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07/14/2011 12:57:00 PM · #1
Today's Groupon ad for Miami features a photo that I took in August of 2008 during a photo shoot for Skybanditz, a company that rents kiteboarding rigs and provides lessons.

Here's the ad: ' . substr('//images.dpchallenge.com/images_portfolio/35000-39999/39184/120/Copyrighted_Image_Reuse_Prohibited_962172.jpg', strrpos('//images.dpchallenge.com/images_portfolio/35000-39999/39184/120/Copyrighted_Image_Reuse_Prohibited_962172.jpg', '/') + 1) . '

and here's the photo: ' . substr('//images.dpchallenge.com/images_portfolio/35000-39999/39184/120/Copyrighted_Image_Reuse_Prohibited_962171.jpg', strrpos('//images.dpchallenge.com/images_portfolio/35000-39999/39184/120/Copyrighted_Image_Reuse_Prohibited_962171.jpg', '/') + 1) . '

I sort of gave up pursuing compensation for several years of product and action photography for this company's website, catalog, magazine ads, and exposure in kitesurfing magazines, etc. The compensation agreement was simple: all of the pictures that I had ever taken for them in return for a complete kiteboarding rig and lessons.

My good friend, Ken, used to work with them and he was my primary contact with the company. When Ken left the company, the owner of Skybanditz, Francisco, said that my compensation agreement was with Ken and not Skybanditz. To this day, however, Skybanditz continues to use about 25 of my images on their website and now this Groupon ad. Besides, Ken was simply a representative of Skybanditz and any agreement that he made was on their behalf, not his.

I have posted comments in the discussion of the ad on Groupon as well as on the Groupon Miami Facebook page, and then linked those comments to my Facebook page where I have a lot of mutual friends with Francisco and Skybanditz.

I have also sent a Digital Millennium Copyright Act takedown letter to Groupon. By the way, my Facebook posts led to a suggestion from a friend which contained a link that people who's copyrights have been infringed upon will find useful. This link contains a lot of useful information as well as a sample letter that you can use to send notice of copyright infringement to the company's ISP.

Groupon has responded, saying that they take copyright infringement seriously and wouldn't post any infringements knowingly. They will look into it and get back to me when they know more of what's going on.

As I said above, I sort of gave up and decided to ignore the continued use of my images by Skybanditz, but this creation of a new ad using the pictures that I have told them to pay for or stop using is a strong punch in my gut. They've stirred a hornet's nest and I'm now going to pursue legal action to get the compensation that was agreed to.

Any suggestions from here?
07/14/2011 12:58:41 PM · #2
Ha! After I typed the original post I went back to the Groupon ad and I see that they changed the picture.
07/14/2011 01:01:12 PM · #3
so, the problem is that you never got a kiteboarding rig?
07/14/2011 01:03:56 PM · #4
If they think your deal was with Ken, then wouldn't the rights to use the images you made for Ken, have left the business when Ken left? If Skybanditz don't have a deal with you, they have no rights to publish. They can't have it both ways.

Message edited by author 2011-07-14 13:05:16.
07/14/2011 01:14:02 PM · #5
Originally posted by posthumous:

so, the problem is that you never got a kiteboarding rig?


My problem is that when I asked for the meager compensation of a kiteboarding rig that they agreed to in return for over a hundred images of products and action shots that they still use, they continue to claim that the debt is not theirs. Their refusal to pay this nominal fee is my biggest "problem" as well as their continued use of my pictures.

Originally posted by BrennanOB:

If they think your deal was with Ken, then wouldn't the rights to use the images you made for Ken, have left the business when Ken left? If Skybanditz don't have a deal with you, they have no rights to publish. They can't have it both ways.


