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DPChallenge Forums >> Business of Photography >> Using my photo's without permission. What can I do
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 07/17/2009 11:25:27 PM · #1
It was the DMCA letter.
I got an email from the president of the web hosting service telling me that the photo's had been removed.
I faxed the DMCA letter on 7/14/09. It only took 3 days to get them off.
If any one would like a copy of the DMCA letter I sent, PM me and I will send a copy.
 07/17/2009 07:14:41 PM · #2
Yes, thanks! A happy ending, and a useful thread for future reference.
 07/17/2009 02:39:21 PM · #3
congratulations on the follow-through. Glad you got the desired result.
It was a good learning experience for all of us who followed your experience.

And thanks for posting the outcome.
 07/17/2009 01:12:11 PM · #4
There gone!
Not sure if it was forced (DMCA letter) or voluntary.
Ultimately, he accomplished his goal by linking to the city website where the original photo's are shown.
Thanks to everyone for their suggestions and help! IT WORKED!!!!!!
 07/14/2009 02:44:50 PM · #5
Originally posted by GeneralE:
Originally posted by wdamman:
I sent a "DMCA" letter requesting the service provider remove the photo's.
We'll see if this works.

It will work better if you have your attorney-friend send it ... ;-)


I will see him tonight and have him send it as well. Thanks!!!!!
 07/14/2009 02:39:52 PM · #6
Originally posted by wdamman:
I sent a "DMCA" letter requesting the service provider remove the photo's.
We'll see if this works.

It will work better if you have your attorney-friend send it ... ;-)
 07/14/2009 02:02:44 PM · #7
I sent a "DMCA" letter requesting the service provider remove the photo's.
We'll see if this works.
 07/14/2009 12:59:20 PM · #8
I also brought it up before, but nobody addressed whether this would fall under fair use. I'm guessing an argument could be made on counts #1 and #4 of:

1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2)the nature of the copyrighted work;
3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4)the effect of the use upon the potential market for or value of the copyrighted work."

It doesn't appear he is using the work for a commercial nature and he could argue he is educating the public. I'm also dubious of the impact on the value of your copyrighted work since they were already done for free and his parody of them doesn't affect a future market.

The bottom line is you could still be in the right (and it sucks he's using your pics anyway), but I don't think a lawsuit would be some auto slam-dunk. It would probably be a case of who blinks first and this dude is crazy enough to take it the whole way out of righteous principle.
 07/14/2009 12:50:41 PM · #9
Originally posted by david1707:
Originally posted by boltwalker:
To me, it looks like a public domain government web site, paid for with the guy's own tax dollars. It does not say that the photos are copyrighted, it says photos courtesy of yourself. You say you gave the images away for free to the city, but now you want to charge somebody else to use something already out there in cyberspace? Looks like the cat is already out of the proverbial bag.


Just because it's out there in cyberspace and doesn't say copyrighted it doesn't mean everyone can use it. The photo rights still belong to the photographer unless he gave them away.

BTW bolt, I see you just registered today and this is the only thread you have responded to. Perhaps the website in questions owner?...things that make you go hmmmmm.


Interesting David1707......had not considered but here are a couple paragraphs from emails I received from the fella....

"Is it not true that you volunteered you services?"

"Also, my attorney said once the City posts images on a public web site, the
images are public domain, is this not the case?"

"The Shores web site does not say the images are copyrighted, but provided "Courtesy of Warren Damman""
Please clarify."
 07/14/2009 12:18:11 PM · #10
Originally posted by wdamman:
... Hopefully he just takes them down but if not I am ready.
I have learned a great deal about copyright laws through this process.

Good job -- and the experience should serve you well in the future as well! Keep us posted.
 07/14/2009 11:58:46 AM · #11
At this point I have requested they remove the photo's from their site and told them they are not for sale or use other than the City website. I have a friend/attorney that has offered to file the lawsuit if they do not comply. I have also registered with the copyright office within the 90 day window to allow me to recover legal fee's as well as a usage fine. I sent them links to a number of government sites explaining the copyright laws. Hopefully he just takes them down but if not I am ready.
I have learned a great deal about copyright laws through this process.
 07/14/2009 10:59:04 AM · #12
Originally posted by boltwalker:
To me, it looks like a public domain government web site, paid for with the guy's own tax dollars. It does not say that the photos are copyrighted, it says photos courtesy of yourself. You say you gave the images away for free to the city, but now you want to charge somebody else to use something already out there in cyberspace? Looks like the cat is already out of the proverbial bag.


