Photo stolen: looking for advice from togs who followed through on recovery

Discussion in 'Photography & Video' started by cleary, Aug 9, 2017.

  1. cleary

    cleary Mental in the Face

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    Hi all,
    I know there's been a few threads about people having their photos used without permission, and there's always a lot of people offering advice but I couldn't find any people who've identified as actually following through with the settlement (successfully or otherwise).

    My scenario:
    My photo has been used without permission/licensing in a printed publication (a real estate brochure in the local paper), with the caption "Library Image".
    I know that the real estate agency running the ad supplied the images.
    I'm concerned that more of my photos may have been used without my knowledge.

    I'm after some advice, specifically from people who've taken the next step, as to what the next step should be?

    It's easy to say "get a lawyer" - but can anyone recommend (by pm if necessary), a lawyer who handles copyright law/has handled a similar situation successfully (or does it not matter what they specialise in)?

    Has anyone had any luck with the Arts Law Centre of Australia?

    Is it worth just avoiding the lawyers at this stage, and give them a letter by which we can agree on license terms and price for an invoice (I have an ABN, I'm not registered for GST)?

    I don't have spare cash to throw at lawyers immediately, so I need to know what I'm getting myself into before I start paying for that sort of advice (ie I need to know that there will be a return) -

    Can anyone help me?

    Thanks
     
    Last edited: Aug 9, 2017
  2. ipv6ready

    ipv6ready Member

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    First of all, how big and important was the photo in relation to the ad.

    As for "they might have used it other times or places" you need to find out by looking at their publications which they place ads in, and usually if they used it it could be their own website. -> Take screen shots.

    How did the REA get your photo?

    Have you got a history which is demonstrable in court of law for being paid as a photographer.

    What is the going rate for photos in the ad for the publication

    I would send the REA a tax invoice, including a fee for administration and copyright infringement (stating admin fee and infringement would be waived if paid "on time" give them 10 business day), I would also include a letter in which you would explain what the cost are and how they were derived and what your next "bluff" course of action is ie legal.

    Note... if you charge a lot (demonstrable) than charge the going rate. If you cant demonstrate that, try to find out what the common rate is from stock photo library and charge half. Don't send an half baked made up figure and think you will negotiate.

    Either they will pay or you will need to go legal.
     
    Last edited: Aug 9, 2017
  3. broccoli

    broccoli Member

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    Oops, pipped by ipv6ready - similar questions :D

    How do you know that it's definitely your photo? Did it have/still have a watermark? How did the real estate agency get a hold of it? Do you have/have you had a relationship with them to supply photos?
     
  4. OP
    OP
    cleary

    cleary Mental in the Face

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    Thanks for the replies folks - I appreciate the effort, but this info is how every other thread has gone.

    I'm not keen to know what you *would* do, I'm interested in knowing what people *have done*.

    I'm the original creator, it's easily verifiable.
    My photos are available online.
    No watermark, this is not required to prove copyright ownership.
    I have been paid for photographic work before, I did not have a prior relationship with the real estate agent.
    The photo is of a size large enough to easily identify (there are boats with registration numbers).
     
  5. broccoli

    broccoli Member

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    ah, ok then.
     
  6. GumbyNoTalent

    GumbyNoTalent Member

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    My old man was (retired) a professional photographer, he used to send people an invoice for the use of the image, it was amazing how many people just paid. Once they dispute the invoice, you use a legal firm to collect the moneys or determine that the image is not yours.

    Copyright is implied in Australia.
     
  7. Pinkeh

    Pinkeh Member

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    I spoke to my lawyer about the discovery. Then the solicitor drafted a letter to the company using my photo without permission, along with an invoice to pay for the infringing usage, with enough wording in there that we would take it to the courts.

    Their lawyer talked to mine. Then their client paid the invoice.


    If you don't go to the lawyers, or try to do it yourself, you just get a lot of bullshit excuses. Get a lawyer to represent you, the money you receive from the copyright infringement will pay for their services. Plus I'm already paying the firm for other legal services, so it's a no brainer to just refer the matters to them.
     
    Last edited: Aug 9, 2017
  8. OP
    OP
    cleary

    cleary Mental in the Face

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    Thanks for this - I'm second guessing just invoicing directly because my understanding of how an invoice functions as a legal document is a bit fuzzy. Talking to some guys yesterday, and there was some discussion on how there should be some agreement between parties on price first.

    I'm proposing to try and do this negotiation by offering two license options, one to cover the specific misuse I know of, or another to cover all previous misuse (known and unknown) for a higher price - this would save me having to do any more discovery.
    Drafting this is going to require more skills than I have though I think...

    Thanks, this is very helpful - I'll try and shoot you a pm later today if you don't mind, I've got a couple of q's.
     
  9. Scootre

    Scootre Member

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    Call an Intellectual Property lawyer. If you simply send an invoice then you are establishing the worth of the image. Don't reach out to the RE Agent. Real Estate Agents use pics all the time. This is no accident.

    A call then a first visit to an IP lawyer will normally cost nothing.
     
  10. kingbob86

    kingbob86 Member

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    I do this regularly, send an invoice with a professionally worded email about copyright infringement and your right to control the use of your work under the Australian copyright act 1968 where you are entitled to claim damages etc
     
  11. ipv6ready

    ipv6ready Member

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    Totally agree, what I used to do when moonlighted as a photog.

    Never took anyone to court but sending a professional letter with invoice with reasonable fee made most pay.

    Going legal in the first instance is an over reach, in my opionion.
     
  12. ruffdayz

    ruffdayz Member

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    Are they local?

    If so head in with proof it's your photo and ask to speak with the Principal/Licensee.

    You never know, they may be open to contracting you to do their RE photography (i.e turn a negative into a positive).

    If talking to them fails, you could send them an invoice with 30 day payment term (from first time image was used). After the 30 days is over and it remains unpaid you could follow up with the threat of raising a Statement of Claim against the business in the local court of non payment.

    That might be tricky though if they argue they never ordered the images (which would then make it theft/copyright).
     
  13. OP
    OP
    cleary

    cleary Mental in the Face

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    @ipv6 - overreaching is also my concern. I live in a relatively small town, I'm not trying to puff myself up with this process - but I work 3 jobs, and losing work makes a big difference to me.

    @all
    Having said that, they are one of the major real estate firms, they live and breathe contracts, lawyers and negotiations every day of the week (as well as deal with their own photographers terms), and I think (as per @scootre, @pinkeh recommendations) it would be naive to make the request without representation.

    I'll get the process moving when I get an opportunity, and try to remember to report back if anyone's interested.

    I appreciate the advice folks - thanks again
     
  14. glimmerman

    glimmerman Member

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    would be interested to see how you go.... appreciate if you could report back once settled :thumbup::thumbup:
     
  15. rifraf

    rifraf Member

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    Ditto

    I suspect theres more than a few hoping to hear of a positive outcome
    or tales of what flavoured can of whoop ass was opened on the thief.

    Best of luck getting acknowledgement and payment.
     

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