Photo used by newspaper without permission

It was brought to my attention by a concerned artist that one of my photos appeared in a regional weekly newspaper, and she asked me if I knew anything about it. Here is a photo of the newspaper page, provided by the artist.



Well, the photo was apparently downloaded from my Flickr page and used without my permission. http://www.flickr.com/photos/wmliu/129157689/

I called the newspaper, and the editor said it was advertising provided by the client and that the newspaper was not responsible. I asked for the phone number of the client, and she said she didn't know. She's obviously giving me the runaround.

I'd like to ask for your advice on how I should approach this issue. I don't really care about the money. It's about the principle. There are real artists out there whose livelihood depends on their copyrights being respected. In case it matters, this is a United States territory, and the circulation is about 45,000 weekly.

Thanks very much in advance!
--
WmLiu - NJ, USA
http://www.flickr.com/photos/wmliu

The newspaper only sold the space for the ad to appear. I know the natural reaction is to go after the newspaper, but that is akin to suing the billboard company for plastering an ad instead of the client who is using the space; or the cardbox manufacturer instead of XXX company who is plastering their ads and images on the box.

The newspaper is only selling space to the advertiser. The editor (or editorial staff) is separate from the advertising/ sales people, and you'd have to contact the latter for the client information, although you might have a hard time obtaining that information. If it is truly an ad, and not an editorial, then you should find contact info on the inside pages; if not, then it's not much of an ad!

It sure doesn't look like an ad to me. It looks like an editorial page designed by the newspaper. She knows that. She isn't giving you the run around, she's lying to you.

Advertisements generally have the advertisers name and contact... kind of the reason for advertising, huh?

If she had been decent and cooperative that would be one thing. The fact that she's out and out lying to you is what would really P me off.

Have you registered the image with the US Copyright office? If not, do so immediately. It's only one image, you can register online.

After registering, I'd call her again and be tough. Don't forget, she stole from you, don't let her put you on the defensive.

You are right, not a lot of money at stake here, but the principle is important. She should know better, and these are the kind of people that need to be stopped, now or never.

Don't contact the newspaper again. Don't ask for advice in an internet forum. Hire a lawyer and let him take care of it for you. And do care about the money.

jh2bh said:

Don't contact the newspaper again. Don't ask for advice in an
internet forum. Hire a lawyer and let him take care of it for you.
And do care about the money.

Click to expand...

Sorry, but not totally true. The most important factor is whether or not the image was registered BEFORE the infringement. If not, unfortunately the possible money involved will be much less than your probable legal fees. Believe me, I've been there.

Making it a legal issue is the last thing you want to do unless you absolutely have to, or if the image was registered and you have the potential for a fairly good settlement and a slam dunk case. I don't believe you have any of these, unfortunately. It's one image on a multi page layout, in a relatively small publication. You'll pay more for four hours of attorney's fees than you'll ever collect on this in a real court. Again, believe me.

I do agree, don't look for legal council on an internet forum, but I'd try to work it out outside of the legal system if possible, and that could mean speaking with the publication another time.

The real question is what do you want out of this situation? Money? I'm sorry, but you won't get much. Justice? Then talk to an attorney and make it legal, but plan on spending more than you make. Much more. Or do you just want to make one more abuser/infringer aware that they won't be allowed to just steal images carte blanche and get away with it. I feel it is better to try to educate abusers and create a dialogue. That's why I'd talk to them again. Let them know you know they used it without permission. Do some research as to what a fair price would be for similar usage and give her an invoice. She might agree to it. Or, if you are a professional, work out a deal for free ad space to settle. This is done quite often.

Just to say it one more time. Copyright registration is critical to pursue an infringement case and expect any kind of serious return. Real professionals register ALL of their images shortly after creation, BEFORE they can be infringed/stolen. This empowers them much more than just the standard "you create it, you own it" mantra that many of us have wrongfully been lead to believe exists. Anyone who doesn't know or believe this really should spend some time at UScopyright.gov and the ASMP website in the copyright section.

Good luck, let us know what happens.

