Big company using my work!

[Costas Stergiou]

Anyone seen this image in US magazines?

[image removed]

I did a shoot of that car (thats one of my pics) for the client, and they sold the images to *** *** that's ran them in several magazines by Source Interlink (import tuner, super stret, etc..).

I contacted Gen. Tire and they said they paid for the images so they're allowed to use them.. but me and the client whose car used in the ad never had permission to sell the photos. Wtf do I do now.. the clients car is owned by a local business. Am I screwed?

[Mike Ditz]

I don;t really follow.
Who did you shoot the original image for?
Who "sold" the image to GT. Can GenTire prove they paid for it?
How many ads were run in how many magazines?
Why didn't you and the client have permission to sell the photos, because of the owner of the car?
You are not screwed. General Tire may be. Or the client may be.

In the future use the term "license" instead of the term "sell" unless you are truly selling the images.

[Costas Stergiou]

The image was shot for a local performance shop, that is one of the cars that the shop owns. That shop sold the image to GT. GT hasn't proved that they paid for it, but they said they did.

Here's the stats for one of the magazines it was published in (Super Street, the one pictured at the top), however I have several friends that saw it in other magazines owned by the same publisher.

Published: Monthly
Total Audience: 504,000*
Circulation: 62,924
Subscribers: 21,848
Newsstand: 41,076
Readers Per Copy: 8.00*
(ABC Statement 12/31/2009 / *Source Interlink Media
Research Estimate)

I didn't give the client permission simply because I didn't know that was part of their plans. They never asked for permission, yet at the same time, I never stated they're not allowed to license the images to a 3rd party. The images were shot without the signing of any contracts.

Here's a copy and paste from a lawyer I involved in this matter:
I've had a call from the general
counsel, and from a guy that said he paid for
the pics..They said the pics were paid for and I should reconsider the
basis of the suit...so basically there isnt too much I can do other
than what I've done. Small claims court would have been my preferred
process of justice myself, except, copyright law is federal law..so it
would have to go to fed court, much more complicated..as far as my
ability, there isnt too much else I can do; a suit at this point would
eat up most of your profits anyway

[Bill Jurasz]

Sue the shop who sold the image in the first place.

[Mike Ditz]

I'm not sure that your lawyer put a whole lot of effort into your problem, noting he uses terms like "a guy who said he paid for the pics" Not saying he he talked to Joe Smith who paid $500 to use the picture.
The shop LICENSED the image they had no right licensing and probably received about 1/10 what the picture was worth because they wanted their car in the ad.
GT used an image they had no real permission to use although they will claim that they did it in good faith as they say they paid the shop. The shop LICENSED something that was not their property. You need to get through the first wave of finger pointing. It will cost you money to pursue this and if you don't have it you will go away, that's what the shop and GT are expecting. Depends on how much time - effort - money you can invest. And getting a non-lazy lawyer to at the minimum write a nasty lawyer letter...

[John Waugh]

Sorry your in this position.
By your own admission you never restricted transfer by the initial client.
With no contract you have a "hear say" argument at best, that will fall apart in court.
This is yet another example of why it's important to have a copy of FotoQuote® or similar contract documents
Learn the general practice of contracts, and cover your bases before you deliver images to any client.
You probably undersold the image to start with and have lost the revenue from General Tire to boot.
Your suit will eat up most of what ever you can earn in the settlement if you get anything.
Again sorry you're in this mess.
Others would do well too learn from this example of corporate advantage over wishful unprepared business practice.

[Todd Corzett]

I do quite a bit of shooting for friends and car club members. Even though it is just for buddies, I am very explicit when it comes to the usage I grant with the images. I do not expect the images to be used for anything more than a few prints or desktops, but I am sure to spell-out exactly what they can and can't be done with the images. The last thing I want to happen is something like this.

When hired for a shoot it is very important to make sure that everyone is on the same page with what they are and aren't paying for. I find it very difficult to have a client understand that they pay differing amounts based on the extent of the usage they want/need. Getting the specifics of the deal documented, via email, invoice, etc. is the first step to dealing with these sorts of situations if/when they arise.

I don't think that you have to worry about not having permission from the car owner, as you were not the one who sold or used the images without permission. The question becomes how much is it worth to go after the shop/vendor for the non-authorized usage. Best of luck with this all.

-Todd...

[John Thawley]

NEVER specify what the client CAN'T do with the images. ONLY specify what they CAN do.

Unless you sell the image with full worldwide rights extending into perpetuity, it's your image.

When you release a file it's really quite simple.

The customer CAN use the image in THIS way.
The customer WILL PAY this much for that use.
Rights to images are NON Transferable.
All Rights Remain the property of the photographer.

DO NOT add words that aren't necessary. It's really not that complicated.

Hi, I have this image. For a agreed upon fee you can "use" it for "this" purpose.

If you shot the image and had a verbal agreement with the shop owner regarding what the images were for, it's an AGREEMENT. Written would be nice, but verbal is still an agreement.

Get a real lawyer. Get a backbone... pony up and go get these people. This is totally ridiculous.

