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

[Lindsay D]

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.

Very true, and very good advice. I think my worry is that I may not get very far with seeking restitution and would have to pursue a more formal route, hence trying to arm myself in advance.

 

[simonblue]

To be honest.. your taking this far too awser.. 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...

Very good advice,i know sometimes i can take things to personally,and the only thing that happen is it end up just affecting me everybody else has moved on,i hope you do end up getting paid for your work

 

[MartynK]

Lindsay, you've asked for advice, so this is mine.

1. First of all, calm down. I'm not an attorney but I work with a lot of them, and they all lick their chops when a client is angry, feels insulted, and is determined to proceed because of the "principle" involved. It's Friday afternoon, and I'd just try to relax over the weekend. There's no great rush, no-one is going anywhere, and nothing is going to happen until next week anyway. Think this over, and see if there's a way forward that might work out better for you, as others have suggested. There's nothing to lose, and you can still escalate the matter if you want to
   
2. Find out if there's a university law clinic anywhere in your area. These are usually staffed by final year law students, under the supervision of faculty lawyers, and their services are normally free. Go and see them, and take copies of all mail correspondence, details of telephone calls (date, who you spoke to and what was agreed) and contracts/terms and conditions. Get an informed, and impartial, opinion of where you stand before going any further.
3. If you still want to initiate legal action, find an attorney who will give you a free first consultation. You said this is "quite a clear-cut case", and it sounds fairly straightforward, so you probably don't need a specialist IP lawyer. They're usually expensive, and a conditional brief often involves some risk for the client too. Is the potential amount involved sufficient to justify this?
4. Just be aware, that involving attorneys may get you some satisfaction, and a payment, in the short term but work against you in other ways. I'd try for an amicable solution that leaves all parties feeling comfortable about working together again.

 

[Lindsay D]

Lindsay, you've asked for advice, so this is mine.

1. First of all, calm down. I'm not an attorney but I work with a lot of them, and they all lick their chops when a client is angry, feels insulted, and is determined to proceed because of the "principle" involved. It's Friday afternoon, and I'd just try to relax over the weekend. There's no great rush, no-one is going anywhere, and nothing is going to happen until next week anyway. Think this over, and see if there's a way forward that might work out better for you, as others have suggested. There's nothing to lose, and you can still escalate the matter if you want to
   
2. Find out if there's a university law clinic anywhere in your area. These are usually staffed by final year law students, under the supervision of faculty lawyers, and their services are normally free. Go and see them, and take copies of all mail correspondence, details of telephone calls (date, who you spoke to and what was agreed) and contracts/terms and conditions. Get an informed, and impartial, opinion of where you stand before going any further.
3. If you still want to initiate legal action, find an attorney who will give you a free first consultation. You said this is "quite a clear-cut case", and it sounds fairly straightforward, so you probably don't need a specialist IP lawyer. They're usually expensive, and a conditional brief often involves some risk for the client too. Is the potential amount involved sufficient to justify this?
4. Just be aware, that involving attorneys may get you some satisfaction, and a payment, in the short term but work against you in other ways. I'd try for an amicable solution that leaves all parties feeling comfortable about working together again.

Thank you Mark, and to everyone else for offering very good advice. I think it's a good thing to go on a forum and get all this stuff aired, to have a gold old rant, it really does help a person to calm down. I've seen other go through this process and it does help. I have taken some legal advice and I am aware of the possible options open to me, however I know from prior experience (even though I was successful) how stressful this can be and it will remain a last resort.

On a positive note it appears that word of this thread has somehow got around - in response I am pleased to say that I have received a phone call from the publishing group this afternoon and the conversation was perfectly amicable, the caller entirely recognises what has happened and has asked me to consider suitable remedy. Hopefully that will avert any need for formal intervention. As Kipax alluded, you do get the point where it becomes so commonplace (unauthorised use) that all it takes is one more event, on the wrong day, to really wind you up. However it sounds like on this occasion it can be sorted out in a friendly way. At least I hope so. Interestingly, I am also left pondering my relationship with the camera manufacturer concerned.

 

[ancient_mariner]

However it sounds like on this occasion it can be sorted out in a friendly way. At least I hope so. Interestingly, I am also left pondering my relationship with the camera manufacturer concerned.

Lets hope so. Far better that this can be resolved amicably, and that because you have developed a closer relationship with them there is more work flowing toward you. I'd guess too that photography publication is a tiny world, where everyone knows everyone else and good reputations for being pleasant and cooperative are valuable when work is being commissioned.

