Copyrights

cnsmerz wrote: I just received an email from the people that ran the ad. They said they got it off social media and was deemed free use by our lawyers as it was not watermarked or copyrighted.

Wow. They need better lawyers, then.  Because that's a steaming pile of garbage and they should have known better. They're probably just lying to try to cover their butts at this point, since the owner has come back to haunt them.

cnsmerz wrote: The spot was shipped Aug 7th and aired local markets for less than a week and is not currently airing. What is your standard rate for use?

And this is where they are hoping that a quick payment will make you go away.

The problem here is that a lot depends upon the market, time of day, number of airings, stuff like that. The problem is there's no set rate, and other photographers seem to be very averse with sharing their costs.

Usage would likely normally be at least several hundred dollars, but that's just a SWAG; some of this also depends upon whether they align with your political views. It sounds as if they were using your image to help make the guy out to be the bad guy.

I'd ask for at least $2000 and negotiate down from there. Your opening bid will be your high point, so make it count. Since they likely did not do due diligence to find the licensor, nor probably involve a lawyer, post facto should cost them. And you can always threaten a lawsuit, although it would be better for everyone if you can just walk away with some cash, right?

Keep pointing out that, in this case, it would have been easier to ask for permission rather than forgiveness. Too late, too bad.

Good luck.

This is why you need to read TERMS & CONDITIONS on social media sites or any websites where you post photos - signing up and using the site may state that you retain copyright BUT allow the site to use, reproduce, distribute, sublicense, etc. etc.

From my experience several years ago a photo being used in a brochure ran at least a few hundred dollars for a first print run and that pricing would be outdated now (and each successive year or print run the photo was used would be an additional fee).

I've used resources on ASMP's site or you could try PPA. I don't know what the pricing is for usage in TV ads, but I would make a contract specific to the week's usage of August 7-13? or whenever the ad ran (fees are typically specified in a contract for any further usage if needed).
http://asmp.org/links/32#.U_PlcSPD9LM

As far as copyright goes, from what I understand you own the copyright to any photos that you take but registering is supposed to help prove ownership if there's a need to pursue a copyright violation.

If you look up the US Copyright Office website you should find how to register and once you do that I think that means your photo is registered even while it's still being processed (which apparently can take some time). I think you can still register after the fact (after a photo was used or published etc.).

Watermarking doesn't seem to be foolproof (especially if it's in the corner of a photo where it could be easily removed) but supposedly it can help deter unauthorized usage because it can make it harder to be used (since the watermark would need to be removed). It can also help show ownership and I feel like it might make someone think twice about taking a photo. I tend to watermark thru the significant part of the photo so at least it won't be so easy to remove.

Thanks for all the info. I asked for $5000.00 seeing it was used on TV and I saw it many times and was used against the candidate I endorse. I'll keep you posted on what happens.

Just received this email.

Chris, 
I wanted to follow up from our communication below.   As a firm that frequently works in this
space, we can appreciate your response and understand that you would like to be
compensated for use of a photograph that you took. 
 
We have have met with our lawyers,  Perkins Coie, who handle political matters in regards to TV
for a number of campaigns - from local races to Presidential campaigns. As you
can imagine, they have quite a bit of experience working in cases that
pertain  to fair use.  They have advised us that using a photo from a
fan Facebook page , which was clearly not copyrighted, water marked, and was
not deemed as proprietary at the time of use,  would be considered to be
fair use.   Not to mention the spot is not currently airing. 
 
That said, in good faith we are prepared to pay fair market value for use of the photo.  I have
compared rates from Getty and other stock sources for rights ready or managed
still shot.  We are prepared to offer you $1,000.00.  This would
include TV rights  for cable/broadcast in Milwaukee media market which
aired for less than 4 days. This would be a one time payment and would require
a full release to be signed before issuing. 
 
We look forward to your response, and from there we can move to get you a release,
figure out payment address, etc   So looks like I will get some money after all!

Their lawyer doesn't know what they're talking about. Images are copyright by their nature, and rights are reserved unless otherwise stated. FB posting has nothing to do with it. You give FB a license to distribute an image, but that license is not, as far as I'm aware, not transferable. Check the Ts & Cs on FB but I'm pretty sure they don't require you to agree to that.

