Now It's My Turn .... Blatant Infringement

Lindsay D

Lindsay D

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Lindsay
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Over the years I've read many threads a bit like this one and we all know that cases of copyright infringement are on the increase. More of us these days have a good grasp of copyright and image usage, which helps us to stay on the ball. Normally we would approach the infringer, explain what they have done, and request a particular course of action. Usually things can be sorted out. However I am facing a slightly bigger case of infringement and it appears there are several parties involved. This makes it harder for me to tackle on my own, but I haven't before needed a specific media/IT lawyer and therefore I don't know who to speak to. I'm hoping someone here could recommend an appropriate legal person.

In brief, I was asked by a well-known photography magazine to write a feature on how I use a particular camera system in my day-to-day work. I did this, and of course whenever I submit content my terms are attached (not that that is explicitly necessary here in the UK where we are automatically afforded protection under the Copyright Act). However it's just come to my notice that the same feature has appeared in at least two other well-known photography publications, without my knowledge or consent. I did contact the original magazine editor who said he was very sorry and that the feature had been run in one of their sister magazines because that particular magazine was after some additional content and used my work as a result. However that does not explain how another separate publication got their hands on my work. The fact they are presenting this simply as an oversight isn't good enough. Magazines, especially those representing advanced amateur photographers and professionals, should know better. I feel my intelligence has been insulted, perhaps but they felt I wouldn't find out, or if I did that they could simply say sorry. Either way, the result is that my relationship with these magazines has now been damaged as I was hoping to write additional features for them in the future, but I feel that my trust has been abused.

So in summary we have a feature I wrote for a magazine, which was then used by another similar photography magazine, and also used by the manufacturer of the camera I was discussing in their own magazine. It's interesting to know whether the original editor is responsible for the distribution or if each individual publication would be culpable. I suspect the latter, but as yet I still don't know if the feature has also been distributed elsewhere.

Please note that because I am considering taking action I don't want to mention any names at this point, though it is quite possible some of you will be able to guess what and who I am talking about - if this is the case please don't name them in public until this has been sorted out. I'm really just asking for advice about how to find a good IP lawyer, and specifically I will be reliant on them working on a conditional fee basis. Fortunately this is quite a clear-cut case.
 
Lindsay D said:
the result is that my relationship with these magazines has now been damaged as I was hoping to write additional features for them in the future, but I feel that my trust has been abused.
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Lindsay D said:
So in summary we have a feature I wrote for a magazine, which was then used by another similar photography magazine, and also used by the manufacturer of the camera I was discussing in their own magazine.
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Are you absolutely sure that you want to 'take action' rather than seek to build on the possibilites?
 
Check THEIR distribution clauses. Then check how much more they're going to pay you.

The real question is, do you want to write for them again or not?
 
Hi gramps. I agree, it's always a case of weighing up any losses against any gains, but I do feel this is quite a serious and flagrant infringement. All I have been offered is the usual "sorry, we didn't mean to do it, we should have asked you but didn't". There has been no offer of compensation of course and it must be remembered that the content of the feature does relate to the camera manufacturer and there is benefit them, it wasn't just about me. I feel it would be difficult to trust these publications going forward, so I'm not sure I would want to work with them again because of how I've been treated. I also feel a bit insulted that they felt they could do it and I could just be fobbed off with the usual line.
 
CharlotteM said:
Check THEIR distribution clauses. Then check how much more they're going to pay you.

The real question is, do you want to write for them again or not?
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Charlotte, my terms are sent with any content and publication is inherent to any party accepting those terms. This would not afford them the right to distribute my work particularly as no such clauses appeared to exist. It is also difficult to quantify payment at this stage, whether it would be simply based upon what I would normally charge for a two-page feature, or the fact that this was presented as a piece weighted towards a particular camera-maker. Then there is the flagracy aspect. This is why it appears a little more complicated than how we might normally approach an infringer.

I'm really not sure I would want to write for a publication who acts in this way. Of course one can always deal with cases of infringement, but the time and stress of doing that is not very nice, as I'm finding out.
 
gramps said:
"Fair enough, we all make mistakes ... here's my additional invoice for the extra distribution, I look forward to receiving your remittance in due course".
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Quite! However I'm having a bit of difficulty placing appropriate value on this one, given that it was written up as being quite promotional and would likely benefit another party. It's also difficult to accept that it was simply an oversight, given that it ended up in other hands, not just one magazine. I guess it's the sheer deliberateness of it which has annoyed me, and the fact they obviously must've thought I would just roll over and accept it if found out.
 
