Misuse of images - advice please

I tend to use pixsy. Quick and easy. I don’t know how they compare to others but they have always come through for me. They also monitor my portfolio and alert me to misuse taking into account, where and by whom as this makes a huge difference as whether it’s worth my while.

Spooky | MeltingPot Pictures said

Saracen House Studio

1. The images are production photographs - some of which have been cropped to show the actor and accompany their biography.

2. The images have been taken from my website, or my social media, as they have watermarks on them - although these have been partially cropped out.

The company had already been asked not to use my images without seeking permission (and payment)

Cheers

Edited by Spooky | MeltingPot Pictures

Got you.  So you have been invited in to photograph the performance?  What was the agreement when they said you can shoot the performance itself?

I'm working on the basis that it's the same theatre compay that's using these images as allowed you to photograph the old ones, is that right?

The thinking I have behind the line of questioning is that, as you were photographing a performance, there may also be copyright in the performance iself and the actors may also have some kind of authorship of the work, not just yourself.  It's complicated.  

Certainly moving forward, if you're invited/contracted to take performance images in the future, make sure any such ownership and authorship is clearly stated and any usage rights are in there.

Saying all that, it's a bit cheeky, after being told not to use them, to go ahead and do it anyway.  In a normal case this would be my process:

• File all your screenshots, copies of programmes etc somewhere safe.
• Do not send a bill, do not send an invoice.  They have no contractual obligation to you, so sending an invoice is a waste of paper and could impact any court case result. 
• Instead, send a notification of unauthorised use to the registered address of the company, make sure it's signed for.  Don't go asking for anything right now, other than information.
•  Ask the company how long the images have been used, how many views the website has had and how many copies of the programme have been printed.  Give them 7-14 days to provide this.  
• Assuming they don't reply, send another letter reminding them of their obligation to provide the requested information and that if it is not recieved within 3 working days, then you reserve the right to seek redress via Intellectual Property Enterprise Court (IPEC).
• Once you have the info, assuming they provide it, then work out what your going rate is for such use with permission.  Then double it for unauthorised use.  Then add a small extra fee for administration.  Then off future licensing of the image(s) for an extra nominal fee.
• If they don't pay, head to to the Small Claim Track of IPEC. 

I think the ambiguity about the performance and performers' rights might be an issue here, but it doesn't stop you flexing your muscle and bluffing them on the usage fees if you feel like a fight.  Use the AOP BUR calculator to help with your fees calculations.

Saracen House Studio said

Spooky | MeltingPot Pictures said

Saracen House Studio

1. The images are production photographs - some of which have been cropped to show the actor and accompany their biography.

2. The images have been taken from my website, or my social media, as they have watermarks on them - although these have been partially cropped out.

The company had already been asked not to use my images without seeking permission (and payment)

Cheers

Edited by Spooky | MeltingPot Pictures

Got you.  So you have been invited in to photograph the performance?  What was the agreement when they said you can shoot the performance itself?

I'm working on the basis that it's the same theatre compay that's using these images as allowed you to photograph the old ones, is that right?

The thinking I have behind the line of questioning is that, as you were photographing a performance, there may also be copyright in the performance iself and the actors may also have some kind of authorship of the work, not just yourself.  It's complicated.  

Certainly moving forward, if you're invited/contracted to take performance images in the future, make sure any such ownership and authorship is clearly stated and any usage rights are in there.

Saying all that, it's a bit cheeky, after being told not to use them, to go ahead and do it anyway.  In a normal case this would be my process:

• File all your screenshots, copies of programmes etc somewhere safe.
• Do not send a bill, do not send an invoice.  They have no contractual obligation to you, so sending an invoice is a waste of paper and could impact any court case result. 
• Instead, send a notification of unauthorised use to the registered address of the company, make sure it's signed for.  Don't go asking for anything right now, other than information.
•  Ask the company how long the images have been used, how many views the website has had and how many copies of the programme have been printed.  Give them 7-14 days to provide this.  
• Assuming they don't reply, send another letter reminding them of their obligation to provide the requested information and that if it is not recieved within 3 working days, then you reserve the right to seek redress via Intellectual Property Enterprise Court (IPEC).
• Once you have the info, assuming they provide it, then work out what your going rate is for such use with permission.  Then double it for unauthorised use.  Then add a small extra fee for administration.  Then off future licensing of the image(s) for an extra nominal fee.
• If they don't pay, head to to the Small Claim Track of IPEC. 

