Question about use of a photo without permission

[scott]

Hey guys, I read this forum on a regular basis, but rarely post. I'm hoping for a bit of third party perspective on a situation I've encountered.

For me photography is a hobby. I shoot things I enjoy for my own personal satisfaction, not ever with the intent to sell the image. Thus, I've got no experience when it comes to any dealings with any thing I've done.

Until recently I was also involved with the hobby of rc aircraft, participating in organized competiion flying at times. During my downtime at competitions I would shoot the event and display some of the better ones on a website I ran. In the past year I gave up the hobby and took down the website.

Last fall when I took down the website, someone else in the hobby asked me to give them all of the content of the website so that they could put my work back up themselves. I refused to give it away, so the person simply used the wayback machine to acquire most of the content and put it up without permission. None of my photos were there, but all of my writing, page design, and logos were up. I was ticked off and went to the hosting providor with the fact that they had my content on their servers without permission.

Now this past weekend I found out that someone else had taken one of the better photos I had on the site last year, modified it, and used the image on the back of a t-shirt that was sold for a national event this year. I was already mad about the first episode, and this one pushed me over the edge. There's no question that the image they used was a derivative work of my photo. There were only around 40 shirts sold and I don't even know if there was any net profit made, but I do know that the person who did it knows exactly who took the photo and could easily locate my email address.

It's not like I'm a professional photographer that depends on the rights to my work to survive. I'm still angry that this happened. Had I actually been asked, I would have demanded that $xx.xx be added to the sale price of each shirt for me.

Thanks for letting me vent, and I'd be glad to hear anybodys opinion about this even if it's just "big deal".

[agesilaus]

Let me toss in the standard "I'm no lawyer" disclaimer. I think that if an image is modified then it might be legal to use. But it probably depends on how much modification occurs. If this fellow is local then a trip to small claims court might work even if the above is true since he might not make the argument.

[scott]

No need for the "I'm no lawyer" disclaimer. I was just fishing for gut reaction. If I think I need legal advice I will contact a lawyer.

Unfortuantely the person is not local.

The modification is pretty much a conversion from photo to vector image of the identical scene. It looks like a cartoon version of the photo. It's recognizable enough that a friend who saw the shirt recognized the scene as being my photo even though he hadn't seen the photo in the past six months.

[agesilaus]

Well the fellow who did it is a thief, he knows that he is but there may be no practical way for you to punish him.

[swartzphotography]

although this may be true about the shirt given the amount of modification from the original. but the internet content is somehting you should resonably be able to prove is yours and have it either removed or have the provider remedy the problem with monetary compensation.

[El Hacko]

Write a cease and desist letter warning of legal action. Send it certified. If the image is used after that I think you would have legal recourse. The profits he made may not be substantial however the damages awarded to you could be.
By taking a cease and desist action you are in effect, shutting him down. If he had say, 200 shirts produced at a cost of x dollars per shirt, he's then lost money on the venture. Knowing that may be enough to appease you and at least give you the feeling some justice has been served for using your photo without permission.

[Bruce Painter]

Even though the image was modified the person is still in violation of copyright law. That for you is the good news.(If there is any) The bad news is that since this is as you said a hobby, then I'm guessing that you have not regestered the image with the copyright office. While the minute you make the image you own the copyright without it being regestered, if my understanding is correct it limits the amount you can be awarded to lost income and you can not add in lawers fees. That will make it hard, and even fruitless, to hire a lawer to sue for copyright violation since their fees will quickly top any award you might be given. This is just the basics of copyright law and there is more to it than this which I'm sure I don't understand myself.
Having said that the cease and desist suggestion might be worth a try.
I don't have a clue as to any copyright laws about the written content used on the website.
Bruce

[scott]

Thanks for the responses guys. This will go down as a lesson learned. Don't trust anybody and register my images. The annoying thing is that I enjoy posting my better images on my personal website for friends and family to see. If I want to do this and protect my rights to these pictures I've got to register them before publishing them on the website (or within a reasonable period of time after publishing).

The positive side of this is that I have learned the lesson now and will be in a better position if this happens again in the future.

[MatsP]

Whilst it's not going to prevent anyone from stealing your pictures, it may be worth considering some sort of marking on the images (your name or some such - in a corner is fine), and a note saying "Images are copyright <insert name>. All rights reserved. Please e-mail somewhere@something.com to discuss usage of the images".

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Mats

[swartzphotography]

one more thing is a watermark that will stay imbeded in the image even if they allter it. photoshop comes with one built in and can store info about you so. if someone takes your picture and alters it like you said and changes the pic it still proves it was your image originally as the watermark info is still embedded in the image. altho bruce is probably right about the effectiveness of going after someone for copyright infringement it is not necessary to register any image with the patent office. due dilligence is all thats necessary sometimes we have to fight for whats rightfully ours. but we need to keep ourselves protected.

[Bruce Painter]

I agree with Mark that we should protect ourselves and fight for what is ours and also for photographers in general. Even if you are not making a living from photography you should stand up for yourself.
I did not mean to sound like Scott should not do anything because he had not regestered his photos, but some people have heard of some of the large settlements in the past and these won't happen without regestration because the total includes lawers fees. Now if I were Scott I would find a price that I would consider fair for the useage if I were to be giving premition in advance. Then I would add at least 50% if not double it for the infrengement, and send a bill to the offending parties. I would contact them, or have a lawer do it, in advance to let them know they would be getting a bill and why. You might be able to receive some payment this way.

Now as agesilaus said I'm not a lawer. I also have never been in a copyright infrengement case. Most of my information comes from what little I learned at the studio I use to work for and more than that from a website that is made up of photographers in the sports and PJ fields. I am not a member there but I will post the link later if Steve says its ok. I'm not sure of the Dphoto rules one posting links to sites other than your personal site. I think Steve is or at least was a member one the forum I'm talking about and they have a lot of good information on copyrights.
Bruce

[MatsP]

one more thing is a watermark that will stay imbeded in the image even if they allter it. photoshop comes with one built in and can store info about you so. if someone takes your picture and alters it like you said and changes the pic it still proves it was your image originally as the watermark info is still embedded in the image. altho bruce is probably right about the effectiveness of going after someone for copyright infringement it is not necessary to register any image with the patent office. due dilligence is all thats necessary sometimes we have to fight for whats rightfully ours. but we need to keep ourselves protected.

Just a note: Watermarks are either added as extra tags beside the JPEG info, in which case they can be removed by modifying the extra tags - not trivial, but possible.

Watermarks that are embedded in the image itself will be removed if you use a software that isn't aware of the Watermark (such as an OLD version of Photoshop, or say IrfanView) to resize the image to another size.

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Mats