Also what was written in your "terms" did you specifically state the article was to be used in ****** magazine only and no other publication? Law is a very precise and every" I " dotted and "T " crossed. Did you have your terms checked over by a solicitor or draw them up on your own? if the answer is NO, and yes to the second part, then the cost of taking legal action would be on very shaky grounds, a good solicitor/barrister would rip it into shreads and cost you a load of cash into the bargain.

If I were you I would take it as a lesson learned and get a legal watertight contract drawn up
 
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Lindsay D said:
Charlotte, my terms are sent with any content and publication is inherent to any party accepting those terms. This would not afford them the right to distribute my work particularly as no such clauses appeared to exist.
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Magazines, stock agencies, large companies etc do not usually accept terms from individual photographers/writers. Check THEIR terms that you agreed to by writing for them.
 
gramps said:
"Fair enough, we all make mistakes ... here's my additional invoice for the extra distribution, I look forward to receiving your remittance in due course".
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Seems pretty reasonable to me.(y)
 
realspeed said:
Also what was written in your "terms" did you specifically state the article was to be used in ****** magazine only and no other publication? Law is a very precise and every" I " dotted and "T " crossed. Did you have your terms checked over by a solicitor or draw them up on your own? if the answer is NO then the cost of taking legal action would be on very shaky grounds, a good solicitor/barrister would rip it into shreads and cost you a load of cash into the bargain.

If I were you I would take it as a lesson learned and get a legal watertight contract drawn up
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Bazza, I always make sure my terms are clear, that any content delivered is for one time use according to the terms as set out and there can be no further publication, distribution etc without my express consent. My contracts are correct and in fact even if I had submitted no terms at all, that would not give them the rights to use the work beyond what had already been agreed between us - ie one feature for their magazine. In that respect there are no lessons to be learned here, the law is clear and unambiguous in this regard, and I don't feel I should just roll over and suck it up.
 
If the manufacturer is using it for promotional material I'd tackle them first and say it has been distributed without authorisation from the originating magazine. Negotiate with them separately for a fat fee as it is commercial use.

I'd definitely check the magazine's terms and see whether they can publish it further, willy nilly, in sister magazines. If it says they can then you'd need further clarification on whether that is a fair or unfair contract term if all the discussion you had was to have your article published in ONE magazine and you clearly stated it was to be published in that magazine only.
 
CharlotteM said:
Magazines, stock agencies, large companies etc do not usually accept terms from individual photographers/writers. Check THEIR terms that you agreed to by writing for them.
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In these cases the photographers would need to have sight of any specific terms, and I say again that publication was based on the terms already agreed. As I understand it magazines do not automatically hold the right to use images at will unless there has been specific agreement with the originator and they have had sight of those conditions (as is the case when I submit to competitions with some of the photographic institutions I belong to).
 
srichards said:
If the manufacturer is using it for promotional material I'd tackle them first and say it has been distributed without authorisation from the originating magazine. Negotiate with them separately for a fat fee as it is commercial use.

I'd definitely check the magazine's terms and see whether they can publish it further, willy nilly, in sister magazines. If it says they can then you'd need further clarification on whether that is a fair or unfair contract term if all the discussion you had was to have your article published in ONE magazine and you clearly stated it was to be published in that magazine only.
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Yes, it was the one time usage upon which we proceeded. Sister magazines are one thing, but this would certainly not afford them the rights to distribute the content to camera makers.
 
Tagging an interest..

I'll add more this evening but thus sounds like a situation where alternative means of dispute resolution (not court) may be better for both sides - and particularly you.
 
PaulButler said:
Lindsay, not sure if these people can help, http://www.placidi.co.uk/ I have used them and found them to be most helpful and professional. They are commercial lawyers.
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Thank you Paul, and I do note your points about fees, it does sound hair-raising. I don't know how photographers manage when it comes to these things, but there seem to be success stories.

Hopefully when my anger has subsided I'll weigh up the hassles involved.
 
Alastair said:
Tagging an interest..

I'll add more this evening but thus sounds like a situation where alternative means of dispute resolution (not court) may be better for both sides - and particularly you.
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Quite probably Alastair, but it's helpful to get things off one's chest and hear opinions. I've seen a few members here over the years take legal action, apparently successfully. But I do agree there has to be a balanced approach. Hopefully by talking about it here I will be able to reach a decision.
 
Check to see whether any of the insurances you already possess have legal cover that might support action or at least finding out where you stand for certain.

I'm sure there was someone on here whose partner was an IP lawyer.
 
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To be honest.. your taking this far too personally.. I doubt anyone has taken you for a fool and hoped you wouldnt find out.. I doubt that was even thoguht about.. its just them being sloppy

My real genuine advice would be to sperate personal and business.. forget about how insulted you feel and concentrate on being paid.. then decide if you want to take the same risks again.. as believe me it can easy happen again... its the same for photo content as written content...
 
srichards said:
Check to see whether any of the insurances you already possess have legal cover that might support action or at least finding out where you stand for certain.

