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12last
Photographer
kane
Posts: 1,565
Biarritz, Aquitaine, France


Alright, so it's not the first time that I've had a photo stolen and all the other times it's happen there have been reasons why I decided to do nothing about it, and this time it's kind of the same but I'm getting sick of this.

Long story short, I got paid to shoot some pictures for a nightclub 'for use on Facebook and their website', the fee was suitably low.  Now I find one of my pictures being sent out in a mass email by a billion-dollar international rail company. 

I've contacted them (the rail company) and their response is that the bar gave them the photo to use so they assumed that the bar had the rights to the photos and suggest that I should liaise with the bar directly.  The problem here is that the bar in question advertises in one of my magazines and therefore a good relationship with them is worth a couple of grand a year.

What would you do?
Oct 12 12 05:17 am  Link  Quote 
Photographer
Drew Smith Photography
Posts: 5,209
Nottingham, England, United Kingdom


Do you need to ask?

I think you answered your own question.

Btw: the definition of insanity is repeatedly doing the same thing but expecting a different outcome.
Oct 12 12 05:19 am  Link  Quote 
Photographer
Ken Pegg
Posts: 1,843
Weymouth, England, United Kingdom


The rail company is in breach. Deal with them.
Oct 12 12 05:24 am  Link  Quote 
Photographer
Z_Photo
Posts: 6,950
Huntsville, Alabama, US


v  a  r  i  a  n  t wrote:
Alright, so it's not the first time that I've had a photo stolen and all the other times it's happen there have been reasons why I decided to do nothing about it, and this time it's kind of the same but I'm getting sick of this.

Long story short, I got paid to shoot some pictures for a nightclub 'for use on Facebook and their website', the fee was suitably low.  Now I find one of my pictures being sent out in a mass email by a billion-dollar international rail company. 

I've contacted them (the rail company) and their response is that the bar gave them the photo to use so they assumed that the bar had the rights to the photos and suggest that I should liaise with the bar directly.  The problem here is that the bar in question advertises in one of my magazines and therefore a good relationship with them is worth a couple of grand a year.

What would you do?

they made an incorrect assumption.  they used the photo.

Oct 12 12 05:24 am  Link  Quote 
Photographer
Kent Art Photography
Posts: 2,786
Ashford, England, United Kingdom


They didn't assume.  They just didn't care.

It's up to you whether you care enough to go after them, and what consequences it will have for your business relationship with the bar if you do.
Oct 12 12 05:27 am  Link  Quote 
Photographer
kane
Posts: 1,565
Biarritz, Aquitaine, France


Z_Photo wrote:

they made an incorrect assumption.  they used the photo.

This is what I said to them in my reply.  The reason I'm not sure I want to press them on this is that I don't want to damage my relationship with the bar.

Oct 12 12 05:28 am  Link  Quote 
Photographer
GCobb Photography
Posts: 15,894
Southaven, Mississippi, US


Hire an attorney.  You could probably recover anything you think you lost with the magazine ad.
Oct 12 12 05:32 am  Link  Quote 
Photographer
SoCo n Lime
Posts: 3,283
Glasgow, Scotland, United Kingdom


v  a  r  i  a  n  t wrote:
The reason I'm not sure I want to press them on this is that I don't want to damage my relationship with the bar.

you need to start standing up for your self.. feel free to be walked all over if you want

acting professional .. being firm and reasonable in your requests will gain you respect and resolve 95% of all issues. you might even make that 2 grand off the train company alone .. if you dont ask you dont get. if your asking goes nowhere a letter from a lawyer will get you friction and a pay day

educating the bar professionally and in a nice manner will also help

my question in this scenario is what was the link between bar and train company

if the bar was paying for advertising space in the rail companies national pr magazine/emailer using your imagry that you created for bar .. then your on rocky ground and you should of mentioned it in the OP

Oct 12 12 05:42 am  Link  Quote 
Photographer
kane
Posts: 1,565
Biarritz, Aquitaine, France


SoCo n Lime wrote:
you need to start standing up for your self.. feel free to be walked all over if you want

acting professional .. being firm and reasonable in your requests will gain you respect and resolve 95% of all issues. you might even make that 2 grand off the train company alone .. if you dont ask you dont get. if your asking goes nowhere a letter from a lawyer will get you friction and a pay day

educating the bar professionally and in a nice manner will also help

my question in this scenario is what was the link between bar and train company

if the bar was paying for advertising space in the rail companies national pr magazine/emailer using your imagry that you created for bar .. then your on rocky ground and you should of mentioned it in the OP

Email from the rail company (redacted):

"Dear Ken,

Thank you for getting in contact in regards to the photo of (Bar).

