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DPChallenge Forums >> Business of Photography >> Using my photo's without permission. What can I do
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07/08/2009 01:13:20 PM · #1
I photographed (for free) city officals where I live (City web site) for their website. A disgruntled resident decided to create his own site in an effort to recall some of the officals (Recall site). I asked him to remove the photo's with no success. He responded with the following questions,

"My attorney said that before I agree to pay to use pictures posted on a public government web site, I need to ascertain the following,
1) Do you have a written contract with the City to take the pictures?
2) If yes, provide me with a copy.
3) Were you paid to take the pictures?
4) If yes, how much were you paid and by whom?
5) When were the pictures taken? Where they dated?
6) Where were the pictures taken?
7) Is it not true that you volunteered you services?
8) Did the individuals sign a release for use of photos?
9) If yes, provide me a copy of the release.
10) Did you file a copyright application?
11) If yes, provide me with a copy.
12) Did you pay a fee for the filing?
13) If yes, who much did you pay and date paid?"

I can get the individuals to sign a release and the city to sign a use agreement.
Thoughts?
07/08/2009 01:17:25 PM · #2
Wow... That person sounds like a real ***hole... Sorry, a real winner!

Message edited by author 2009-07-08 13:17:35.
07/08/2009 01:18:04 PM · #3
Tell him it's innocent until proven guilty, not the other way around.

Ask him to provide the user agreement that came with the photos stating he could use them. He obviously doesn't have one since they were taken from the cities website.
07/08/2009 01:18:51 PM · #4
After the fact signing all that stuff really means nothing. All of that means nothing. But in reality I don't think he can use your photos or lift them off the government site without permission regardless of the answer to any of those questions.

I would like to say that I went to the city site, and I had to laugh when I read that you can meet with the mayor on not just one day, but he is available for a whole hour and its by appointment only. Geeze.

Matt
07/08/2009 01:19:33 PM · #5
Originally posted by wdamman:

I photographed (for free) city officals where I live (City web site) for their website. A disgruntled resident decided to create his own site in an effort to recall some of the officals (Recall site). I asked him to remove the photo's with no success. He responded with the following questions,

"My attorney said that before I agree to pay to use pictures posted on a public government web site, I need to ascertain the following,
1) Do you have a written contract with the City to take the pictures?
2) If yes, provide me with a copy.
3) Were you paid to take the pictures?
4) If yes, how much were you paid and by whom?
5) When were the pictures taken? Where they dated?
6) Where were the pictures taken?
7) Is it not true that you volunteered you services?
8) Did the individuals sign a release for use of photos?
9) If yes, provide me a copy of the release.
10) Did you file a copyright application?
11) If yes, provide me with a copy.
12) Did you pay a fee for the filing?
13) If yes, who much did you pay and date paid?"

I can get the individuals to sign a release and the city to sign a use agreement.
Thoughts?


Does any of that matter, with the exception of 10 & 11? If you have a copyright, you have a copyright. If you don't, is it legal to use it?
07/08/2009 01:19:42 PM · #6
His lawyer sounds like he's simply trying to determine who owns the images and if/how they are registered. I say register them immediately (This means that the A-hole will be on the hook for ALL legal costs). Then, fight fire with fire, call your lawyer. He'll get crucified in court if it gets that far.

Message edited by author 2009-07-08 13:22:49.
07/08/2009 01:20:16 PM · #7
You should start a site of your own with the same picture of him telling everyone what an asshole he is.
07/08/2009 01:24:59 PM · #8
Hmmm, just wondering if his use falls under editorial fair usage? He doesn't appear to be making any money on it.

"the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

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."

I don't really know the answer, but I'm guessing you are gonna have to put up with his site unless you really want to put some sweat and $$$ into it.

Message edited by author 2009-07-08 13:25:52.
07/08/2009 01:30:29 PM · #9
Any photos of Politicians should be fair game, IMO. ;-)

Seriously though, I don't think it's worth losing sleep or spending time worrying about.
07/08/2009 02:01:14 PM · #10
I believe that government records and documents are public domain in the U S by the "Freedom of Information" act. If they are on a city website, then they may fall into that category.
This may not be the case, but was my first thought about it.
BTW, That guy is truly a big "A". I would not worry about the whole thing too much, because getting into it deeper will just cause a lot of head ache, and may be expensive in the end. Maybe you could ask the city attorney about what to do, since it is their website from which the images were copied.
07/08/2009 02:13:56 PM · #11
Since it appears he's an ASSS...I'd come up with a list of questions for him and his attorney. Doesn't appear you have much to stand on at this point. So have some fun with him and string him along....or talk to your attorney.
07/08/2009 02:19:37 PM · #12
He said "My attorney said". There is a chance that he hasn't actually spoken with an attorney or else you would have received a letter from the attorney instead of from him.

You could contact the ISP hosting his webpage and ask to have your copyright material taken down. Not sure if this would get you anywhere.
07/08/2009 02:26:05 PM · #13
Get an attorney or better yet, go through the City Attorney. I worked for the City of Austin and know the City Attorney should be able to help you out. Good luck!!
07/08/2009 03:47:05 PM · #14
How does the city feel about pictures being lifted from their website?
07/08/2009 04:04:29 PM · #15
Originally posted by karmat:

How does the city feel about pictures being lifted from their website?


Their not happy but don't want to stir the pot more due to the recall issue.
I'm thinking I should just let the city deal with it.
07/08/2009 04:15:56 PM · #16
I agree with those who suggest reversing the interrogation: Ask him to provide by COB Thursday written proof that he has permission to use your photographs, or that you will begin legal, public proceedings against him, and your first move will be a press release to all local media outlets that he is illegally using your images and refusing to cease and desist. Then, when he has not provided such proof, and has not stopped using the images, follow thru with the press release immediately (in the morning, so it can make the evening news).

I suspect he will pull em down fast when he hears about the press release. He doubts you will take him to court, but a press release is free, and since he is worried about publicity, it should concern him greatly :-)
07/08/2009 04:38:38 PM · #17
Originally posted by chromeydome:

I suspect he will pull em down fast when he hears about the press release. He doubts you will take him to court, but a press release is free, and since he is worried about publicity, it should concern him greatly :-)


You mean he will end up in the paper, and the website that he has made to create awareness will be listed with his name? If I was him, I would die for any publicity like that.
07/08/2009 04:40:27 PM · #18
Originally posted by ajdelaware:

Originally posted by chromeydome:

I suspect he will pull em down fast when he hears about the press release. He doubts you will take him to court, but a press release is free, and since he is worried about publicity, it should concern him greatly :-)


You mean he will end up in the paper, and the website that he has made to create awareness will be listed with his name? If I was him, I would die for any publicity like that.


that's what i was thinking because he could also spin it that those who he is "recalling" support you and look what they are doing to poor pitiful me!!
07/08/2009 05:05:02 PM · #19
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.
07/08/2009 05:12:47 PM · #20
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 05:24:48 PM · #21
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 05:26:44 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.
07/09/2009 04:03:08 AM · #23
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.
07/09/2009 07:32:21 AM · #24
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 08:29:48 AM · #25
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!
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