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Online images and copyright infringement

Published Mar 6, 2013 | dpreview staff

A dispute between Canadian pro photographer, Barbara Ann and Ottawa radio station HOT 89.9 illustrates the problematic climate in which companies often turn to the Internet for free photographic images. The Internet fosters self-promotion by making it easy for anyone to find your images. That, of course brings the risk of someone using your images for commercial purposes without you giving consent or receiving compensation.

As part of a Keynote presentation aimed at station advertisers, HOT 89.9 used an image that was found via a Google search, without authorization from, or payment to, the photographer.

Someone at the HOT 89.9 radio station found, via a Google search, a wedding photo that was then used as part of a Keynote slide presentation (shown above) made to potential advertisers. When the station was contacted by the photographer, the image was removed but the two parties remain far apart on an agreement over compensation. You can read the ensuing (and acrimonious) email exchanges between photographer Barbara Ann and NewsCap Radio Vice President Scott Broderick on PetaPixel.

Another recent case of copyright infringement has ended on a much more satisfactory note for both parties, as reported by photographer Theron Humphrey on his Facebook feed. One of his canine images was used in an advertisement by So Delicious Dairy Free, without authorization or payment. Humphrey then asked his Facebook followers to post on the company's wall, asking that the company donate $10,000 to an animal rescue as compensation. The company agreed and is asking its own Facebook fans to recommend a suitable recipient of the donation.

After being contacted about unauthorized use of dog photographer Theron Humphrey's image, the company took the photographer up on his suggestion to make a large donation to an animal/rescue organization.

Two copyright infringements but with very different results. Which approach would you have chosen?

Tags: copyright, other-news

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(unknown member)

I find some of the comments here a bit odd. There seems to be a marked difference in attitude towards the photographer between this site and those on the linked page.

To me it looks like the radio station probably knowingly infringed copyright; How did I arrive at this conclusion... well, we are been treated to what is supposedly the full story, the full exchange of emails, except the first ones. Why?

If we may assume that such an articulate photographer might well have indicated in her initial emails which image she was referring to, then we can assume the first email we are shown from the station is an example of giving someone the run around.

Followed by a passive aggressive dismissal of blame... only a few saw it.

At that point the claim of innocent infringement looks like just more evasiveness.

Then they refuse to pay the amount due quoting a sum that is neither here nor there.
And after not getting away with any of that, they resort to personal insult.
Yet she's blamed

Mar 12, 2013permalink

OrangeDog

if you actually read the emails you would see that an advertiser to the radio station - Stratmere - had that image tagged by the photographer as being taken there. This photo was an earlier work by the tog and she failed to include a copyright on the photo.

Mar 13, 2013permalink

(unknown member)

What I wrote was a summary of the emails outlining the nature of the radio station's response shown in the link provided on this page.
The questionable absence of prior communications seems to confirm that the photographer was deliberately being given the run around.

It is plainly clear from that summary that I had read the emails and so the aggressive tone of your innuendo; " if you actually read the emails" is wholly unwarranted.

As for your assertions, they are not supported on the given link above.

You claim that the advertiser to the radio station had the photos tagged by the photographer as being taken there.

This contrasts considerably to what the emails actually say, which was simply that the image was found (by the station) whilst doing a Google image search of “Strathmere Weddings.” Strathmere being a sponsor.

There is no mention of any advertiser previously having had any image tagged, by the photographer, or anyone else, nor at any location.
Read it elsewhere?

Mar 13, 2013permalink

OrangeDog

hmmmm - again I ask you to read the emails, the image was tagged as happening at Stratmere - a sponsor to this contest.

http://www.barbcameronweddingphotography.com/2009/12/wedding-photography-strathmere/

Mar 13, 2013permalink

(unknown member)

Initially you asserted that a radio station's sponsor had the image tagged, but now, you've watered that down to just saying the image was merely tagged as having been taken at the Strathmere.

A point that is neither here nor there because it was not specifically raised in the emails.

I would appreciate if you would read them and see for yourself:
http://www.petapixel.com/2013/03/05/photog-gets-into-nasty-tussle-with-radio-station-over-copyright-infringement/

What was mentioned is that the image was found during a google search concerning what the website you have provided implies is a location.

So, you take a group photo of your mates at a pub and someone claims to have "innocently" assumed that photo belonged to the pub... weak excuse wouldn't you say!

Mar 13, 2013permalink

OrangeDog

tag means the picture is described as being taken at Stratmere - pretty simple enough.

But that is not the issue in this whole affair, the issue is the tog is a convicted felon thief who is then accusing the radio station of stealing her work. She put a lot of people through grief with her stealing $40k.

"The judge also called initial efforts by Cameron to dissuade the union local from proceeding with an audit by claiming some directors were "spending like drunken sailors" as despicable.

He acknowledged the impact statements of three ETFO members previously entered into evidence that Cameron's actions led to a split in the union leadership and left the local perilously close to bankruptcy."

Karma is a bitch ain't she :)

Mar 13, 2013permalink

(unknown member)

"tag" means the picture is electronically labelled using keywords that should reflect the image. It would usually be the person who put the image on line that has tagged it, but sometimes it can be possible for an outsider to do so also.
It would have been the tags that caused it to show up in the google search, but again, the emails don't mention who did the tagging.

Mar 13, 2013*permalink

(unknown member)

"But that is not the issue in this whole affair, the issue is the tog is a convicted felon thief "

Even if you had the correct Barbara Cameron in mind, what you're saying there is that prostitutes deserve to be raped.

Stop digging.

Mar 13, 2013permalink

OrangeDog

you miss the entire point.

she ruined lives by her stealing $40k, and then turns around and accuses someone of stealing her stuff.

guess she and you didn't learn much.

and yes it is the same person

Mar 13, 2013permalink

(unknown member)

"you miss the entire point."

That being that a radio station "stole" from a photographer then proceeded to avoid responsibility by first giving her the run around before descending into inappropriate mud slinging in response to her forthright replies to their questions.

It seems such tactics are faced by photographers on a regular basis and ruins lives and careers etc.

I think I've got that point entirely.

However, your point is that the whole matter is quite ironic.

And indeed it is, though worth pointing out that the station hasn't pleaded guilty, or provided any significant gesture of payment/ reimbursement .

Mar 13, 2013*permalink

RedorBlack

I find it interesting how many dismiss the value of the artist's work and take the radio station's word that "Hey, only about 10 people saw it". Does this work when other people catch someone stealing their goods? "Hey, I only took the 1 car... I didn't know it was yours... I usually pay $10-$40 for a used car so I'll be fair and pay you the full $40 for your car." "Why is that officer being rude to me? I offered to compensate her for the mistake... Those in the business of making money through advertising seem to do this sort of things a LOT. Lifting articles verbatim or editing them just a wee bit and publishing them in local rags... when caught, "You should be glad I edited your article, you can put the publication in your resume!"

Mar 12, 2013permalink

RedorBlack

Websites and radio stations that constantly do this without even attributing where they got something, presenting it as their own... no attribute, no permissions, no copyright acknowledgments. But t is a felony to download a movie to watch that you wouldn't have paid to see anyways... a single use. A movie or song that you are not using in an attempt to profit. Not fair use... not a student using the photo in an assignment to analyse traditional roles in marriage or Mom mailing it to her daughter "Do you like this style gown?" or "Should we hire this photographer?"

The ones trying to poo poo the photo as not very good... it was good enough that a radio station chose it for their promotion materials. They valued it that much...

Today anything can be copied.. I take photos of your sculpture, feed them into a computer and print them out on a 3d printer and sell them as my own... no harm to you, you already made your money selling the sculpture I copied... right? Wrong.

Mar 12, 2013permalink

RedorBlack

Oh... wait I won't sell them, I'll just give them away as a promotion for MY Services... see, I didn't do anything wrong now!!!! Not! They used her services and her material to promote their sales with no rights and no compensation. They don't get to set her prices after the fact. That is the same technique used by shoplifters that get caught... "Oh, I'm sorry, let me pay for that.... it costs how much? Never mind, I'll leave it here then!"

Mar 12, 2013permalink

Manic Tuesday

i bet the radio station was thinking the photo was so mediocre nobody would want money for them using it. if they wanted to intentionally infringe they would have gone with a much better quality shot that google's is full of.
.
the aggressive, hysterical chick that took the shot needs to cool down. copyright laws in most countries are absurd, and their violation is often far from immoral. that's a fact. if you're so protective of your photos that something like this makes you go berserk, then don't freakin publish them for the world to see. and use. that's right, you put it out there, it's for grabs. the law may not say so, but the common sense does.

Mar 11, 2013permalink

RedorBlack

So the thing to do is steal things you don't feel are worth much and thus you should be fine? Do you steal copper wiring and since you were only using it for scrap it isn't worth the $5 a foot it costs in the store?

Mar 12, 2013permalink

(unknown member)

I've read the emails. Most of the comments that followed agree with her.

The photographer comes across as a calm, resolved, experienced, articulate professional and a far cry from the slur of "aggressive, hysterical chick..." Rape victims have been similarly dismissed.

Mar 12, 2013permalink

OrangeDog

are you NUTS - read her emails, she is quite rude and demanding, not a professional at all.

