# Question on Copyright Infringement on Photo Used for Commerical use.



## mswiech (Sep 3, 2013)

Question on Copyright Infringement on Photo Used for Commerical use.

So I have recently found out that a local company has used my photo that I took a few years back and put it on their posters to promote a summer festival. They have some pretty high named sponsors that assist them on putting on this festival as well.

They have not reached out to me to ask if I would mind them using my photo that they have put on their posters that they shelled around town and with the BIA's. I did not receive credit, nothing.

I am wondering how I should approach them as- 

1. I should be compensated for the use of my photo since they used this to sell and promote
2. I am not only looking at just getting a nod or credit as I feel I should be owed as well. 
3. How should I calculate the cost for my photo that they used since it was used for selling of tickets 
4. Since I am in Canada is there anyone on here that has had luck on issuing a cease and disist order (but how would that work since the festival is over now)

I hope I can get some insight. I don't want to name the fesitval or such right now as I know people in my community frequent this site and don't want to have it get back to them before hand.

Thanks, 

Mike


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## Murray Bloom (Sep 3, 2013)

Do you know how they obtained the image?


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## mswiech (Sep 3, 2013)

Murray Bloom said:


> Do you know how they obtained the image?


 Yes they snagged from flickr.


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## Murray Bloom (Sep 3, 2013)

I'd send them an invoice for the use of the image, and a letter explaining that it's your traditional fee for commercial use. You could threaten legal action, but it may be too soon to get nasty. They might actually pay.


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## mswiech (Sep 3, 2013)

That is the thing that I have to figure out is how much I would have charged for the photo for them to use.  I would have to figure how many of the posters and such that they distributed, etc..


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## Murray Bloom (Sep 3, 2013)

The quantity really doesn't matter so much as the actual use.  There are lots of websites that quote fees.  Here's one that contains some potentually useful information:

https://nppa.org/page/3277


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## CCericola (Sep 3, 2013)

There are several pricing agencies that can help you this time. From there you can send the invoice and go from there. NPPA and ASMP websites can help.
https://nppa.org/node/3277
Pricing Guides | American Society of Media Photographers


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## CCericola (Sep 3, 2013)

Another way is to go to Getty Images and use their rights managed image calculator.


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## KmH (Sep 3, 2013)

mswiech said:


> Question on Copyright Infringement on Photo Used for Commerical use.
> 
> So I have recently found out that a local company has used my photo that I took a few years back and put it on their posters to promote a summer festival. They have some pretty high named sponsors that assist them on putting on this festival as well.
> 
> ...


Check out Canada copyright law or consult a qualified Canadian attorney - Canada Copyright Law.

Canada copyright laws were recently modified quite a bit to be more similar to US copyright law..
Here in the USA, if your image copyright was not registered with the US Copyright office you would have little, if any, legal recourse.

How many posters were made would likely have a significant bearing on any court awarded damages.
The question is - Do you have the funds to pursue legal action?
A C&D (Cease and Desist) letter would be useless since the event is now in the past.


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## Gavjenks (Sep 3, 2013)

> Here in the USA, if your image copyright was not registered with the US  Copyright office you would have little, if any, legal recourse.


You don't need to register images to have copyright.

It helps to make the case cut and dry, but there are other sources of evidence (he could probably produce a higher res version than is online or than they have, for instance). Plus quite likely, if he is polite when first approaching them, they may even just admit it in writing, and then attempt to haggle over price or make excuses.  People are dumb like that.

Plus, it doesn't necessarily have to stand up in *court*. It might just have to stand up in a sternly worded letter on some lawyer's letterhead to get them to pay.


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## DiskoJoe (Sep 5, 2013)

mswiech said:


> Question on Copyright Infringement on Photo Used for Commerical use.
> 
> So I have recently found out that a local company has used my photo that I took a few years back and put it on their posters to promote a summer festival. They have some pretty high named sponsors that assist them on putting on this festival as well.
> 
> ...



Go consult an attorney. Do it MEOW!


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## KmH (Sep 5, 2013)

Gavjenks said:


> > Here in the USA, if your image copyright was not registered with the US  Copyright office you would have little, if any, legal recourse.
> 
> 
> You don't need to register images to have copyright.


True, but US civil copyright law - *USC 17 §411 · Registration and civil infringement actions* - states :


> . . .(b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. . .


(USC = United States Code) http://www.copyright.gov/title17/

Help! I?ve Been Infringed! | Photo Attorney
C&D (Cease and Desist) letters and DMCA (Digital Millennium Copyright Act) notices carry a lot more weight (legal traction) if they include a valid US copyright registration number.


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## Granddad (Sep 17, 2013)

KmH said:


> Gavjenks said:
> 
> 
> > > Here in the USA, if your image copyright was not registered with the US  Copyright office you would have little, if any, legal recourse.
> ...