I think the ambiguity about the performance and performers' rights might be an issue here, but it doesn't stop you flexing your muscle and bluffing them on the usage fees if you feel like a fight.  Use the AOP BUR calculator to help with your fees calculations.

I think there is also a crucial implication in your first sentence/question.

Was the OP invited/commissioned to photograph the performance and, as you say any 'agreement' perhaps verbal that may have been made/construed at that time?

OR did the photographer approach the company to photograph the performance to, say, add to their portfolio, range of work etc. In which case it could very well be understood by the company giving the photographer "privileged" access to the premises,  facilities and the performance ( free of charge) that  they, the company considered an inferred usage of images was reasonable.   

Edited by Lightingman

Edited by Lightingman

Quality advice and thoughts - thanks so much all.

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tony802 said

No names, no pack drill, but I have today  just read a casting call ON PURPLEPORT from a supposedly experienced model who wants to charge a substantial fee for photographers to take photographs of herself, but then to use the pictures taken to update her portfolio etc. My understanding of the Copyright act is that the owner of the copyright is the creator of the work i.e. the photographer, and that the copyright remains in the possession of his/her estate until 70 years after their death.Even where you may pay (say) £1,000 for a wedding coverage, the copyright is still the property of the photographer and it is illegal to have wedding photos and other work, whether paid of or not photocopied. The R.P.S HAS ISSUED GUIDANCE ON THIS.         Safe for work Tony 802

Very clear offer of work.

If you agree to her terms, that overrides copyright.

Not complicated.

tony802 said

No names, no pack drill, but I have today  just read a casting call ON PURPLEPORT from a supposedly experienced model who wants to charge a substantial fee for photographers to take photographs of herself, but then to use the pictures taken to update her portfolio etc. My understanding of the Copyright act is that the owner of the copyright is the creator of the work i.e. the photographer, and that the copyright remains in the possession of his/her estate until 70 years after their death.Even where you may pay (say) £1,000 for a wedding coverage, the copyright is still the property of the photographer and it is illegal to have wedding photos and other work, whether paid of or not photocopied. The R.P.S HAS ISSUED GUIDANCE ON THIS.         Safe for work Tony 802

As Huw has said. 

My understanding of the Copyright act is that the owner of the copyright is the creator of the work

The FIRST owner of Copyright is the creator, which in a photograph is the person who directs the photography, which might not be the person who owns the camera and/or releases the shutter.  (a camera operator under the direction of someone else doesn't own the copyright, so use 'photographer' with care ) OR if it is created as part of someone's job their employer owns it. 

The owner can TRANSFER copyright to someone else, or LICENCE someone else to do any of  the 'acts restricted by copyright' , (make and issue copies, and exhibit the work in public). 

A client can contract a photographer to take pictures and then TRANSFER or LICENCE the rights in them; without that, doing those acts infringes the owner's copyright.  (If a photography business is taken over the ownership of the copyright might change, but the term doesn't change. If the copyright is owned by an individual it transfers with their estate)

A model can waive some or all of her fee in exchange for the photographer licensing the use of pictures, and some photographers will do this for free. 
Models are free to say "I have these ideas, which I'd like to style, and show on my port. Who would like to pay to shoot them and co-own the copyright with me" (i.e. we both accept that the photography was directed by both of us). And photographers are free to say "jog on"

Lightingman said

Saracen House Studio said

Spooky | MeltingPot Pictures said

Saracen House Studio

1. The images are production photographs - some of which have been cropped to show the actor and accompany their biography.

2. The images have been taken from my website, or my social media, as they have watermarks on them - although these have been partially cropped out.