Mar 13, 2013permalink

(unknown member)

"demanding"? she was asked to say how much compensation she expected. She simply answered that question in an informative manner.

However, your semi-articulate "you are NUTS" suggests you might not be in the best position to evaluate rudeness let alone to judge professionalism.

Mar 13, 2013*permalink

OrangeDog

Barbara Ann Cameron is a convicted thief.

so if she got into any legal scuffle she should have gone to her parole officer for guidance...LOL

Direct quote from her:

"I will never be in court again for anything."

In my opinion she should have been more forthright in negotiations with the radio station, ie. send them an invoice for this picture.

Mar 13, 2013*permalink

OrangeDog

she then launched a social media campaign which backfired on her when people like myself found it a bit rich that a convicted thief had the tables turned on her and how she reacted to it.

I agree that she should be compensated for this picture, with a release from the happy couple of course :)

Mar 13, 2013permalink

(unknown member)

You've stated that "Barbara Ann Cameron is a convicted thief."

I've done a search using that sentence (with quotes) but it yielded no results, so I adjusted to "Barbara Ann Cameron convicted", but again, no returns, so I swapped the word "convicted" for "thief" but still nothing.

Perhaps you'd be kind enough to cite your source, other than the link given earlier in this thread to a teacher, with a similar , but not identical name convicted in 2012. Whereas this Barbara Ann was, at the time, running her photographic business and being doing so since 2008.

You also said "In my opinion she should have been more forthright...."
"Forthright" is a very good choice of word. It sums up the nature of her email responses.
But it seems a lot of people equate "forthright" with "rude".
I agree with the invoice suggestion you made.

Mar 13, 2013permalink

(unknown member)

"with a release from the happy couple of course :)"

agreed

Mar 13, 2013permalink

OrangeDog

http://www.recorder.ca/2012/01/25/teacher-stole-40000
http://www.recorder.ca/2012/04/27/fraudster-sidesteps-jail-time

ever wonder why she suddenly went quiet about her social media campaign?

Mar 13, 2013permalink

(unknown member)

No, I never wondered. I hadn't been following it in the first place.

Mar 13, 2013permalink

E Dinkla

It would be a very smart move if any copyright infringement is compensated by a donation for a good cause. The price to pay can be several times the normal photographer's image price and still hold in court. Greed is not an issue then and the level of shame is multiplied for the company that is not willing to cooperate.

Mar 8, 2013permalink

(unknown member)

Since when is it greedy for a photographer to expect compensation for his/her work? Is it greedy of you to expect a paycheck in exchange for offering your labor to an employer?

Mar 9, 2013*permalink

Douglas69

Dinkla...
If you made your living from selling photos, would you still have the same opinion if instead of paying you for your work, clients gave money to charity?

This is a one off incident where the photographer decided to "fine" the company by making them donate a misappropriated amount of money to charity. He'd probably have gotten that much in a settlement had he gone to court.

Expecting "EVERY" instance of copyright infringement to follow with a charity payment will see some hungry photographers going under. A far better idea is to set up a challenge fund to help defray the cost of court action against those who should (and probably do) know better.

Mar 10, 2013permalink

E Dinkla

To charity five to ten times the price I would ask if the work was ordered in a normal way? Yes, if that penalty made them and others aware that a price has to be paid for a theft like that. I would also insist on a less hypocritical statement by the offender that goes along with the gift to charity.
Would you prefer to go the other route and get less yourself + handing over a substantial amount to the lawyer + all the hassle of that route? So far it looks like the risk of a court case is not considered high enough to make copyright infringement a rare case. The approach is that most will not claim due to this long winding path of justice done. They settle for the normal price or nothing at all. The institutes you can join to protect your interests, that also should check abuse of your images, do not have a positive imago either. They are in it for the money too in practice. At least that is what I hear pros complain about. Your challenge fund would get a similar structure fast.

Mar 11, 2013permalink

E Dinkla

I did not write that there was greed in both cases mentioned in the article. I wrote that greed can not be an issue in the charity route.

Mar 11, 2013permalink

CarlPH

The Photographer even made a facebook campaign to rally people to her side. But she only included bits that seem to favor her. Excluding her nasty emails sent to the station which resulted in nasty replies from the station. I think she should just cut the drama and lawyer up. It's just business anyway, nothing personal about it.

Mar 8, 2013permalink

plevyadophy

Maybe she's scared that she will get fckd by the lawyers too hence her trying to go to war without a lawyer in her battalion.

Mar 8, 2013permalink

OrangeDog

she is well versed in lawyers and courts have been convicted of fraud in stealing $40k.

Mar 8, 2013permalink

plevyadophy

@OrangeDog,

Precisely!!
She knows them well, that's why she is scared of them. LOL! :o)

Mar 8, 2013permalink

Wing Wong

She DID EXIF tag her images. ALL of the images on her blog are EXIF tag'd:

$ exiftool -a FBMichelleJordan-186.jpg | egrep -i "copyright|creator|copyri|web|own|auth"
By-line Title : Owner/photographer
Copyright Flag : True
Creator Tool : Adobe Photoshop CS5.1 Macintosh
Authors Position : Owner/photographer
Web Statement : www.barbara-ann-studios.com
Creator : Barbara Ann Cameron
Creator Postal Code : X
Creator Work Telephone : X
Creator Region : Ontario
Creator City : Kemptville
Creator Country : CANADA
Creator Work Email : X
Creator Address : X
Creator Work URL : www.barbara-ann-studios.com

I've X'd the sensitive info, though most people can pull it if they want.

The radio staff are either incompetent/lazy or willfully violated her copyrights.

Mar 7, 2013permalink

Wing Wong

Also, depending on the contract she has with the clients, she most likely retains all commercial and usage rights of the images.

Mar 7, 2013permalink

joe6pack

I would seriously doubt any couple would give permission to use *their* wedding photos in 3rd party commercials without their consent.

As far as EXIF goes, don't you think she added them after the fact? www.barbara-ann-studios.com is relatively new. The photos used to be in http://www.barbcameronweddingphotography.com

Mar 8, 2013permalink

OrangeDog

Good sleuthing - but her earlier work was not tagged.

http://www.barbcameronweddingphotography.com/2009/12/wedding-photography-strathmere/

maybe she was too busy writing herself checks from her union fund at the time.

Mar 8, 2013*permalink

robmanueb

I bet the staff at the station wouldn't know what an EXIF file was if it came up and bit them. A LOT of photographers don't know what EXIF is, for that matter.

Mar 8, 2013permalink

joe6pack

Thinking a bit more on the matter. Does she really own the photos? The photo comes from here:

http://www.barbcameronweddingphotography.com/2009/12/wedding-photography-strathmere/

It does appear that she is a photographer for hire. And the photo should belong to the wedding couple. How come she get to name the price for photo she took for others?

The issue of her ethics does come into pictures given that she herself may have record of stealing money. Credits to OrangeDog for finding it.

http://www.recorder.ca/2012/04/27/fraudster-sidesteps-jail-time

If the woman is her (same name, close location), she is currently serving a probation. Asking $2000 for a photo she does not own sounds like probation violation to me.

Mar 7, 2013*permalink

CypherOz

The 'tog own the (c) by default unless employed (vs contracted) for the job. That is consistent in most jurisdictions.

FYI In Australia the (c) gives it to the Wedding party as an exception, but most contract it back to the 'tog - all standard practice.

Mar 8, 2013permalink

joe6pack

Funny you mention that.

http://www.dpreview.com/news/2012/11/8/canadian-photographers-own-copyright

"A major copyright reform bill came into effect today in Canada, granting photographers copyright of all of their photographs - regardless of whether they have been commissioned. Previously, copyright on photographs belonged to the commissioner of the images, not to the photographer, transferrable only by a written contract" - and it was Nov 8, 2012.

Mar 8, 2013permalink

Phone

I cannot believe the number of people that argue around the fact of the misuse of the image and how it is not a great crime etc.

If you do not negotiate the cost of something you use with the owner/creator you have no say in its price later if you are caught using it.

You have 2 options ... pay the price asked or go to court and let someone else decide what is fair.

All debate about it is only an image etc or it is not worth the $2000 is also moot as the creator decides the price and you can simply refuse to pay if you do not take the image.

It is also of no importance how many people saw the image etc as the action of misusing the image is in law an absolute action called copyright infringement.

Far too many people are quick to try to downplay the action and take sides as they do not like what the Photographer wrote in the e-mails, but this is just excuses for getting something for nothing.

Simply respect others creativity even if you don't like it, it is not yours to take.

Mar 7, 2013permalink

AmaturFotografer

Stealing is crime, we all agree on that. But they didn't do that intentionally. It was a mistake. Then they apologized, agreed to take it down and offer a compensation within normal price range for the photog. Fair enough for me. The attitude doesn't help either.

Mar 8, 2013permalink

robmanueb

Copyright infringement is just that infringing on someones right to make money, it is a business concept. It has nothing to do with "crime". Go to the police next time someone "steals" your image and see if they even take the complaint.

Mar 8, 2013permalink

D1N0

She put it on the internet, there is no copyright information in the exif. Still not and the pic is still No. 2 hit for "Strathmere Weddings" If this is theft then she is criminally negligent by putting the picture on the interwebs this way. Facilitating theft.