Exactly. It's Skybanditz, not Ken that is continuing to use these pictures.
07/14/2011 01:29:35 PM · #6
robert, i would suggest you be a thorn in their side as much as possible, but expending only the time and energy and money that you feel you can afford. if you haven't done so, you really need to come up with a good faith value for what you delivered them (time value of shooting/processing/delivering and then a reasonable estimate of usage licensing). you don't need to go over the top - just be reasonable. is this something that if you were approached by a similar company today that you would charge $1000, $2000, $5000 for?

if just for the principle, don't give up pushing them.

however, in reality, this probably nothing more than a lesson learned the hard way. crap, i've spent a fortune getting my masters at the SoHK ;-) it happens to all of us at some point in time. the thing to do is to learn from it and position your business so that it doesn't happen again. you might not ever get any monetary satisfaction out of this, but if you prevent it from recurring, then that's ok.

and, all the same, i'll reiterate, don't just roll over. you might have to engage an attorney to put some fear into them, but that's probably not a bad idea...

good luck!
07/14/2011 01:49:30 PM · #7
Originally posted by yakatme:

Originally posted by posthumous:

so, the problem is that you never got a kiteboarding rig?


My problem is that when I asked for the meager compensation of a kiteboarding rig that they agreed to in return for over a hundred images of products and action shots that they still use, they continue to claim that the debt is not theirs. Their refusal to pay this nominal fee is my biggest "problem" as well as their continued use of my pictures.

Originally posted by BrennanOB:

If they think your deal was with Ken, then wouldn't the rights to use the images you made for Ken, have left the business when Ken left? If Skybanditz don't have a deal with you, they have no rights to publish. They can't have it both ways.


Exactly. It's Skybanditz, not Ken that is continuing to use these pictures.


Yes, this seems obvious. If there is no agreement, then how are they using your pictures? This is the point where I would get snarky (although remain professional) and start looking for compensation or legal action. How big are Skybanditz' pockets? Is this a small, local company? or is it large?

Good luck! My hackles are raised in your honor!

Message edited by author 2011-07-14 13:51:11.
07/14/2011 01:52:45 PM · #8
Can you take them to small claims court with Ken as a witness for you? If his testimony confirms all you have stated, I'm no expert, but I think it would be a slam dunk.
07/14/2011 02:30:15 PM · #9
Originally posted by Skip:

robert, i would suggest you be a thorn in their side as much as possible, but expending only the time and energy and money that you feel you can afford. if you haven't done so, you really need to come up with a good faith value for what you delivered them (time value of shooting/processing/delivering and then a reasonable estimate of usage licensing). you don't need to go over the top - just be reasonable. is this something that if you were approached by a similar company today that you would charge $1000, $2000, $5000 for?


I just finished capturing 43 screen shots just on their website alone of my images in use. They have used my images in numerous magazine ads and I have gotten them featured in numerous magazine pictures (Kiteworld Magazine), one of them a full page shot
' . substr('//images.dpchallenge.com/images_portfolio/35000-39999/39184/120/Copyrighted_Image_Reuse_Prohibited_880381.jpg', strrpos('//images.dpchallenge.com/images_portfolio/35000-39999/39184/120/Copyrighted_Image_Reuse_Prohibited_880381.jpg', '/') + 1) . '
and another was a page and three quarters spread
' . substr('//images.dpchallenge.com/images_portfolio/35000-39999/39184/120/Copyrighted_Image_Reuse_Prohibited_657368.jpg', strrpos('//images.dpchallenge.com/images_portfolio/35000-39999/39184/120/Copyrighted_Image_Reuse_Prohibited_657368.jpg', '/') + 1) . '.

Now they used one of my images (not a good one) in Groupon.

If I was to calculate the amount of time that I have put into shooting and processing for that company it would amount to well over 100 hours. That's a rough estimate based on an average of five hours (shooting and processing) well over 20 different times. My rates now are $275 for the first 1 1/2 hours and $75 per hour after that. Based on that conservative estimate of time, that amounts to more than $10,750.

I would settle for the simple agreement that we had: a complete kiteboarding rig and lessons, or the equivalent value.

Originally posted by Skip:

however, in reality, this probably nothing more than a lesson learned the hard way. crap, i've spent a fortune getting my masters at the SoHK ;-) it happens to all of us at some point in time. the thing to do is to learn from it and position your business so that it doesn't happen again. you might not ever get any monetary satisfaction out of this, but if you prevent it from recurring, then that's ok.