The company had already been asked not to use my images without seeking permission (and payment)

Cheers

Edited by Spooky | MeltingPot Pictures

Got you.  So you have been invited in to photograph the performance?  What was the agreement when they said you can shoot the performance itself?

I'm working on the basis that it's the same theatre compay that's using these images as allowed you to photograph the old ones, is that right?

The thinking I have behind the line of questioning is that, as you were photographing a performance, there may also be copyright in the performance iself and the actors may also have some kind of authorship of the work, not just yourself.  It's complicated.  

Certainly moving forward, if you're invited/contracted to take performance images in the future, make sure any such ownership and authorship is clearly stated and any usage rights are in there.

Saying all that, it's a bit cheeky, after being told not to use them, to go ahead and do it anyway.  In a normal case this would be my process:

• File all your screenshots, copies of programmes etc somewhere safe.
• Do not send a bill, do not send an invoice.  They have no contractual obligation to you, so sending an invoice is a waste of paper and could impact any court case result. 
• Instead, send a notification of unauthorised use to the registered address of the company, make sure it's signed for.  Don't go asking for anything right now, other than information.
•  Ask the company how long the images have been used, how many views the website has had and how many copies of the programme have been printed.  Give them 7-14 days to provide this.  
• Assuming they don't reply, send another letter reminding them of their obligation to provide the requested information and that if it is not recieved within 3 working days, then you reserve the right to seek redress via Intellectual Property Enterprise Court (IPEC).
• Once you have the info, assuming they provide it, then work out what your going rate is for such use with permission.  Then double it for unauthorised use.  Then add a small extra fee for administration.  Then off future licensing of the image(s) for an extra nominal fee.
• If they don't pay, head to to the Small Claim Track of IPEC. 

I think the ambiguity about the performance and performers' rights might be an issue here, but it doesn't stop you flexing your muscle and bluffing them on the usage fees if you feel like a fight.  Use the AOP BUR calculator to help with your fees calculations.

I think there is also a crucial implication in your first sentence/question.

Was the OP invited/commissioned to photograph the performance and, as you say any 'agreement' perhaps verbal that may have been made/construed at that time?

OR did the photographer approach the company to photograph the performance to, say, add to their portfolio, range of work etc. In which case it could very well be understood by the company giving the photographer "privileged" access to the premises,  facilities and the performance ( free of charge) that  they, the company considered an inferred usage of images was reasonable.   

Edited by Lightingman

Edited by Lightingman

This.

Whilst their methods are inappropriate, I feel that if you have photographed their performance with their permission it is likely to have some bearing on the perception of fair use. They might reasonably claim an expectation that they would have access to the photographs taken, even if there wasn't a contract. Not rock solid for sure - but a court case - if you let it come to that - might not just be a slam-dunk. 

I guess the question in my mind is why you wouldn't have given them access to pictures of their production anyway - assuming you weren't hired to do a job. But maybe that's just me.

Photowallah said 

Whilst their methods are inappropriate, I feel that if you have photographed their performance with their permission it is likely to have some bearing on the perception of fair use. They might reasonably claim an expectation that they would have access to the photographs taken, even if there wasn't a contract. Not rock solid for sure - but a court case - if you let it come to that - might not just be a slam-dunk. 

I guess the question in my mind is why you wouldn't have given them access to pictures of their production anyway - assuming you weren't hired to do a job. But maybe that's just me.

There's a bit  of leap there. 

I took a snap on the London Underground the other day. Non-flash photography on the tube is allowed by TFL but allowing me take pictures on one of their platforms doesn't give them the right grab the photo off (e.g.) Twitter and use it in their annual report.

If the photographer was given access on the basis that the pictures would be shared for some purpose that would be a contract (even if not written), and if they weren't supplied that's not a justification for pirating copies; if they are going to show that their copying wasn't piracy then they'll need to show that was agreed.

If he had a contract of employment with the theatre (they deal with PAYE, sick pay, holiday) they'd own the copyright and he couldn't just disappear with the photos, but that doesn't seem to be the case.  If he'd been commissioned to take the photos then how they would be used would form part of the contract and any additional use might require an additional fee.  

