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Photographer
Karl Ray
Posts: 494
Chicago, Illinois, US


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 13 12 08:59 pm  Link  Quote 
Photographer
Philip R
Posts: 594
Agoura Hills, California, US


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.
Aug 13 12 09:09 pm  Link  Quote 
Photographer
Karl Ray
Posts: 494
Chicago, Illinois, US


He has a national magazine that he is making money on. He made a statement to me in the text message that I post my photos on facebook for free so he should not have to pay me, yet you can only view the cover unless you pay for it.
Aug 13 12 09:17 pm  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 36,050
San Francisco, California, US


First, did you register the images before you sent them to him?  If not, you may be limited as to statutory damages.  I am not going to give you an explanation, but if you register images on a timely basis, you are entitled to more than if you didn't.

Second, it is going to depend on what you said to him when you sent him the images.  On the one hand, it could be infringement, on the other it could be breach of contract.  I say breach of contract because, a court could easily say that you gave him permission to use the images, he just didn't fulfill his end of the bargain.

That can be bad and good.  It is bad because if it isn't infringement, you won't be able to get the big judgment if you have registered the images.

It is good though, for two reasons.  First, to sue for infringement, you have to go to Federal court and it is expensive.  If it is breach of contract, i.e. he used the images but didn't give you your free ad, then you can take the breach of contract to small claims court.  Small claims court is relatively easy and inexpensive.  So it could be a blessing.

I am not a lawyer, but your small claims court probably has an adviser.  I suggest that you go speak to them to see if it would be an option.
Aug 13 12 09:20 pm  Link  Quote 
Photographer
Designit - Edward Olson
Posts: 1,636
Eureka, California, US


I'd say be glad that he was stupid enough to say these things in a text/written format. If you do end up suing, you have a much better case with proof that he knowingly used your images without intending to pay for them.

I'm not a lawyer, but I understand that it doesn't matter if he made any money. Your damage is what you're out, not him. You're out what you should have been paid for the type of usage.
Aug 13 12 09:24 pm  Link  Quote 
Photographer
David Pollack
Posts: 1,929
Wilmington, Delaware, US


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.

yes, you are no lawyer. Your reply is just silly (and incorrect.) Of course there are damages, how much and if you ever collect is a different thing.

Aug 13 12 09:24 pm  Link  Quote 
Photographer
Sophistocles
Posts: 21,320
Seattle, Washington, US


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.

That's why you're not a lawyer: because you're wrong.

Aug 13 12 09:25 pm  Link  Quote 
Photographer
tenrocK photo
Posts: 5,424
New York, New York, US


Document every bit of communication, find an experienced lawyer that will tell you what can be done, and stop posting about it online.
Aug 13 12 09:25 pm  Link  Quote 
Photographer
R A V E N D R I V E
Posts: 15,867
New York, New York, US


Karl Ray wrote:
He has a national magazine that he is making money on. He made a statement to me in the text message that I post my photos on facebook for free so he should not have to pay me, yet you can only view the cover unless you pay for it.

what he meant by that is since you probably didn't register the images, yet you published them now (facebook being the publishing) then there are no damages you could recover from him for using it


well, now its very limited damages that would be expensive to pursue

so I think he was correct in what he said, strange way of coming to that conclusion though

but yes, you could sue

Aug 13 12 09:25 pm  Link  Quote 
Photographer
Sophistocles
Posts: 21,320
Seattle, Washington, US


ei Total Productions wrote:
First, did you register the images before you sent them to him?  If not, you may be limited as to statutory damages.

Backwards, Alan :-)

Registration: statutory damages.
No registration: actual, proven damages, and then often difficult, at that.