When planning the email my colleague xxxxxxxx contacted (Bar) directly to inform them that we would like to feature the bar in our upcoming email.  We also asked if they had any imagery which we could use to feature with the article.

(Bar) provided us with confirmation that we were able to feature the bar and sent us a selection of photos to illustrate our article.  (Bar) were aware of the context and the use we planned to make of the photos therefore, the assumption was that they had the necessary rights and licences over the images and permission to grant use.

I would also like to make you aware that we are not planning on using this image again in the future.
 
I apologise for any misunderstanding and suggest that you liaise with (Bar) directly over the rights of the image.

Kind regards

xxxxx"

Oct 12 12 05:46 am  Link  Quote 
Photographer
SoCo n Lime
Posts: 3,283
Glasgow, Scotland, United Kingdom


v  a  r  i  a  n  t wrote:
Email from the rail company (redacted):

okay after reading email reply im sorry variant but your image wasn't stolen. yes it was used in a way that you did not give permission for by bar so take it up with them.

this type of third party advertsing practice happens all the time and is something photogrpahers have to take on board when working with a entertainment venue/bar / resturant or any business in fact that uses advertising to create awareness

you need to take into account your pictures will be used by your client (the bar) for advertising use. your quote for any job should include the more than likely use and rights within your pricing structure.

Oct 12 12 05:54 am  Link  Quote 
Photographer
DG at studio47
Posts: 2,365
East Ridge, Tennessee, US


always put things in writing, get it signed, archive it. Keep relationships professional rather than personal.Even doing 100% TFCD work, I've always documented everything as if it involved big money. It will earn you respect and fewer headaches. Best wishes OP.
Oct 12 12 05:59 am  Link  Quote 
Photographer
kane
Posts: 1,565
Biarritz, Aquitaine, France


DG at studio47 wrote:
always put things in writing, get it signed, archive it. Keep relationships professional instead of friendly/personal IF money is involved.Best wishes.

Thanks, probably the best advice I'm likely to get.  My fault for being sloppy on the contract front.  Lesson learned.

Thanks to everyone who replied, gonna let this one go and make sure to have absolutely everything in writing from here on out.

Oct 12 12 06:03 am  Link  Quote 
Photographer
SoCo n Lime
Posts: 3,283
Glasgow, Scotland, United Kingdom


the rail company has acted in good faith that the bar owned the rights to the images they sent to them (or atleast had permission) so you cant really chase them

its not like they stumbled across your image and used it blindly

the bar will get pissy when you ask for more money cause you didnt expect it to be used in this way

if it was me i would learn by my mistake and next time make sure it is clear to bar that thy need to buy a licence for xyz if you want to go down that ruote.. or say have the images and use them as you like but you pay me £XXXX

its a common trick for magazines that deal with entertainment venues to sell their advertising space .. send you along to venue as a freelancer to take pics for the mag advert and then unkown to you supply the venue with a set of pictures as part of the deal or a separate deal.. so you have to be careful and aware all the time. ignorance is allot to do with the issues we face and sometimes its just pleads of ignorance (they know what theyre doing)
Oct 12 12 06:05 am  Link  Quote 
Photographer
Robert Jewett
Posts: 2,457
al-Marsā, Tunis, Tunisia


Quit talking to us about it.  Get a lawyer.
Oct 12 12 08:18 am  Link  Quote 
Photographer
Jhono Bashian
Posts: 2,432
Cleveland, Ohio, US


do you watermark your images??
Oct 12 12 08:28 am  Link  Quote 
Photographer
Light and Lens Studio
Posts: 1,362
Sisters, Oregon, US


It is the rail company that has broken the law here.  They didn't do their due diligence regarding copyright law. 

You do need to educate the bar on copyright law.  That can be done in a low key manner.  As far as the rail company you can explain to them that the bar doesn't own the copyright; you do.  Ask them for a reasonable compensation for use of the photos based upon the use and what it would have been worth had they procured rights to them in the first place.  You don't need to punish them, just get your rightful compensation.  Who knows, you must might get another future client since they obviously like your work. 

Walk softly.  You already have a big club but you don't need to wave it at them.

Just my 2¢
Oct 12 12 08:38 am  Link  Quote 
Photographer
Rebel Photo
Posts: 11,446
Florence, South Carolina, US


USAGE LICENSE!... no word of mouth, put it in writing every time.