I want to understand why you were taking the photos in the first place? As in, what were the circumstances that you were you given permission to take photos? Most performances, even the most amateur, state that you can't take photos during them, so I assume you had permission. What were the circumstances that you were given that permission? 

Hello Hive Mind

Thanks for all the quality advice provided here. I have followed it all through and finally managed to reach a settlement with the company - although it did get to the stage where pursuing it through the law was just a letter away. It was a long and tedious process but they finally agreed on a fee for the misuse of images and accepted an offer to relicense photographs.

Now that it’s done and dusted, to address some of the questions about the situation:

I had originally been asked to shoot promo material for the company (paid). Whilst working on that I offered to photograph the show for them (free) so that they had images from the production. This was an arrangement that worked for three productions. On the 4th occasion, the dress rehearsal drastically over ran to the extent that I was not able to photograph the second half; childcare meant I had to be home. As a result, the company refused to pay my invoice because I’d only photographed half the show. After much too-ing and fro-ing they agreed to pay half my invoice at which point I withdrew permission for them to use any of the production photographs I had provided for no fee. They were still able to use promo material they had paid me for but all the images I’d provided out of good will had to be taken down and no longer used.

They ignored this and had to be sent a reminder about misuse of images but continued to use them regardless, removing all watermarks, sometimes cropping and reversing images so they looked slightly different; some were even attributed to a different photographer. This misuse is the one that I have been contesting.

So, what have I learnt from the process?

1. The importance of having clear and transparent agreements in place - notion of good will is fine until things go sour.

2. PP has a wealth of experience and fab people who are willing to share. I don’t think I’d have had the successful outcome had it not been for the thoughts and ideas shared in this forum - they certainly helped steer me in the right direction.

Thanks to everyone who posted here, or messaged me.

Hello Spooky | MeltingPot Pictures :).

That's excellent news that you reached a positive outcome in the end, and it's lovely that the feedback you received from other creatives in our community on PurplePort helped you :)

Thank you for sharing the outcome, your experience and your thoughts. This post will undoubtedly be helpful to anyone else who finds themselves in a similar situation and who looks to this group for answers.

Spooky | MeltingPot Pictures said

There are no grey areas around this being a mistake, as they have had the full usage details provided twice.

Did the details that you previously supplied outline a price for use? 

Phil M said

I tend to use pixsy. Quick and easy. I don’t know how they compare to others but they have always come through for me. They also monitor my portfolio and alert me to misuse taking into account, where and by whom as this makes a huge difference as whether it’s worth my while.

Glad you got it sorted this time.  I agree with Phil M that Pixsy are a good way to go if it ever happens again. 

My brothers company was contacted by them recently, about an image that had been used without authority back in 2011 on a page of his small company website.

They were asking for £520 for infringement of their clients copyright - for ONE generic image.  

The image had actually been added to the site by his web designer, since retired.   Legal advice was sought, and advice given was to pay the bill, even though he didn't place the image himself.

£520 later, case closed, and a bill was then served on the web designer.    Thankfully he agreed to pay - confirming he'd used a generic image taken off from the web!

Huw said

tony802 said

No names, no pack drill, but I have today  just read a casting call ON PURPLEPORT from a supposedly experienced model who wants to charge a substantial fee for photographers to take photographs of herself, but then to use the pictures taken to update her portfolio etc. My understanding of the Copyright act is that the owner of the copyright is the creator of the work i.e. the photographer, and that the copyright remains in the possession of his/her estate until 70 years after their death.Even where you may pay (say) £1,000 for a wedding coverage, the copyright is still the property of the photographer and it is illegal to have wedding photos and other work, whether paid of or not photocopied. The R.P.S HAS ISSUED GUIDANCE ON THIS.         Safe for work Tony 802

Very clear offer of work.

If you agree to her terms, that overrides copyright.

Not complicated.

moral rights are always retained though, I think.  Not sure.