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Photography Question 
Carry Porter
 

What to do when a photograph is stolen?


I recently received an email from an online publication informing me that they used one of the images from my blog to illustrate a feature article they wrote (http://www.thegoodnews.co.uk/regionFeaturesstory.asp?id=786®ion=reg0).

I am flattered (especially since the picture isn't all that great), but at the same time a little irked that they didn't contact me BEFORE using the photo to seek my permission or negotiate payment.

I've composed a letter informing them that the image is copyrighted and offering to grant them one-time, non-exclusive rights to the image provided they credit me and pay a reasonable fee for the use of the photo.

If they aren't able to do this, I've asked them to remove the photograph from the site.

I have very little experience selling my photography and even less experience with publications that use my images without permission. Other than a letter, does anyone have any suggestions of recourse I have?

Thanks in advance for all of your sound advice.

-Carry


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4/10/2006 12:48:02 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  The first question is what information did your blog or web site contain about your photographs? I mean everything, not just how to contact you.
Mark


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4/10/2006 1:23:23 PM

 
Carry Porter   There is a simple copyright statement at the bottom of every page: "Copyright 2001-2006 by Carry Porter, all rights reserved." It is together with a bunch of other generic information about the site, so a reasonable person would assume it's a site-wide copyright statement.

My name in that statement is a link that takes people to a page where they can email me. The format of the email I received suggests the person at thegoodnews.co.uk used this form, so they would have had to read the copyright notice.

I'm not sure that the copyright notice is even relevant though. Under the Berne copyright convention and US law, almost everything created privately and originally is copyrighted whether it carries a copyright notice or not. A notice strengthens the protection, but is not necessary.


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4/10/2006 1:44:05 PM

 
Carry Porter   This ended amicably, more or less. I got an email from the publisher of the site saying: "Sorry I didn't realise it was a picture for sale - it just came up on Google images. I have removed the image."

I find it hard to believe that a reputable publisher would not seek permission before publishing someone else's work, but there you have it.

I'm still interested in hearing people's thoughts on the issue if this ever comes up again.


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4/10/2006 2:42:54 PM

 
Karen E. Michaels
karenemichaels.com
  Hire a good intellectual property attorney. The cheapest way you can copyright something is to mail it to yourself by registered mail. Peace, karen


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4/10/2006 4:08:41 PM

 
Carry Porter   For the mail trick to work you have to mail it to yourself before the issue arises and then leave it in the sealed envelope to be used as evidence at trial.

Speaking practically, I'm not sure I have the storage space for this. I mean...wouldn't you end up with a closet or storage facility full of sealed envelopes?


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4/10/2006 4:21:27 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Sorry Karen and Carry, that advice you is a myth and not correct. Briefly, under the 1978 amendments to the U.S. copyright Act, the work is copyrighted at the time it's reduced to any tangible, reproducible means of expression. I.e., reduced to film or digital form.

To enforce your copyright, however, it must be registered at the U.S. copyright office by filing the work along with the appropriate filing fee within 12 months of when the work was created. Failing that, you can't enforce the right in any U.S District court which are the only courts at present with jurisdiction to review copyright cases. The "mail trick" simply doesn't do any good unless you happen to be the postal service which you support by mailing yourself stuff.

What basically saved you Carry, is the notice at the bottom of your web page(s). While there are specific requirements for placing the notice, they still caught it and as a reputable publisher should, they took steps to correct their error. Unfortunately a lot of photographers aren't quite so fortunate. The UK honors our copyright laws as we honor theirs by the applicable treaty.

And, yes the copyright notice IS relevant. Assuming for sake of argument that the work is registered in a timely manner, the copyright notice itself must be carried on the work. If not, that serves as a valid defense to someone infringing, whether deliberately or not, by claiming inadequate or no notice of copyright is therefore innocent infringement and they didn't know until you told them.

For the full scoop on copyright go to http://www.copyright.gov and find the section pertaining to Visual Arts. Also go to asmp.org and look at the proposed amendments to the copyright act, download a copy of a letter and FAX it to your congress person.

And as far as hiring an intellectual property lawyer, unless they're willing to accept a case on a full contingency basis, you're probably looking at a minimum of a $5,0000 retainer billed at $250-$300 per hour, and about $1,500 bucks to send a cease and desist letter, assuming your work is properly protected in the first instance. If it wasn't, you're basically on your own because their chance of recovering anything on your behalf begins to circle the bottom of the bowl if the work wasn't properly registered.

Take it light.
Mark


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4/10/2006 5:22:56 PM

 
Carry Porter   Thanks for the information Mark. I appreciate the detailed response. I'll take a look at both the US copyright site and asmp.org.

I'm glad it turned out to be as easy as sending them a letter.