That's pretty much how I accepted it after he refused to pay. I let it go...but now, today's 'punch in the gut' has re-ignited my desire to get this settled the way it should have been.

In those days I really wanted to get my foot in the door of sports photography for magazines and product photography. Shooting for them did just that, but I didn't do it just for experience. We agreed to what I believed was more than fair compensation as well.

Originally posted by BaldurT:

Can you take them to small claims court with Ken as a witness for you? If his testimony confirms all you have stated, I'm no expert, but I think it would be a slam dunk.


That's exactly what I am going to do if they don't agree to settle this otherwise. Ken would go to bat for me.

edit to add pics

Message edited by author 2011-07-14 14:35:47.
07/14/2011 03:34:33 PM · #10
Originally posted by yakatme:

Originally posted by posthumous:

so, the problem is that you never got a kiteboarding rig?


My problem is that when I asked for the meager compensation of a kiteboarding rig that they agreed to in return for over a hundred images of products and action shots that they still use, they continue to claim that the debt is not theirs. Their refusal to pay this nominal fee is my biggest "problem" as well as their continued use of my pictures.


wow, all you asked for was one of their products and they won't even give you that. amazing.
07/14/2011 03:45:10 PM · #11
LOL, I guess their name says it all!
I'd do what you're considering, take 'em to small claims court. They richly deserve to be dragged into court for this behavior.
07/14/2011 03:50:12 PM · #12
Check on the dollar-limit on small-claims cases in your jurisdiction -- it may be too low to be worth the trouble for either of you.

One important question: have you registered your images with the US Copyright office? If they were registered before the infringement then these folks could be on the hook for statutory damages up to $250K per violation plus your attorney fees; that might make it worth the time of an IP attorney to take your case on a contingent (pay if you win) basis ...
07/14/2011 03:59:13 PM · #13
Linky for new photo...

Is this shot yours, too? It's the NEW Groupon photo.....jerks!

Reminds me of a movie...can't remember the name (and detail are sketchy), but a girl did an entire fashion program for a company, being paid in installments. After the last installment was paid, within the allotted time frame, she would go in and "edit" something...but the company didn't know this. They decided they had the software and refused to pay...and it ALL JUST DISAPPEARED, lol. Everything they had used the program for over the past few months, poof! :P Built into the program was a safety feature to protect her from the company deciding to not pay.

Don't ya wish we could all do something like that with our work! Best of luck!!!

Message edited by author 2011-07-14 15:59:47.
07/14/2011 04:11:45 PM · #14
Originally posted by GeneralE:

Check on the dollar-limit on small-claims cases in your jurisdiction -- it may be too low to be worth the trouble for either of you.


Miami-Dade County's limit is $5000 for small claims. What we agreed to is valued at about half that.

Originally posted by GeneralE:

One important question: have you registered your images with the US Copyright office? If they were registered before the infringement then these folks could be on the hook for statutory damages up to $250K per violation plus your attorney fees; that might make it worth the time of an IP attorney to take your case on a contingent (pay if you win) basis ...


No, I never went through the trouble. I didn't expect a problem like this to come up either. I have done tons of work for other companies and I've never had a problem getting paid (Coincidentally, some of them have also used my images on Groupon).

The problem with Skybanditz was that it was all a 'gentleman's word and handshake' kind of deal and I gave them the images before I got paid.

Heck! Come to think of it, the last time this came up was when Francisco asked Ken to ask me to send him some of the pictures that he misplaced. I asked Francisco about payment...he placed the responsibility onto Ken for some reason...harsh words were exchanged...and then I decided to be a nice guy and I delivered a CD of images to him at the beach in the hopes that he would see my good faith effort to help him out. I waited on the beach for over an hour for him to come in from giving lessons before I finally just left the CD on his windshield. I thought that he would appreciate me going out on a limb because he had some advertisements that he need to get in to the magazines before a deadline. I mistakenly thought that he would think something like "Wow, that was really nice of him to help me out. Maybe I should pay him."

07/14/2011 04:14:58 PM · #15
Originally posted by bergiekat:

Linky for new photo...