You might consider a project with the rail company as some type of re-reimbursement as an option....and avoid Bars/Nightclubs like the plague. They have been and are one of the worst copyright offenders, and do not have the capitol to pay in a lawsuit.
Oct 12 12 08:46 am  Link  Quote 
Photographer
M Pandolfo Photography
Posts: 12,116
Tampa, Florida, US


Light and Lens Studio wrote:
It is the rail company that has broken the law here.  They didn't do their due diligence regarding copyright law.

What should the rail company have done? They contacted the bar and asked for images. The bar provided images they, incorrectly, believed they had rights to share.

That WAS the rail companies due diligence. They didn't just pull some images off FB or the bar's website. They acted in good faith and asked who they believed to be the copyright holder (the bar) for permission. Which the bar granted.

It was the bar that was misrepresenting their ownership of the images.

Oct 12 12 09:03 am  Link  Quote 
Photographer
M Pandolfo Photography
Posts: 12,116
Tampa, Florida, US


Rebel Photo wrote:
USAGE LICENSE!... no word of mouth, put it in writing every time.

You might consider a project with the rail company as some type of re-reimbursement as an option....and avoid Bars/Nightclubs like the plague. They have been and are one of the worst copyright offenders, and do not have the capitol to pay in a lawsuit.



Amen.

Oct 12 12 09:05 am  Link  Quote 
Photographer
sospix
Posts: 21,338
Orlando, Florida, US


Novian & Novian  .  .  .  intellectual property attorneys  .  .  .  they write wonderful cease and desist letters  .  .  .  wink

SOS
Oct 12 12 09:10 am  Link  Quote 
Photographer
GeorgeMann
Posts: 1,148
Orange, California, US


I think all the advice regarding getting attorneys involved is pure BS.
The image/images have already been used and the threat of litigation will undoubtedly lose you the bar as an account in the future.
A little due dilligence in future business dealings with the bar may get you more assignments from both them and the rail company or any other advertising media the bar chooses to give them to, simply from exposure.
My thoughts are when you sell the images to the bar you should plan ahead, and charge enough that you can consider the image/product sold, and it should not matter what the bar does with the image.
After all, what is the bar buying your product for in the first place, if not for advertising??
Oct 12 12 09:35 am  Link  Quote 
Photographer
MDWM
Posts: 638
Los Angeles, California, US


GeorgeMann wrote:
I think all the advice regarding getting attorneys involved is pure BS.
The image/images have already been used and the threat of litigation will undoubtedly lose you the bar as an account in the future.
A little due dilligence in future business dealings with the bar may get you more assignments from both them and the rail company or any other advertising media the bar chooses to give them to, simply from exposure.
My thoughts are when you sell the images to the bar you should plan ahead, and charge enough that you can consider the image/product sold, and it should not matter what the bar does with the image.
After all, what is the bar buying your product for in the first place, if not for advertising??

This^^^

Any actions against the rail company will surely sever your ties with the bar and their couple of thousands per year because they will contact the bar. So you have to determine what holds more value for you long term.

I don't know what kind of magazine you have but maybe you can sell ad space to them. Take advantage of the situation...turn this lemon into lemonade.

Oct 12 12 09:38 am  Link  Quote 
Photographer
Andrew Koenig
Posts: 314
Gillette, New Jersey, US


Send a DMCA takedown notice to their ISP.
Oct 12 12 09:44 am  Link  Quote 
Photographer
Mark Salo
Posts: 8,295
Olney, Maryland, US


GeorgeMann wrote:
I think all the advice regarding getting attorneys involved is pure BS.
The image/images have already been used and the threat of litigation will undoubtedly lose you the bar as an account in the future.
A little due dilligence in future business dealings with the bar may get you more assignments from both them and the rail company or any other advertising media the bar chooses to give them to, simply from exposure.
My thoughts are when you sell the images to the bar you should plan ahead, and charge enough that you can consider the image/product sold, and it should not matter what the bar does with the image.
After all, what is the bar buying your product for in the first place, if not for advertising??

Did you sell the images or license them?

Oct 12 12 10:00 am  Link  Quote 
Photographer
kane
Posts: 1,565
Biarritz, Aquitaine, France


Mark Salo wrote:
Did you sell the images or license them?