Any lawyer worth their salt knows that an image does not have to marked as copyrighted, because copyright is inherent. What a bar exam failure they've got there. When a campaign tried to use the Rolling Stones' "Start Me Up" (I think that was the song) without license, they got raked over the coals. Clearly, if you wanted to be difficult it would be a simple matter to explain the mistakes they've made in a poor defense of their actions.

In addition, if they pulled it from a fan FB page, they could have managed to locate the origin of the image. FB would have been helpful, but it shouldn't have been that tough. You could point out that the image was used without permission, they clearly did not do due diligence in finding the creator, their understanding of copyright seems, at best, rather weak, and they are trying to spin this in their favor by misstatement and misrepresentation. All that might justify a counter offer. They clearly understand (via their offer) that the use of the image has value.

However...

You might want to just take the money and run. And put a watermark on your images from now on. Congratulations.

cnsmerz wrote: We look forward to your response, and from there we can move to get you a release,
figure out payment address, etc   So looks like I will get some money after all!

Personally I would have a lawyer of my own filing for $25K to start with. But first I would register the photo under the collective works Copyrights. You do have a Copyright the very moment you tripped the shutter. But you need to register it with the office to have full force of law. Their lawyers know that they violated the law, or they would not have offered you a dime. To offer a payment is a ruse at claiming they are being good guys, or trying to do the right thing under the law by offering payment. It is also very stupid on their part, because it shows that they know they screwed the pooch.
Do you have a recording of the ad? You can legally do this for purposes of evidence.
Also were you shooting in both RAW& jpeg? Not that it makes a major difference either way, but the RAW file is one that only you would have, and therefore proof of your Copyright. Either way you have Copyright.
Just because something is posted on social media does not mean that it is free for use, with, or without a Watermark. They know that, and their lawyer knows that, I bet that the Bozo who chose to use it is now in hot water over this.
And on the political part of this. If I was the sheriff who had an opponent that stole a photo like that, I would pay you to use the photo in my ad, to bring up that they seem to not be so law biding when it suits them.
Either way I would be saying no thanx, and my lawyer will be contacting to settle this. This is when they will start to worry a whole lot, because they know they stole the image, and their offering to pay you is part of the proof. Especially true after they said they used it because it was on social media. Oh! And I would also tell them if you choose to go for the money you deserve, that the press will love this kind of thing during an election. With thieves like this you have to play hardball, and if you play the game right you make out really good. As you should for a stolen image.

Hello, thanks for the note. I also thought it strange that they would offer me anything if they were clearly in the right. I already responded saying that was fine. I did submit this to a online lawyer and he said " Posting something on Facebook or other open social media sites, such as Instagram, YouTube, Google+, and so forth turns the image into the property of the prospective website (in this case Facebook). You can review the terms of service for yourself, as it clearly states that anything posted there now belongs to them. In addition, since this was posted publicly, it also becomes 'public record' and is part of the public domain. By posting it on Facebook, that copyright is no longer exclusive--you can claim that you took the picture but you cannot demand damages or compensation if someone else uses it. This is likely why the entity did not get back in touch with you--as they obtained this off a public site, they do not see it as infringement under the circumstances, and likewise do not see the need to compensate you."

I also submitted to a Copyright lawyer and never heard back. I did shot both RAW and JPEG, and I also recorded the ad on my cellphone from my TV. I also paid to have it copyrighted. Also used intelLoc.com for copyright over internet protocol CoIP, if that means anything. Would of been great to get more money to help start my photography business but can't seem to get anyone to help. So I guess I'll just take the money.

cnsmerz wrote: I did submit this to a online lawyer and he said " Posting something on Facebook or other open social media sites, such as Instagram, YouTube, Google+, and so forth turns the image into the property of the prospective website (in this case Facebook). You can review the terms of service for yourself, as it clearly states that anything posted there now belongs to them. In addition, since this was posted publicly, it also becomes 'public record' and is part of the public domain. By posting it on Facebook, that copyright is no longer exclusive--you can claim that you took the picture but you cannot demand damages or compensation if someone else uses it. This is likely why the entity did not get back in touch with you--as they obtained this off a public site, they do not see it as infringement under the circumstances, and likewise do not see the need to compensate you."