As for the camera manufacturer, there's surely no reason why a decent commercial fee can't come from them too, and if they like your work enough to publish it maybe something can be worked out with their PR people in the future.

This sounds as though there's a lot of potential win, so hopefully everyone will come out well.

 

[BBR]

Thank you Mark, and to everyone else for offering very good advice. I think it's a good thing to go on a forum and get all this stuff aired, to have a gold old rant, it really does help a person to calm down. I've seen other go through this process and it does help. I have taken some legal advice and I am aware of the possible options open to me, however I know from prior experience (even though I was successful) how stressful this can be and it will remain a last resort.

On a positive note it appears that word of this thread has somehow got around - in response I am pleased to say that I have received a phone call from the publishing group this afternoon and the conversation was perfectly amicable, the caller entirely recognises what has happened and has asked me to consider suitable remedy. Hopefully that will avert any need for formal intervention. As Kipax alluded, you do get the point where it becomes so commonplace (unauthorised use) that all it takes is one more event, on the wrong day, to really wind you up. However it sounds like on this occasion it can be sorted out in a friendly way. At least I hope so. Interestingly, I am also left pondering my relationship with the camera manufacturer concerned.[/quote

Think I would settle for two new full frame cameras FOC by way of recompense. It may be worth it to them to void being named and shamed!

Glad it looks like you going to be able to get it sorted amicably.

 

[Deleted member 67219]

if they like your work enough to publish it maybe something can be worked out with their PR people in the future.

The only thing I would say is that it's a very small business and I'd personally be seeking to get TP to remove this thread. Getting a reputation as being difficult will be hard to shift for someone wanting to work with this industry.

Posting on a forum before picking a phone up (when you can be identified easily) seems a strange course of action.

 

[g7swz]

You said in your original post "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."

Is it in fact the manufacturers "own magazine" or one of the independent magazines which specialises in one make of camera?

I believe that the two most well known one make magazines are owned and published by organisations who have other photo magazines in their portfolio and that they are not controlled in any way by the camera manufacturer.

I have never written any article for a photography magazine but have in the past written articles for local and national newspapers and for professional journals.

Where such articles were commissioned by the publisher of the paper / magazine it was usual for the terms and conditions to be specified by the publisher and for those terms and conditions to include the right to distribute the article further either with or without remuneration or further acknowledgement to the writer.

In my experience the only time that a writer can specify his or her own conditions is where the article is submitted for publication as against being commissioned to write it and even then it would not be unusual to find a publisher saying that they would only accept an article on the basis of their own terms and conditions.

As has already been said litigation would be very expensive and would possibly cost more than any compensation received.

I think that, as others have suggested, your best way forward would be to go for an amicable settlement and hopefully some remunerated future work.

 

[Lindsay D]

The only thing I would say is that it's a very small business and I'd personally be seeking to get TP to remove this thread. Getting a reputation as being difficult will be hard to shift for someone wanting to work with this industry.

Posting on a forum before picking a phone up (when you can be identified easily) seems a strange course of action.

I'm not sure what you mean by a very small business Charlotte, and pursuing copyright infringement (or specifically seeking compensation for commercial services) is not "being difficult". In fact picking up the phone was the first thing I did this morning. Please don't be so quick to make assumptions. Nor is there anything wrong with seeking opinions on the forum, if you look at many similar threads you will see how valuable it can be. And I do feel it has been very valuable to get things off my chest here, it is made it much easier for me to deal with the situation, and I have received good advice.

 

[Lindsay D]

You said in your original post "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."

Is it in fact the manufacturers "own magazine" or one of the independent magazines which specialises in one make of camera?

I believe that the two most well known one make magazines are owned and published by organisations who have other photo magazines in their portfolio and that they are not controlled in any way by the camera manufacturer.

I have never written any article for a photography magazine but have in the past written articles for local and national newspapers and for professional journals.

Where such articles were commissioned by the publisher of the paper / magazine it was usual for the terms and conditions to be specified by the publisher and for those terms and conditions to include the right to distribute the article further either with or without remuneration or further acknowledgement to the writer.

In my experience the only time that a writer can specify his or her own conditions is where the article is submitted for publication as against being commissioned to write it and even then it would not be unusual to find a publisher saying that they would only accept an article on the basis of their own terms and conditions.