I'm sure there was someone on here whose partner was an IP lawyer.
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Ah yes, I did check with my insurer (Aaduki) and apparently I will only get legal help if I am the one who has done something wrong, the policy doesn't cover me if I am the victim.
 
KIPAX said:
To be honest.. your taking this far too personally.. I doubt anyone has taken you for a fool and hoped you wouldnt find out.. I doubt that was even thoguht about.. its just them being sloppy

My real genuine advice would be to sperate personal and business.. forget about how insulted you feel and concentrate on being paid.. then decide if you want to take the same risks again.. as believe me it can easy happen again... its the same for photo content as written content...
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It can be very difficult not to take it personally Kipax! Handing the content to the camera manufacturer couldn't really be attributed to sloppiness I feel, particularly as these magazines are very well versed in copyright - I think that's why I think they have simply thought I wouldn't react, or an apology would do if I found out. But you are correct that I need to consider how to gain some appropriate compensation.
 
Lindsay D said:
It can be very difficult not to take it personally Kipax! Handing the content to the camera manufacturer couldn't really be attributed to sloppiness I feel, particularly as these magazines are very well versed in copyright - I think that's why I think they have simply thought I wouldn't react, or an apology would do if I found out. But you are correct that I need to consider how to gain some appropriate compensation.
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Oh i know. we arn't robots :) But count to ten spin around and move on :) presumably whatever you where paid for the first article X how many more times it was used.. I woudlnt have thought there would be any problem getting paid for extra use.. they know they have :)
 
Could you not just send each offender an invoice for publishing your article? And include an extra amount for the inconvenience and misery caused?
 
ryanyboy said:
Could you not just send each offender an invoice for publishing your article?
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YES..I would presume they would auto pay anyways however they paid for the first

ryanyboy said:
And include an extra amount for the inconvenience and misery caused?
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NO .. thats not really how it works:)
 
KIPAX said:
I woudlnt have thought there would be any problem getting paid for extra use.. they know they have :)
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Let's hope that is the case Kipax, otherwise that is where my requests for a lawyer might come in!

Another thought is that the camera manufacturers do often commission these types of articles, where the magazine gets a handful of pro photographers who are using the equipment in question and runs a series of features which are promotional in nature. In other words, the camera manufacturer is likely paying the magazine to get the content on board. This could well explain why my feature was run again in another magazine, and why it was passed to the camera manufacturer. So the original magazine is getting paid, and I am not. That makes it even more irritating.
 
Lindsay D said:
Let's hope that is the case Kipax, otherwise that is where my requests for a lawyer might come in!

Another thought is that the camera manufacturers do often commission these types of articles, where the magazine gets a handful of pro photographers who are using the equipment in question and runs a series of features which are promotional in nature. In other words, the camera manufacturer is likely paying the magazine to get the content on board. This could well explain why my feature was run again in another magazine, and why it was passed to the camera manufacturer. So the original magazine is getting paid, and I am not. That makes it even more irritating.
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have you already been paid for the first one? As in I know they can be quite slow... no chance of redoing the invoice?
 
I'm no legal beagle, but I did study contract law for a couple of years, and you have mentioned your "contract" above.

A general principle of English contract law is that there has to be a "consideration" on both sides, in order for the transaction to be an enforceable contract (with a few exceptions). That is, I will pay you £1 and you will give me a bag of sweets. The sweets and the £1 are the considerations. If someone gives you a bag of sweets for nothing in return, there is no contract.

I haven't read every line above, but you appear to have given the magazine an article for nothing in return? If that is the case, there is no contract.

But it doesn't stop you persuing the matter for breach of copyright or whatever (of which I have little/no knowledge).

Hope this helps - just trying to clarify things a little.
 
Lindsay D said:
and of course whenever I submit content my terms are attached .
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haaa sorry.. just to pick up on this... attached how? have they agreed to the terms... or is it an attchment to an email? I mean can you even prove they read it?

I see emails sent to me.. and right at the bottom theres a legal sounding note about how the contents of the email cant be copied blah blah... means absoloutly squat...it would ahve to be at the top of the email to be valid not the bottom.. i could have copied the first part and not even read to the bottom :)

so ..not sure your terms are worth much if theres no indication that the other person has even aknoldeges there existance ?
 
JohnnyJ said:
I'm no legal beagle, but I did study contract law for a couple of years, and you have mentioned your "contract" above.

