# Copyright question



## dollydaydream (Aug 19, 2009)

Hi all, I'm new on here and just wanted to pick your brains please. 

I am an amateur photographer, and recently took a picture of a friend and her horse which was posted on an internet forum. 

The manufacturer of a piece of equipment she was using at the time expressed an interest in using the picture in one of their brochures to advertise the item. They contacted my friend about it and she directed them to me to ask for permission. I granted permission, and was extremely flattered that they thought the photo was that good! 

A couple of weeks later they contacted me again to ask to use it again in an editorial in a magazine to advertise their goods. I ummed and ahhed about it, and decided I thought they were taking advantage where they would normally have to pay a photographer for the shot, so I declined and on the advice of a photographer friend, invited them to make me an offer to purchase the rights to use the photo (not naming a figure). 

I received an email back from them declining, stating they didn't have the budget. 

A few days after this I found out they have used the photo for the editorial anyway!! Without my permission! Considering the timescale, they didn't even wait for my reply before using it, and may even have submitted the photo prior to even asking for my permission. 

Now I know very little about these matters, but I have done a little research and know that as the photographer I am by default the owner of the photo, and that they are in breach of copyright law by using the pic without my permission. 

So what can I do? 

To be honest I don't really want to get into some legal battle about it, and would be happy if they just paid me for the photo. But I don't know what the going rate is and what to do next.



Thanks a million if you have managed to read through all that. I really appreciate any advice you can give me.


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## ben. (Aug 19, 2009)

Sue them!! LOL, well if you want this to become serious, then you must go get a lawyer or an adviser. After what I learned in class, I believe that they will have to pay you and that some sort of punishment will be set upon them: either jail, or even restriction and deletion of their company.


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## Big Mike (Aug 19, 2009)

Welcome to the forum.

I think your intuition about not wanting a legal battle is a good one.  It does sounds like you would be in the right, and would probably win a legal battle, but would it really be worth it?

Maybe you could write them (and the magazine) an E-mail, or a letter.  Letting them know that you know they used the photo without permission.  You could even hint at legal action.  Heck, if you wanted to play hardball, have the letter sent from a lawyer (even if you have no intention to sue).  

Consider what would be an acceptable solution for you.  Are you looking for a certain amount of money?  Would an apology be sufficient?  What if they gave you photo credit in a future edition.


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## ben. (Aug 19, 2009)

Big Mike said:


> What if they gave you photo credit in a future edition.



I would have a lawyer send them a letter asking them to give you photo credit and money, if you want it, or else they will have to go through court. 

I'm pretty sure that a lawyer would be more then glad to write you that letter, and you could buy yourself a new lens or other accesory with the money you could make!!


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## c.cloudwalker (Aug 19, 2009)

Talk to a lawyer. But before that, figure out what the reasonable fee would have been for this photo.

Also, I don't know anything about lawyers in the UK but if you have property rights specialists like we do, that's who you want to talk to. Ask around for a recommendation or check with a pro organization.

Go after them and good luck.


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## KmH (Aug 19, 2009)

I don't know what constitutes "fair use" in the UK, but that is a doctrine you should explore. If their usage is solely for advertising purposes and not actually editorial, the Bourne Convention is pretty clear and an infringement has occurred, and a willful infringement at that.

First, you need to collect irrefutable evidence of the infringment by buying several copies of the magazine. Ask friends in other locals to aslo purchase the magazine so you can show that distribution was extensive.

You definately need to secure the guidance and services of a solicitor.

Don't make any agreements to settle until you know how extensively your image has been used. Only by knowing the extent of usage can you determine what a reasonable usage fee would be. Make the infringer provide a listing of the uses.


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## ashleykaryl (Aug 21, 2009)

I'd try not to get lawyers involved at this point. Your best bet during the early stages is an attempt to reach an amicable agreement by sending them a cover letter attached to an invoice for the image use. I am not quite clear though from the original post if the usage was editorial or advertising and I know that can be a fine line sometimes. 