As has already been said litigation would be very expensive and would possibly cost more than any compensation received.

I think that, as others have suggested, your best way forward would be to go for an amicable settlement and hopefully some remunerated future work.

In every case when I have written for a photography magazine of this kind, I submit the work with my terms and conditions attached which are pre-agreed before publication takes place, so there is no provision for syndication of the content (edit: unless specifically agreed to). The terms are discussed in the first instance as well, so if there were specific contractual requirements on the part of the magazine this is when they would be raised. In fact I have now received an apology from the publisher who has assured me it was a genuine oversight and will not happen again. I fully agree that the route of an amicable settlement is always the best way forward and this is the intention. With respect to specific terms, perhaps it depends on who you're dealing with and whether or not you raise the matter of terms when first negotiating.

 

[Lindsay D]

sorry, double post

 

[ancient_mariner]

Sometimes we also just need a place to vent and think out loud with others who can help & sympathise. Everything has been kept respectful and no mud has been thrown so far.

 

[Lindsay D]

Sometimes we also just need a place to vent and think out loud with others who can help & sympathise. Everything has been kept respectful and no mud has been thrown so far.

Yes, I think that's very important - without someone to talk to about these things you can end up bottling it up and getting more and more frustrated, perhaps even leading to acts which are rash and counter-productive. Sometimes these threads are also helpful to others, and it's also useful for others to see that some publications do act honourably. It can be very easy for people to suggest that you're being difficult if you seek opinions or pursue infringements - but I suspect those people don't depend on photography for their existence, which is why they they may not fully understand how it feels, how frequently this happens, and the effect it can have on your income.

 

[Deleted member 67219]

It can be very easy for people to suggest that you're being difficult if you seek opinions or pursue infringements - but I suspect those people don't depend on photography for their existence, which is why they they may not fully understand how it feels, how frequently this happens, and the effect it can have on your income.

That appears to have been backhandedly aimed at me - I'm actually a photography journalist. Writing for photography magazines. That's pretty much my only job.

 

[Lindsay D]

That appears to have been backhandedly aimed at me - I'm actually a photography journalist. Writing for photography magazines. That's pretty much my only job.

I understand you're not a full-time photographer Charlotte and for that reason you will probably (thankfully) not have faced some of the ongoing (and at times absolutely infuriating) battles that some of us here have, almost every month if not more, when our work is infringed. Every time that happens, it represents lost income, and pursuing it can be very time consuming and also stressful. As a writer I understand you are also open to plagiarism (in fact as a frequent blogger I have suffered that as well) which is no better, though I would say much less frequent and less commercially damaging. Unless you've had your work misused it can be very difficult to appreciate how it feels - it's also hard to see each incidence separately, what tends to happen is that it builds up over time and it becomes something which really sets your teeth on edge.

 

[theurbanclown]

I'm not sure what you mean by a very small business Charlotte, and pursuing copyright infringement (or specifically seeking compensation for commercial services) is not "being difficult". In fact picking up the phone was the first thing I did this morning. Please don't be so quick to make assumptions. Nor is there anything wrong with seeking opinions on the forum, if you look at many similar threads you will see how valuable it can be. And I do feel it has been very valuable to get things off my chest here, it is made it much easier for me to deal with the situation, and I have received good advice.

She can get like that, it's best to just ignore her.

 

[Deleted member 67219]

I understand you're not a full-time photographer Charlotte and for that reason you will probably (thankfully) not have faced some of the ongoing (and at times absolutely infuriating) battles that some of us here have, almost every month if not more, when our work is infringed. Every time that happens, it represents lost income, and pursuing it can be very time consuming and also stressful. As a writer I understand you are also open to plagiarism (in fact as a frequent blogger I have suffered that as well) which is no better, though I would say much less frequent and less commercially damaging. Unless you've had your work misused it can be very difficult to appreciate how it feels - it's also hard to see each incidence separately, what tends to happen is that it builds up over time and it becomes something which really sets your teeth on edge.

*Was* a photographer full time. Actually, but now I am a journalist.

I appreciate it's difficult to see your work constantly being infringed. The bulk of my photographic income is now from stock agencies and art sales so I do see it happening rather alot (not to mention the thieving of my personal work which is mostly glamour and nudes).

I understand it's not very pleasant when, as a creative, you see your work being taken from you. I understand that's made more difficult when you prefer to be paid for your work (because lets face it, lots of people just like seeing their work being used).