When you read her messages you get the image of a middle aged woman who has created her own private reality and who steam rolls anybody who gets in the way of it. You know the type when you ever worked for a customer service. Evil clients from hell!

Mar 7, 2013permalink

joe6pack

the picture's url clearly stated the source is from her studio. Not some random facebook posts. So I would not say that the person taking the photo did not see it coming. But still, $2000 is a little stiff for a small photo used by mistake and they stopped using it. Especially I didn't find it very special.

Mar 7, 2013*permalink

TakenUserName

1) What do you mean SHE put it on the internet (so therefore it is somehow OK). You don't know that. Perhaps it was her client who posted it on their Facebook page with text about her wedding in Strathmere. Then Google, through it's web cataloging algorythm pulls and catalogs it off the Facebook Page. The photographer may have had nothing to do with it.

2) What is it about copyright and EXIF/watermarks that you don't understand? Copyright is always assumed...PERIOD. There is no requirement for EXIF or watermarks. In fact, I know one world famous wedding photographer that only takes medium format film - no digital. EXIF doesn't exist with film and when you scan film to digital, it doesn't manufacture EXIF data. That is why back in the day, you carried around a norepad to manually record exposure information.

Mar 7, 2013permalink

stevo23

I can't believe this comment. It's really a sad sign of the times. You're putting the blame on the wrong person.

Mar 7, 2013permalink

Bryan Costin

That's a good point. If the client actually owns the image, as in a work-for-hire arrangement, then the photographer has no further say in how the client chooses to use it, or who the client can give the image to.

If her photographer's client put it on the Internet in violation of some agreement, then it would seem the photographer's dispute is actually with her client. Not with a third-party who used the client's image.

Mar 7, 2013permalink

D1N0

@takenusername
1. it's on her (cantsayfrigginhere) weblog
2. It's a jpeg, you can put exif in it and iptc-naa data

stevo23 learn to read critically

Mar 7, 2013*permalink

TakenUserName

@D1NO
Facebook was only a reference. I was going by the radio stations's comment "The image was captured innocently during a Google image search of “Strathmere Weddings.” On a Google search, it could have come from anywhere. The fact that it came from her website or blog, doesn't excuse it, but makes it worse. Red flags and alarms should be going off at the radio station...this is a professional photo and the photographer probably knows something about copywrite - unlike what you read from the general public here. Even worse, if the company really intended to pay for it, they wouldn't have done a google search, but gone straight to stockphoto.com (or similar) amd purchased a license.

Also, you don't purchase a photo, you purchase a license for specific use. The photographer, by default, retains the copyright unless passed over in writing.
Finally, "It's a jpeg, you can put exif in it" technically wrong. I am in the process of scanning decades of slides. Straight from scanner is jpeg.

Mar 7, 2013permalink

D1N0

a reference to your imagination. Never good to base a line of reasoning on that. You can ad info to any jpeg. Just use a free exifviewer/editor like photome.

I have not said anything about the careless way the radio station obtained this image. It's just that this theft thing is blown way out of proportion.

Mar 7, 2013permalink

nicolas guilbert

EXIF & IPTC data has nothing to do with copyright laws. What about sites removing them ?

Mar 8, 2013permalink

stevo23

@D1N0 - I did read critically and I still can't stomach your comments.

Mar 9, 2013permalink

JohnyP

all of these "theoretical photographers" who sit in front of a monitor defending rights to their non-existent works of art is quite funny.

Abandonment of the copyright for all works posted on internet should be instituted. Patent and copyright trolling is a waste of everyone's time. This is the only way to make all these trolls switch to something else (hopefully more productive than arguing with people on-line over something).

Mar 7, 2013permalink

Sam Carriere

What an absolutely ignorant and idiotic comment.

Mar 7, 2013permalink

acidic

^ China mentality.

Mar 7, 2013permalink

eyedo

Waste of time? Not really.I've collected over $75,000 this year alone on copyright infringements. Last year was more than double that.
I register all of my copyrights.

Mar 7, 2013*permalink

OrangeDog

are you getting $2k per image?

Mar 7, 2013permalink

nand

Are you suggesting that thieves should rewrite the laws?

Mar 7, 2013permalink

Steve

Patent trolling is Not a waste of ever bodies' time. Ther was an article on it in Wired magazine. There are companies set up to do nothing but patent trolling. These companies are making millions doing this business. Unethical ..maybe in some cases . But this kind of time wasting are paying for a lot of Porsches.

Mar 7, 2013permalink

robmanueb

Copyright trolls hold back progress. They might find it "valuable", society doesn't. Well said JohnyP. So many people here think rocking the boat on peoples business model is crime, get a grip. These should always be civil proceedings, countries that make copyright infringement a criminal act are making us all poorer.

Mar 8, 2013permalink

Josh152

The thing people are loosing sight of is that a radio station deals with copyright, licensing and advertising all the time. They knew what the law and industry standards are for this type of thing. They obviously knew what they did was wrong even as they did it. The radio station was just playing the odds that the photographer would never find out and lost. Then they try to offer an insultingly low amount for using a image that for that type of add campaign. It's like they dont' understand there is a differnce in the price and value between some guy off the street who is just happy his work is good enough be used in this manor and a real pro trying to make a living.

Both parties should have been more professional about it though. If you can afford it it is probably best to contact a copyright violator through an attorney and the radio station most certainly should have used an attorney to communicate and negotiate once they were accused of the violation.

Mar 7, 2013*permalink

stevo23

Exactly on point Josh - radio stations can't hide behind ignorance! When did they suddenly feel that it was OK to snarf other's work off the internet?

Mar 7, 2013permalink

Glenn

They did this knowing what they were doing. they chose not to pay the photographer they already had from before and use the work from another photographer that they had no relations with probably with the idea that it was so limited a publication they would never get caught.

Mar 7, 2013permalink

JordanAT

Yes and no. Mechanical and performance licensing are really special beasts all to themselves.

As to the value of the photo - a typical wedding photo on Shutterstock, at the size needed for this publication, is $19 for up to 250,000 copies or viewers. This could have been the most awesome photo in the world, but I suspect if they had realized or known that licensing would be even $100 they would have chosen another image. (I would have) Is she being punitive? Sure, and I'd be on board with 2-5x the going rate as an "oh sh!t, sorry, we screwed up" value. bu 100X? That's just asking for an argument.

In the US, if you have not registered your copyright, you are only entitled to "actual damages" (lost profit, which will be based on either your actual sales in a similar situation, or the usual and customary rates). If it were registered, then statutory damages apply, and $2000 is chump change. Not sure how Canadian law treats the distinction.

Mar 7, 2013permalink

(unknown member)

how do you know this Josh - do you have inside knowledge that upper management in the radio station said .. copywright be damned?

could have been an intern that just made a mistake in grabbing a photo off the internet. it happens all the time. people make mistakes.

interestingly enough, did HER clients sign a release allowing her to sell commercially their images?

considering these were wedding photos.

Mar 7, 2013permalink

okephoto

Copyright issues are a huge problem for photographers, myself included. It can get very frustrating trying to deal with the issue and most of the problems I have had are with professionals that should know better.

I wrote an article about this issue in Canada where I live.

http://www.kevinokephotography.com/photography-the-internet-and-copyright-infringement/

I'm sure it's the same everywhere!

Mar 7, 2013permalink

darrelllarose

New Cap radio (HOT 89.9) for a media company showed both amazing arrogance, and an outstanding lack of understanding regarding copyrights. Just because something is on the Internet, does not put that content in the "public domain" which seems to be what New Cap radio assumed. They wouldn't download music, as they know it is copyrighted, but some how other forms of media aren't?

I am puzzled with "copyright troll" remark, simple fact when the copyright owner notified them of her claim, they offered $40. The fine in Canada for copyright infringement is $2,000 and six months sentence. This is not what a civil court settlement can be (often much higher)

Mar 7, 2013permalink

OrangeDog

Wrongo:

According to section 34(4) of the copyright act, specific penalties will be decided by the court. Section 35(1) states that an infringer is liable for the financial gain made through infringement, and "such damages to the owner of the copyright as the owner has suffered due to the infringement"[24] A copyright holder can instead elect to protect his/her copyright under section 38.1, which allows for "a sum of not less than $500 or more than $5,000 as the court considers just." for all non-commercial infringement, and up to $20,000 for each commercial infringement.[25]

There are three categories of remedies to copyright infringement. They are Border, Civil, and Criminal. Border enables Customs to detain infringing materials at the border. Civil allows the copyright holder to take direct action against a person or company who violates his or her rights. Criminal is used when it is too costly to sue or to stop or try to dissuade people from committing the act again.

Mar 7, 2013permalink

Cy Cheze

There is a frugal, legal way for broadcasters and publishers to get almost limitless quantities of catalogues images: sponsor a contest, invite everyone to submit entires by means of an upload page that requires the participant to tag the subject and cede rights, and give the lucky winner a nominal reward: perhaps a weekend in Vegas, with $50 in complementary casino chips, or a Lytro.

This is a fact. Even those who get indignant at the concept must concede that the approach works well and they, in the sponsors' shoes, would do exactly the same. It's probably more ethical than state lotteries.

Mar 7, 2013permalink

Glenn

Yes but millions of crap images are not worth anything. one good image can be worth thousands.