It doesn't need to say its copyrighted to be copyrighted. Clearly it did say who owned it so you could easily contact the owner to buy usage rights. I have a feeling though that you could sell everything you own and still not have had enough money to buy usage.

Message edited by muckpond - removed personal attack.
 07/14/2009 10:27:54 AM · #13
Originally posted by boltwalker:
To me, it looks like a public domain government web site, paid for with the guy's own tax dollars. It does not say that the photos are copyrighted, it says photos courtesy of yourself. You say you gave the images away for free to the city, but now you want to charge somebody else to use something already out there in cyberspace? Looks like the cat is already out of the proverbial bag.

A painting donated to a museum is not fair game for others to take home and hang on the wall even if you don't see signs advising people not to do that. It's still theft. ALL photos and artwork belong to their creators by law unless declared public domain by the author. Swiping an image off the internet is just as illegal as swiping music or software.
 07/14/2009 09:09:56 AM · #14
Originally posted by boltwalker:
To me, it looks like a public domain government web site, paid for with the guy's own tax dollars. It does not say that the photos are copyrighted, it says photos courtesy of yourself. You say you gave the images away for free to the city, but now you want to charge somebody else to use something already out there in cyberspace? Looks like the cat is already out of the proverbial bag.


Just because it's out there in cyberspace and doesn't say copyrighted it doesn't mean everyone can use it. The photo rights still belong to the photographer unless he gave them away.

BTW bolt, I see you just registered today and this is the only thread you have responded to. Perhaps the website in questions owner?...things that make you go hmmmmm.

Message edited by author 2009-07-14 09:11:06.
 07/14/2009 08:41:06 AM · #15
To me, it looks like a public domain government web site, paid for with the guy's own tax dollars. It does not say that the photos are copyrighted, it says photos courtesy of yourself. You say you gave the images away for free to the city, but now you want to charge somebody else to use something already out there in cyberspace? Looks like the cat is already out of the proverbial bag.
 07/10/2009 01:54:48 PM · #16
That is probaly the thing to do. Because they are not interested in the truth, I would have been tempted to treat it like I had a deal with the accused and he didn't pay. Then you could sue in small claims court. Heck it is politics people expect you to lie stretch the truth.
 07/10/2009 12:45:53 PM · #17
Advise from a friend/attorney based on opinions from 3 different IP Specialists in his firm.

"Given the above, you should have the City's counsel send the webmaster a letter placing them on notice that they are in violation of copyright laws and should cease and desist in using any and all photos taken on the City's behalf or that an action for all allowable damages and an injunction will be brought against them, which includes the recovery of attorney fees."

OPINION 1
"The general rule is that the photographer owns the rights to the photos, unless, of course, he contracted away those rights to someone else or the work is considered as a "work made for hire" because of that photographers employment.
Photographs are inherently copyrighted once they are fixed in a tangible form (e.g., put on a memory chip, printed on paper, put on a website). However, you cannot sue on a copyright until it is has been filed for registration with the Copyright Office. If I were to take a picture of a flower, put it on my website, and someone copied that photo for their own use, I could file the photo with the Copyright Office and file my lawsuit."

OPINION 2
"Generally, the photographer is the copyright owner as the "author" of the work, unless ownership has been assigned. If the photographer is an employee, and the photos were taken within the scope of employment, then the employer may be the author.
Copyright in the work (photo) exists at the time it is created, regardless of whether it is registered. Registration, however, allows the author to sue in Federal court and seek statutory damages."

OPINION 3
"The photographer owns the rights to photos generally. If it is a work for hire, the hiring party owns the rights. Or the rights can be changed by license, assignment, or other contractual agreement. It doesn't matter if the photo is posted on the internet. Copyright rights attach at the time of creation. Copyright filing must be completed before filing a complaint in a copyright action. The filing does not establish the copyright bundle of rights."

I will follow his advise and let the city deal with it, if they want.
In the future I will charge each client $45 and copyright all photo's taken plus make sure I have a signed agreement.

