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02/21/2009 04:06:13 AM · #1
Hello friends,

So, today when I got home from work I saw the latest magazine from Grand Rapids Community College sitting on the table. I recognized the person on the cover as the organizer of an event which attempted (and succeeded) at setting a world record for the largest zombie walk. I was there, and took pictures.

I turned to the article to immediately recognize two photos which I took at the event, and later posted on Facebook. They were also edited slightly (a ladder removed, woman's face blacked out completely...)

I'm a bit honored that they would use my photos, but also upset that they neither contacted me to ask permission, nor credited me in the article, nor compensated me for the use of my photos.

I just wonder where I should go from here. Immediately my roommate got excited and told me I could sue (doubtful)...but I'm just wondering if there IS anything I can do legally to get recognition and compensation, because I surely would not have let them use my photos without these two things.

Any suggestions?

Thanks!
02/21/2009 04:08:07 AM · #2
ummmm, not sure why this posted twice....
02/21/2009 04:32:19 AM · #3
You really should sent them bill for the photos... and make it two or three times higher than normal rates...
They know that most people won't do that even if they see the photos in the magazine... and then there are the bigger part that never noticed that they're photos was used... So if you send them expensive bill for the usage you get your money, they can't negotiatet about the price afterwards. But also your doing all photographers a favour by billing them, if you don't they keep on what they are doing...
Well they probably will anyway, but you get the point :)


02/21/2009 05:02:57 AM · #4
Is it possible that someone else took shots that are very similar to yours?
02/21/2009 07:46:15 AM · #5
The editor or whoever in the marketing department may not realize it's a stolen photo. Did you register your copyright?

Is your Facebook private? Meaning, are you sure she had the means to grab it from there? Did she invite you to come take pictures? Some of how you proceed will depend on your current relationship with her (friend vs. acquaintance) and whether or not you are willing to risk that relationship over money.

In any event, a good way to start is to assume that they didn't mean to steal the shot and misunderstood about what you had given permission for. Send a letter explaining the situation along with a bill and see what happens - you might be able to resolve it without a court battle.

As for photo credit, if this is something they reprint you can insist credit be given on the reprints and/or print a credit in the next version of the magazine.

Good luck!
02/21/2009 09:21:59 AM · #6
Originally posted by L2:

The editor or whoever in the marketing department may not realize it's a stolen photo. Did you register your copyright?

Is your Facebook private? Meaning, are you sure she had the means to grab it from there? Did she invite you to come take pictures? Some of how you proceed will depend on your current relationship with her (friend vs. acquaintance) and whether or not you are willing to risk that relationship over money.

In any event, a good way to start is to assume that they didn't mean to steal the shot and misunderstood about what you had given permission for. Send a letter explaining the situation along with a bill and see what happens - you might be able to resolve it without a court battle.

As for photo credit, if this is something they reprint you can insist credit be given on the reprints and/or print a credit in the next version of the magazine.

Good luck!

Even if they did invite him, or misinterpret what permissions he had given them, downloading the photo from Facebook is inexcusable. If they were confused, they should have contacted him and asked for the photos or for clarification. Simply going online and taking the photos is extremely unprofessional, at the very least.

To the OP, I'd call the editor and very politely tell him that I'd see the magazine, that it looks nice, and ask exactly how they went about getting the photos. You own the copyright on them the moment they were created - registered or not, they're yours (if in fact they really are).

They should know better. You should be recognized and compensated for your work in some fashion. And if they actually did steal the photos off Facebook, I'd go after them in a big way.
02/21/2009 10:36:31 AM · #7

To make sure they are your images, take a picture of the page (or scan it in) and bring it into Photoshop. Then size your image the same size and overlay it with opacity at about 35 to 50% and look to see if everything lines up. If it doesn't, then there was someone close to you taking the same pictures. If you are sure it is yours you can try contacting them like others suggested and hope they do the right thing. But unless you registered your copyright, if they chose to ignore you, there won't be a lot you can do unless you have the money to file copyright infringement against them. And that could take thousands if not ten's of thousands of dollars and even if you win, you might not be awarded anything or not enough to cover your legal expenses. If they are registered, all legal costs are paid by them if you win.