A general principle of English contract law is that there has to be a "consideration" on both sides, in order for the transaction to be an enforceable contract (with a few exceptions). That is, I will pay you £1 and you will give me a bag of sweets. The sweets and the £1 are the considerations. If someone gives you a bag of sweets for nothing in return, there is no contract.

I haven't read every line above, but you appear to have given the magazine an article for nothing in return? If that is the case, there is no contract.

But it doesn't stop you persuing the matter for breach of copyright or whatever (of which I have little/no knowledge).

Hope this helps - just trying to clarify things a little.
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John, yes, I agreed to do the original article on the basis that I would work with the magazine in the future, I'm pleased to say they did uphold that and quickly commissioned a feature about my portrait work, to be paid at normal rates, the figure of which has been agreed. So that is the Consideration I asked for, and in fact received (or at least I have written and submitted the second feature, and am about to submit my invoice for it).
 
JohnnyJ said:
I haven't read every line above, but you appear to have given the magazine an article for nothing in return? If that is the case, there is no contract.

.
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i read this was commisioned?
 
KIPAX said:
haaa sorry.. just to pick up on this... attached how? have they agreed to the terms... or is it an attchment to an email? I mean can you even prove they read it?

I see emails sent to me.. and right at the bottom theres a legal sounding note about how the contents of the email cant be copied blah blah... means absoloutly squat...it would ahve to be at the top of the email to be valid not the bottom.. i could have copied the first part and not even read to the bottom :)

so ..not sure your terms are worth much if theres no indication that the other person has even aknoldeges there existance ?
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The terms are written into the body of the e-mail where we agree to go forward - actually they are in bold as well, so there is no chance that they can be missed. I also put the agreed terms into the body of invoices.

Actually, according to the solicitor I consulted when putting together my contracts she said that providing the terms were supplied that is enough - if the recipient doesn't read them, or all of the communications you send, then that is no defence and is not my problem. But nevertheless, I do make my terms very prominent and impossible to miss. The other person does not specifically have to acknowledge them by the way - they just need to have received them before things go ahead.
 
A quick Google for First British Serial Rights (which I think is what is at issue here) revealed this:

"Normally, though, when you ‘sell’ an original article to a publication, you are only selling one-time use – or First British Serial Rights. Think of this as ‘renting’ your article out for, say, the month the magazine is on the shelf. The actual term is ‘licensing’. If rights terms are not discussed, or you are not given a contract, these are the usual ‘default’ rights."
http://mistakeswritersmake.blogspot.co.uk/p/copyright.html#Contracts
 
Lindsay D said:
John, yes, I agreed to do the original article on the basis that I would work with the magazine in the future, I'm pleased to say they did uphold that and quickly commissioned a feature about my portrait work, to be paid at normal rates, the figure of which has been agreed. So that is the Consideration I asked for, and in fact received (or at least I have written and submitted the second feature, and am about to submit my invoice for it).
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haaaaaaaa......freee!!... you ahve options.. but if you want to move on.. get more work and keep everyone happy... forget about the extra use.. take the new work and build... thats what i would do.. others will give other advice i am sure.. but making a stand coudl put you back a few steps.. go forward :)

had you been paid for the original my advice would be different ..
 
KIPAX said:
i read this was commisioned?
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The magazine commissioned the articles, as in they approached the relevant photographers as they would normally. However as I mentioned earlier camera manufacturers also "commission" these things with the magazines themselves, and I may be correct in presuming that the camera manufacturers would therefore pay the magazines for gathering this kind of content. So it's reasonable to think that the camera manufacturers might also pay the magazine each time the content is published, or even paper magazine for selling the content to them. This could explain how my feature ended up in the camera manufacturer's own magazine.
 
Ed Sutton said:
A quick Google for First British Serial Rights (which I think is what is at issue here) revealed this:

"Normally, though, when you ‘sell’ an original article to a publication, you are only selling one-time use – or First British Serial Rights. Think of this as ‘renting’ your article out for, say, the month the magazine is on the shelf. The actual term is ‘licensing’. If rights terms are not discussed, or you are not given a contract, these are the usual ‘default’ rights."
http://mistakeswritersmake.blogspot.co.uk/p/copyright.html#Contracts
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Yes, I specifically licensed the content for one-time use. I often licence my work and I always make sure that the terms are clear and that the recipient either accepts them or comes back to me to agree any amendment before proceeding.
 
One thing I learned many years ago was that when you are wronged or given bad service always seek to negotiate a solution not an argument!

The second thing is that once you get the legal people involved they are the ones going to gain most out of the situation.

Now, imagine that you are not the "wronged" party and that you are counselling someone has been wronged. Try to gain some separation before you do anything else.

Best of luck with it.
 
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