Forums > General Industry > Can I sue a magazine for using my images?

Photographer

Looknsee Photography

Posts: 21681

Portland, Oregon, US

Yani S wrote:
Put him on blast!

I believe that people who recommend escalation of hostilities in retaliation to alleged "injustices" have never been involved in a civil lawsuit.

It just might be that going "public" with your complaint might be considered a more actionable offense than a payment dispute between two private parties.


Note to all:  These disputes never go the way it goes on TV & movies.  And... 

It is far easier to escalate hostilities than to deescalate hostilities.


Ask yourself:  do you want to resolve this dispute fairly or do you want to dominate & win?

Aug 15 12 09:54 am Link

Photographer

Camerosity

Posts: 5317

Saint Louis, Missouri, US

Tony Lawrence wrote:

Are copyright violations federal or state?   I think its federal.   My understanding is you can't sue in small claims for them. 

http://asmp.org/tutorials/enforcing-your-rights.html

This is correct. Copyright law is strictly within the jurisdiction of the federal government, and only the federal courts have jurisdiction over copyright cases.

Aug 15 12 10:05 am Link

guide forum

Photographer

GPS Studio Services

Posts: 36368

San Francisco, California, US

Tony Lawrence wrote:

Are copyright violations federal or state?   I think its federal.   My understanding is you can't sue in small claims for them. 

http://asmp.org/tutorials/enforcing-your-rights.html

Camerosity wrote:
This is correct. Copyright law is strictly within the jurisdiction of the federal government, and only the federal courts have jurisdiction over copyright cases.

You are both correct but bear in ind there are sometimes underlying claims which can be made in state court.  As an example, the OP may have had an agreement with the magazine.  That agreement might be litigated in small claims court.  Of course, that would not be suing for infringement, which is federal, but it might be possible to use small claims court if you ignored the infringement claim.

BTW, there is an exception to the rule that only the Federal courts can hear a copyright claim.  Let's say that somebody were to sue you for, let's say, breach of contract relating to an image.  If your defense is that there has been infringement and you, thus have a counter-claim, there is caselaw saying that the infringement can then be brought in state court as a cross-claim.  The reason is that any time you are sued you have a right to raise any lawful defense.  Courts have accepted that theory to say that, if infringement by the plaintiff is your assertion, you are entitled to bring it as an affirmative defense and as a cross-claim.  That doesn't apply to this case, I just thought I would point out that the federal authority isn't absolute.  There are some, very limited exceptions.

Aug 15 12 11:50 am Link

guide forum

Photographer

studio36uk

Posts: 21904

Tavai, Sigave, Wallis and Futuna

ei Total Productions wrote:
There are some, very limited exceptions.

It is quite likely that a breach of license could be a state claim in spite of such a breach working an infringement. You would need to ignore the infringement claim and concentrate strictly on the contractual essence of the license and losses that occurred on that account.

The damages might be nominal but you could also seek additional relief in the form of an injunction.

This kind of approach just might be suitable for someone in the OP's position... and certainly a lot less costly than an infringement action especially with an unregistered image where statutory damages, costs and attorney fees are not available.

Just might come under the heading of: "More than one way to skin a cat"

Studio36

Aug 15 12 12:11 pm Link

Photographer

KMP

Posts: 4825

Houston, Texas, US

Karl Ray wrote:
I recently submitted my images to a guy for use in his magazine pending I get an ad in the mag. He basically got gangsta on me and told me he was using my images without my permission and dared me to come after him for it. Is there a way to sue this guy for unauthorized usage? Sure enough, I sent the images to him but he text me a few pages of how my magazine did not work out and how  he was doing me a favor so that I wont "be that same internet facebook a** photographer" that I currently am...

Aug 15 12 12:22 pm Link

Photographer

Melissa Springmann Phot

Posts: 1

Fort Lewis, Washington, US

Registering an image does not "get you more" if you sue....registering an image simply helps make it easier for people to find the owner of the image to enforce his rights....your images are automatically protected for 70 years after your death.

