What happens when you are flipping through a magazine and stumble across a photo that you took that the magazine stole from you, never having asked permission (much less paid) to use the image? When a similar scenario happened to professional music photographer, Kristen Pierson, she did what any self respecting photographer would do, she contacted the magazine directly. The response the magazine gave her, however, was not what she was hoping to hear. Listen to the interaction between Pierson and the magazine in the following video clip:
Listening to the dialog of the telephone message, it’s clear the magazine was ignorant to the laws regarding copyrights. Whether it was by choice or by sheer uneducation is up for you decide. Regardless any professional level publication should make a point to learn the laws.
Newspaper image use
Above is a screencap of the photo appearing in the publication in question. At this time, it’s not clear whether or not the photographer has resolved the issue (Via Petapixel). Part of the reason why she has made the case public is to encourage photographers to learn about copyright law and so they may protect themselves if they ever find themselves to be in a similar situation.
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Hasn’t it been over a year since this happened…? Why post this now?
The main point is that copyright is clear:even with digital images the default is that the copyright holder owns the image and is not required to register it (although doing so could facilitate compensation for use). Any reputable press entity (like a magazine) is certainly aware that at least minimal efforts should always be made to contact a photographer for permission, if nothing else, and is quite aware that Facebook equaling Public Domain is merely wishful thinking. They should try searching for Creative Commons licensed images whose creators are happy to be specific about what uses of their images they allow.
She should clearly have sent them a demand for compensation letter, not an email. The time for negotiation is before the publication of any works. After an infringement occurs one should begin legal actions immediately. The first action that should be taken is either a cease and desist letter (ineffective at this point – after the breach [you cannot un-ring a bell]), or a demand for compensation to allow the continuance of the already committed breach. All letters should be sent via registered mail and all correspondence must be documented in a form acceptable to the courts. This stage doesn’t require a lawyer or any specific legal advice, but can easily be achieved through an individual’s determined application of standard contract billing regulations. It doesn’t take a legal genius to begin a contract claim and follow through on it all the way to the courthouse door. The breach of contract originally occurred when the publication neglected to contact the originator of the product to confirm their source and legal right to re-assign use of the item in question. It is even unnecessary to call into effect the legislation regarding copyright, since this could simply be argued in court as a misuse of property. The image in question (personal property) was never offered for copy status by the creator, therefore an established copyright registration is not needed. Many other photographers and artists should make note of the lack of a need for an established (registered) copyright to maintain control over their personal intellectual property. The only additional benefit of a registered copyright is the ability to enforce specific monetary penalties against an offender for damages caused to the copyright holder additional to any other compensation for use. If all you want is proper recognition and fair compensation, then the best approach is through contract enforcement regarding property rights – not copyright. Putting the cart before the horse will never expedite your claims.
The action of publishing a private conversation (voicemail recording) is not only questionable, but also opens the artist up to specific legal repercussions. Namely that the publication of private correspondence could be seen as a form of libel and/or invasion of privacy, not to mention defamation. Her acts aren’t just questionable, but actually cross the line of legality into the criminal domain. At least all the publisher is guilty of are civil breaches. She could easily end up in far more trouble for this rash act, than the publisher for their breach of use.
n.b. – I have worked directly for the British Bar Association, Canadian Legislative Action Committee, the United Nations World Court (Hague), and have worked as a contract IT developer and systems analyst for most of my life.
BTW – Registering a trademark and prominently displaying it on your works is a far easier and cheaper way of enforcing specific rights on your intellectual property than registering a copyright on each individual work produced. The penalties awarded and fines for trademark infringement are much greater than those allowed for copyright. Altering or removing a trademark is a specific criminal act, whereas doing the same to a copyright notice carries only limited civil liabilities. The correct time to register copyright on a work is when it is taken up for publication by other interested parties – in other words, after it has been accepted for publication. It’s also important to note that personally causing the electronic display of an image on the internet is not a form of publication as recognised by most courts globally, unless you are in the business of publishing (like the paper in question is).
The most problem nowdays is, real life is much more easier then the complex and not so easy going digital life. The copyright’s for things put in the Internet are blurred and day after day less accurate. One can read the terms and conditions for facebook, instagram etc. They can use what’s yours whenever they want. Watermark? Copyright? Agreement? Ownership? Personality?!? Those things does not apply in digital world.
Magazines and park publicity personnel essentially “steal” photographs all the time. I can’t tell you how many times I almost entered a photography “contest” but upon reading the fine print, it stated that all submitted photographs beccame the property of the park and could be used for whatever reason they wanted without giving compensation or even a photo credit to the photographer. All photographers need to read the fine print very carefully.
There’s not enough background and context here to make a full judgment. However, it is obvious that the publisher is either clueless or a liar. It is also clear that the photographer is an idiot: if there is a clear case of copyright infringement the contact with the thief should be made by an attorney, not the photographer.
In the USA the key to protecting your copyright and extracting money from thieves is to timely register the photo.
If you do “publicity ” photos for musicians, corporations, or anyone else you have to expect the goal of the photo is to get “placed” as many times as possible. And you should not expect to get paid for each placement.
So figure this out when you take the assignment and price it accordingly.
And stop whining because you goofed and did not ask enough questions when you did the job in the first place.
I do have a beef with the various publications and printing services (like FedEx Kinkos) for never checking the metadata to see who actually made the photo and who might own it. If the newspaper were to take the photo into their database, distribute it to the AP and continue to use it over and over then you go after them.
I recommend you add a 1 inch white border to the image and spell out the terms of use in plain language which is visible to anyone looking at the photo. It can be cropped off… but cropping it off and using the photo illegally is a crime in itself.
Was the photo registered? If not you are wasting your time complaining.