Don't sell yourself cheap...

January 31, 2019  •  2 Comments


Stolen imageStolen image...Stolen images can appear on any websites or in or on books, T-Shirts, Mugs, Key-rings etc It is worthwhile to search for your best liked images not only online but keep your eye open in markets, bazaars, etc.

Has this happened to you?

A company contacts you and says in their email that they love your image on your social media site and they would like to use it for a campaign or advert. You get excited as you feel honoured that a photo of yours has been selected by a company. 

Two things might go through your mind now, what should I ask and should I give it away for free.

I have been in the same situation and have done the wrong thing. My scenario was, a company wanted one of my light painting photo for an upcoming story. I ask about the terms and conditions of how they wanted to use it. They gave me the information with no issue, saying that my name will be in the story and that I will keep my rights. I told the company that they can download a copy from my website for a fee. 
A day later, I received an email asking how they could download it and after I said that they need to click on buy. A return email came promptly saying that they don’t pay for the image but still want to use it. After some consideration, I reluctantly sent the company my image with clear terms and conditions.

In hindsight, I should not have given away my photo. First, it makes me look cheap. It gives me no financial gain to cover my costs, even though I am not a professional photographer, I still have costs associated with my photo. Think about travel expenses, gear, my time for the shoot and post-processing, etc. Also, by giving away my photo I hurt the professional photography industry. In the past, photographers could live of selling images to companies. Nowadays companies expect to find it online for free. Finally, if you give a photo to a company for free, don’t think that if they’re looking for paid work that they will choose you. You have set your price to free, so the company which has a set budget will go for someone who will have set prices in place next time.

So your image is stolen, what next...

Sulphur TshirtStolen image on T-ShirtYour image might turn up in unexpected locations...

(Disclaimer: I am not an Intelectual property lawyer, in fact, I am not a lawyer - period. All advice, comments, views are not to be taken as truth. I have done my best to research the topic as good as I can. BUT, if you do have a copyright issue, please consider the advice of a good lawyer. I do not take any responsibility for any false information given, outdated information or otherwise wrong advise.)

The following thoughts and information are in accordance with my knowledge of the ‘Australian Copyright Laws’.

You discover that your image was stolen by an individual or company. Here in Australia you, as the Photographer, own the copyright to your photos (please visit this website: Copyright.org.au for the full teardown as it depends on your relationship with third parties involved with your shoot). You don’t have to register your work here in Australia as the law states that you are covered from the minute you capture that photo. In my scenario, no third party was involved in creating the image. In the US however or if someone from the US has infringed on your copyright, to be able to successfully pursue your case in the US, your images need to be registered in the US. Please refer to The Copyright Zone for more information.

With individuals stealing your work, it is the best to send a cease and desist’ email or letter. The chance that you get any money out of them is slim. However with the email, you have shown your seriousness and if you want to go for legal actions, you can show you have approached the individual. 

In case of a company stealing your work, I advise you to talk to an Intellectual Property Lawyer in your local area. Do not send anything before you had a chance to talk to a lawyer. Companies will ignore your payment letter unless it has a lawyers letterhead. Second, if you have sent off a letter with an amount to pay in it, the company might take that against you if it comes down to a court case. Which means they can argue to pay you only for as much as you were chasing in your letter. An IP lawyer might be able to argue more money out of the company stating that they have to pay damages and lost profits.

I strongly believe it is worth pursuing your rights and chase companies, BUT do it right and inform yourself and gather information BEFORE you send any letters or emails. With gathering information I mean, take a screenshot of the website your image is shown, including date and time of your computers taks bar if possible. Buy the T-shirt, mug, beach towel etc. your image is printed on. Try to get peoples names who are involved, etc. That all will help you when you approach a lawyer.

If you do have a case and it is looking to be a strong one, in your own opinion, go to the IP lawyer in your local area, the money is well spent (and you might recoup it in your case).

Good luck...

As mentioned a few time, I am not a lawyer and this blog post is only a guideline. I do not take any responsibilities for any wrong information.

Australian Copyright: www.copyright.org.au

Arts Law Centre of Australia: www.artslaw.com.au

US copyright: www.thecopyrightzone.com

All other countries: please search for your government section which deals in copyrights or better speak to an IP lawyer in your local area.

 


Comments

Spohr Photography
This is the response from Spohr Photography regarding the question from Douglas about fair use:

Basically, you can not just use and/or sell someone’s photo/work just because it is on a social media platform. Copyright still applies. Also, fair use would not cover you if it comes to a copyright infringement lawsuit.

But!

I can only speak about Australian Copyright laws as this is my country of residence.

According to Copyright.org.au, this is the answer:
Q: Can I use someone else’s work without permission under fair use?
A: “Fair use” is a copyright exception used in other jurisdictions such as the United States and does not apply in Australia. In Australia, our copyright exceptions are known as fair dealing which works very differently to “fair use”.

For details on Australia’s copyright exceptions, see our information sheet Fair Dealing: What Can I Use Without Permission?

For all other countries, you would need to go to their copyright legislation.

For the US advise: www.thecopyrightzone.com

I hope this helps you a bit further.
Douglas J Kryder(non-registered)
I have wondered about fair use after you place the photo in the public domain, like mewe. What does your lawyer say about fair use?
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