Mar 7, 2013permalink

stevo23

People used to make money by selling their images to advertisers. When did advertisers suddenly decide that photos are now free?

Mar 7, 2013permalink

stevo23

Fine - let them provide it for free by permission. You're still talking with a station who knows better and therefore chose to disregard even common courtesy.

Mar 7, 2013permalink

OrangeDog

Should she show some understanding to the radio station for their "theft" of her work like the court showed teacher/photographer Barbara Cameron when she "stole" $40 000 from a teachers union fund?

http://www.recorder.ca/2012/01/25/teacher-stole-40000
http://www.recorder.ca/2012/04/27/fraudster-sidesteps-jail-time

OUCH!!!

Mar 7, 2013permalink

richygm

Ouch, indeed.

Mar 7, 2013permalink

OrangeDog

it is 100% the same person. Confirmed from multiple sources. Even says in the article that she is a photographer.

Now this does not excuses the infringement but it goes to her stableness in dealing with people as she admitted in court.

Mar 7, 2013permalink

joe6pack

Wow. That adds another twist in the story!
Photo comes from website with the same name:

http://www.barbcameronweddingphotography.com/2009/12/wedding-photography-strathmere/

But in its front page, it says

"Barbara-ann-studios.com has a new home for the BLOG. For updates on recent weddings and boudoir, please now visit Barbara Ann Studios Blog"

I can't help but think that she changed her name trying to disassociate herself from the crime she committed.

Mar 7, 2013permalink

OrangeDog

she shut right up after she was exposed as a felon who stole money, she deleted and changed her facebook page.

Now saying that - she should be paid for her use of the image, if she wasn't such a B*tch they could have negotiated an acceptable rate. The radio guy even said what amount do you want, she said $2k non-negotiable - so he agreed with her - no more negotiations.

Mar 7, 2013permalink

missitnoonan

Wow this woman is a nutter and basically a copyright troll looking for an easy payout. Station was wrong, admitted it and tried to rectify the situation. She just lost her mind.

If you're that concerned about misappropriation of your work post a copyright notice in the exif and watermark your image, both are easy to do. Not doing this, getting bent, and asking for a high payout is trolling.

Mar 7, 2013permalink

plevyadophy

Rather, irritatingly, like far too many people on DPReview you bandy about the term "troll" rather too liberally.

The fact of the matter is, as far as I can recall (without going back and reading the link), the photographer did indeed have her copyright details stored within the EXIF of her image, although she did not have a copyright notice splashed across the face of the image itself.

My approach to the negotiation with the thieving radio station would have been somewhat different to that of the photographer in this case but as soon as the thieves start talking about "extortion" in an attempt to move the goalposts and make out that they are victims, then that would have got my back up and I would be inclined to go for their jugular.

Now that they have got to this stage in the dispute, my advice to her would be to issue a "letter before action" so that the thieving radio station get the clear message that this matter is not going to end with a Mickey Mouse payment for stolen work.

Mar 7, 2013*permalink

M Lammerse

She's not a nutter at all, I bet she got some 'legal' assistance. Of course the radio station knew damn well that using copyrighted imagery is not allowed without permission of the image maker, even without legal notice of the image maker itself.

Mar 7, 2013permalink

plevyadophy

@ M Lammerse
Yeah, that's right. And the strange thing is, radio stations deal with copyrighted material EVERY day. So it strikes me as strange that all of a sudden, when it comes to this photographer's imagery, they forgot all about issues of copyright. Yeah, right!!

Mar 7, 2013permalink

missitnoonan

Oh, I completely agree that the station is 100% in the wrong for using the image, but it was a pretty limited use (again not right). And she is completely within her rights to ask for just compensation. But she became completely unhinged in her emails, hence the nutter remark.

After the station refused her request for $2k (and I don't pretend to know if this is fair) she should have lawyered up. Nothing to be gained from continuing at this point. And going public now is extortive and trollish.

Mar 7, 2013permalink

plevyadophy

No, going public IS NOT extortive and trollish.

Why is it not extortive and trollish for companies to use the media, including social media, to tell everyone how great they are?!! Surely, the public should be allowed to, without criticism, use the same media to point to flaws in a company's make-up, no?

Businesses thrive on the oxygen of publicity so in my book she did the right thing by going public. After they went public with her (unlicensed) image, she was justified in going pubic with their (bad) image.

Mar 7, 2013*permalink

TakenUserName

I find it amazing that people confuse "nuttier" and other descriptive adjectives with assertively standing up for ones rights. There is a huge difference - and it didn't degrade until the the radio company countered assertiveness with name calling "extortion." Basically, they don't have a leg to stand on. "We pay $40" is pure BS as 1) they farmed Google and in the email noted found several others they presumably didn't pay for, 2) forget farming Google, they could have bought from StockPhotos but elected not to.

Internationally, the copyright belongs to the person taking the picture, with the only exception - if they were the employee of a company and taken as part of their job, then their employer owns it. PERIOD! No need to embed in EXIF data which is easily erased - and sometimes non-existent if original was film/slide and scanned for digital product. Also, no requirment to deface with watermark easily removable in Photoshop.

Mar 7, 2013permalink

TakenUserName

Adding to the above...
While I don't know the specific laws in Canada, laws in the US are typically two tiered.

1) First is the automatic copyright granted to every photographer - professional and amateur - as they take the picture. In this category, they are free to claim, and use small claims court if necessary. Lawyers typically won't touch it as little in it for them. $2000 seems reasonable, but the court would ultimately decide.

2) Prior to it's unlawful use, register the photo with the copyright office of the Library of Congress for $80 - per registration event and multiple photos can be included. Maximum penalty by Federal Law is $200,000 PLUS attorney's fees. And yes, lawyers will work with you on that one...particurally when the offender has deep pockets. Typical awards are in the $10,000-15,000 range, but $200,000 is the max.

Now you know why each quarter I register my customer's photos for the most recent quarter.

Mar 7, 2013*permalink

Saffron_Blaze

The concept of "punitive damages" is completely lost of the radio station.
While we can debate the photographer's tone in all this, the one aspect none of us should be debating is that the Radio Station committed a crime.

Mar 7, 2013permalink

TakenUserName

Having read both the DPReview article and the originating linked article, I find the comments amazing which illustrates the lack of knowledge of the general public. Bottom line...if you strip away the defensive hyperbole actually started as the radio station introduced the "extortion" word...this is really quite black and white, the company stole photographs for commercial gain...and got caught.
1) No picture is 'required' to have a copyright notification as it is generally automatic/inferred to the photographer...even some dude with an iPhone owns the copyright to the pictures they take.
2) Comments degrading the photographer's professioal status for posting on Google? It's backwards, Google indexes and pulls from sources like Facebook where wedding party posts.
3) $2000 is quite reasonable. "At Cost" simple rewards the company. They got caught this time. How may time not caught as per email - one of several found on Google - stealing a business practice.

Mar 7, 2013permalink

jto555

Why do companies assume that an image that they download from the Internet is free to use even if there is no copyright information. Would the radiostation be happy if some of there shows were rebroadcast by another station?

Just because you found it doesn’t mean you own it!

Mar 7, 2013permalink

Kibo in SF

Did the image have adequate copyright notices in the first place? Or is Google the guilty party?

Mar 7, 2013permalink

sagebrushfire

That doesn't matter; a work protected the moment it's created. Searching for stock images via Google or any other search engine is the problem here; there are plenty of free and cheap online sources for stock photos (sxc.hu, morguefile, istockphoto, etc.) so I don't know why people insists on looking for stuff on Google. Google should either get rid of image search or have an incredibly annoying popup/disclaimer every time you search to remind you that you could be infringing on someone else's rights if you use the images you find. Then again the ultimate lesson here is that exposure opens you up to opportunities and risks at the same time; having your pictures online doesn't make your rights any easier to maintain.

Mar 7, 2013permalink

JadedGamer

Um, 1978 called, it wanted to tell you about the Berne convention on copyright. There is no longer a need to add a copyright notice, though that plus registering the copyright is necessary to get puntive damages (like in this case). IANAL and all that though.

Mar 8, 2013permalink

jderrico

Wow! The photographer sets the price for a photograph, not the radio station. It appears that $2,000 was for the use of the photograph and for the crime of stealing it. HOT 89.9 thought the photograph was very worthwhile. It's too bad that this did not go to court--the fine may well have ended up in the neighborhood of $10,000, especially with HOT 89.9's demonstrated attitude. Copyright infringement is not taken lightly by the courts, regardless of how innocently HOT 89.9 is trying to portray themselves. This is the kind of thief who hits you over the head with a hammer and steals your wallet, then tries to convince you that he didn't hit you that hard, and there wasn't that much money in the wallet--and he immediately threw the hammer away so that it can't be used anymore. I can't possibly imagine how the photographer could have stayed calm in the face of thieves telling her to take what they offer and be quiet about it. Unbelievable!

Mar 7, 2013permalink

plevyadophy

Brilliant!! Your analogy was excellent. Far better articulated than had it come from me.