Although an image is automatically copyrighted the moment it is created, registering the image with the U.S. Copyright Office helps to maintain the provenance during the life of the picture. A visual work created any time after 1977 is protected until 70 years after the creator's death, therefore the origin can easily be lost over the life span of an image. Registering an image with the Copyright Office makes it easier for people to find the owner or the copyright holder to enforce his rights in a court of law. Registration can be done electronically or through the mail. Images can be registered as a series or individually. Images can be transferred to the Copyright Office electronically or through the mail.

Aug 15 12 12:22 pm Link

guide forum

Photographer

GPS Studio Services

Posts: 36368

San Francisco, California, US

Melissa Springmann Phot wrote:
Registering an image does not "get you more" if you sue....registering an image simply helps make it easier for people to find the owner of the image to enforce his rights....your images are automatically protected for 70 years after your death.

Although an image is automatically copyrighted the moment it is created, registering the image with the U.S. Copyright Office helps to maintain the provenance during the life of the picture. A visual work created any time after 1977 is protected until 70 years after the creator's death, therefore the origin can easily be lost over the life span of an image. Registering an image with the Copyright Office makes it easier for people to find the owner or the copyright holder to enforce his rights in a court of law. Registration can be done electronically or through the mail. Images can be registered as a series or individually. Images can be transferred to the Copyright Office electronically or through the mail.

I think you need to do a little bit of research.  You might want to go to copyright.gov and read the FAQ's.

First, if someone infringes your copyright, you cannot even initiate an action for infringement unless you first register the image.  It is a pre-requisite to filing.

Second, the statute is quite clear.  You cannot collect most statutory damages nor can you collect attorneys' fees unless your image was registered on a timely basis.

While registration does serve a purpose to help in enforcement and tracking down the copyright holder, that is the secondary, not the primary purpose of registration.

Aug 15 12 12:59 pm Link

Photographer

MFS Modelphilia

Posts: 402

Hilo, Hawaii, US

Karl Ray wrote:
I recently submitted my images to a guy for use in his magazine pending I get an ad in the mag. He basically got gangsta on me and told me he was using my images without my permission and dared me to come after him for it. Is there a way to sue this guy for unauthorized usage? Sure enough, I sent the images to him but he text me a few pages of how my magazine did not work out and how  he was doing me a favor so that I wont "be that same internet facebook a** photographer" that I currently am...

May 16 13 09:19 pm Link

Photographer

Al Lock Photography

Posts: 16071

Bangkok, Bangkok, Thailand

Can you sue?

Yes.

Will you win?

Maybe.

But the bottom line is that YOU own the copyright, and without an actual usage agreement from you saying he can use the images, he can't.

May 16 13 10:49 pm Link

guide forum

Photographer

GPS Studio Services

Posts: 36368

San Francisco, California, US

Mystic Flow Studios wrote:
Meanwhile *this thread* languishes on the photography forum without any responses:
http://www.modelmayhem.com/po.php?thread_id=891745

Let's stop whining, put our heads together, and SOLVE the problem!

≥≥≥
EDIT: OMG, I didn't realize that posting just one response to an old thread would result in it's moving up to the top of the forum! My apologies for having done that with multiple threads. I had mistakenly figured that, with the older threads, my late responses would only show up when someone searched for copyright-related threads. This is embarrassing! In retrospect, I should have made one post somewhere that listed all of those various related threads. SORRY!

You have already been forgiven for not understanding "bump," but I have a question of you.  What do you propose we do?  What is your solution?

May 16 13 10:55 pm Link

Photographer

Looknsee Photography

Posts: 21681

Portland, Oregon, US

Any mo fo can soo any other mo fo for any mo fo reason.

We, of course, haven't heard the whole story, and we don't know whether your agreement was appropriately documented & confirmed.  We further don't know whether there was an actual or implied contract when you made your submission.

Ask your mo fo lawyer.


Philip R wrote:
I am no lawyer, but my own rule of thumb is, that unless he is making money with the material, there are no damages to you that a court can recover.

Yeah, that's not true at all.  If that were true, then all those P2P music sites wouldn't have been sued out of existence by the music industry.

I ain't no mo fo lawyer, neither, but I believe that four factors are used to determine damages:

1)  The purpose & character of the usage.
2)  The nature of the copyrighted work.
3)  The amount or portion of the work being used.
4)  Whether the use has the potential to divert income from the copyright owner.

