 12]

I've successfully gone after a couple of companies who've used my images without my permission and they were ordered compensated by the court. Having gone through the process specifically here in British Columbia, there's a couple of things that you should know.

 

1) If you go into small claims court, you will need to do it in the court system of the city where the violator has offices. In the case of the Nautilus, it would actually be where I am right now, in Richmond. You have to file the case here in Richmond Small Claims then send the motion to the Nautilus by registered mail or personal delivery. This should show them that you are serious about going after them.

 

2) If they don't settle (thinking that you are an out of towner) and the suit goes to court, you will have to come back to Canada on your appointed court date.

 

I would recommend a couple of things

 

1) DO NOT send an invoice any more, if you do go to court, then you'll be limited to that invoice amount, I would bring standard usage rates from an established photographic site to show what compensation is to be expected. My claim was awarded 3x the usage due to infringement.

 

2) If you do go to court, then it will be up to the Nautilus to prove that it was not you who took the image, you have the RAW files and can easily show the judge your NEF files.

 

Best of Luck

 

Stewart

[Stoo 42]

I just read this thread as I have similar situation, although not so "advanced". I have noticed three diveshops have started to use my wreck images to promote dive weekends and the like. The awkward thing is that in at least two cases, the shops are owned by guys I know well... I would almost call them friends... In reality, had they asked, I would absolutely have granted permission to use them. They have left my watermark, and in one case, credit was given. It's hard to get too upset, but it's just a bit annoying. I'm currently in discussions with a national magazine to run a few images to "decorate" an article, and I think that having some of the same images used on LDS Facebook pages and websites diminiishes their worth... or is that just me?

 

Obviously, I won't be suing, but I think I will send each a note, and perhaps make a somewhat tongue in cheek reference to compensation... Free air minimum!

 

Getting back to the OPs situation, I wonder if it might be worth investing a few dollars and have a lawyer send a "strongly worded letter". As much as one might like to give Capt. Lever the benefit of the doubt, it is clear though his actions that he was well-aware that he was stealing images and presumed that the photgrapher would be satisfied with an ego-boost as compensation. Perhaps Stewart knows one in the area, which would lend credibilty as well.

 

I should add that I was at a nice little eco-lodge place in Belize recently. They were fond of my photos and I offered to let them use them on their website. It was a sincere offer. This place runs on a shoestring budget, and the images on their site truly sucked. The gratefully accepted them, and credited generously. More to the point, I recently inquired about a return trip, and noticed a very significant discount on the quoted price... With a nice note about the photos. This is the best kind of compensation for an amateur like me... the non-taxable kind.

 

If companies realized how cheap some of us are, a token can go a long way. Want a picture? Give me free Nitrox. Want two, toss in a night. Goodwill only goes so far...

Edited June 14, 2013 by Stoo

[decosnapper 34]

I just read this thread as I have similar situation, although not so "advanced". I have noticed three diveshops have started to use my wreck images to promote dive weekends and the like. The awkward thing is that in at least two cases, the shops are owned by guys I know well... I would almost call them friends... In reality, had they asked, I would absolutely have granted permission to use them. They have left my watermark, and in one case, credit was given. It's hard to get too upset, but it's just a bit annoying. I'm currently in discussions with a national magazine to run a few images to "decorate" an article, and I think that having some of the same images used on LDS Facebook pages and websites diminiishes their worth... or is that just me?

 

No, its not just you...exclusivity still has value, even today. I have nearly lost a sale because and editor saw a similar (not mine) on Facebook and said "Ah...has it been published elsewhere? Won't be interested if it has...". Turns out it was a similar subject but in no way the same...so the deal went ahead.

 

And I am using the reasoning that as an infringer was first to publish an image of mine, they have ruined any chance of a legitimate exclusive sale of what is a very newsworthy event. Its a + 300% markup on the fee on that basis.

 

Exclusivity, difficulty of access (all UW images then...not open to all), profile of event/subject, uniqueness of image....they all add value. Even the courts agree here in the UK as the recent case of Sheldon v Daybrook demonstrates:-

http://www.swanturton.com/ebulletins/archive/SheldonVDaybrookHouse.aspx#.UbrkauD5RQc

[Kelpfish 15]

If they are "continuing" to use your images, you need to send a DMCA. This lady is an expert on copyright law. We've referenced her in my stock photography forum several times. http://rising.blackstar.com/how-to-send-a-dmca-takedown-notice.html

 

If you are trying to collect "back income" the most effective way is to have an attorney do it. They'll be able to access the parent company and their principals. Unauthorized use can be easily $1500 an image. it's possible to fight this battle yourself, but attorneys can be a big help. I just finished a fight on Ebay where a image pirate was using images of mine for a photo CD he was reselling. I could not get anywhere with those scum bags at Ebay so I had to get my stock agency involved. Stuff was taken down not too long after.

 

Good luck. Social media makes controlling your images very difficult. Donated images should be accompanied by a big watermark unless they paid for them.

 

Joe