Mar 7, 2013permalink

robmanueb

Not at all. This is a spurious case that annoys judges everywhere. It's hardly a crime in fact it's a breach of contract, a minor civil offense in reality the station wouldn't bother going to court to defend themselves from the troll, so she unfortunately wins. It looks she is is a convicted fraudster. What is sad is the law is now so weak that petty criminals can use the law to extort money out of business people.
http://www.recorder.ca/2012/01/25/teacher-stole-40000
http://www.recorder.ca/2012/04/27/fraudster-sidesteps-jail-time

Mar 8, 2013permalink

Murray Rothbard

All they had to do was horizontally flip the image and give it a very slight monochrome color overlay and they'd be totally in the clear since they'd have transformed the image.

Mar 7, 2013permalink

sagebrushfire

What? That's called a derivative work and it most certainly will NOT protect you in anyway; it's copyright infringement. Is this supposed to be sarcastic or something?

Mar 7, 2013permalink

Les Kamens

I Guess they never heard of Getty

Mar 7, 2013permalink

gl2k

Quite interesting to see that the "everything is free on the net" attitude is not only taken by miscreants and teens but also by credible organizations.
Seems there is an irreversible mindshift going on.

Mar 7, 2013permalink

JadedGamer

Yes, there was this case a while ago where someone lifted cooking recipes off the net and put in a book, and the defense was along the lines of "everything on the web is in the public domain"...

Mar 7, 2013permalink

stanic042

those "miscreants and teens" started to work for "credible organisations" :)

Mar 7, 2013permalink

robmanueb

A simple water mark is all it takes or just putting your name at the bottom...

Mar 8, 2013permalink

acandelaphoto

These kinds of scenarios are always unfortunate to read as a photographer, especially when things aren't agreed upon between the parties involved. I've already seen my images used online without prior consent. I asked for removal of the images and they were taken off with an apology. For the most part no financial compensation was asked on my part as the image was removed immediately and found out the image wasn't up for long. I now post © info with all my images that are on my website/photo blog. Forget FaceBook and Instagram.! Copyright laws are hard to nail once any of our images go online. It breaks my heart that someone wants to use the image for financial/promo means without prior consent, so all I can do is © those images that belong to you. Granted these situations (noted above) show various ways that one can handle misuse of one's own image. What else does anyone feel can be done to protect work once posted online?

Mar 7, 2013permalink

RayOie

The matter could've been settled amicably and in a way that will benefit both parties. Why choose confrontation when there are still other options? We're so engrossed in technicalities to the point that we forget that we are after all, humans.

Mar 7, 2013permalink

Mark Prince

Geez. The station initially acted despicably by using the photograph without permission. No doubt it's not the first time they've done this. But once it was pointed out to them, they owned it, made a low ball offer of compensation, were polite and... had to deal with a photographer at DEFCON 5.

I am in no way defending the radio station here. But Ms. Cameron is so completely unprofessional in her correspondence, I find it difficult to side with her, and I speak as someone who has to deal with photography theft almost on a weekly basis. If I get a polite, responsible response to my cease and desists, you can bet I act professionally and polite in all corresponding discussions. Ms. Cameron did none of this. Just this alone brings shame to our industry, and she was in the right at the start.

Also, typically you charge 2x 3x your stock rate for copyright infringements - at least most of my peers do. Her $2K demand is quite out there.

Mar 7, 2013permalink

Andreas Stuebs

Is it too much asked? If the station had asked an established photographer to shoot a picture for their campaign what with getting models atc. they would have paid a lot more. If they had asked the photographer prior to using it they could have negotiated a lesser price (possibly) However - and I quote: "Adam Gasson on PetaPixel: I don't think $2000 is high at all. Generally the pricing structure for use without permission is between 2-300% of a standard usage rate (according to, for example, the National Union of Journalists in the UK). The whole point of it being that much higher is to deter potential infringers." The issue here is, that they used a photograph for comercial use and only stopped using it after bein caught. It is a bit like being caught stealing something and then trying to get away with it by just paying the price - especially if the victim did not want to sell in the first place

Mar 7, 2013permalink

Mark Prince

It's extremely high for what is essentially stock photography - the client has / had no use for custom, specific-for-the-job photography, and from my understanding of this image, it was already used on a promotional website (where the radio station found the image via a google search).

It's a pretty long stretch to find any client willing to pay for staged, models-hired custom photography for internal marketing slide presentations.

Mar 7, 2013permalink

bobbarber

@Andreas Stuebs

I read the 2-300% part too.

You feel that she would have asked for $668 for that photo, without copyright infringement?

Mar 7, 2013permalink

Nishi Drew

If it's going online to some place, then a watermark or little logo helps. But that never stopped people from just grabbing the sample photo with big "STOCK PHOTO" sign stamped all over and using that for a PP...

Mar 7, 2013permalink

riknash

Certainly an example of poor conflict resolution. Really, the photographer has presented an uncompromising ultimatum to be compensated well beyond the value and use of the photograph. On the other side, the radio station wishes to only pay a minimal amount without any additional provisions to the errors they made. Although there may eventually be a legal settlement as their actions escalate, the costs of such actions will likely far exceed any remedy the court may assign.

Mar 7, 2013permalink

Adza

Sitting down at the beginning and looking at various options could have ended up being beneficial to both parties. It's obvious that the radio station is in the wrong. But maybe working together instead of against each other could have come to an arrangement that both could be happy with. It doesn't have to be $'s. Maybe she could have been compensated with free advertising, or had some arrangement to supply photo's to them for other projects that they do have a budget for...

But sadly I'd say that this is probably no longer possible, at least without the assistance of lawyers and more expense (and risk) from both sides. Add to the monetary value the cost of stress to both parties now and the time probably wasted by both sides, and quite possibly loss of sleep mulling over this in their minds, and I've got to ask - is it really worth it?

Mar 7, 2013permalink

Fotonaut

Copyright laws should be scrapped in their entirety. I hope someday future people will look back in disbelief at this intellectual failure just like we look at those who supported slavery or blasphemy laws.

"Intellectual property" = "dark matter" = all the moronic things people conceive when unable to deal with reality.

Really really sad how much otherwise productive energy is wasted on this nonsense.

Mar 7, 2013permalink

Cideway

Why is it so unreasonable for people to be compensated for their efforts.

I assume you are a person whom is employed, imagine a scenario where you work all week, and then at the end of it someone else takes credit for your efforts and they get paid not you.

Mar 7, 2013permalink

Fotonaut

Your analogy is flawed. She got paid. She was commissioned to shoot a wedding, did so, and got her payment. She now wants money over and beyond what was agreed.

The correct employment analogywould be working all week, receiving your agreed-upon pay, and then demanding more because, say, you see your boss driving a really expensive car. It doesn't work that way.

Mar 7, 2013permalink

Fotonaut

As a sad side note, had this happen prior to moronic bill C-11 being passed last Nov, the photographer wouldn't have had any rights to this image - it would have belonged to whoever commissioned the wedding work.

Mar 7, 2013permalink

AlphaWill

Spoken like a taker not a maker!

Mar 7, 2013permalink

Revenant

So you think you should have the right to display others' creative work as if it were your own, or earn money through others' work without their permission? And that those who think this is wrong are comparable to supporters of slavery?

Cideway's analogy was correct. The photographer did not get paid for her work by the radio station. She does not want money over and beyond what was agreed, because there was no agreement to begin with. That she got paid by the person who originally commissioned the work is irrelevant. It doesn't mean that the photograph now belongs to everyone.

Mar 7, 2013permalink

Reg Natarajan

Absolutely right, Fotonaut. You won't get any traction here in this forum full of people hoping to make money with their photos, but the simple fact is that copyright law has been a total failure which stifles innovation rather than encourages it.

When a drug company can make a thousand times as much treating an illness as opposed to curing it, is there any wonder our chronic diseases get treated rather than cured? And really, who honestly believes art has gotten better since copyright law? Before it, we got Beethoven, Bach and Mozart. Now, we get Justin, Avril and Eminem. Why should I pay to enforce some artist's perceived notions of what his rights may be? Why should my tax dollars go towards codifying the rights of some giant media corporation to sue kids for downloading music?

It's time we scrap the whole thing. All of it. Start over. And if that means it becomes a lot harder to make a living as a photographer, well, so be it.

Mar 7, 2013permalink

Fotonaut

Thanks Reg! Nice to see I'm not the only one!

@Revenant: Yes I think I should have the right to display others' work - why not? It doesn't hurt them. "As if it was my own" - no, THAT would be wrong(lying), but that bit was added by you - nowhere was it mentioned the radio station took credit for the photo.

If there is no agreement then nothing needs to be paid. As if I came to your house and mowed your lawn for you - even if I did a great job and you were happy with the results - I'm NOT entitled to any payment, if we didn't agree on one beforehand.

Odds are you live in a house. You probably did not build your house yourself either. So, you don't really own your house then, right? The contractor who built it must own it,forever, because that's who created it?? And if anytime in the future you, say, rent the house out, the builder has a right to come back and demand the rental income from you??
Even here, most would agree it'ridiculous. But it's EXACTLY the same as with photos.

Mar 7, 2013permalink

whtchocla7e

What serious photographer posts their images to google's search engine?

Mar 7, 2013permalink

James70094

Any photographer, or other person, with an online presence.

Mar 7, 2013permalink

Michel F

Just about any image that is posted anywhere online can find its way in Google's image search engine.