JT

[Todd Corzett]

NEVER specify what the client CAN'T do with the images. ONLY specify what they CAN do.

DO NOT add words that aren't necessary. It's really not that complicated.
I don't list what they can't use it for, but rather add that "all other use is strictly prohibited". I don't want to make it complicated, but sometimes people don't understand "you can use this image for this" doesn't mean that you can use that image for something else.

-Todd...

[Jacob Leveton]

I think you're going to get stuck chalking this one up to experience.

Congrats. Someone has stolen your photographs. Time to be more protective of your images and the copyrights. CONTRACTS CONTRACTS CONTRACTS!!

I remember seeing my image on a big screen for the first time thinking "hmmm, i've never had contact with that company, I wonder how they got my image...."

[Gary Silverstein]

First, talk to an attorney who specializes in copyright cases. He/she may tell you to register your image with the US copyright office. This may up the amount levied on the image to something north of $100K. There is something called "criminal copyright infringement," that you might be able to use. General Tire may have been lied to about the ownership rights of this image. As I understand it, you (as the photographer) hold the copyright on an image the instant you click the shutter. You own the image, unless you sold away your copyright, or were "work for hire," meaning, you worked as an employee of the company, not a freelancer. In any event, it is important you do not let them get away with this.

Gary Silverstein
www.feelfreefoto.com

[John Thawley]

First, talk to an attorney who specializes in copyright cases. He/she may tell you to register your image with the US copyright office. This may up the amount levied on the image to something north of $100K. There is something called "criminal copyright infringement," that you might be able to use. General Tire may have been lied to about the ownership rights of this image. As I understand it, you (as the photographer) hold the copyright on an image the instant you click the shutter. You own the image, unless you sold away your copyright, or were "work for hire," meaning, you worked as an employee of the company, not a freelancer. In any event, it is important you do not let them get away with this.

Gary Silverstein
www.feelfreefoto.com (http://www.feelfreefoto.com)

I think you'll find registering the copyright after the fact will not impact the outcome.

The reason you need a good or "real" attorney is to rattle GT's cage. I'm guessing when the right person in the company hears of this that they'll be shocked and appalled at the position someone in the company has put them in. They will happily pay a fair amount for use. I'm guessing whoever pulled this stunt will face a verbal dressing down by whomever he/she reports to.

Legitimate companies are well aware of the implications and would rather pay the freight than face the embarrassment of what amounts to petty theft. I had a situation where Cadillac's agency ran an ad in two publications when in fact, they'd asked for usage rights for running in one publication. They couldn't have been more apologetic and requested an invoice immediately.

JT

[Costas Stergiou]

Based on what most people have told me, I'll need to fork over some big bucks to take such a big company to court over an issue such as this, when in the end, it might be the client that I have to go after for selling my work to them. Being that I'm still an average college student with not much income to spare, I don't know if I have the funds available for something like this.

I may have to just consider this as a lesson learned and make sure I have people sign contracts in the future when it comes to car shoots. This was a long time ago when issues like this never crossed my mind. I now do mostly wedding work and always always always have the client sign a contract stating that they're not allowed to sell any of the images they receive.

Either way it sucks seeing that pick in tons of different magazines knowing I didn't receive a dime =\

Edit: the lawyer I was using was a brothers friend. I'm going to ask one of my commercial photographer friends about his contacts, and see if I can get a quote at least on getting this handled properly.

[Steve Stein]

It shouldn't cost you too much to have a lawyer draft a letter. A paralegal could do that and have an attorney sign it. I'd be prepared to have a number in mind once GT's legal department gets the letter and contacts you and/or your attorney. A lawyer may even take it on contingency and grab 30%. Still beats zero.

[John Thawley]

Based on what most people have told me, I'll need to fork over some big bucks to take such a big company to court over an issue such as this, when in the end, it might be the client that I have to go after for selling my work to them. Being that I'm still an average college student with not much income to spare, I don't know if I have the funds available for something like this.

I may have to just consider this as a lesson learned and make sure I have people sign contracts in the future when it comes to car shoots. This was a long time ago when issues like this never crossed my mind. I now do mostly wedding work and always always always have the client sign a contract stating that they're not allowed to sell any of the images they receive.

Either way it sucks seeing that pick in tons of different magazines knowing I didn't receive a dime =\

Edit: the lawyer I was using was a brothers friend. I'm going to ask one of my commercial photographer friends about his contacts, and see if I can get a quote at least on getting this handled properly.
With a proper lawyer this WILL NOT go to court.

And, frankly, you have two cases. One against whoever gave the image to GT and another against GT.

General Tire CAN NOT use the defense that someone gave them permission. And they know that. They do not have written permission (license or release) from the copyright holder. PERIOD. Trust me... their lawyer will realize it and fold like a cheap card table.

The defense of "someone gave it to us and said it's ok" is the equivalent of you telling a cop (after he's pulled you over for grand larceny) that the valet parking guy said it was OK for you to take the new Mercedes. It ain't gonna fly.