Wow, you are just getting all kinds of inaccurate advice, aren't you? That "lawyer" needs to review copyright law because the above is full of errors.

From this link : *(emphasis mine)

You own all of the content and information you post on Facebook, and you can control how it is shared through your  privacy  and  application settings . In addition:

1. For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your  privacy  and  application settings : you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it,

You grant FB a license to use your content. That doesn't mean you transfer that license if someone takes your content.

I don't know what that "lawyer" was referring to, but it's not the above. And making something publicly available does not put it into the public domain.

Seriously, where did this clown get his/her credentials? That's just not true, period. And copyright is, by its nature, exclusive. Nothing changes that.

I hope you didn't pay for that "advice".

Geez. I would go to the other guy though, with your story, per Joves' suggestion. That could be fun

It seems like on Facebook you may have allowed usage that was transferable and sub-licensable depending on how your page was set. I know photographers that typically link to their own site instead of posting their photos directly on there (or may post sample photos periodically) to control usage.

I think a rough guesstimate of usage of one photo for a limited time might be in the $1000-2000 range? I'd think what they offered you might be within range although possibly lower end. I don't know that still photos are used that often in TV commercials that usually involve a company hiring an ad agency who would hire graphic designers and actors and whatever, and for a local ad obviously it would probably be on a different scale than a national commercial.

I don't think personally I'd find it worth the cost of consulting with a lawyer for the value of the misuse of one photo, although using a reputable lawyer in your area might be a better option to get accurate legal information than from someone online.

I don't think there's any question you own the copyright to your photo, but it depends on where you posted it, what usage the website allowed, etc. I think it would be a different situation if the photo had been taken from your own website without your permission than it being taken from a social media site which put usage under their Terms.

I think I would want to have in writing that the payment was for one-time use and have it be specific.

icepics wrote: It seems like on Facebook you may have allowed usage that was transferable and sub-licensable depending on how your page was set. I know photographers that typically link to their own site instead of posting their photos directly on there (or may post sample photos periodically) to control usage.

Can you point to Ts & Cs that state this? Because I can't find it. I believe the page is irrelevant; they (terms and conditions) apply to you (as a user) and your posts as a whole.

<caveat>I keep commenting in the interest of accuracy and clarity, as opposed to opinion. I would appreciate correction for any mistakes I make.</caveat>

garyrhook wrote:

icepics wrote: It seems like on Facebook you may have allowed usage that was transferable and sub-licensable depending on how your page was set. I know photographers that typically link to their own site instead of posting their photos directly on there (or may post sample photos periodically) to control usage.

Can you point to Ts & Cs that state this? Because I can't find it. I believe the page is irrelevant; they (terms and conditions) apply to you (as a user) and your posts as a whole.

<caveat>I keep commenting in the interest of accuracy and clarity, as opposed to opinion. I would appreciate correction for any mistakes I make.</caveat>

You are correct Gary. And apparently Mr Online Lawyer does not know a thing about Copyright Law, nor licensing either. FB's ToS is merely to cover their collective butts when copies of your image show up elsewhere on the web, even after you delete from their site. FB never assigns itself rights to sell that content. This is what the whole hubbub was about when they tried to give themselves that right several years ago. Also that lawyer is dead wrong on just because you post it on any open domain site that it is fair game, I guess they never heard of the DMCA to which your image is covered under. The it is on the web and is open to use is why the DMCA was created. I would have spoken to an actual Copyright, and Trademark attorney, I have no doubt that their take would have been totally different. That you got the thousand is nice, but I personally would have raped them in court, using sand too for lube. Again that they offered to pay you after the fact is proof that they knew they screwed the pooch, and know that most people are naive about the actual laws. They lifted the image off of FB, and I am willing to bet did not even contact FB about using it. Since this was a political group they most likely have the idea that the law does not apply to them.
My suggestion to you is to never post large sized images of your work on sites like that, and Watermark them. Even though they can upsample them with software, if they remove a WM it shows criminal intent. But either way they had zero right to use it without your express permission.

Hi All

Just thought I would let you know I finally received my $1000.00 check.

Thanks again for all the info,

Chris

cnsmerz wrote: Just thought I would let you know I finally received my $1000.00 check.

Good for you!