Mar 7, 2013permalink

starwolfy

I run an online business and I have a competitor who stole an entire part of our Home Page design...and put it on his own Home Page design. The reason was that he found these pictures on Google Images and thought it was rights free because it is on Google... :/
Because we work hard on SEO, of course our images have titles and descriptions...so it is well positioned on Google Images if you type the right key words while making a research. It is what this competitor just did...and has he was ignorant regarding copyrights laws...he stole it. After some hot discussion he finally accepted to get rid of the pictures from his webpage...because the moron just won't accept he was violating copyrights. I had to threaten him of law pursuits to make him understand he did something wrong. It's hard to discuss on an intelligent and calm basis when the other party believes he his 100% right because is ignorant.

Mar 7, 2013permalink

Steve Balcombe

Here's a kind of similar story with a different outcome:

http://www.theatlanticcities.com/arts-and-lifestyle/2013/03/humans-new-york-makes-international-brands-screw-pay-city-kids/4876/

Be sure to look at the Humans of New York blog as well:
http://www.humansofnewyork.com/

Mar 7, 2013permalink

RayOie

Just goes to show what POSITIVITY and sanity is :) Hooray for Brandon!!!... Keep up the good work and many blessings to you.

@Steve
Thanks for the share.

Mar 7, 2013permalink

plevyadophy

Absolutely fantastic story. The photographer is a great guy, a giant.

However, i don't believe for one minute the excuse given by DKNY as to how they came to infringe the photographer's copyright.

Mar 7, 2013permalink

jvkelley

If you can be sued $100-$5000 in Canada for stealing one song worth a dollar, I see no problem with suing someone $2000 for stealing a picture worth $100. But, this really should be handled in court, not in an email chain.

Mar 7, 2013permalink

wolfeel

You are right. I guess she was hoping that some public shaming will get the station to agree to her request.

Mar 7, 2013permalink

plevyadophy

@ jvkelley
Yeah we have the same idiotic situation in the U.K.

People caught using file sharing sites have had the police at their door, computers confiscated, court appearances, and been named and shamed in the press.

But if someone in the same household uses their computer to steal a photographers' work it's not taken seriously, and in fact the U.K. government is at present trying to push through legislation to make it far easier for thieves to take the work of photographers.

I guess it's the usual cynical story of big business, this time in the shape of movie and recording studios, being able to influence government to get what's in their interest at the expense of everyone else.

When Napster (the Version 1 Napster) was alive and kicking people were being dragged through the courts and being asked to pay ridiculous sums of money for downloading a track from an album. But yet when it comes to photography, the legal system is oh so "reasonable" in its demands from theives!

Mar 7, 2013permalink

wolfeel

The whole issue boils down to how much is her work worth?

Is it $40 as the station claims or is it $2,000 as she claims. If they cannot reach a settlement, she will have to pursue this matter through the small claims court. If I recall it costs $75 to file a claim. If she can convince the JP that her work sells for what she is asking for, the station will have no choice but to pay.

Mar 7, 2013permalink

rjx

In the USA, the proper venue is a Federal court. A small claims court could accept the fee and take on the case, but it's the wrong venue. And if anyone tells the judge "wrong venue," that could be it for the case. You gotta get the venue right and that starts by selecting the right kind of lawyer, an intellectual property lawyer.

I don't know how it works in Canada.

Mar 7, 2013permalink

sh10453

With the issue escalating to the various social and other web sites, I think the photographer should go to court (not small claims court), and teach these guys, as well as others, a good lesson.

There is already an admission of guilt, publicly, so the case is proven. The station has no business, especially at this stage, in determining what the photograph is worth.

Regardless of how much compensation she gets, a good lawyer should also make the station pay all her legal fees (and perhaps punitive damages).

Such expenses will most likely cost the radio station far more than the $2000 she is asking for, and, perhaps, set a precedent that can be used in future judgments!

Go for it Barb. Teach them a lesson. Call an intellectual property law firm!
If I were you, I would have waited until they used the picture in their public, and mass production. THEN they would really have felt the real pain!

I hope we continue to be updated on the outcome of this interesting case.

Mar 7, 2013permalink

wolfeel

Different countries different rules.

For one, civil cases in Canada are determined by a judge not a jury, hence we don't see the sort of multi million dollar judgments like in the US for "spilling a cup of coffee in one's lap". What I'm saying that unless she can prove that actual harm was done to her business as a result of this action she can forget about punitive damages. I highly doubt that any intellectual property lawyer would take this case on unless it can be proven that this station has a pattern of stealing copyrighted material.

Anyhow, it will be interesting to see how this progresses.

Mar 7, 2013permalink

markdavisphotography

I've always been under the impression it was up to the artist to set their prices, and the customer to agree, negotiate, or walk away.
(as far as just the value of the work, not damages or total compensation)

Mar 7, 2013*permalink

Dennis Linden

I think Wolfeel has the situation summarized. Either you prove the radio station has a pattern of bad behavior, or willfully and with full knowledge used the image, it's hard to prove harm. Once digitized, those images have a life of their own it seems.

Mar 7, 2013permalink

SMPhoto

I shouldn't just be able it's normal value, if the intended value is different. Settlement then should be about the damage to it's normal value was made. True story, photographer has a unique, local livestock shot that is selling quite well in galleries for $500 or more for limited edition art canvas. A local real-estate company scans the image from a brochure for the image and uses it on mass distributed ad fliers. They had to pay not the $500 it sells to an individual for, but rather the damage they did to the long term value of the image by mass distributing it. Around $10k-15k i think.They were pretty blatant though, even Photoshopped off the ©

Mar 7, 2013*permalink

B1ackhat

Kudos to Theron Humphrey for his selfless and compassionate resolution to his experience with copyright infringement. Thank you to So Delicious Dairy Free for agreeing to do it as well. <3

Mar 7, 2013permalink

RayOie

See what a difference good sensible decision making can do? I tip my hat to Theron and Dairy Free.

Mar 7, 2013permalink

jackie semple

Can we willingly accept the word of thieves who say 10 or less clients saw this stolen photo? Small issue I realise but probably the thin end of the stolen wedge.

Mar 7, 2013permalink

MarkInSF

Maybe not, but I'm sure it isn't very many. They blew it, no doubt, and she'll be compensated, no doubt. What she demands? Nice try.

Mar 7, 2013permalink

nonuniform

So, who are we to judge what happened? The only thing we know for sure is that the image was used without permission, and the outcome was not positive for either side. That's sad.

How easily we can sit here in judgement, condeming people out of hand. Makes you feel good doesn't it?

Mar 7, 2013permalink

rfsIII

How can we sit here in judgement? Because we are photographers who have put our soul, our blood, sweat, toil, tears and thousands of dollars worth of equipment into creating pictures. The idea that someone can just steal them and not face criminal penalties is the scandal of the 21st century. If someone stole your baby, or your car, or your horse, or 10 years of your life, wouldn't you want something in return?

Mar 7, 2013permalink

bobbarber

Yes, they stole it.

It's awful hard to like the photographer, though.

Mar 7, 2013permalink

rjx

Why? She's in the right, well she would be if this were the United States. I'm not sure about copyright laws in Canada. She should win because her image was stolen and the email transcripts show that it taken and used w/o permission.

Mar 7, 2013permalink

LKJ

How dare the photographer defend her rights!

Mar 7, 2013permalink

bobbarber

Where did I say she shouldn't defend herself?

I hope she goes to court, and I hope she gets compensation. Did you miss the part where I wrote, "they stole it"?

I just think that something like this isn't the end of the world. Most of us probably face worse frustrations, or bad acts by other people, every day. The radio guy lost his cool in the end, too, but he wasn't the one that stole the photo, at least as I read it. It was one of his lackeys in advertising. So it was bad all around. If I were him, though, I wouldn't have wanted to deal with the photographer either. I mean, are you honestly taking the position that she was negotiating in good faith? Or just venting and insulting? And is WAS a negotiation. The radio guy was wrong, but he couldn't give her a million dollars. This was the equivalent of hanging up the phone until the other party calms down.

Mar 7, 2013permalink

ryansholl

I agree.

It is entirely possible to be in the right and still be a total a$$hole about it.

Mar 7, 2013permalink

LKJ

Right you are bobbarber.

Not quite sure whether many people would care much about "being liked" or "not being an arsehole" in the same circumstance though.

Mar 7, 2013permalink

ryansholl

Well, knowing that your behavior through email has a certain likelihood of ending up on the internet, where potential customers could see it displayed, should probably be in the mind of anyone running a business.

I sure as hell wouldn't seek her for services if I'd seen this.

AT THE GVERY LEAST WE CAN SAY THAT SHE DIDNT DO THIS!!!!!1!!!!! So I guess that's better than nothing.

Mar 7, 2013permalink

Paul B Jones

My sympathies were with the photographer until I read the email stream. It seems the image was used by honest mistake for an extremely limited purpose and that a genuine apology and just compensation were offered. The photographer pushed for more and got pushed back.

Mar 7, 2013permalink

rjx

That's not how it works.

I'm only knowledgeable with copyright laws in the united States, and here it's a Federal offense with the proper venue being a Federal court. It's a big deal here and I imagine it's a big deal in Canada too.

There was absolutely no mistake about it. The image was found on Google and used without permission.

If the radio station did nothing wrong, Scott would not have agreed to compensation, & ask Barbara to name her price.