It seems the need to be registered only applies if you are going for _statutory_ damages; _actual_ damages can still be sought.
"When a photo is not registered with the U.S. Copyright Office prior to  the infringement (or within three months of the first publication of the  photo), a copyright owner may recover only &#8220;actual damages&#8221; for the  infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory  damages. Courts usually calculate actual damages based on your normal  license fees and/or industry standard licensing fees. One source for  standard license fees is a software program called Fotoquote. You also  may recover the profits the infringer made from the infringement if they  aren&#8217;t too speculative."(This from the photo Attorney website posted above.)


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## KmH (Sep 17, 2013)

Yes, the timing of registration determines if statutory damages can, or cannot, be sought.

However, the Federal court system will not accept the filing of an infringement action for actual damages, until the copyright has been registered or pre-registered.
You can't sue if they won't even accept the paperwork that starts a suit.



> _True, but US civil copyright law - _*USC 17 §411 · Registration and civil infringement actions - states :
> 
> . . .(b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. . .
> 
> ...



A bit further down in the same Photo Attorney article:


> _*In most jurisdictions you need to have received your registration certificate to file a complain*t. Unless you have a breach of contract or some other state claim, you must file your infringement claim in a _federal district court_._


Some jurisdictions will accept your filing if you have commenced pre-registration, which means you would not yet have a registration certificate.

It can hard to justify the expense of seeking actual damages when the actual monetary damage amount is substantially less than the cost to pursue an infringement action.
Actual damages have to be proven. Statutory damages do not have to be proven.


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## limr (Sep 17, 2013)

Yes, once you've made a creative work, you are the instant copyright owner of that work.
The damages you can get for infringement of an _unregistered _copyright are often not substantial enough after paying lawyers' fees to make it worth pursuing. Cease and desist, maybe, but monetary damages are hard to get. I'm not sure how different it is for Canada, however.

But before you do anything else, you should check what license, if any, you have on Flickr. Those are the terms that determine what you are able to do about infringement. You may have unwittingly already given permission to use your work.
Flickr Services
and
Change default Licence | Flickr - Photo Sharing!


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## Gavjenks (Sep 17, 2013)

limr said:


> Yes, once you've made a creative work, you are the instant copyright owner of that work.
> The damages you can get for infringement of an _unregistered _copyright are often not substantial enough after paying lawyers' fees to make it worth pursuing. Cease and desist, maybe, but monetary damages are hard to get. I'm not sure how different it is for Canada, however.
> 
> But before you do anything else, you should check what license, if any, you have on Flickr. Those are the terms that determine what you are able to do about infringement. You may have unwittingly already given permission to use your work.
> ...


It doesn't matter which one of those licenses he had for his images by default for this particular case, because every single one of them requires at least attribution, which the pirates did not provide. So they're in violation of all of the licenses.

But yes, that is important to be aware of in general, of course.


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## KmH (Sep 17, 2013)

The default Flickr use license is - *None (All Rights Reserved)*.

API's are - Application Programming Interfaces - and are copyrighted software property of Flickr.

Here is the information Flickr users would want to be informed of - Copyright and Intellectual Property Policy


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## limr (Sep 17, 2013)

Yes, they all require attribution at least, but not all of them include the right to commercial use, so that could help determine what damages, if any, are recoverable.


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## limr (Sep 17, 2013)

KmH said:


> The default Flickr use license is - *None (All Rights Reserved)*.
> 
> API's are - Application Programming Interfaces - and are copyrighted software property of Flickr.



That's good to know.


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## Gavjenks (Sep 17, 2013)

limr said:


> Yes, they all require attribution at least, but not all of them include the right to commercial use, so that could help determine what damages, if any, are recoverable.


Fair enough.


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## Granddad (Sep 17, 2013)

KmH said:


> The default Flickr use license is - *None (All Rights Reserved)*.
> 
> API's are - Application Programming Interfaces - and are copyrighted software property of Flickr.
> 
> Here is the information Flickr users would want to be informed of - Copyright and Intellectual Property Policy



You really seem to know your stuff!

I think I'll stay put in England and only put low res images onto the internet. :salute:


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## vintagesnaps (Sep 17, 2013)

I agree it depends on how you have your Flickr page set as to who has access/usage of your photos. Before posting photos on any website it would be beneficial to read the Terms & Conditions related to usage - on some sites when you sign up you are allowing the website to use your photos, often without notifying you or any compensation; sometimes you are agreeing to the site allowing third party usage of your photos as well. 

I think it's better to read Terms before posting your photos online than trying to recover payment or pursue possible copyright infringement after your photos have already been used.


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