My first infringement my image was put in a national magazine. I contacted the magazine and they said they wouldn't do a thing unless I got a court order. Since I didn't have my images registered at the time, it was going to cost me several thousands to just start the process and even more depending on how far it went. So there wasn't a lot I could do other than use that as a wake up call and start registering all of my images... no matter how trivial or bad they were. Since that time, I've been infringed on 4 more times and have gotten money in all 4 cases and only had to use a lawyer one time (they were checking to see if I would follow through before caving in). I've made a lot of money from those infringements (way more than what I was making selling images) and was able to buy a 1DMKII system plus buy a lot of other things and let my wife spend a week in New York at the Westministor dog show... and still have money left over.

Registration is well worth the little effort it takes to do it and if you are taking pictures that magazines want to use, you should be registering all of your images as well. It's easy, not that expensive and can be done online now. Other wise you have a copyright that you can't inforce very well.

Mike
02/21/2009 02:06:16 PM · #8
Thanks for the replies!

To MikeJ - There is no doubt the photo is mine. Can I still register my photos even after the fact?


I linked my photos from my album into the Group created for the event. Still, it says very clearly right there something like "Kevin Mulder added these photos to the album" with a link directly to my profile.

I do imagine the magazine could have said to the person they did the article on "Hey, give us a few pictures from the Zombie Walk to put in the magazine," and so he simply provided them with the photos...however, they should have definitely questioned where they came from, since the pictures were OF him....not taken by him.

I have sent the magazine a short note through their website's 'contact' link, stating that I am the photographer of the pictures they swiped off of Facebook, edited, and printed without any compensation or recognition.

Thanks for all your input! I'll let you know what happpens.

Kevin

02/21/2009 02:32:08 PM · #9
Being a college they should be hyper sensitive to plagiarism. Making it known to them that they are doing it on an institutional level may be an eye opener for them.
02/21/2009 03:09:06 PM · #10
Originally posted by Mulder:

Thanks for the replies!

To MikeJ - There is no doubt the photo is mine. Can I still register my photos even after the fact?

You can certainly register them now, but the protections afforded by the registration would not apply in this instance -- the registration must occur before the ifringement.

I think you need to start with a letter to the publisher of the publication -- the editor may not have even been aware (though should have) of the source of the image; someone may have just "brought it in" and they used it. I always like to try civil discourse before resorting to civil courts ...
02/21/2009 05:52:41 PM · #11
Originally posted by GeneralE:


You can certainly register them now, but the protections afforded by the registration would not apply in this instance -- the registration must occur before the ifringement.


Not necessarily true, but if the work was not published before the infringement then you will not be able to seek statutory damages and attorney fees. If the work was published before the infringement, you have three months from the date of first publication to register and seek those benefits (I haven't read this thread so I'm not sure what would apply here or if sufficient facts have been given).

Regardless, all of the other copyright benefits would still apply even if registration was obtained after infringement of an unpublished work
02/21/2009 06:01:46 PM · #12
I don't think you have a legal leg to stand on. Once you post photos on Face book you no longer own them, Facebook does. Read the attached article about Facebook, especially #4.

//www.legalandrew.com/2007/07/21/facebook-and-the-law-8-things-to-know/
02/21/2009 06:13:28 PM · #13
Originally posted by Baxter:

I don't think you have a legal leg to stand on. Once you post photos on Face book you no longer own them, Facebook does. Read the attached article about Facebook, especially #4.

//www.legalandrew.com/2007/07/21/facebook-and-the-law-8-things-to-know/


You are reading this wrong. They have a license to use the content, they don't own the copyright.

My 0.02. Registering won't be worth it. Basically you gain the right to seek punative damages. Your goal here is clearly to stay out of court. I recommend remaining courteous and professional. If you do so the editor will never have a reason not to comply with your wishes. If you get pissy, then they will fight just because you are an ass. I bet the editor is completely embarassed by the situation and will want to get it past them as soon as possible. Ask yourself what the importance of the magazine/newsletter is. How many copies are made? Is it meant to market Grand Rapids CC? If it's something like a hundred copies and meant for employees only as the monthly rag then I'd as for $100 (or some similar small fee) and recognition in the next newsletter. If it's a few thousand copies and clearly meant to attract people to GRCC, then I'd go much higher. In other words, if the magazine is "business" then they really screwed up and they should pretty well give you what you ask for. If it's "pleasure" then be nice and get a little something in return.