Is this shot yours, too? It's the NEW Groupon photo.....jerks!


No, after I sent Groupon a letter informing them of the copyright violation they looked into the matter and replaced my photo with that one within 30 minutes. This link contains the sample letter that I used after changing it for my use. It seemed to work very well.
07/14/2011 04:15:21 PM · #16
Originally posted by yakatme:



and another was a page and three quarters spread
' . substr('//images.dpchallenge.com/images_portfolio/35000-39999/39184/120/Copyrighted_Image_Reuse_Prohibited_657368.jpg', strrpos('//images.dpchallenge.com/images_portfolio/35000-39999/39184/120/Copyrighted_Image_Reuse_Prohibited_657368.jpg', '/') + 1) . '.



In your comment's on the image above You say:- "I'm finally getting paid for my pictures with paychecks instead of kitesurfing gear. This is the first of two shots that Kitworld Magazine used in their latest issue. This is actually the second issue that contains shots that I am now getting paid for."

So have you been paid or not?

Did they say they would pay but haven't?

Just a bit confused.
07/14/2011 04:21:18 PM · #17
Originally posted by yakatme:

... I waited on the beach for over an hour for him to come in from giving lessons before I finally just left the CD on his windshield. ...


Soooo, what I'm hearing you say is that you know what he drives and where he leaves it unattended for hours at a time? I know what I'd be spending a big of free time doing once in a while.... Just go loosen his valve stems, no damage, just a royal PITA... Karma needs a little helping hand sometimes ya know...
07/14/2011 04:36:10 PM · #18
Originally posted by rocket:

Originally posted by yakatme:



and another was a page and three quarters spread
' . substr('//images.dpchallenge.com/images_portfolio/35000-39999/39184/120/Copyrighted_Image_Reuse_Prohibited_657368.jpg', strrpos('//images.dpchallenge.com/images_portfolio/35000-39999/39184/120/Copyrighted_Image_Reuse_Prohibited_657368.jpg', '/') + 1) . '.



In your comment's on the image above You say:- "I'm finally getting paid for my pictures with paychecks instead of kitesurfing gear. This is the first of two shots that Kitworld Magazine used in their latest issue. This is actually the second issue that contains shots that I am now getting paid for."

So have you been paid or not?

Did they say they would pay but haven't?

Just a bit confused.


The paychecks for these shots came from Kiteworld Magazine. I've had numerous pictures published there and with other magazines and they all have paid me.

Skybanditz encourage me to submit many pictures of their riders and gear to the magazines. I did that for them and, of course, for myself. The magazines paid for the images that they used. Skybanditz never paid me for any of my work.

btw, the other picture...

' . substr('//images.dpchallenge.com/images_portfolio/35000-39999/39184/120/Copyrighted_Image_Reuse_Prohibited_880381.jpg', strrpos('//images.dpchallenge.com/images_portfolio/35000-39999/39184/120/Copyrighted_Image_Reuse_Prohibited_880381.jpg', '/') + 1) . 'is a picture of Francisco. Again, the magazine paid me for using it while Francisco continues to use it for free.

Message edited by author 2011-07-14 16:36:58.
07/14/2011 04:39:59 PM · #19
Originally posted by bergiekat:

Don't ya wish we could all do something like that with our work! Best of luck!!!

"This photo will self-destruct in five seconds. Good luck, Jim."

As mentioned, you can invest in registering your pictures before licensing them and really make them pay. You could also invest in something like a custom DigiMarc "invisible" (and searchable/traceable) watermark.

Some possibly useful links:

Protecting Your Images

Copyright Law (DPC Tutorial)

Creating a Simple Watermark Action in Photoshop


Prepping Photos for Publication
(note especially the part near the end about what to enter into the IPTC fields)

Registering your Copyright - Why Should You?

US Copyright Office

Legal Handbook for Photographers

Copyright info at Nolo Press

Message edited by author 2011-07-14 16:44:47.
07/14/2011 05:37:52 PM · #20
Thanks, Paul, for taking the time to compile that list of links.
07/14/2011 08:51:06 PM · #21
Originally posted by yakatme:

Any suggestions from here?