Thanks for everyone's input, I have learned alot!
 07/09/2009 09:31:34 AM · #18
there was an interesting artice in June's issue of Photoshop User Magazine that specifically covered this type of issue.. good reading if you have it
 07/09/2009 08:29:48 AM · #19
As dtremain says: your copyright. Since the officials are not in a public place then their use editorially is not as permissable.

This is really a storm in a teacup though and talk of lawyers sounds simply nuts. This is a non-problem and you can demand to have the shots he's adapted removed under your assertion of copyright, unless they are Creative Commons licensed. You may also want to inquire whether he has paid the deaf musician who 'created' the music for his site, their royalties!
 07/09/2009 07:32:21 AM · #20
You own the copyright for every photo you take, unless you are doing it for hire, whether or not you register them. They do not even have to have a copyright notice. If he really did talk to an attorney, the attorney is not up on copyright law changes, or is just yanking your chain.
The "fair use" comment is a point to consider. Also, if the pictures could be considered "news", they are pretty much fair game.
I think your cease & desist letter, copy to his web site host is about your best bet. Some people make a point of being obnoxious just because they can - I try to avoid such people, they are too much of an emotional drain and in the big picture are not worth 1/4 of what they think they are.
07/09/2009 04:03:08 AM · #21
Do you really think you'll get money out of him?

Send a DMCA notice to his webhost to get the images taken down and be done with it.
 07/08/2009 05:26:44 PM · #22
Originally posted by ajdelaware:
Originally posted by BrennanOB:
Send him a cease and desist order. Basically it legally informs him that what he is doing is a violation of your ownership of those images. If you shot them and were paid then the rights are with the people who bought them, since you did it pro bono, they remain with you.


Not so much right. Pay or not, unless you specifically turn over copyright of those images, they are yours.


Sorry I was not clear enough. Usually when "rights" are referred to in a contract, it refers to rights of ownership. Single use or other special usage rights are usually specified ans "single use" or if it going to be used in an ad campaign, how long it will run and how widely it will be distributed those are "distribution rights" ect. . When you are paid, your ought to specify what rights you are selling, but since you were not paid, none of that applies and the ownership is clearly with the person who created the image.
 07/08/2009 05:24:48 PM · #23
Originally posted by wdamman:
I photographed (for free) city officals where I live (City web site) for their website.

Another excellent example as to why it's important to have a written contract, even if you are not going to be paid ("for valuable consideration received" can be a photo credit on the website).
The real issue is whether you shot the items as a freelancer and licensed them to the city, or whether they commissioned you for a specific job, in which case the specific contract language would determine whether the photos were a "work for hire," in which case ownership/copyright would belong to the city.

Unless you have contrary advice from your own attorney, I'd follow the advice of the City Attorney's office. If you're sure circumstances provide that you own the copyright, register them ASAP, but it may still be too late to qualify for the extra damages afforded properly-registered works.

Check out this thread for more info and helpful links regarding registration.
 07/08/2009 05:12:47 PM · #24
Originally posted by BrennanOB:
Send him a cease and desist order. Basically it legally informs him that what he is doing is a violation of your ownership of those images. If you shot them and were paid then the rights are with the people who bought them, since you did it pro bono, they remain with you.


Not so much right. Pay or not, unless you specifically turn over copyright of those images, they are yours.

Message edited by author 2009-07-08 17:13:04.
 07/08/2009 05:05:02 PM · #25
Send him a cease and desist order. Basically it legally informs him that what he is doing is a violation of your ownership of those images. If you shot them and were paid then the rights are with the people who bought them, since you did it pro bono, they remain with you. A fairly straight forward way of pursuing it legally is here. Basically send him the order, give a specific time when he has to have them down by, and then when he doesn't file a case in small claims court of less than five thousand dollars. Figure out what you would have charged him to shoot those same shots and ask for it. If he pays give him one time rights, and keep ownership.

Toss in reference to the Lanham Act it is the statute that has been used lately when political campaigns have used songs by musicians who disagree with their stands. Jackson Browne used it to sue John McCain over his use of Browne's songs in campaign ads. It lets you as creator of a song or photograph decide who has the right to use your creation.

Message edited by author 2009-07-08 17:12:47.
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