Aug 13 12 09:26 pm  Link  Quote 
Photographer
GCobb Photography
Posts: 15,894
Southaven, Mississippi, US


Hire an attorney now.  If you didn't register your images you limited yourself to what you can collect.  But it doesn't mean you can't sue.
Aug 13 12 09:26 pm  Link  Quote 
Model
J Jessica
Posts: 2,304
Palm Beach Gardens, Florida, US


You could kindly ask him to not use them because it would make you not happy.
smile
Aug 13 12 09:27 pm  Link  Quote 
Photographer
SKPhoto
Posts: 25,779
Newark, California, US


Or....get revenge.

Create something to go viral and have the net take the thief down and out of business.

As happened here -

http://en.wikipedia.org/wiki/Cooks_Sour … ontroversy

Not only did the editor steal from a blogger, but used photos and articles from mainstream magazines as well.

...the response by the Cooks Source editor "may well become a digital textbook example of how not to respond to grievances in the internet age." The incident was named journalistic Error of the Year for 2010 by Craig Silverman of website Regret the Error. The fallout from the controversy drove Cooks Source out of business within two weeks of it breaking in full.
Aug 13 12 09:28 pm  Link  Quote 
Photographer
Designit - Edward Olson
Posts: 1,636
Eureka, California, US


ei Total Productions wrote:
First, did you register the images before you sent them to him?  If not, you may be limited as to statutory damages.

Sophistocles wrote:
Backwards, Alan :-)

Registration: statutory damages.
No registration: actual, proven damages, and then often difficult, at that.

Reread it. He said "Limited AS TO statutory damages" meaning statutory damages would be limited if he did not register the images.

Aug 13 12 09:28 pm  Link  Quote 
Photographer
Karl Ray
Posts: 494
Chicago, Illinois, US


J Jessica  wrote:
You could kindly ask him to not use them because it would make you not happy.
smile

I kindly asked him not to use the images and he came back with ignorance utterances and basically told me to kiss his behind because he is somebody and I am not.

Aug 13 12 09:31 pm  Link  Quote 
Photographer
Karl Ray
Posts: 494
Chicago, Illinois, US


The images are on here and on facebook, I just reposted them on facebook right after I asked him not to use them... karl5026
Aug 13 12 09:32 pm  Link  Quote 
Photographer
Tony Lawrence
Posts: 19,198
Chicago, Illinois, US


Hi, Karl.   Dig your work first of all and I'm sorry about what you are going through.   Yes you can sue him.   The question is will it be worth it to file a case and all the headaches it may bring.   You have to pay to file a case.   Even if you win there is no guarantee you'll ever make a dime.   You said its a national publication so maybe you can get a local lawyer to help out.   Some of our legal beagles can help here.   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
Aug 13 12 09:32 pm  Link  Quote 
Photographer
Sophistocles
Posts: 21,320
Seattle, Washington, US


Designit - Edward Olson wrote:

ei Total Productions wrote:
First, did you register the images before you sent them to him?  If not, you may be limited as to statutory damages.

Reread it. He said "Limited AS TO statutory damages" meaning statutory damages would be limited if he did not register the images.

Ah, you're right. English. I can haz. wink

Aug 13 12 09:38 pm  Link  Quote 
Model
J Jessica
Posts: 2,304
Palm Beach Gardens, Florida, US


Karl Ray wrote:

I kindly asked him not to use the images and he came back with ignorance utterances and basically told me to kiss his behind because he is somebody and I am not.

Perhaps he had a rough childhood. sad
Yes, perhaps a lawyer could help.

Aug 13 12 09:39 pm  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 36,050
San Francisco, California, US


ei Total Productions wrote:
First, did you register the images before you sent them to him?  If not, you may be limited as to statutory damages.

Designit - Edward Olson wrote:
Reread it. He said "Limited AS TO statutory damages" meaning statutory damages would be limited if he did not register the images.

Sophistocles wrote:
Ah, you're right. English. I can haz. wink

No worries, I sometimes write pig Latin better than English.

Aug 13 12 09:39 pm  Link  Quote 
Photographer
Karl Ray
Posts: 494
Chicago, Illinois, US


Where and or how would I register my images??? I have millions of images and I think I missed this course.
Aug 13 12 09:40 pm  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 36,050
San Francisco, California, US


Karl Ray wrote:
Where and or how would I register my images??? I have millions of images and I think I missed this course.