But the photographic magazine industry and even the UK photography industry is rather a small one and things do quickly get back to people - as you said yourself earlier on this thread that the editor had seen it. Editors and staff hop around to different magazines, different publishers etc and they take with them preformed opinion. While Facebook is generally not seen as a good place for constructive discussions actually closed groups or your personal page are perfect places to have discussions like this that are possibly best not made public.

I do hope this works out well for you and you get paid for each additional usage like you hope (and even get some extra for the misunderstanding on their part - doesn't hurt to ask!). I do think that discussing taking legal action on an open photography forum that is very country specific was not the best course of action - legal action is very much something that should be an absolute last resort. However what is done is done and nothing can be changed. Take this in the spirit it is intended - that sometimes rants and vents are best to be had privately because otherwise they can slur an otherwise excellent public reputation. We're all figuring out how to use social networking to it's best advantage and I know that I'd personally be very upset if I went online and saw a contractor/supplier ranting about me on an industry forum to their peers. I'd have preferred to have sorted it out privately first.

 

[Lindsay D]

I understand it's not very pleasant when, as a creative, you see your work being taken from you. I understand that's made more difficult when you prefer to be paid for your work (because lets face it, lots of people just like seeing their work being used).

But the photographic magazine industry and even the UK photography industry is rather a small one and things do quickly get back to people - as you said yourself earlier on this thread that the editor had seen it. Editors and staff hop around to different magazines, different publishers etc and they take with them preformed opinion. While Facebook is generally not seen as a good place for constructive discussions actually closed groups or your personal page are perfect places to have discussions like this that are possibly best not made public.

I do hope this works out well for you and you get paid for each additional usage like you hope (and even get some extra for the misunderstanding on their part - doesn't hurt to ask!). I do think that discussing taking legal action on an open photography forum that is very country specific was not the best course of action - legal action is very much something that should be an absolute last resort. However what is done is done and nothing can be changed. Take this in the spirit it is intended - that sometimes rants and vents are best to be had privately because otherwise they can slur an otherwise excellent public reputation. We're all figuring out how to use social networking to it's best advantage and I know that I'd personally be very upset if I went online and saw a contractor/supplier ranting about me on an industry forum to their peers. I'd have preferred to have sorted it out privately first.

Charlotte, you have raised one of the main causes of the infringement tsunami we see today - that of many photographers being too keen to see their work in print - oh the flattery!

I'm sure you're right that the magazine industry can be a small world, as evidenced by the fact that this thread appears to have been brought to the attention of one of the people I spoke to today at the publishing house. However, magazine publications aren't going to be a significant income stream and if I'm blacklisted for some reason, then so be it. I personally don't see anything wrong in discussing it here, many people have done that over the years with no detrimental effects. These threads follow a bit of a formula, an opening discourse by a distressed person, followed by the replies and chitchat, and the OP feels better and takes a well tempered course of action. I think if there is slander or false accusations then that can be distinctly unwise, but there is none of that here. Plus I think it's very difficult to vent in private! I don't think reporting an infringement and seeking advice would or should slur my reputation, unless somebody specifically sets out to slander me for doing it. Once again, the 'rant' in question is a very valid one and concerns an issue which many of us suffer from - it can be difficult to sort something out privately when other people are getting in touch with you and waving the stuff under your nose. The fact is, my terms were clear, agreed, but were not adhered to for some reason. But I'm sure it will be sorted out and then I can come back on here and confirm that I have had the pleasure in dealing with a very honourable publisher.

By the way, I don't think that I mentioned any names anywhere (but I will double check), so I am curious about your response.

 

[Pookeyhead]

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.

I'm not going to ask how much you were paid, but I know editorial work... I used to do a lot of it, so I know how much Magazines pay for stuff, and I imagine writing doesn't pay any more than photography. Is this worth it? It's an article about you and how you use the equipment.... and therefore your business, in a major camera manufacturer's magazine publication? Maybe Gramps advice right at the top is the best to consider here. You do what's best for yourself. Is suing them for a relatively small amount of money actually going to help you? Most people had never heard of Chase Jarvis until he became affiliated with Nikon. Maybe that's worth thinking about.

I know Photgraphers, writers, illustrators.... ALL get shafted regularly, and we ALL have to put up with the, "We have a great opportunity for you to get your work publicised... unfortunately we don't have a budget" bullsh1t all the time, but sometimes... you can play them while they're playing you. Can you not build on this? You could go to war for chump change, feel victorious but essentially have nothing more to show for it, or you may have an opportunity to network and build a relationship.