IIRC its the printer who is liable, they are the one recreating your work.

Just invoice the newspaper or advertiser your standard fee for the appropriate usage. This type of thing is not that uncommon. I've had images used in papers, magazines, television...none that were downloaded (anything you put on the web is not fair game, but it's out there and less than scrupulous people will take it), but were rather images "passed around" willingly or unknowingly by previous users. You will almost always get paid. I have always gotten paid. Just hit them with an invoice, a W-9, and a letter explaining the usage or a copy of the usage.

Ironically, many of these infringers became my clients thanks to me invoicing them and getting in their system as a vendor. All the more reason to avoid the "legal threat" nonsense, especially at the outset. That may become necessary, but if you are polite and send a REASONABLE invoice with your STANDARD usage fee and don't go gold-digging you will not only get paid, but you may get some work from these folks in the future. I can trace many jobs to clients I initially met by invoicing for some relatively innocent use of my image files.

"The most important factor is whether or not the image was registered BEFORE the infringement."

Actually for published works there is a three month grace period in which to register after the "first publication" of the work and still be entitled to request statutory damages and attorney fees for infringement occurring prior to the registration.

It's in section 414 of the Copyright Act. Designed by Congress to protect authors whose works might be infringed shortly after publication by giving them a reasonable amount of time in which to register after publication and still be entitled to the statutory damages/attorney fees remedies.

Perhaps the OP can make some law by clarifying whether a a flickr feed constitutes "publication" for purposes of Section 414.

If you don't care about the money, which implies you value the picture at $0.00, why should the newspaper care about the detail of how they obtained a valueless picture?

Roscolo said:

Just invoice the newspaper or advertiser your standard fee for the
appropriate usage. This type of thing is not that uncommon. I've had
images used in papers, magazines, television...none that were
downloaded (anything you put on the web is not fair game, but it's
out there and less than scrupulous people will take it), but were
rather images "passed around" willingly or unknowingly by previous
users. You will almost always get paid. I have always gotten paid.
Just hit them with an invoice, a W-9, and a letter explaining the
usage or a copy of the usage.

Click to expand...

Asides from not knowing what a W-9 is, thats about right. Someone will have to pay you in the end, and if it is the advertsiser, then someone will find out who they are and pass that invoice along to avoid paying it.

Thank you all very much for the advice!

Indeed, it doesn't look like an ad to me either. On the other hand, it could have been provided by the client -- some kind of architecture and engineering association. Unfortunately I couldn't find any contact information.

And yes, that the editor was treating me like an idiot p:ssed me off a bit, but that's not enough to bring any legal action, which I never intended to do in the first place. If they were in New Jersey, I might consider bringing them to small claims court, although it's not really worth my time.

I'll follow the advice of sending them an invoice. The editor said she liked my other photos and asked me how much I would charge. I think my quote turned her off. Oh well.

Thank you for the advice of registering photos with the Copyright Office. I'll give it a try to see how much trouble it is.

Thank you all again!

Regards,
--
WmLiu - NJ, USA
http://www.flickr.com/photos/wmliu

hope you learned a lesson ..water mark your photos

in these dire times for publications...they are trying to pass off editorial usages....as advertising....so....

if I am a publisher...I con someone into providing me with content to place in my publication...and I charge them a fee for that privilege. Does that in and of itself make the usage advertising, and totally remove it from editorial? As the creator of the work... I personally reserve the right to judge if a usage is editorial or advertising...and bill depending upon my interpretation of that usage.

I have a magazine that used to pay for photos in a particular application...then their bean counters got a bright idea...how about "selling" that photo usage as an ad...the only thing they needed to do was to put the client's name under it...and it changed a payable usage into an income producing one....that no longer had ...in their unbiased view...to be paid for any longer.....