Start here:  http://www.copyright.gov/help/faq/

You will get a lot of your questions answered

Aug 13 12 09:42 pm  Link  Quote 
Photographer
Tony Lawrence
Posts: 19,198
Chicago, Illinois, US


Karl Ray wrote:
Where and or how would I register my images??? I have millions of images and I think I missed this course.

Another resource:   http://www.ppa.com/copyright-advocacy/resources.php

Aug 13 12 09:43 pm  Link  Quote 
Photographer
Karl Ray
Posts: 494
Chicago, Illinois, US


I appreciate all the input from everyone and hope that I can remedy this situation. I will be much more careful in the future and make sure my files are protected before I do any stupid transfers.
Aug 13 12 09:59 pm  Link  Quote 
Photographer
Looknsee Photography
Posts: 21,536
Portland, Oregon, US


Any money grubbing slug can sue any other money grubbing slug for any reason whatsoever.  Whether the plaintiff will win, however, is not guaranteed.

So, sure -- bust your cherry in civil court.  Here's what you can expect:

...  Your lawyer will get paid.  A lot.
...  His lawyer will get paid.  A lot.
...  Lawyers, who are paid by the hour, are not interested in a quick resolution.
...  His lawyer will say nasty and mostly untrue things about you.
...  Your lawyer will say nasty and mostly untrue things about him.
...  The points you think are relevant will be dismissed.
...  The points you think are irrelevant will be central to the trial.
...  You will lose sleep.
...  You will tug on the coats of strangers to tell your sob story.
...  The judge might find against you.
...  The judge might find a middle ground that doesn't satisfy anyone.
...  Even if you win, there is no guarantee that you'll collect any award.
...  The other guy will tell his sob story to all the potential clients in your area.

In short, trials are nothing like what you've seen on TV.  So, have fun.

To thread participants:  We haven't heard both sides of this story.  At this point, we have no reason to believe or disbelieve the OP.  For all we know, the form he filled out when he submitted his photo included a usage license for the magazine.
Aug 14 12 08:13 am  Link  Quote 
Photographer
pullins photography
Posts: 5,878
Troy, Michigan, 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 14 12 08:21 am  Link  Quote 
Photographer
pullins photography
Posts: 5,878
Troy, Michigan, US


Looknsee Photography wrote:
Any money grubbing slug can sue any other money grubbing slug for any reason whatsoever.  Whether the plaintiff will win, however, is not guaranteed.

So, sure -- bust your cherry in civil court.  Here's what you can expect:

...  Your lawyer will get paid.  A lot.
...  His lawyer will get paid.  A lot.
...  Lawyers, who are paid by the hour, are not interested in a quick resolution.
...  His lawyer will say nasty and mostly untrue things about you.
...  Your lawyer will say nasty and mostly untrue things about him.
...  The points you think are relevant will be dismissed.
...  The points you think are irrelevant will be central to the trial.
...  You will lose sleep.
...  You will tug on the coats of strangers to tell your sob story.
...  The judge might find against you.
...  The judge might find a middle ground that doesn't satisfy anyone.
...  Even if you win, there is no guarantee that you'll collect any award.
...  The other guy will tell his sob story to all the potential clients in your area.

In short, trials are nothing like what you've seen on TV.  So, have fun.

To thread participants:  We haven't heard both sides of this story.  At this point, we have no reason to believe or disbelieve the OP.  For all we know, the form he filled out when he submitted his photo included a usage license for the magazine.

There is always two sides to any coin. The OP simply asked if he could sue, and the simple answer is yes.

Aug 14 12 08:23 am  Link  Quote 
Photographer
howard r
Posts: 512
Los Angeles, California, US


once again, buy ed greenberg's book. it is under $14 on amazon.

there is no excuse not to educate yourself!