The owner of the image can set her price, the station can accept or decline. The station declined to entertain her offer. Not surprising. The entire time the Radio station downplayed the severity of their illegal usage. The station is NOT in a position where they can call the shots.

I won't be surprised when the station wishes they would have paid her the $2000 when she asked because they might have to pay even more $$$ for lawyer fee's, etc, because the photographer doesn't look like she'll allow the station to take advantage of her.

Mar 7, 2013permalink

bobbarber

@rjx

You have a "gotcha" mentality.

What do you think that radio station should give up, a million dollars or so?

Oh, the horror of it all! Her photo was used! My outrage knows no bounds! No criminal penalty could make up for the anguish and suffering!

Please.

The radio station took a photo. They didn't harm her physically. The guy sounded reasonable, until about the third or fourth diatribe. I would have gotten tired of that too. She deserves compensation, and maybe she deserves more than $2,000. But the radio guy didn't deserve the insults and the attitude.

Or would you rather just throw them both into a steel cage and have them wrestle it out? No rules about how people should interact with each other. give me a break.

Mar 7, 2013permalink

Paul B Jones

Courts in Canada tend to be more interested in justice than gotcha. The photographer doesn't have a very compelling case, especially in a country where hysterical corporate copyright fear-mongering is not the law.

Mar 7, 2013permalink

DaveCS

While Barbara Ann could have been more restrained and professional in her email exchange it is still theft. It is still wrong. Many people seem to feel that it is somehow "less wrong" because the image is online and "out there on the web" or "there wasn't any copyright attached to the image". There is no "less wrong" about theft. It is wrong period. My only question I had to Barb in her original post was this: If you are not interested in this contest because you felt it cheapens marriage and you don't want your brand associated with it - how did you come upon the presentation? (especially if what the radio exec claims as truth - that it only went out to aprox 10 clients)

Mar 7, 2013permalink

CameraLabTester

From millions of dollars to tiny pixels... stealing is still: THEFT.

Mar 6, 2013permalink

LKJ

Not theft; copyright infringement.

Mar 7, 2013permalink

rfsIII

It IS theft; it is taking something which doesn't belong to you. And it is especially heinous that someone in the music industry would steal from another creative artist.
How can any photographer downplay the seriousness of this kind of crime? The people at the radio station stole bread out of her mouth. The thief should have his mouse cut off, at the very least.

Mar 7, 2013permalink

JordanAT

No. Theft is depriving someone of a physical item by taking. Infringement is using a copy of a statutorily protected, creative work which, in general, does not require loss on on the part of the infringed party.

We, as a society, value the creative process and provide protections for the express purpose of encouraging further creation of non-physical works. That is the basis of all intellectual property law. We can argue about the parameters of such protections and whether or not they are or are not tilted in favor of a particular party, but the use of a work without permission is not, by definition, theft.

Mar 7, 2013permalink

CameraLabTester

How about thunder?

Mar 7, 2013permalink

jm67

Yes, theft. Just because it's a bunch of pixels doesn't mean something tangible wasn't taken. People "steal" music and movies and software all the time and last I saw, Sony wasn't broken into but ask them how many of their movies and music was stolen. I can't believe people writing things like, "they removed it and it was an accident". No one swipes a pic off of the internet thinking it's some sort of freebie. That's one of the things wrong with the world today is that just because it's out there, people think it's free for the taking. Photographers shouldn't have to cruise the internet to see if someone has taken their work without compensation. Alas this is surely not the first time and will not be the last. If you put it out there, you're pretty much saying goodbye to it...it will get taken (if it's any good).

Mar 7, 2013permalink

JadedGamer

Not theft, because that is a different legal term than unlicensed copying/copyright infringement. You're just applying a strong word for debate purposes. After all, if someone says "she stole my heart" about someone they are in love with, the female in question will not be charged with theft. Nor are copyright infringers.

Mar 7, 2013permalink

JordanAT

It's actually similar with real property. Like intellectual property, it isn't an item you can remove from the physical possession of another person. Real property (i.e. land) has it's own set of language and laws which are distinct from regular or personal property and intellectual property. Now, if the radio station and broken into her studio and removed a completed print, and then glued that into their presentation, that would have been theft. If they had taken the physical print, scanned it, and put it into their presentation, it would have been both theft AND copyright infringement. If they came in, built their own studio on her land and claimed it as theirs, taken the print, scanned and used it, it would have trespassing, theft, and infringement. Oddly enough, in many states, if she waited 30 or more years to complain about the studio building, they could have claimed adverse possession and had the land title transferred to them legally.

Mar 7, 2013permalink

CameraLabTester

Theft is also a moral issue.

We can be all too technical and legal, but the knowledge of what is good and evil defines those actions.

Man can't steal from God, but God says, yes you do: Mal 4:8

If a hacker breaks into your account and wipes out your life savings, will that be theft or just cyber account infringement?

Mar 7, 2013permalink

CameraLabTester

Typo error: Mal 3:8

Mar 7, 2013permalink

LeonXTR

Ok, i understand all about copyright but in the above case, it was used on a presentation to 10 advertisers, 10 people. I mean, relax, it's not like it was put on giant posters nation-wide, and the station removed it after the complain.
I believe it was an honest and fair reaction to just an honest mistake.
For the photographer to seek "compensation" over this minor incident and dragging it on, shows plain-good-old greed.

It brings shame to all the rest of us.
Sounds like MPAA-blackmail-style behavior.

***OMG***
I just read the entire exchange of emails.
The radio station was very professional, cooperative and honest.
The photographer was extremely aggressive and beyond-reason insulting towards the VP of the station (a guy who did nothing but to cooperate, apologize, and who wasn't the one who made the mistake in the first place)
. Please, behaviors like that bring shame to everyone holding a camera.

Mar 6, 2013*permalink

LeonXTR

And, btw, the dog- photographer's reaction and overall handling of the matter shows faaaaar more maturity and professionalism than the 1st case.

And if you read her facebook post its a straight-blunt distortion of the facts, if she really had the @@ to show the people what really happened she should post the entire conversation, not just select the parts that suited her....

Just by hearing cases like the 1st one, were someone or some business gets disgustingly greedy is enough reason for me to never become their customer and to recommend the same to everyone asking my opinion.

Mar 6, 2013*permalink

AlphaWill

It doesn't matter that it was only used in a presentation to 10 advertisers? Really? In the end the intent the same. Taking her photo just cause it was just the thing they needed and using it without permission is still taking something you did not make and claiming it as yours to use and benefit from. Some call pirating. As for greed on her part? How about this? Freeloading is another form of greed itself. Just cause it was only 10 people in the pitch to get the station ad bucks does not diminish the crime. There use to be this phrase, If you only put the tip in is it still sex? In other word s the intent of the presentation was to enjoy a profitable outcome via advertiser bucks. Why should anyone profit / be rewarded while using content that would be normally paid for?
So was the radio station too clueless to go to a stock photo for rent website? Or too cheap to pay another creative professional while still pitching for compensation for their very own creative product?

Mar 7, 2013permalink

LeonXTR

Just to be clear: the station should have bought the photo, not just google it like a teenager BUT:
The main difference, of the photographers vs the stations behavior, is that the station kade a mistake, they apologized and they tried to resolve the matter within reasonable boundaries.
The photographer used offensive tone ("i was mad" is not an excuse when engaged in a formal conversation), and behaved like a 10 year old brat who had his candies taken. Then she asked for a totally unreasonable compensation and threatened legal action.
And how much damage did the photographer suffered? How much was that picture actually worth for a 10-person use? $100 at best.
To declare that you charge $8000 for a whole wedding and asking $2000 for a picture just because you can, is the definition of greed.
Totally despicable, unprofessional and shameful behavior.

Mar 7, 2013permalink

Vlad S

The photographer is belligerent. Aside from alienating manner in which she conducted herself, the amount she demanded was quite arbitrary. She just asked for half of her wedding fee. Why half and not 1/10, or 1/20? Is there anything rational about her demand?

Mar 6, 2013permalink

Fatality

She wasn't rude, she was angry that some scumbag stole her work and used it for commercial purposes, to make money out of her work!

Photography can be very expensive -shooting location, models, hairstylist, makeup artist, light assistants, props, dresses etc etc... and when some scumbag offers you 40$-160$ for your work when he gets caught, is just pure insult!

What's even worse, is having your work associated with incredibly cheesy or tacky product/service.. Imagine a McDonalds clown wearing a Gucci dress or Ducati brand on some junk bicycle from China.. Such use lowers the value of the artist and their work. The way they used her photo, it looks as if it comes from a "Joe's DVD Clipart Collection".

Mar 6, 2013permalink

Vlad S

Angry or not, of course she was rude. It's understandable when a toddler has a temper tantrum, but an adult professional is expected to control their anger and behave in a civil and courteous manner even when they have grievances. Especially when the other party is trying to rectify the situation.

Mar 7, 2013*permalink

Delacosta

"some scumbag"

Obviously, you and the photographer in question have a similar idea of professionalism. So your defence of her is not surprising.

Mar 7, 2013permalink

Fatality

@Vlad S

What they offered her (40$ - $100), is the equivalent of spitting in her face.