Problem is....they didn't manage to sell ALL of that type of usage as ads...in fact usually half of those same usages in the magazine are still paid to photographers, or used out of owned stock images the company has control over....so..my question has always been...what changes the usage from editorial...they provide images in the same usage/location that are NOT ads...and the "ad" usages wherein they have conned someone into providing them with the photo that I took....and charging my client for the privilege of using the photo I took for their personal usage...in this "advertising" usage.....while they are still filling up the entire section of the magazine...with NON ad photos used in exactly the same manner..... It is my argument, that the design purposes of the magazine are served by placing ALL of these photos in that manner, and that design criteria makes the usage editorial despite their best efforts to get the photos supplied under the guise of "advertisements".

I told them....thie usage does not constitute an "ad" in my book... and told them that if they use my photos there, they had better pay me what they used to pay for that usage. End of story.

We as photographers cannot relinguish our right to dictate what usages are and are not permitted with our images...or else the end users will convert all usages to advertisements...and we will be out of any income at all from publishing usages....think about this please.

You will note also, that often in magazines, or newspapers, that "advertisements" state so prominently across the top or bottom of the pages on which those pseudo advertisements/news articles appear. If this is not the case here...call it editorial and bill them a reasonable rate for usage.

They don't pay...ask for the advertiser's name and contact information so that you can bill them. They refuse...it's not an ad.
-
Richard Katris aka Chanan

Really! Don't save anything bigger than around 500 pixels and put your name on it. Basic stuff!

Alright, for those purists who say "I just can't enjoy the photo with a big ugly watermark"--this is what you get! Unauthorized use and an upset stomach!

Good luck!
--
peace

-Todd

Thank you so much for the insight into the publishing industry!

I'll send them an invoice and see what they will do.

Regards,
--
WmLiu - NJ, USA
http://www.flickr.com/photos/wmliu

Thank you all for suggesting watermarks! That's also the suggestion from the artist who spotted the my photo from newspaper.

While I normally put a small watermark at the corner, I'm still not so sure about pasting a big watermark across the whole image -- photography will cease being fun when I have to be so protective. At the end of the day, honest and reputable publishers ask for permissions and pay for the images they use, and those stealing pictures are in the minority.

As for upset stomach, no, i don't get that.

Thank you for your advice!
--
WmLiu - NJ, USA
http://www.flickr.com/photos/wmliu

I hate the big, ugly watermarks some use but they have their place when selling portraits over the web. Like the old "PROOF" you'd get on school pics before you bought them.

Just put a small watermark (copyright & name) in the least distracting corner of the image.

Cheers,
JB

wmliu said:

Thank you all for suggesting watermarks! That's also the suggestion
from the artist who spotted the my photo from newspaper.

While I normally put a small watermark at the corner, I'm still not
so sure about pasting a big watermark across the whole image --
photography will cease being fun when I have to be so protective. At
the end of the day, honest and reputable publishers ask for
permissions and pay for the images they use, and those stealing
pictures are in the minority.

As for upset stomach, no, i don't get that.

Thank you for your advice!
--
WmLiu - NJ, USA
http://www.flickr.com/photos/wmliu

Click to expand...

Do all of your correspondence by email or certified mail.

As others have stated CARE ABOUT THE MONEY. Now they have used your image, for free. On top of that, you are now investing your time into this, which in my book is expensive...

You need to create an invoice that has all of the details, a fair market value price for the use of your image with an additional fee for unauthorized use. Know that you will most likely get them to pay the regular fee, and nothing more.

Hiring a lawyer is an option but the odds of you finding a lawyer to work on this for a reasonable fee is doubtful. That is the sad reality. I went through this with an energy drink company(a small one). I contacted a few lawyers about illegal use, etc.. One told me they would help me out, it would most likely cost several thousand dollars and I would need to be prepared for a counter suit. Not for any reason, other than a stall tactic by the company, they could try to sue me for my claim! Another lawyer told me that was very unlikely but he would need a retainer of $5,000.00. My entire claim was less than that. There is the possibility that you win and recoup your legal fees. There's also the possibility that you don't...

Consult with as many people as you can. DO NOT call the paper, feel bad for them, etc.. They stole your work-period. GET PAID.
--
[email protected]
http://www.courtlevephoto.com

Your basic problem is that you don't see your work as valuable as the people who hire you and the person who thought it was worth using without permission.