Photographer's Survival Manual: A Legal Guide for Artists in the Digital Age
Aug 14 12 08:30 am  Link  Quote 
Photographer
Looknsee Photography
Posts: 21,536
Portland, Oregon, US


Looknsee Photography wrote:
Any money grubbing slug can sue any other money grubbing slug for any reason whatsoever.

pullins photography wrote:
There is always two sides to any coin. The OP simply asked if he could sue, and the simple answer is yes.

And I told him, yes, too.  I just went further to warn him that his experience might not be what he expects.

Aug 14 12 10:39 am  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 36,050
San Francisco, California, US


Looknsee Photography wrote:
And I told him, yes, too.  I just went further to warn him that his experience might not be what he expects.

Everybody wants to sue, but not many know what it really means.

Aug 14 12 10:41 am  Link  Quote 
Model
JoJo
Contest Queen
Posts: 25,388
Clearwater, Florida, US


ei Total Productions wrote:
Everybody wants to sue, but not many know what it really means.

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.

Aug 14 12 11:32 am  Link  Quote 
Photographer
Rick OBanion Photo
Posts: 1,351
Saint Catharines-Niagara, Ontario, Canada


You can sue anyone for almost anything. The real question is...will it be successful.
But if we don't start going after publications that do this, what is the point of us even pretending we own copyright? Laws are only as successful as their enforcement. If we do not take the civil matters to lawyers, we may as well all just pack up our shit and go home.

Seriously...why would we even bother if we just let every dickwad just take what they want?
I am not suggesting we go all RIAA on everyone, but if we are not stopping print publications from ripping us off, then we are all idiots.
If the RIAA can successfully sue college kids and grandmothers for insane amounts of money for downloading a song, there is no reason we cannot protect our images,
Aug 14 12 11:34 am  Link  Quote 
Photographer
Stephen Dawson
Posts: 29,247
Toronto, Ontario, Canada


Has a court made the decision that posting your photos on Facebook constitutes "publishing"?
Aug 14 12 02:00 pm  Link  Quote 
Photographer
Looknsee Photography
Posts: 21,536
Portland, Oregon, US


After some additional thought, I have some questions:

...  The OP implies that the magazine acquired the photos from Facebook.  True?
...  What is Facebook's terms of usage for the photos for the images posted there?
...  What does the OP expect to get if he sues & wins?
Aug 14 12 02:36 pm  Link  Quote 
Photographer
Rick OBanion Photo
Posts: 1,351
Saint Catharines-Niagara, Ontario, Canada


Stephen Dawson wrote:
Has a court made the decision that posting your photos on Facebook constitutes "publishing"?

Stephen...whats that got to do with it?

Looknsee Photography wrote:
After some additional thought, I have some questions:

...  The OP implies that the magazine acquired the photos from Facebook.  True?
...  What is Facebook's terms of usage for the photos for the images posted there?
...  What does the OP expect to get if he sues & wins?

1. No, he said in the first line that he had an arrangement for images in trade for advertisement space. The publisher then said screw you. That may actually be criminal..obtaining goods under false pretenses.
2. They are granted automatic restricted usage rights.
3. Justice?

Aug 14 12 04:18 pm  Link  Quote 
Photographer
Stephen Dawson
Posts: 29,247
Toronto, Ontario, Canada


Stephen Dawson wrote:
Has a court made the decision that posting your photos on Facebook constitutes "publishing"?

Rick OBanion wrote:
Stephen...whats that got to do with it?

For statutory protection and penalties under US copyright law, you must register the photos within a certain number of days (not sure how many) of publication.

I would like to know if the clock starts ticking when your photo goes on Facebook.

US Copyright law pre-dates the Web.

Aug 14 12 07:27 pm  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 36,050
San Francisco, California, US


Stephen Dawson wrote:
Has a court made the decision that posting your photos on Facebook constitutes "publishing"?

Rick OBanion wrote:
Stephen...whats that got to do with it?