I know which I'd rather do.

 

[Lindsay D]

Hi David, what you say is absolutely true and I have been a photographer for long enough to have faced all of the things you mention. I have had quite a lot of work published, with fair terms (which I insist on) - until now. I must stress something very important (which is the reason why I have become quite angry and upset over this) - this is NOT designed to be a feature about me - it is purely about promoting the camera company's latest camera body, and how a given professional (me) has reviewed it and uses it, with a lot of very specific questions answered. The camera company, as I understand it, will be paying the magazine(s) quite well to run these adverts. I hope you can now see why I am very annoyed by what has happened. This must not be confused with editorial work, which I also do, and I'm very familiar with the pricing structure for that.

In short, it appears that I am expected to advertise and promote commercial products, in mainstream photography magazines, for absolutely no reward from either the publication or the camera manufacturer. Whilst I am happy to do a one off favour to the original editor, in exchange for something else, the widespread multiple publication of an advert (which was specifically restricted to one run in the original agreement) is completely unacceptable and I do deserve and expect appropriate compensation. There are no excuses for this, and the excuse and apology which was offered to me is immaterial, it doesn't close the matter - what this has done is vastly increase commercial exposure for the camera manufacturer as well as generating valuable content for the magazines concerned, it does not generate positive exposure or any revenue for me. This has been recognised as I mentioned in the telephone conversation I had yesterday and I look forward to things sorting themselves out once an agreement has been reached. The question is whether an acceptable agreement can be put into place - and what action I might take if it isn't.

Sometimes an event happens and it's the straw which breaks the camel's back - I think this is one of these occasions, because it's quite a big infringement given that it involves commercial content. I cannot be expected to subsidise other people's profits on my own overhead and my own time. Once again, unless you are a photographer who depends on photography as their sole form of income, it may be very difficult to you to relate to how I'm feeling and what I'm saying. There tends to be a considerable divide between professionals and amateurs on this.

 

[Pookeyhead]

Pick up the phone.. talk to people. Don't start lighting the blue touch paper on solicitors. It will end in tears... yours. You may get a slice of the financial action, you may not... but legal action should always be the last recourse when all other avenues are exhausted... not a default go-to position.

unless you are a photographer who depends on photography as their sole form of income, it may be very difficult to you to relate to how I'm feeling and what I'm saying.

Been there, done that

There tends to be a considerable divide between professionals and amateurs on this.

Don't assume anything.. I'm far from an amateur. I just realise through experience, what can immediately seem unfair, unjust and a blatant p*ss take, can be turned to a longer term advantage, even if you feel hard done by, abused, and out of pocket now.

Explore the possibilities before you start a legal battle.

[edit].... arrrgh!!... why does it keep posting when I hit return????


where was I.....

If at the end of the road, you absolutely can't get anywhere, and it's clear that there's no mileage to be had from anyone, anywhere.... then sure... go ahead, but I'm not sure if you've done that yet from what you are saying. Suing people should never be the first option. It can be short sighted.

 

[Lindsay D]

I quite agree David, and there were phone calls yesterday. Legal action should always be a last resort, but it can be useful to at least know who to contact should it come to it. I think most publishers and businesses these days do believe that if something like this happens the photographer will just suck it up and roll over - amateurs might, professionals probably won't.

 

[Pookeyhead]

I had trouble posting there...... I had to make a few edits.... just in case you read my post pre edit.

Professionals often do weigh options very carefully before waging war. I'm not suggesting you suck it up and roll over - I'm suggesting you fully explore the possibilities longer term before you appear intractable, reactionary and volatile to others in an industry where everyone knows everyone else.

While publishers often behave appallingly when it comes to abusing moral and intellectual rights, they are the people who pay you ultimately, and it's not a huge industry... and it's a highly networked industry. Once your name becomes associated with someone who starts legal action as soon as anything in your license is breached (either intentionally or otherwise), you'll be persona non grata in next to no time. After all.... they hold the purse strings.. they pay you... not the other way around. Is it immoral that they constantly try to screw creatives over? Of course... but if you kick up a fuss... they'll just move on to someone more tractable than you. Photographers are ten a penny.. so are writers.

Negotiate from a position of strength and righteousness..... don't start suing people. You'll not gain respect if you do. However, acting reasonably often does, and longer term relationships can be forged. You're not unique and you're not indispensable. You need to remember that. The world is not fair... no matter how many laws there are to protect you.

 

[Lindsay D]

David, please don't misunderstand me, you may have missed a couple of my previous comments. I do not think taking exception to widespread commercial infringement is being intractable or difficult. And actually this is about not being paid at all. I do not rely in any way upon magazines publishers and the decision to write large features has been a recent one, and one I can easily walk away from, it is not a significant or important part of my photography business. If anything, this experience has turned me off from doing further magazine work, it doesn't seem worth it. Nor have I suggested that legal action itself would be anything other than an absolute last resort. I'm sorry you feel that this equates to questioning my professionalism - feel I have acted perfectly reasonably in this, and I do agree with what you say about approaching things carefully.

 

[redhed17]

I've found this an interesting thread, and applaud Lindsay for bringing it forum. It is the kind of thread that informs others, Pro and Amateur alike. Throughout this thread no names have been mentioned, wisely by Lindsay, and I think it has been good that no one has asked with regards to a hopefully successful conclusion.

Magazines may think that some contributors may take problems like this because the Photo magazine industry is a small world, and it may harm future offers of work, but what about the magazine getting a bad reputations for ripping people off? Mistakes can happen, and it is how the mistake is acknowledged (if at all) and if and how the person wronged is satisfactory compensation, whether that be financially or with work in the future.

As for not bringing something like this to a forum, it sounds like Lindsay has found it a positive action so far. For many, Photography whether it is a business or a hobby, is a solitary endeavour, being able to share with others who share same interest (for want of a better word), may be a good sounding board at a possibly stressful and upsetting time. And frankly is why a lot of us are here in the first place. You may also get advice on paths to take to resolve the situation to a satisfactory conclusion, as well as a shoulder to cry on or a place to vent. Keeping quiet about such things helps nobody but the copyright infringer.

It looks like the magazine has admitted their error, and it is now up to the magazine and Lindsay to negotiate a conclusion that both parties are happy with, but most importantly Lindsay is happy with. Fingers crossed it is done quickly and amicably.


I have only had one image (so far as I know) used without my consent (taken from a thread I posted here coincidently) and it is not a nice feeling when it happens. That obviously different to Lindsay's situation. However, if you are an amateur like me though, threads like this and others, and threads you may start yourself about misuse of copyright are very useful and helpful. Hopefully we will see them less and less, because it happens less, not because people are keeping quiet about it, but infringements need to be highlighted, and for serial infringer's, as a last resort, named so as people can make an informed choice whether to commence business with them. In this case we may not know who the magazine or camera manufacturer are, and as long as Lindsay is happy with the end result, that's fine.

 

[GeeJay57]

I should start my response by stating that I am not a professional photographer or journalist, but instead have a background of about 40-years in engineering.

Being ripped off sucks, plain and simple. Doesn't matter whether it's a photograph or article or something else. FWIW engineers get taken for a ride just like anyone else.

In my experience there is much more likelihood of an acceptable outcome if the legal teams are only brought in after reasonable dialogue has failed. Bring them in too soon and pretty much everybody ends up talking through their lawyer.

The situation described in this thread suggests to me that there is still potential for some reasonable dialogue to be had. Being retrospectively paid for the additional use would seem to be possible and the least difficult route for all concerned. I'd be surprised if the publisher has refused to pay up, unless it says they don't have to in their terms and conditions. Most big firms will not accept the T&Cs of smaller suppliers. The company I worked for until the end of last year absolutely would not accept other T&Cs.

As a major manufacturer has used your work, perhaps you could develop that into an opportunity to make a regular contribution to their publication?

Anyway, I've meddled enough. I hope you get your due..

 

[Lindsay D]

The situation described in this thread suggests to me that there is still potential for some reasonable dialogue to be had. Being retrospectively paid for the additional use would seem to be possible and the least difficult route for all concerned.

As a major manufacturer has used your work, perhaps you could develop that into an opportunity to make a regular contribution to their publication?
.

Hi Glenn, you are right that these are the logical remedies. However it can be much harder than many people realise for photographers to be paid retrospectively, as evidenced by what appears to be an increasing number of law suits brought against infringers. However I don't expect that to be the case here and I have no reason to believe that the publishing house in question is not otherwise honourable. With respect to developing a relationship with camera manufacturers, that is quite interesting and is also an area where things have changed. Just a couple of weeks ago I was talking on another forum to a very good photographer who had been asked by a leading camera manufacturer (not the one I'm involved with) if they could use one of his fantastic images in an advertisement for one of their cameras. The photographer was asking advice about an appropriate fee to suggest. But here's the thing - the big global multinational camera manufacturer was not prepared to give him anything in exchange. This to me is beyond reprehensible and does much to highlight the problems which have been caused by the many very good photographers who have been all too quick to willingly give away their intellectual property. This is why many book or magazine publishers offer little or nothing for the content provided to them and they may have developed a mindset whereby infringement is not always given the consideration it deserves.

 

[kestral]

Hi Glenn, you are right that these are the logical remedies. However it can be much harder than many people realise for photographers to be paid retrospectively, as evidenced by what appears to be an increasing number of law suits brought against infringers. However I don't expect that to be the case here and I have no reason to believe that the publishing house in question is not otherwise honourable. With respect to developing a relationship with camera manufacturers, that is quite interesting and is also an area where things have changed. Just a couple of weeks ago I was talking on another forum to a very good photographer who had been asked by a leading camera manufacturer (not the one I'm involved with) if they could use one of his fantastic images in an advertisement for one of their cameras. The photographer was asking advice about an appropriate fee to suggest. But here's the thing - the big global multinational camera manufacturer was not prepared to give him anything in exchange. This to me is beyond reprehensible and does much to highlight the problems which have been caused by the many very good photographers who have been all too quick to willingly give away their intellectual property. This is why many book or magazine publishers offer little or nothing for the content provided to them and they may have developed a mindset whereby infringement is not always given the consideration it deserves.

The way it reads to me is that they are not honourable at all.They got caught out by this thread.They did not offer you anything other than an insulting apology.It looks like you have changed your opinion now which you should not have done still be angry even if you get paid some more.They tied to con you like they do most togs.:banghead:

 

[andy1868]

My advice would also to be have a sit down with the editor before digging trenches. If it were me in the situation I would be tempted to just say you would be willing to take the extra pay in return for the work being used elsewhere (2 pay-checks for doing one assignment sounds alright to me!) The editor may already be feeling rubbish about the situation, rightfully or wrongfully and may simply want to bring the situation to a speedy close. Being firm from the start will show them that you're not going to be messed around to help avoid a similar situation in the future, but will avoid a costly legal battle and a total burning of bridges.

If all else fails, threaten the legal action

My 2 cents

 

[rudolf hucker]

Lindsay - pm me please for a relevant, private response - & intro to a very, very good IP specialist lawyer who helped me enormously last time I went down this route

 

[Lindsay D]

The way it reads to me is that they are not honourable at all.They got caught out by this thread.They did not offer you anything other than an insulting apology.It looks like you have changed your opinion now which you should not have done still be angry even if you get paid some more.They tied to con you like they do most togs.:banghead:

Hi Kestral, a senior member of the publishing group has come back to me and seems keen to sort this out, rather than simply turning their back as some businesses will. They have certainly understood that an apology is not enough in a situation like this. I assure you I am still very angry that this has happened, but at least we appear to be making some progress which is a positive start.

 

[Lindsay D]

My advice would also to be have a sit down with the editor before digging trenches. If it were me in the situation I would be tempted to just say you would be willing to take the extra pay in return for the work being used elsewhere (2 pay-checks for doing one assignment sounds alright to me!) The editor may already be feeling rubbish about the situation, rightfully or wrongfully and may simply want to bring the situation to a speedy close. Being firm from the start will show them that you're not going to be messed around to help avoid a similar situation in the future, but will avoid a costly legal battle and a total burning of bridges.

If all else fails, threaten the legal action

My 2 cents

Your advice is very sensible Andy and I will be speaking further with the publishing group next week after I have considered the best way to rectify this. As you say, it should be simply a case of settling appropriate compensation for the additional use and any future use. I'm sure the editor does want to sort this out, it has certainly been a major blunder on their part. I think they have realised pretty quickly that I'm not someone who will be messed about. Not that I expect that to happen of course. I'm a reasonable person and any compensation I suggest will be reasonable, but it must be reasonable to both parties and not just themselves. If I am subsequently regarded as difficult for standing up for my rights (and in fact photographers' rights in general) then so be it.