Just because the usage doesn't earn the violator any profit, that doesn't matter.  It would be more significant, however, whether the usage interferes with the copyright owner's ability to profit.  If the violated copyright owner isn't making money off of the copyrighted material, now that might be more relevant.

May 17 13 10:04 am Link

Photographer

Christopher Hartman

Posts: 54149

Buena Park, California, US

Karl Ray wrote:
I recently submitted my images to a guy for use in his magazine pending I get an ad in the mag. He basically got gangsta on me and told me he was using my images without my permission and dared me to come after him for it. Is there a way to sue this guy for unauthorized usage? Sure enough, I sent the images to him but he text me a few pages of how my magazine did not work out and how  he was doing me a favor so that I wont "be that same internet facebook a** photographer" that I currently am...

May 17 13 10:32 am Link

Photographer

DOUGLASFOTOS

Posts: 8463

Los Angeles, California, US

Welcome to Lawyer Mayhem!

I truly enjoy reading all the new Lawyers/Photographers thoughts.

I think...what JoJo said..makes more sense....what is the bottom line here?

If OP follows through...An Attorney will base this case on only one factor...can the Attorney make Money!!!

May 17 13 10:44 am Link

Photographer

IMAK Photo

Posts: 528

Eureka, California, US

Can you sue him? Yes, this is America, you can sue anyone for anything. Will it be cost effective? Call a lawyer and find out.

May 17 13 10:53 am Link

Photographer

Jouissance Images

Posts: 744

Bloomington, Minnesota, US

In most parts of the country, there is the viable option of having a guy resembling a gorilla stop by, blackjack in his hand, to have a friendly talk with him. Can be VERY convincing.

May 17 13 10:55 am Link

Photographer

ward

Posts: 6135

Toronto, Ontario, Canada

IMAK Photo wrote:
Can you sue him? Yes, this is America, you can sue anyone for anything. Will it be cost effective? Call a lawyer and find out.

+1. And here's an interesting article/lawsuit over copyright infringement that is currently ongoing...and going...and ...

http://annarbor.com/news/photographer-s … -@aa-river

May 17 13 11:04 am Link

Photographer

AaronPawlak

Posts: 2708

New York, New York, US

Karl Ray wrote:
I recently submitted my images to a guy for use in his magazine pending I get an ad in the mag. He basically got gangsta on me and told me he was using my images without my permission and dared me to come after him for it. Is there a way to sue this guy for unauthorized usage? Sure enough, I sent the images to him but he text me a few pages of how my magazine did not work out and how  he was doing me a favor so that I wont "be that same internet facebook a** photographer" that I currently am...

May 17 13 11:06 am Link

Photographer

1472

Posts: 1059

Pembroke Pines, Florida, US

JoJo wrote:

Truer words have never been spoken.

So someone used one of your images without permission – you instantly hear “cha-ching” (the sound of a cash register) and have visions of $100 bills showering you from the sky.

The reality…. So someone used one of your images without permission

Step one – find an attorney that will take your case on a contingency basis. After every ambulance chaser in your area has laughed you out of his office you begin to realize there is a problem.

Step two – find an attorney that will take your case for $$$. The stark reality of having to shell out $1000, $5000 or even $10,000 to get your lawyer going sure hurts.

Step three – wait for the phone to ring. Wait a month, 2 months, 6 months and then discover your attorney needs another couple of thousand to get the case really going.

Step four – you get into court – the defendant doesn’t show – you win
Step four alternative– you get into court – the defendant shows – you win

Step five – celebrate – you won… but where’s that shower of $100 bills from the sky?
Guess no one told you… you won a judgment, a piece of paper – all you have to do is collect the judgment

How to collect a judgment…
Go to step one and start the whole process over again.


We have all heard the expression “you can’t get blood out of a stone” – this so applicable in cases like this.

The debtor (the guy you received the judgment against) shows up for the debtor judgment hearing driving his new Rolls Royce Corniche (in his sister’s name), wearing the latest Armani suit and Gucci accessories. He walks into the room, turns his pockets inside out (some pocket lint falls to the table for added drama) and says “I’m broke”… and casts a cynical smile… and a wink in your direction.

The judge then looks over at you and says, “sorry Mr Photographer, it appears the debtor has no apparent attachable assets”

As you walk out the door with your winnings, the pocket lint, you begin to realize the futility of the whole process.

Lol this is sad and awesome at the same. Time and insanely TRUE
hmm

May 17 13 11:10 am Link

Photographer

Click Hamilton

Posts: 34750

San Diego, California, US

Karl Ray wrote:
I recently submitted my images to a guy for use in his magazine pending I get an ad in the mag. He basically got gangsta on me and told me he was using my images without my permission and dared me to come after him for it. Is there a way to sue this guy for unauthorized usage? Sure enough, I sent the images to him but he text me a few pages of how my magazine did not work out and how  he was doing me a favor so that I wont "be that same internet facebook a** photographer" that I currently am...

May 17 13 11:19 am Link

Photographer

Patrick Walberg

Posts: 42751

Salinas, California, US

Click Hamilton wrote:
Anyone can sue anybody for any reason.

Under our legal and justice system, it's our right to do so.


---

The judge will probably want to know what damages you suffered.

What was the value of the ad that was promised and not delivered? If the "magazine" failed, then the ad was not worth very much.

Then the judge will probably want to know the terms of the contract, written or verbal, and what evidence you have to support the agreement. Emails? Text messages?

If you get a financial judgement in your favor, can you collect anything from a loser and a deadbeat?

If he libels/slanders you in private, I don't think that will matter much to the judge in terms of libel/slander, but it might help indicate the character and intent of the person you want to sue.

It seems hard to place a hard value on a trade that failed.


It's probably a mistake to engage someone in a lawsuit because they insulted you.

If you are just trying to bitch-slap the guy, the judge will be annoyed.

Click, I love your mannerisms of writing!   wink

Back in high school, I thought I was going to be a lawyer, and my buddy was going to be the writer, photographer, and publisher ... well we reversed roles ... um I  mean "goals!"   I'm currently have a civil lawsuit against someone that I am handling in court myself.   I'm not talking about a "small claims" case either!  Contrary to what many might believe, you do not have to be a lawyer to file a civil case, and you can act as your own attorney in court.   I'm getting advice from my buddy, and he has not been charging me either ... at least so far ... since he has not had to make a court appearance on my behalf or do physical filing either.

Let me just say this from my own experience.  I am learning so much more than I knew before about the civil courts.  There is a ton of research and logical development to a case.  It's a lot of work no matter if it's a small claims or a larger civil case!  I'm happy that I am doing it myself because I can't afford an attorney, not even my buddy.  I may not win my case, and if I do win it, I will then hire my lawyer friend to do what he does best and that is to collect!  There is nothing I would change about what I am doing except that I wish I never contracted with the defendant and paid a deposit for work that was then not done.  The defendant doesn't have an attorney at this time, and likely wont be hiring one either.

I caution anyone going to court the way I am that unless you've had some college education with a legal background like I have, it's not for the squeamish or the impatient.  It takes what seems like a long time to resolve.  My case is going on 2 years pretty soon.  It's not complex at all.  It's that I have to spent time filing and learning procedures that has been causing me to take longer to get it through.

In the OP's case, certainly he can sue ... in small claims or civil depending on what he believes his damages to be.  Will it be worth it?  Now that's something that depends on too many factors that he should not to be discussing here in a public forum as it could jeopardize his case, if any.  My own thoughts on a magazine using an image in exchange for advertising that was not provided is to let it go.  It would probably cost more in time and money that it's worth.  Learn from this and copyright your images!

May 17 13 12:07 pm Link

Photographer

BobBarford Photo

Posts: 92

York, Pennsylvania, US

JustAnswer.com is an online service that will put you in touch with an attorney in your area for a very reasonable rate that may be able to give you some general guidance. The attorney will answer your question on-line even on the weekend or outside of normal business hours. You can then decide what your next step(s) should be in your case.

May 18 13 04:25 pm Link

Photographer

Michael Broughton

Posts: 2244

Winnipeg, Manitoba, Canada

May 18 13 09:34 pm Link