License.  I know the owners, they asked me what I would charge to come down and take some shots for 'our website and facebook'.  My friend was DJing. I did it for a hundred Euros, more or less as a favour.  Obviously not what I would've charged a massive international railway company to put in thousands of emails.

Oct 12 12 10:51 am  Link  Quote 
guide forum
Photographer
-JAY-
Posts: 6,580
Las Vegas, Nevada, US


Ken Pegg wrote:
The rail company is in breach. Deal with them.

they will in turn recoup lost funds through the bar.

Oct 12 12 12:14 pm  Link  Quote 
Photographer
Fred Greissing
Posts: 6,368
Los Angeles, California, US


Take legal action against the rail company.

The rail company is in breach of copyright.

They can't go after the bar, unless they have a written licencing from the bar.

Even then that is their deal with the bar.

If the bar does not have a written agreement from you to sell or give the image to third parties from you the rail company can't do anything to the bar.
Oct 12 12 04:51 pm  Link  Quote 
Photographer
Karl Blessing
Posts: 30,853
Grand Rapids, Michigan, US


It's irrelevant if they don't plan on using the image "in the future", simply send a DMCA take down notice to their hosting provider if they won't remove the current image.

ie: They know now, their continued use of the image on their website and beyond past the notice puts them in breach of their responsibility to it.
Oct 12 12 08:33 pm  Link  Quote 
Photographer
Gianantonio
Posts: 7,876
Minneapolis, Minnesota, US


v  a  r  i  a  n  t wrote:
Alright, so it's not the first time that I've had a photo stolen and all the other times it's happen there have been reasons why I decided to do nothing about it, and this time it's kind of the same but I'm getting sick of this.

Long story short, I got paid to shoot some pictures for a nightclub 'for use on Facebook and their website', the fee was suitably low.  Now I find one of my pictures being sent out in a mass email by a billion-dollar international rail company. 

I've contacted them (the rail company) and their response is that the bar gave them the photo to use so they assumed that the bar had the rights to the photos and suggest that I should liaise with the bar directly.  The problem here is that the bar in question advertises in one of my magazines and therefore a good relationship with them is worth a couple of grand a year.

What would you do?

I don't know about French Usage laws, but in the US, the USER is responsible for obtaining USAGE RIGHTS for the photo.  Here in the US, you would sue the rail company.  If the rail company felt the club misrepresented their rights to the image, the rail company would sue the club.

Oct 12 12 09:48 pm  Link  Quote 
Photographer
moving pictures
Posts: 662
Los Angeles, California, US


Why don't you ask the rail company to put in their next email a credit for you as being the photographer in the previous email.

As for any other advice - you're apparently in France.  Talk to a French lawyer and ignore all these arm-chair "lawyers" here who are giving you suggestions based on American copyright law.
Oct 12 12 11:15 pm  Link  Quote 
Photographer
kane
Posts: 1,565
Biarritz, Aquitaine, France


moving pictures wrote:
Why don't you ask the rail company to put in their next email a credit for you as being the photographer in the previous email.

As for any other advice - you're apparently in France.  Talk to a French lawyer and ignore all these arm-chair "lawyers" here who are giving you suggestions based on American copyright law.

In France but dealing with UK companies.  The copyright law, as I understand it, is relatively similar.  Anyways, gonna ask my accountant if he knows a decent lawyer.

Oct 13 12 05:17 am  Link  Quote 
Photographer
Jim McSmith
Posts: 762
Edinburgh, Scotland, United Kingdom


Send them an invoice. If they don't pay go to Judge Judy.
Oct 13 12 05:21 am  Link  Quote 
Photographer
Karl Blessing
Posts: 30,853
Grand Rapids, Michigan, US


Jim McLintock wrote:
Send them an invoice. If they don't pay go to Judge Judy.

You guys get Judge Judy over there in UK?

Oct 13 12 05:40 am  Link  Quote 
Photographer
WMcK
Posts: 5,280
Glasgow, Scotland, United Kingdom


Karl Blessing wrote:

You guys get Judge Judy over there in UK?

Unfortunately, yes.

Oct 13 12 09:14 am  Link  Quote 
Photographer
Steinberg Photo
Posts: 1,126
Boston, Massachusetts, US


Maybe MM needs to setup a new membership category: LAWYER.
Oct 13 12 05:27 pm  Link  Quote 
Photographer
moving pictures
Posts: 662
Los Angeles, California, US


v  a  r  i  a  n  t wrote:

In France but dealing with UK companies.  The copyright law, as I understand it, is relatively similar.  Anyways, gonna ask my accountant if he knows a decent lawyer.