GT is in the same boat as when someone is in possession of stolen property. They lose the property and bare the financial loss. In this case, they've already used your picture. The toothpaste is out of the tube. Therefore, they have to pay you.

FIX THIS. Find a lawyer. Get off your ass and go and make this right. You sound lazy and complacent. Get a backbone. Stand up and fight... as a "poor college student" (I get sick of hearing that excuse... having been too poor to even go to college) I'm sure you might enjoy collecting the $3000-$5000 (more if it's truly in "tons" of magazines) you're owed. No?

JT

[Costas Stergiou]

JT that makes perfect since. I'm contacting more people right now to get it taken care of correctly. I greatly appreciate your advice and will keep you guys updated on the issue.

Thanks again!

[Mike Ditz]

I believe that you have 90 days to register the image after discovering the illegal use to take advantage of being registered with the copyright office....

Like JT says once the right people realize what they have stepped into they will pay you. In the corporate lawyer world it's called "go away money".

[Costas Stergiou]

Well, I talked to a local copyright lawyer here in Houston, he told me that if I pursue something like this, I'll come out in the negative, unless it was published in 10+ magazines, at which point I might break even. I'll go ahead and contact someone else about the issue till I hear something that I want to hear..

[Gary Silverstein]

Hi Costas -

Have you even contacted the marketing department at General Tire to tell them they don't have license to use your image, or even send them a bill? Of course, this puts them on alert that you have discovered the image being used for a commercial purpose, and may start some clocks ticking, but it may also get action from them. Ask the next attorney you talk to.

Gary Silverstein
www.feelfreefoto.com

[Mike Ditz]

It depends on how you approach GT, if you call it a business mistake (with the implied threat of a copyright issue) and decide on a reasonable amount of $ it will be easier than a case in Federal Court.
Have you approached GTs Agency? or Marketing Department?


Read the last paragraph in this link regading 90 days:
http://www.peterkrogh.com/copyright/90days.html

[Costas Stergiou]

I myself haven't approached anyone directly, but I'm currently working with a copyright lawyer recommended to me off of ASMP in regards to the issue. So far she's been very helpful in explaining the issue and what to expect, but I'm still working on giving her more information. One thing she did mention though is that the 90 policy wouldn't be in effect here. Reason behind that is because she said it's 90 days after they receive the work as opposed to when it's published, but everyone else has told me differently.

She mentioned something similar to this happening with a guy that took photos of custom painted motorcycles for a company, and then that company ended up publishing the images in a magazine. He wanted to be compensated for them, however when the case reached the judge, he deemed that there was no contract stating as to how the images can be used, therefor he has no case. The only thing is, I'm not sure if they were used for a national ad campaign like my photos were, or just shown as a feature.

I'll keep updating this thread with new info that comes my way. Thanks for everyone's support so far.

[Costas Stergiou]

Update: I just finished submitting all the paperwork with the lawyer to make things official with having me as their client. They decided it's best to go after the people that sold the images to GT first. I'll follow up with this thread when I get more info.

[John Thawley]

Update: I just finished submitting all the paperwork with the lawyer to make things official with having me as their client. They decided it's best to go after the people that sold the images to GT first. I'll follow up with this thread when I get more info.

Good luck and keep us posted.

[Justin McDonald]

how did this all turn out??:confused:

[Costas Stergiou]

The attorney that I hired and GT's attorney are still communicating about the issue. I'll keep you guys posted on the final result. The ad just appeared again on the latest issue of modified mag.

[Steve Stein]

Costas,

I think you're attorney should demand they stop running the ad and produce the run schedules they had on your image.

On second thought, maybe they keep running the ad and the price goes up each time they print it. Have you searched online for your image on their website?

[Mike Ditz]

Costas,

I think you're attorney should demand they stop running the ad and produce the run schedules they had on your image.

On second thought, maybe they keep running the ad and the price goes up each time they print it. Have you searched online for your image on their website?

I don't think the goal is to stop the ad(s) from being run but being paid for the use. It's just money. They have it and owe it for the use of the photographs, and they know it.

[John Thawley]

I don't think the goal is to stop the ad(s) from being run but being paid for the use. It's just money. They have it and owe it for the use of the photographs, and they know it.


Oops... there it is!

[Costas Stergiou]

Thought I would go ahead and update this thread. The company said they were willing to discuss settlement figures as well as stopping the use of the image in their ads, the lawyer did the calculations and came up with $xx,xxx amount which would cover the actual use as well as an additional fee for misuse, GT came back with a very low $x,xxx figure instead. In the process right of doing a counter-offer on them to see how much leeway we have before we come to a final agreement.

[Steve Stein]

And the attorneys are running up the bill I bet. Did you get them to pay your attorney fees in the agreement?

[Costas Stergiou]

The attorney and I agreed to a set percentage before we started everything, which hasn't been part of the negotiation with company just yet. We'll see what happens.

[Mike Ditz]

And the attorneys are running up the bill I bet. Did you get them to pay your attorney fees in the agreement?

Just like photographers, attorneys 'run up the bill' by performing a service.:cool: