Alleged Copyright infringement by a million dollar corp?

[pchong]

Would like to seek the fora's collective views on what I should or can do for this:

Avis, yes the car rental behemoth, or its agent has taken one of my images and used it in their advertisement campaign without any permission or licensing. I have written to them in a nice way, asking for a discussion. But they ignored my email to their SVP and Legal Counsel. I know I can take legal action, but what chance do I have as a small photographer against the huge corporation and their high powered lawyers?

[MelHill]

I'm thinking that email is not the best way to approach this problem.
Get a lawyer who does this kind of work and have him write a actual letter...

[Sheldon N]

Yep, a lawyer is the way to go. Preferably one who will work on contingency (you don't get paid, they don't get paid). He'll be able to send a formal letter demanding payment that should get their attention, and if they don't respond, a lawsuit would be the next step.

There's no excuse for a multinational corporation not to have a budget for advertising to get some stock photos. I'd be PO'd if I were you too.

[langier]

IF the photo was registered in the copyright office, you own the keys to the courthouse and can negotiate a nice settlement. However, without timely registration, legal proceedings will be funded from your pocket and for usually actual (provable) fees/damages.

You need to consult with a copyright or IP attorney to see where you stand.

Good luck with whatever path you choose!

[tcphoto1]

Why the hell would you post so many details on this situation? Find an Attorney and tell him or her what you have found and let them take it from there. Yes. you most likely have a case, Avis will deny and after trying to ignore you will most likely settle before it gets to a court room. If you registered the image the potential settlement will be larger. Your rant on the blog sounds like an spoiled child and I'm not surprised that they ignored you. A letter written by an Attorney will be calm, unemotional and show how the use of your images violated your rights as creator.

[JoeKitchen]

Here's another great example of why it is so important to register your images with the Library of Congress. 

If you did, then you will be able to sue for value of the use plus $250,000 per violation.  In this case, find a lawyer that specializes in intellectual property rights and enjoy the settlement.   

If not, you will never be able to sue since you will only be able to sue for the value of the use; federal court fees will cost much more then the value you will be able to obtain.  In this case, I suggest taking down your blog and try to contact another person at the company via email again in the most professional manner that you can.  Explain that you produce images for others to use, for a fee, and that you have no problem having them use your image, as long as they pay an appropriate fee.  If they still refuse to do anything, you might as well stop trying and move on, and start registering your images. 

Just to let you know (in case you never did it) registering images is not that hard and only cost $35 per time.  You can group as many images as you want per time, as long as you do it before they are published in any form (this includes just posting them on your blog).  If they are published, you can only group those that are published in the same form and publication; you must also supply screen captures and/or scans of the images.  Last, do not do this on Safari, use Firefox!  For some reason the government's website does not work well with Safari and could quit half way through the process. 

[tom b]

I just recently read an article in Digital Photo Pro magazine entitled "It's not a winning ticket" by Samuel Lewis. I checked up his site and it had a link to a previous article that he had written which is on the mark. The article is here:

http://www.digitalphotopro.com/business/copyright-your-images.html

Well worth a read.

Cheers,

[Rob C]

I just recently read an article in Digital Photo Pro magazine entitled "It's not a winning ticket" by Samuel Lewis. I checked up his site and it had a link to a previous article that he had written which is on the mark. The article is here:

http://www.digitalphotopro.com/business/copyright-your-images.html

Well worth a read.

Cheers,

Yes, interesting indeed, and the conclusion that I come to is that the problem lies not with the photographer, but with the law. From the very moment that registration becomes essential, it's but an obstacle to the natural right of the author to own his copyright; why should such an inconvenient step be required? Proof of shooting should be enough, and possession of the original file/tranny would be a good start, along with holding the other images in the series!

But then, to be cynical again, when was law ever about anything but providing lawyers with work? (Gotta sell those top-o'-the-line products somewhere!) And before anyone disputes this, I've been stung/led by my nose by lawyers too, with the client loss mentioned, and in my case that meant both the ad agency and their client whom I was chasing... Message learned? Walk away; the system isn't there for your benefit.

Rob C

[Rob C]

If you have a genuine case then it's always worth standing up for your rights.

I've taken on the largest of corporations and their lawyers and won. If we don't make a stand as individuals then we all end up loosing.

Start by writing to (not emailing) the CEO of the company and also send a copy to their legal department. Enclose copies of the evidence and make your case in a clear and concise manner. I'd also recommend that you take down that web page; it's doing you no favours and could result in action being taken against you.