I am no where close to a lawyer, but I remember reading that English (and American) law is based on British Common Law.  Whilst French law is derived from the Nepolionic Code and quite different.

Oct 13 12 05:48 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


v  a  r  i  a  n  t wrote:
Alright, so it's not the first time that I've had a photo stolen and all the other times it's happen there have been reasons why I decided to do nothing about it, and this time it's kind of the same but I'm getting sick of this.

Long story short, I got paid to shoot some pictures for a nightclub 'for use on Facebook and their website', the fee was suitably low.  Now I find one of my pictures being sent out in a mass email by a billion-dollar international rail company. 

I've contacted them (the rail company) and their response is that the bar gave them the photo to use so they assumed that the bar had the rights to the photos and suggest that I should liaise with the bar directly.  The problem here is that the bar in question advertises in one of my magazines and therefore a good relationship with them is worth a couple of grand a year.

What would you do?

Don't sue them for their error. That would be malicious.

Instead have them fix their error by sending people out to track down the recipient of each email and get them to delete the photo as well as anyone they may have forwarded it to. They'll need to locate each device including mobile devices where one address is spread between desktop, tablet and phone.

Oct 13 12 06:06 pm  Link  Quote 
Photographer
Instinct Images
Posts: 22,529
San Diego, California, US


Before getting a lawyer involved I would try to get the rail company to pay a nominal amount. After all you already did the work and they apparently used the images in good faith that the bar had the rights.

I had a similar situation but it was a large international company that used my image. I thought it would be easy to get them to settle but it wasn't - it took 5 years! Fortunately I had a lawyer take the case on contingency and since it got all the way to the point of having filed in Federal Court (a requirement here in the US) we got them to finally settle for a large figure. The legal fees they paid ended up being many times my original request. It was silly for them not to settle with me immediately.

In your case it would be much cheaper for them to simply pay you a nominal amount than to have to defend themselves in court.

Just be reasonable with your request.
Oct 13 12 06:10 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


v  a  r  i  a  n  t wrote:

Email from the rail company (redacted):

"Dear Ken,

Thank you for getting in contact in regards to the photo of (Bar).

When planning the email my colleague xxxxxxxx contacted (Bar) directly to inform them that we would like to feature the bar in our upcoming email.  We also asked if they had any imagery which we could use to feature with the article.

(Bar) provided us with confirmation that we were able to feature the bar and sent us a selection of photos to illustrate our article.  (Bar) were aware of the context and the use we planned to make of the photos therefore, the assumption was that they had the necessary rights and licences over the images and permission to grant use.

I would also like to make you aware that we are not planning on using this image again in the future.
 
I apologise for any misunderstanding and suggest that you liaise with (Bar) directly over the rights of the image.

Kind regards

xxxxx"

When I get hired to shoot "publicity photos" it's by people who are paying me to shoot a photo that they will be allowed to distribute to press who will run the photo and publicize my client.

It's a little weird, because in a lot of cases the magazines are asking for a photo to be provided so that they won't have to pay a licensing fee or hire a photographer, so the use is something that should generate a licensing fee.

The client doesn't usually understand that all they understand is that they're not getting the publicity if they don't supply the photo, so that's why they hire me.

The letter of the law who allow me to go after everyone, but they would be very upset if I did that because they would feel the intent was clear when they hired me. I try to clarify their planned usage even if there's not going to be a formal agreement itemizing use so that I know what to be surprised about and what not to.

The net result is I'll get paid 1 fee by the magazine's subject who will distribute the photo to 10 or even 100 magazines who, years ago, would have each paid me to shoot from scratch or paid a license fee. They've outsourced their art work to their subjects to keep their expenses down and nothing is going to change that.

If you really want to fight, you can win one single battle, and then you'll never have the problem again. People will get the message that they can not use your photos this way. However, instead of hiring you and not using your photos in a way that you've made clear you don't want them used, they won't hire you in the first place and that will guarantee that no one will use your photos this way again.

Oct 13 12 06:20 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


v  a  r  i  a  n  t wrote:

Thanks, probably the best advice I'm likely to get.  My fault for being sloppy on the contract front.  Lesson learned.

Thanks to everyone who replied, gonna let this one go and make sure to have absolutely everything in writing from here on out.

It's not just about having everything in writing, it's about defining terms as well.

Your contracts will have to be offputtingly long to be effective.

Oct 13 12 06:21 pm  Link  Quote 
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