' . substr('//images.dpchallenge.com/images_portfolio/25000-29999/28742/120/Copyrighted_Image_Reuse_Prohibited_905561.jpg', strrpos('//images.dpchallenge.com/images_portfolio/25000-29999/28742/120/Copyrighted_Image_Reuse_Prohibited_905561.jpg', '/') + 1) . '
07/14/2011 10:30:57 PM · #22
a timely article from today...

//www.popphoto.com/how-to/2011/07/my-photo-being-used-without-permission-now-what
07/15/2011 10:12:27 AM · #23
Originally posted by yakatme:

My rates now are $275 for the first 1 1/2 hours and $75 per hour after that. Based on that conservative estimate of time, that amounts to more than $10,750.

One of the key things missing from this is the usage component. I mention this periodically in pricing and negotiation discussions that even though the deal ultimately comes down to a mutually acceptable number, that number really should represent everything involved in providing the service and delivering the end result. Beyond the shooting time, you have to take into consideration all other time involved (planning, travel, setup, breakdown, computer work (including ingestion, selection, processing, archiving, packaging, etc), and administrative time), you have to take into consideration equipment (is it just your camera(s), or does the job require lighting, backdrops, set pieces, electrical, etc), you have to take into consideration skills provided (are you simply to show up and shoot documentary-type images, or are you providing creative services, etc), and you have to take into consideration usage.

You have to educate your client and be on the same page as to what they want and what it takes to get it. The biggest problem in the commercial photography business is that this education used to be done by the ad agencies that booked the photographer for the client. When businesses started bypassing the agencies and started dealing with bootstrapping professionals (such as ourselves), it became hit or miss as to whether the client was made aware of what was involved. Pricing fell through the floor because most photographers did not know what all to charge for. I was guilty of this until I realized how ridiculous it was for me to be giving so much away for free. And it's not that my clients wouldn't have paid (although some would have balked and I would have been better off without them).

Usage is a matter of being reasonable. I've had some clients claim they "need" unlimited licensing because they just can't afford to be boxed in. After discussion, typically one of two things have happened: 1) they realize they've never really used an image outside what they originally requested an image for and they accept a limited license, or 2) I politely suggest someone else might be better suited for their needs. The third option, that they pay a fair market license for an unlimited license, has never happened.

Where we take a beating is when we say, "I don't care. I'll shoot for what they're paying because if I don't someone else will and that's just the way it is." What we really need to say is, "Sorry, I think I'll spend my time marketing to a different audience; sooner or later that client will realize that they're getting what they're paying for - and until then, they can be someone else's problem." Life's too short to saddle yourself with non-paying, non-appreciative clients that spend more time looking for ways not to pay you than partnering with you to produce great works.
07/15/2011 10:28:31 AM · #24
Originally posted by Skip:

....Life's too short to saddle yourself with non-paying, non-appreciative clients that spend more time looking for ways not to pay you than partnering with you to produce great works.

Skip is like the Dalai Lama of photography!
07/15/2011 03:06:54 PM · #25
Originally posted by Strikeslip:

Originally posted by Skip:

....Life's too short to saddle yourself with non-paying, non-appreciative clients that spend more time looking for ways not to pay you than partnering with you to produce great works.

Skip is like the Dalai Lama of photography!

First off I don't pimp myself for photog stuff... I pimp myself for IT related stuff :-) but both have had the stuffing knocked out of em to be similar enough for discussion :-/

I love the concept and used it for a very long time - until a few years ago.... Shitty place to work, no extension.... Shitty project, no extension (every contract I have had, they offered an extension). BUT... at the time my other half was working and we had no kids or mortgage, so it was easy to have that - plus the skills were not a commodity for the cheapest offshore bid as they are now (ring a bell for photg maybe).

Now... The mortgage has to be paid and the other half is not working as really really wanted to stay at home for the kids... yada yada.... I have to suck up the shitty projects.... and the shitty rates (they are thru the floor now).... It's not that much of an option and while I would like to take the high road... I don't have that option.
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