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4/10/2006 5:33:45 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Yeah, if life could only always be like that.
M/


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4/10/2006 6:24:30 PM

 
Thomas Lam
BetterPhoto Member Since: 11/24/2004
  I would thought the photo should be solely yours as long as you have the original film or digital format. You are the sole owner.

Is that correct?


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4/10/2006 9:13:11 PM

 
anonymous 
BetterPhoto Member Since: 2/7/2005
  Exactly Thomas!


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4/10/2006 9:37:17 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Yes, she is the owner unless she sells rights of usage. Mere possession of film or digital disk does not, however indicate authorship. I think you need to read and understand the copyright laws as they apply to photographers.
I provided two websites above. Take a look.
Mark


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4/10/2006 9:39:02 PM

 
anonymous 
BetterPhoto Member Since: 2/7/2005
  Geess! Photographers have it rough living in the USA. In Australia, copyright is automatic as soon as I take the shot, it is copyrighted, no paperwork, no lodging, no fees, nothing - just copyrighted. You also don't legally need to put the copyright logo on the back of your prints, it is just a courtesy reminder.


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4/10/2006 9:40:30 PM

 
Thomas Lam
BetterPhoto Member Since: 11/24/2004
  Hi Natalie,

I wish I am in Aussie ;), but I am here in California, USA... We have to use "LAWYER" pretty much on anythings now a day. There is no harmony between the left hand and the right hand anymore.

Mark - thanks for the inputs. I will check out the links you provided.

Thomas


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4/10/2006 9:49:20 PM

 
Howard  Dobson   Hello everyone.

Interesting reading your posts. I've edited The Good News for 12 years and other publications, and in that time I've seen my work used by other publishers without them asking - and I've taken it or granted over the years that that just happens sometimes. There's no big money involved in chasing payment or generic pics and edits.

On the other hand, with the photo in question above, I put the picture in place to illustrate its usage, then CONTACTED the owner to check on its availablility, offering a link. Very few publishers will pay money for a simple general shot when there are so many free ones available, so I decided to do something else instead and removed the picture (which was only live for a very short time).

I think it's important to look at things realistically - most pictures aren't worth very much and if you put something on the net, it will get taken without people asking, which we never do.

I think the Internet is a different medium to print anyway - more informal.

So in short - The Good News always acts ethically and checks on picture usage, but when other people don't, it's unlikely wasting time on copyright infringement issues is going to be time well spent.

Best regards to you all
HOWARD


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4/24/2006 4:22:42 AM

 
Todd Bennett
BetterPhoto Member Since: 11/8/2004
  Howard,

While I somewhat agree with you about chasing down a copyright infringement, I toatally disagree with your justification for using the photo. You are using your past experience as justification to do the same to someone else. You of all people, being an editor, should know copyright laws and abide by them. You did do the correct thing and remove it; but, before you used it you should have contacted Carry about the photo. Who knows, maybe she would have supplied the photo to you for something as simple as the statement "Photo Courtesy of Cary P."

Cary, I am not putting words in your mouth, just making a general statement.

Also, I agree that the internet is a different medium; but again, that is not justification for stealing someone's copyrighted photo.

You mention it is importatnt to look at things realistically. Realistically, you published a photo WITHOUT the permission of the photographer and copyright holder which you then turn around and state you never do. Correct me if I'm wrong Mark F.; but, aren't people supposed to check with the copyright holder BEFORE they publish the photo?

I usually don't respond to posts this way; but, I had to put my 2 cents worth in. I am not a professional photographer with photos on the front of every magazine; but, I do know I work very hard to get my photos. I strive to get the shots right the first time with good composition, correct exposure, etc. To see someone use the excuse "they did it, why can't I" really grates on me. Okay, I've said enough and probably made you all mad so I'll stop now.

Todd


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4/24/2006 11:20:57 AM

 
Howard  Dobson   Todd - you've misinterpreted what I'm saying. I'm not saying I 'took' it because it happens to me!!! I started there with a paragraph that states that theft happens all the time - and that it usually isn't worth worrying about.

I do not believe in theft - which is why I checked with the copyright owner. I'm not justifying theft because it happens to me. Do you see what I'm saying?

Because in this instance it wasn't a photo that was advertised for sale - and because as mentioned it wasn't that good a photo - I took the shortcut of placing it and then going to the owner to see if they were happy with a basic credit (or perhaps maybe free CDs or a free edit on their business can be arranged sometimes) presuming it was a royalty-free picture from Google Images.

When I realised it wasn't royalty free I used a different picture. A simple enough solution to a genuine misunderstanding.

I'd assumed Google Images pictures have been offered for use free of charge unless otherwise stated.