Persevere!

Good luck.

What I'd add, Keith, is that nobody follow my example and do anything in anger: that clouds both your own judgement and the issue. Easier said than done, but it's true.

Rob

[Jeremy Roussak]

Yes, interesting indeed, and the conclusion that I come to is that the problem lies not with the photographer, but with the law. From the very moment that registration becomes essential, it's but an obstacle to the natural right of the author to own his copyright; why should such an inconvenient step be required? Proof of shooting should be enough, and possession of the original file/tranny would be a good start, along with holding the other images in the series!

Rob,

You don't have to register anything to own the copyright. However, registration confers advantages, such as tacit proof of ownership of the copyright and a right to statutory (that is, non-compensatory) damages and legal costs, and appears to be a requirement before legal action is taken in the US. From a document I downloaded just now from the US Copyright Office (www.copyright.gov and, for all I know, posted here in breach of copyright):

In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:
• Registration establishes a public record of the copyright claim.
• Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.
• If made before or within five years of publication, registration will establish prima facie evidence in court of
the validity of the copyright and of the facts stated in the certificate.
• If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyight owner.

But then, to be cynical again, when was law ever about anything but providing lawyers with work?

My, we are in exceptionally cynical mode today. Do you seriously imagine that anarchy (that is, a system without the rule of law) would be preferable?

Jeremy

[Rob C]

"My, we are in exceptionally cynical mode today. Do you seriously imagine that anarchy (that is, a system without the rule of law) would be preferable?

Jeremy"
[/quote]





Heavens no! But that's not to say that the setup, as it appears to me to be, is not designed to give lawyers on both sides of a case plenty of ammunition and doubt within which to play, and the longer they can play, the more they are likely to earn from it; time is, indeed, money.

As I said, I've danced through the steps with such a firm and never again.

Grey areas are beautiful as long as you earn from them and don't face having to pay the guide who, sometimes, doesn't really know where he/she is leading you or, to be kinder to him/her, knows but ain't telling... I'm sure there are altruistic saints out there too, but the only one I suspect of that is still at university!

So cynical, yes, but it's only my view and I'm sure others have had better luck! But anarchy, no way.

;-)

Rob C

[pchong]

thanks for the responses. Many good advice. Appreciate it and have learnt from the discussion.

I have got in touch with a friend who practices law in the US.

[Graham Mitchell]

1. Gather all possible evidence of the infringement
2. If they are still using the image at point of sale, on billboards, in magazines for sale, etc then get a lawyer to tell them they have 48 hours to pay or you will get an injunction as soon as you can, ordering the destruction of the infringing material. No point in waiting until they have finished using it - you have much more leverage now. It will probably cost them less to pay you off than to replace all the POS materials, etc.

Good luck!

[tcphoto1]

Graham, horrible advice giving them a deadline to pay. Why rush and get a small fee when you can hire an Attorney and get a larger fee? It is all about gathering evidence and having a little patience. That fee that you quote them with a deadline can come back to bite you. If the images are registered with the LOC, there is a maximum penalty of $100k per occurance. Does that sound better than giving them a deadline?

[Graham Mitchell]

Graham, horrible advice giving them a deadline to pay. Why rush and get a small fee when you can hire an Attorney and get a larger fee? It is all about gathering evidence and having a little patience. That fee that you quote them with a deadline can come back to bite you. If the images are registered with the LOC, there is a maximum penalty of $100k per occurance. Does that sound better than giving them a deadline?

Where did I mention that the payment should be small?
As for the LOC, that only works for registered images and infringements in the US, I believe.
It is not mentioned which country this infringement happened in.
In most countries, this would probably be the best way to go.

[pchong]

Thanks Graham...the infringement occured in the US. And the images are registered with ECO.

again many thanks for the many advice. Good learning experience this is for me.

[AvidVisionary]

Keep us updated. It will interesting to know what has happened after everything has settled.

[MikeDitz]

I had a similar situation with Enterprise car rental. They snagged a picture of mine and ran it in a brochure about buying a Enterprise car. It was about the size of a postage stamp. I eventually learned the print run was relatively small in the SoCal market. I ended up billing them for an amount 5x times what it would have been if they had asked nicely instead of using it without asking.

[pchong]

Final update: We settled this on a fair and equitable basis to both Avis and me. Thanks for all the advice.