Should it be the case that you can establish this is advertising usage then it may be worth going to battle but for editorial simply try to find a quick financial solution and try to be pragmatic. It's very rarely worth getting lawyers involved for editorial infringements. Unfortunately my images have been used without permission on countless occasions and it's invariably something that ends up taking away a lot of my time.


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## KmH (Aug 21, 2009)

ashleykaryl said:


> I am not quite clear though from the original post if the usage was editorial or advertising and I know that can be a fine line sometimes.


Sending a letter with an invoice attached is absolutely the wrong thing to do and a typical statement based on Internet Urban Legend.

The phrase from the OP "*to advertise their goods*" is pretty clearly indicates an advertising usage.

Certainly, an online forum is not the place to seek reliable legal advice. You really should contact an attorney for advice.

Watch this video of a real attorney talking about intellectual rights. Pay close attention when he gets to the part about how to proceed when your work has been infringed.


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## skieur (Aug 21, 2009)

KmH said:


> I don't know what constitutes "fair use" in the UK, but that is a doctrine you should explore. If their usage is solely for advertising purposes and not actually editorial, the Bourne Convention is pretty clear and an infringement has occurred, and a willful infringement at that..



To correct the above, the implication that editorial use is "fair use" in the US is not at all true. 

skieur


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## skieur (Aug 21, 2009)

KmH said:


> ashleykaryl said:
> 
> 
> > I am not quite clear though from the original post if the usage was editorial or advertising and I know that can be a fine line sometimes.
> ...



Actually it is a common practice done by many of my colleagues in the US.
It works a certain percentage of the time and when it doesn't, it is one more bit that confirms infringement/theft of property.

skieur


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## KmH (Aug 21, 2009)

skieur said:


> KmH said:
> 
> 
> > I don't know what constitutes "fair use" in the UK, but that is a doctrine you should explore. If their usage is solely for advertising purposes and not actually editorial, the Bourne Convention is pretty clear and an infringement has occurred, and a willful infringement at that..
> ...


Sorry, I never intended to imply editorial use is fair use.


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## ashleykaryl (Aug 22, 2009)

KmH said:


> ashleykaryl said:
> 
> 
> > I am not quite clear though from the original post if the usage was editorial or advertising and I know that can be a fine line sometimes.
> ...




The original poster is based in the UK like myself and not the US. I've been dealing with copyright infringements of my work as a professional photographer for a couple of decades and different strategies work better in different countries. Not everywhere in the world operates like the US. 

As I said in my original post, if the usage was advertising it may well be worth a fight, but for editorial usage a quick clean solution is better for your health because he wouldn't get much more money even if he hired the finest barrister in England. Starting photographers are often not clear on whether an image was really being used for editorial or advertising so that is why I looked for clarification on that point.


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## JamesMason (Aug 22, 2009)

Is your freind in the picture ?


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## athomasimage (Aug 23, 2009)

You've made the decision, you don't want to pay for a lawyer.  So that being said, take the comment to heart about decidingg a value for the "settlement", go high on the number with the ability to negotiate downward a bit.

Compose a letter to the company.  In the letter include copies demonstrating their improper use of your image.  Be detailed with evidence of how they've used your image without your permission.  Suggest how their attorney fees will outweigh your compensation.

Include an invoice for the compensation and indicate you expect an answer by a certain date.  If you decide to "threaten" with a next step in your letter, be prepared to take that next step.

Good luck!


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## skieur (Aug 30, 2009)

KmH said:


> Sending a letter with an invoice attached is absolutely the wrong
> 
> Watch this video of a real attorney talking about intellectual rights. Pay close attention when he gets to the part about how to proceed when your work has been infringed.



The point in the video is well made, but it depends on the scope of the infringement.  A letter with an invoice attached is appropriate for a low level infringement on a web site for example or involving two wedding or sports photographers dealing with parents.

For a high level infringement by a major company, court and a law suit is only way to go.

skieur


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