I've worked in professional journalism or 13 years and never needed a contract with anyone - let alone a lawyer or law expert!


My faith is very important to me - as is making sure the people we interface with are happy with our ethics and policies.

We're not perfect though and situations like this come about because of trying to fit in a lot of work to get positive news out there for people - please forgive the mistake.


HOWARD


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4/24/2006 11:37:03 AM

 
Todd Bennett
BetterPhoto Member Since: 11/8/2004
  Again Howard, I must respectfully disagree. I don't think I misinterpreted anything. I simply call them like I see them. Oh, and in my eye, theft IS worth worrying about.

If you've never needed a contract in 13 years you are very lucky and I wonder how you have stayed in business as long as you have.

I do see what you are trying to say; but, I also see a photo that was used without the copyright holder's knowledge.

Again, you admitted you are an editor. You should know copyright laws and should follow them. The next time you may not be so lucky as with Carry and get away with simply pulling the photo and using another one.

OH! Did you contact the photographer of the photo you did use and get permission?

Todd


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4/24/2006 12:40:16 PM

 
Howard  Dobson   Now that's being a bit cheeky isn't it :)

As I said it was a genuine misunderstanding of what Google Images is all about.

It obviously wasn't theft - as I contacted the photo owner to discuss it. If I'd wanted to steal the photo, I wouldn't have done that!!!

It was more having a blond moment!

This is the same as driving a few km per hour over a speed limit and then realising the mistake and correcting the speed.

We all make mistakes and life is about give and take.

Now tell me - who else would take every step to make sure every picture was being used properly, and then contribute to the discussion afterwards?

I fully believe in accountability - but unfortunately there's a real world out there and things aren't simple anymore especially not on the Internet.

I've stayed in business because contracts are not really necessary - there's no time for a contract every time someone commissions an editorial.

Love and peace my friend.

HD


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4/24/2006 12:51:00 PM

 
Todd Bennett
BetterPhoto Member Since: 11/8/2004
  Cheeky? No! Upfront and honest in my feelings? Yes! Guess this is one we'll just disagree on. I would offer to have a drink with you; but, being there was a faith comment earlier it wouldn't be appropriate. Maybe a cigar? Discussion and disagreement helps make the world go around.

Copyright infringement is a serious subject to me. I am not a professional photographer (yet) in that the Webster's definition includes getting paid for your services. I do, however, strive to be professional in that I try to get my photos right the first time so as to capture the best possible image I can. And capture that image without having to doctor it up in PhotoShop.

After putting the amount of work I do into photos and the investment I have in equipment, if someone does use my photo, I want what is rightfully mine. And they better contact me first before they use it.

Have a good day Howard. I enjoyed the conversation.

Todd


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4/24/2006 1:09:06 PM

 
Howard  Dobson   Hello Todd - I think the topic title set the theme incorrectly here. I didn't do copyright infringement on purpose and that is the confusing part about the Internet and image banks.

I certainly wouldn't use a shot of the quality you describe without making sure we had permission - and I agree that getting paid a fair price for created work is essential. Which to be fair I see as a diferent point to image banks of generic snaps.

Yes I do drink so I'd go for that.

Do you have a website? Not to steal pics but to take a look at what you do.

And perhaps we can give you a ree mention as an In Brief item to promote your services.

HD


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4/24/2006 1:15:24 PM

 
Todd Bennett
BetterPhoto Member Since: 11/8/2004
  Funny you should ask. I only have a few images posted on the web and they are in my free gallery here at BetterPhoto. I prefer not to put too many of them on the net. I am a member of an aerial photography forum and about once every month or two somebody starts a thread about one of their photos being stolen. I also haven't built up my portfolio as much as I would like. When you hold an 8:30 to 5:30 job and photography is a hobby, it takes a while to build up shots.

Todd


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4/24/2006 1:26:22 PM

 
Howard  Dobson   OK - well you know where we are if you want to do an edit, say, on pics with a free link, perhaps tying in with a faith-related theme like Christmas.

Best
HOWARD


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4/24/2006 1:51:58 PM

 
Carry Porter   I've been out of town riding motorcycles the last four days, so I'm just catching up on this thread.

Howard: Thanks for weighing in on the issue. You did the honest thing by removing my picture, and I appreciate that. Thank you. As Todd suggested, I would have granted you permission to use the picture royalty free if you'd contacted me first, but that's water under the bridge at this point.

This was a learning experience. I think we've learned three important things:
1) For Howard - Google images is not a free image bank for publishers.
2) For photographers - Protecting the copyright of your images is difficult and mostly cost prohibitive.
3) For all of us - There are honest business people out there trying to do the right thing.


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4/26/2006 10:05:03 AM

 
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