As for the professionalism, an "adult professional" is expected to PAY in a "civil and courteous manner" for someone's work. Theft isn't exactly a professional business conduct, is it?

@Delacosta

So according to you theft is considered "professional behavior", and the use of the word "scumbag" is not.. You need to check your priorities..

Mar 7, 2013*permalink

Vlad S

"What they offered her (40$ - $100), is the equivalent of spitting in her face."

No, it is not. This amount is in line with the price of stock images. It was a reasonable starting point, and if she didn't get her panties in a knot she might have negotiated a higher amount.

As far as "theft" is concerned - there was no theft. The photographer was not deprived of the use of her image. There was a copyright violation. Nevertheless, as I said, if a professional believes they were mistreated, they should address it in a professional manner, not by throwing a hissy fit.

Mar 7, 2013permalink

Fatality

@Vlad S

"This amount is in line with the price of stock images. It was a reasonable starting point..."

You have to be a real fool to assume that every illustration/photo is worth $40 just because that's what the stock agencies charge.. pfff...
It's the artist that decides the value of his work and not the thieves or the stock image agencies.

Not everyone creates "generic" stock image junk.

Mar 7, 2013permalink

Vlad S

Not $40, between $40 and $100; it was a starting point, it is possible they could pay more; stock agencies have great images as well as junk; Barbara Ann's image in question is totally generic in itself, and the prices are set not by the photographer, but by the market.

Asking isn't getting. When she charges $4000-7000 for a wedding I bet she is not giving her clients two or three shots, so there is no way she is getting $2K/image for her wedding photography.

Mar 7, 2013permalink

(unknown member)

that "scumbag" was probably just a intern or other employee of the station rushing to meet a deadline that screwed up.

I find it odd how people equate this to the station's responsibility llike the station owner went out and stated .. please steal someone's photos for this ad campaign.

Mar 7, 2013permalink

Delacosta

Fatality wrote:
"So according to you theft is considered "professional behavior", and the use of the word "scumbag" is not.. You need to check your priorities.."

...And you need to check your understanding of what we are talking about here. Copyright infringement is not "theft".

You equate the two terms in your own mind, presumably out of a sense of moral outrage. The law, which ultimately decides these matters, does not.

Mar 8, 2013permalink

Roland Karlsson

I dont think the photographer have a chance at winning this one. There is no reason why a radio station would pay $2000 for an image in a brochure used in a small amount to selected customers. So -- the photographer cannot claim any damage to her income. Its obvious that someone at the radio station simply made a mistake. Punishing hard personal mistakes will not be in the interest of the law.

On the other hand, if it is found that the radio station has systematically used copyrighted material illegally - thats a totally different situation. But ... I have seen nothing that hints at that being the case.

Mar 6, 2013permalink

RichRMA

These are radio station people. Not real brain-trusts and have probably never heard the term, "Image bank." :)

Mar 6, 2013permalink

plevyadophy

Hmm, having followed the link, my views are:

1) The photographer asked for FAAAAAAAAR too much money.

2) The radio station dude offered FAAAAAAAR too little. And comes across as a bit of a dodgy guy; his abrupt ending of the dialogue seems to indicate that he seems to think he should get imagery on the cheap and the the law on the matter is irrelevant (if he was fearful of the law he would have, in my opinion, at least tried to negotiate her demand downwards)

3) Had I been the photographer, I would have reduced my damand to around $1000,or whatever the relevant local photography trade body recommends, and asked that they credit me (prominently) as the author of the image. That way the photographer gets compo and advertising. However, from reading the link it appears the photographer doesn't particularly like the idea of being associated with the product being advertised, in which case just go for the compo.

Contd below .....

Mar 6, 2013*permalink

plevyadophy

Contd from above ........

4) If this matter came before me as a judge, I would award the photographer whatever the appropriate rate is for her work taking into consideration the length of time her work was used without permission and duration of the advertising campaign before and after her image was removed.

I would also have to consider the true commercial value of her work in the context in which it was used. For it seems to me that this was merely a Powerpoint/Slide presentation used by a select few.

I would then fine the radio station FIVE times the amount I awarded the photographer due to their dismissive attitude towards the law; and if the rules didn't permit me to fine them then I would award the photographer an additional $1000 in exemplary damages.

Mar 6, 2013*permalink

LeonXTR

If you were a Judge you would know that in order a lawsuit to succeed, the plaintive must show damage.
The image was used in a closed-circle of 10 peoples, and it was already posted on the internet without any copy-blocking or visible copyright claim. (that's right copyright must be CLEARLY VISIBLE)
The image was removed immediately after the complaint.
A Judge (as well as any one who knows 5 things about the law..) would dismiss the case in before the trial.

Mar 6, 2013permalink

plevyadophy

@LeonXTR
Well, as far as I am aware copyright does not require that you have a copyright notice attached to your image; all that does is help those who wish to find the author easily find the author or warn off those who might wish to use the image. In the same way that I don't need to have a sticker on my car saying it's mine; taking something that isn't yours is theft.

In fact I am curious as to which jurisdiction you are referring to that requires that a copyright notice must be visible; I would also like to know likewise re the claim that damage must be shown for a copyright holder to bring a successful claim. Damage to the photographer only gives rise to a greater claim. Well, of course this all depends on the jurisdiction in which the copyright infringement takes place. But I am curious as to the jurisdiction you are referring to?

Mar 7, 2013permalink

AlphaWill

Another non creative claiming knowledge of copyright law> It is wrong to say, "If you were a Judge you would know that in order a lawsuit to succeed, the plaintive must show damage.
The image was used in a closed-circle of 10 peoples, and it was already posted on the internet without any copy-blocking or visible copyright claim. (that's right copyright must be CLEARLY VISIBLE)". That us incorrect. I am in the business of reproduction. Nothing gets to my printer or included in my designs if not released by the works creator in writing.
It is an epic failed logic that says if it's online it must be abandoned work and free to claim without moral or ethical regard to ho it may belong> Wow! Seriously?

Mar 7, 2013permalink

LeonXTR

Well, i live in Europe, so yes the legislation is different here, you see we don't have our legislators bought-and-payed-for from the film/music industry and some democracy actually applies.
However, even in a USA court, the judge takes into consideration some aspects of the case.

Whether the infringement was ill-intent or as a result of ignorance.

How the matter was handled by the person who made the infringement once the infringement was made known.

Whether that person was cooperative with the plaintive.

How easy was for the infringement to be made by mistake (hence the practical need to visibly state a copyright claim).

How much damage was actually made to the plaintive (how much money did he/she actually lost, or how great the emotional damage etc...)

In the above case, apart from the initial mistake its all in favor for the radio station. So any reasonable judge will throw this case out....

Mar 7, 2013permalink

plevyadophy

@ LeonXTR

Holy cow!!

I don't usually like pulling rank on people: the "I work in X profession so I know better than you" attitude/argument. But what you have just written above is plain nonsense and I say that with some knowledge of the legal system.

Your view of European democracy is a little naiive. Yes, it's MUCH MUCH less corrupt than the U.S. system, but don't think big business doesn't have an overbearing influence on legislators in Europe too. Right now, there is a campaign in the U.K. going on against proposed changes to copyright laws (which makes life easy for big corporate copyright thieves) and many of those changes are based on proposed changes coming from Europe. Go look it up at sites like the British Journal of Photography, or Amateur Photographer (the two publications leading the fight along with other professional bodies).

Contd below .....

Mar 7, 2013*permalink

plevyadophy

As for your view as to how a judge would handle the case, well let me for now stick with the likely outcome in England & Wales, a jurisdiction I have intimate knowledge of.

For a start the judge WOULD NOT THROW OUT THE CASE. All the peripheral issues you mention will only aid the judge in determining the level of compensation to be awarded, but an award would be made.

Mar 7, 2013permalink

LeonXTR

That's right, there is a campaign in UK, where as in the US such legislation's have already been passed. (Not to mention UK is far from an example of European policies, look up Sweden, Finland, Germany etc......)

Mar 7, 2013permalink

plevyadophy

Well, the UK is a member state of the EU and much of the recent copyright practice is based on the harmonizing of laws across Europe. So I doubt VERY much whether a judge in continental Europe would simply throw out a case like the one we are here discussing. They may offer less compensation, but throw it and send the photographer home with nothing and allow the thieving corporation to get away with it, I think not. However much we like to think of ourselves in Europe as being far more reasonable than our cousins across the Atlantic, I doubt very much that our judges are THAT "reasonable" (to dismiss the photographer's claim). What may happen, and certainly happens a lot in England & Wales, is if a judge thinks the dispute is silly, with both parties being unreasonable, the judge will order that the parties seek mediation.

Mar 7, 2013permalink

AbrasiveReducer

Ever hear of Facebook? If you put it on the internet, for practical purposes, it's in the public domain. If you are sufficiently big-time that you can demonstrate very high intrinsic value or the loss of significant income you might have a case worth pursuing.

Mar 6, 2013permalink

AlphaWill

Ever hear of Google? Sorry to say your comment,"Ever hear of Facebook? If you put it on the internet, for practical purposes, it's in the public domain." Is in fact incorrect as well as flawed thinking. So, who told you that?
There is a real legal and USA federal law describing what is officially in the "Public Domain". Look it up. It's easy to google it.

Mar 7, 2013permalink

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