Stephen Dawson wrote:
For statutory protection and penalties under US copyright law, you must register the photos within a certain number of days (not sure how many) of publication.

I would like to know if the clock starts ticking when your photo goes on Facebook.

US Copyright law pre-dates the Web.

FYI, posting on the web, in and of itself, doesn't constitute publication.  The copyright statute lists certain criteria which has to be met for an image to be published, then allowing you up to ninety days to register it on a timely basis.  The question is if, when he posted the image, he met the criteria in the statute.  The point is you are asking the wrong question.  The question isn't if posting on Facebook is publication.  The question is, when he posted it, did he meet the criteria for publication.  That is a question of fact. In some cases, posting on the web will meet the criteria, in other cases it won't.

If he failed to meet the criteria for publication, then he is out of luck on timeliness.  If an image is infringed upon before registration and before publication, then it does not qualify for statutory damages.

EDIT:  BTW, while it is true that copyright pre-dates the Internet, Congress has amended the statute many times.  A few years ago they passed the "Digital Millennium Copyright Act" or simply "DMCA."  That statute was specifically intended to address the Internet and digital issues.  Had congress wanted to explicitly recognize the Internet as a form of publication (as it applies to registration), they could have easily done so then.  They did not.  They continue to rely upon the same factors, which may or may not be met by posting on the Internet.

Aug 14 12 07:50 pm  Link  Quote 
Photographer
-Koa-
Posts: 5,250
Castaner, Puerto Rico, US


Water mark your images.

Do not supply clean images until payment has been received.

Situation solved.

-Koa-
www.borikenwarrior.com
www.facebook.com/borikenwarriorstudiosmodels
Aug 15 12 01:48 am  Link  Quote 
Photographer
Yani S
Posts: 934
Los Angeles, California, US


Put him on blast!
Make a blog page and drop a link on every photographer site!
Since you can but him on blast on MM I'm sure a link to it would be ok.
I for one would like to know who it is and not do business with as long as the story is true!
But that's the thing isn't, is the story completely true! You can send him the link too and let him be able to post his side too! I think we can judge if he's a jerk or not! A thief or not!
At least he will know if he does this the rest of the world will know! Cheaper and easier then going to court and it might have more of impact on him and how he treats the next photographer!
Aug 15 12 09:22 am  Link  Quote 
Photographer
Looknsee Photography
Posts: 21,536
Portland, Oregon, US


Looknsee Photography wrote:
After some additional thought, I have some questions:

...  The OP implies that the magazine acquired the photos from Facebook.  True?

Rick OBanion wrote:
1. No, he said in the first line that he had an arrangement for images in trade for advertisement space. The publisher then said screw you. That may actually be criminal..obtaining goods under false pretenses.

That's why I'm confused, because the OP later suggested that the magazine said he got the images from Facebook

Looknsee Photography wrote:
...  What is Facebook's terms of usage for the photos for the images posted there?

Rick OBanion wrote:
2. They are granted automatic restricted usage rights.

That's too vague -- did the magazine violate anything, given Facebook's rights to the images?

Looknsee Photography wrote:
...  What does the OP expect to get if he sues & wins?

Rick OBanion wrote:
3. Justice?

3a)  We still haven't heard both sides of the story.  For example, did the OP say or
      do anything that gave the magazine the impression that the OP was granting
      the magazine usage rights?  Doesn't the act of submitting the OP's images
      imply the granting of a usage right (in this specific instance)?
      Maybe there was a clause in the submission paperwork that granted the
      magazine usage rights?  The point:  we don't know.
3b)  There is no guarantee that the OP will win.  "Justice" is a term that (to me)
      applies more the criminal court than to civil court. 
3c)  How much is the OP willing to pay in order to obtain "justice"?  Before you
     answer, consider lawyers fees + court fees + lost time + lost sleep + impact
     to the OP's reputation.

Aug 15 12 09:48 am  Link  Quote 
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