Having now been in communication with them I am quite happy to give them the benefit of the doubt. But the publisher is, I'm sure, being well paid by the camera manufacturer to host these advertorials (which each run across a spread) and in turn the camera manufacturer benefits in terms of marketing their product and sales. The compensation I receive must be weighed against that and I sincerely hope I am not fed any line about the group having little money to pay their contributors. Where an infringement has take place the infringer is taking a risk - and some infringers will take that risk in the belief that the photographer will not stand up for themselves, let alone insist upon restitution. It's possible that the extra magazines used the content thinking they had the right to, or it's possible they used it in the belief I wouldn't mind or perhaps not find out. Unfortunately none of that is a defence and there is no reason why they could not have checked the appropriate permissions existed - I have been assured that systems across the group are going to be tightened up as a result of this, and I'm sure they will be.

 

[Pookeyhead]

Hi Kestral, a senior member of the publishing group has come back to me and seems keen to sort this out, rather than simply turning their back as some businesses will. They have certainly understood that an apology is not enough in a situation like this. I assure you I am still very angry that this has happened, but at least we appear to be making some progress which is a positive start.

Good to hear. I hope this makes it clear that going in with legal guns blazing is not the only way.

 

[Lindsay D]

Once again David, I have not gone in with legal guns glazing. In fact I have never even mentioned legal action to them. However there is nothing wrong in taking legal advice at any point, so that you're well-informed, and well-prepared if things happen to go wrong after the other avenues have been explored. In fact getting some advice at the outset can be very helpful in clarifying the things you need to do, and it certainly doesn't mean that you intend to take matters to court. As I've said several times, I wouldn't want to go down that route unless there were no other option.

 

[Pookeyhead]

Once again David, I have not gone in with legal guns glazing.

I know.... but some of the comments on here would suggest that it would be a popular choice of option. I'm thinking more of other readers of this thread in the future... not necessarily you Lindsay.

 

[Lindsay D]

I know.... but some of the comments on here would suggest that it would be a popular choice of option. I'm thinking more of other readers of this thread in the future... not necessarily you Lindsay.

Ah OK, fair point. (Edit: though maybe you mean other threads, as people contributing to this one seem very sensible). I think that infringements can spark off a strong emotional reaction (I know that of course, from how I felt on Friday morning) and I think references to lawyers is part of that. But after you've had a good shout/vent/cry most people do know that there is stuff you have to try first. Sometimes a good lawyer can remind you of that - after all you wouldn't have a particularly favourable case if you went to court without demonstrating that you had tried all other reasonable means first.

A while ago I was driven bonkers by an habitual trespasser to the point where I would have done anything to make it stop - but rather than make any mistakes on my own, I took legal advice immediately and this helped me to figure out the various things I needed to do in order to help myself - and a lot of these things you can do on your own without paying an expert. So getting legal help straightaway can be a very good thing, and can very often help to avert the situation from getting worse. There is a tendency to think that lawyers = nasty letters and court, but that is rarely the case. The fact that I spoke to a lawyer on Friday does not make me evil, it just means I wanted to be sure on a couple of things. I also think that most people in my position would have done the same - I think it's the sensible thing to do. I don't think anyone reading this thread would grab a lawyer by the neck and demand that they immediately act for them - a lawyer of any merit would advise a cautious approach first.

 

[Spuff]

With regards to your original "find me a lawyer" question how about making contact with Eaglenestphotos (Allan) with his recent Next/Monkey T-shirt case. It looks like his legal team was successful if he's willing to share.

Original link here : http://www.talkphotography.co.uk/th...t-infringement-result-and-a-thank-you.517928/

 

[trevorjb1406]

RPM Media Law (steve@rpmmedialaw.com)
Hi Lindsay, Above is the name of a friend of mine who is a barrister....specialising in media law. I wouldn't normally recommend taking legal action as I know from experience how messy and expensive it can be, however, a friendly initial approach from somebody who knows his way around may be worth a try, as it sometimes focuses the mind of the offender!
By the way, I used to live in West Sussex, a lovely county!
Good luck!

 

[Lindsay D]

Thank you Trevor, that's very kind. I'm sure intervention won't be necessary, but it's always useful to know of people one can call on if all else fails.

 

[BBR]

I have just seen your article in my mag. Very impressive images Lindsay, I was particularly surprised how effective the photo of the light coloured cat against the white background was, but they were all a joy! So I am going to try and copy your style this weekend with one or two of the various pets we have.
BTW have you read 'Exposure' by Michael Woodford, interesting insight into your camera manufacture's (past?) ethics.