Message edited by author 2009-02-21 18:18:56.
02/21/2009 06:31:11 PM · #14
I may not be able to read lawyer talk but the explanation is quit clear about you giving up copyright control.

02/21/2009 06:46:59 PM · #15
Originally posted by Baxter:

I may not be able to read lawyer talk but the explanation is quit clear about you giving up copyright control.


I'm not sure the "explanation" is exactly true either. It seems to be a bit oversimplified.

in connection with the Site or the promotion thereof <-- the explanation seemingly overlooks this.

FWIW, ever read the TOS for dpc?
02/21/2009 07:19:53 PM · #16
Originally posted by Baxter:

I may not be able to read lawyer talk but the explanation is quit clear about you giving up copyright control.


You never give up copyright unless you specifically state, in writing, that you have.

This type of TOS is pretty standard, and meant to allow them to use examples from the site in advertising. The sub-licensing is, I believe to allow for, for example, a company to send photos showing samples of whatever their business is to a graphic designer to make into a pamphlet, and then to a print company. You're giving the original business and those connected all permission to use it.

It doesn't mean that they can trawl through photo albums, picking out shots to sell as their own in some art gallery.

btw, here's DPC's;

6.2 You hereby grant DPChallenge.com a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any rights you have in the Member Information and Media, and otherwise to make use of the Member Information and Media (including publishing, disseminating, broadcasting, manipulating, reproducing, editing, translating, performing, modifying, or displaying any part of the Member Information) and/or Media alone or as part of other work in any form, media, or technology whether now new known or hereafter developed, to enable DPChallenge.com to continue the specific operation or marketing of the site. This includes, but is certainly not limited to email "newsletters."
02/21/2009 07:21:07 PM · #17
' . substr('//www.dpchallenge.com/images/user_icon/31.gif', strrpos('//www.dpchallenge.com/images/user_icon/31.gif', '/') + 1) . ' Mulder Any news on this issue of your images?

02/21/2009 07:30:46 PM · #18
Hey again,

I too was told by a few people that since they took them off of Facebook, I could do nothing (regarding the recent news about their TOS and all that).

But looking myself, I don't see it this way.

Provided that you are eligible for use of the Site, you are granted a limited license to access and use the Site and the Site Content and to download or print a copy of any portion of the Site Content to which you have properly gained access solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact. Except for your own User Content, you may not upload or republish Site Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, and any other use of the Site Content is strictly prohibited.

also

Facebook does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content.


To me, it is clear I still have my full rights to the images.

I have not received any reply from my first e-mail, but it is a Saturday, so I will wait until Monday evening to send another.
02/21/2009 07:39:39 PM · #19
Thing is, just because Facebook has rights to it doesn't mean you don't. Facebook's TOS simply means you couldn't sue Facebook if they had done this.
02/21/2009 07:41:27 PM · #20
Originally posted by Mulder:

I have not received any reply from my first e-mail, but it is a Saturday, so I will wait until Monday evening to send another.


You know, we think email is the only way to communicate these days. Give them Monday and maybe Tuesday to reply, then I'd actually, gasp, call someone on the phone.
02/21/2009 08:12:16 PM · #21
Haha, excellent advice DrAchoo.

But I love to hind behind the anonymity of e-mail! :P
02/21/2009 09:07:19 PM · #22
I had a similar situation last year... I opened our local newspaper and found a bank that used one of my shots in an advertisement. I called them and nicely let them know that you can't just grab a shot off the Internet and use it in an ad without any sort of attempt at getting permission.

In the end they paid me $500 for using it (what I would have charged had they asked permission). No lawyers, no big fuss about it... I was just up front with them, and they admitted that they were blissfully unaware that you can't just use any old picture you find and put it in an ad.

Initially I sent them a couple e-mails to inquire how they came upon using this photo, but those were ignored, so I eventually went the Amish route and used the phone :)

Message edited by author 2009-02-21 21:08:11.
02/21/2009 09:14:22 PM · #23
Originally posted by alanfreed:

so I eventually went the Amish route and used the phone :)


LOVE the irony of this statement!!!!!
02/21/2009 09:18:48 PM · #24
Originally posted by alanfreed:

... I eventually went the Amish route and used the phone :)

That would be the one with the string and the two soup cans?
02/21/2009 10:10:32 PM · #25
Probably he meant the rotary dial kind. Youngins today wouldn't even know what to do with one of those!!
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