Legal Question: What is a photo worth?

[jwedehase]

I've found unauthorized use of my photos on a LFS Web site. 3 photos, 2 of them as the splash page introduction. I have made contact with the store owner, and he has told me he will not remove the photos. It would appear small claims court is my only option, as he has already told me so.

How do I value the photos? In California, the maximum claim for small claims court is $7500. At this point, it's not about the money, it's about inflicting consequence for bad behavior. Can I value three photos at $2500 each? Is there another way to value them? I am sending a payment demand letter, so I would like to send as bulletproof a package as possible... meaning, I don't want to send a formal, legal letter with inappropriate demands in the way of payment requested.

 

[Dino]

Ooooo, I don't know enough about the laws (have you contacted an attorney that deals with copyright infringement cases yet? It'll be a big asset) to give an informed answer but wish you the best of luck. This has to be one of every photographers biggest fears :mad2:.

 

[maroun.c]

+1 on the attorney.
can you prove that this guy told you that he will never take out your photos from his site? if yes that will save you the hassle of proving they are yours or at least not his. do you still have the original pivs out of the camera preferrably RAW?

 

[Blazer88]

That's a real bummer that the LFS won't stop using your pics. I've come across two places using my pictures. One was happy to take them down and the other has been unresponsive. Keep us updated on how it turns out, I'm curious to see what I might have to do to get this other place to stop from using my pictures.

 

[fatrip]

i guess they would be worth what ever you think they would be worth. if you were to sell them how much would you think yuo could sell them for? i would start with $1500 each and if you think more then go more. also if you have that conversation on email about him not taking them down that is a very good thing to save...lol...if not i would call him again and record the conversation. Then i would get a atterny that practices stricktly in copyright and trademark infringment. that i suggest would be your best course of action esp since he seems like he wants to fight you on it. i am sure you could also sue for more things at this point than just copyright infringement. also another thing would be getting together files and the S/N of your camera so that the photo's can be proven yours from your camera. if it is registered with cannon or nikon i would suggest getting a statment that it is regestered with the company under your name. you dont want this guy getting out on a techniquality esp since you are in Ca.

 

[jwedehase]

My bases are covered in the legal arena. He's acknowledged, in writing, that they're mine. That side of the equation is water tight, but I also have the originals, of course. My next step is to send a Demand for Payment statement, just so I'm covering all the proper steps before small claims court (where lawyers aren't allowed). I can easily defend myself, so I'm not concerned there, either.

Here, just for clarity, are some of the pieces of the conversations we've had back and forth, just for proof.

{store owner}, in case you didn't get the email I sent through your Web site, I'm going to need you to remove all my photos from your site. You were never given permission to use them.
- Jason

First off think twice before you try and tell me what to do! {Followed by 2 paragraphs of personal attacks}

Now for a formal response to the pictures, you were only allowed to take pics of my store with the understanding I could use them when ever and where ever I chose. If I can recall correctly I either gave you some product/s and discounted some items as well for taking the pics, either way it was a form of payment for the service.

Seriously now get a life.

{store owner}, I can tell you what to do when you misuse my property. Unless you can show me written permission, you're going to need to pull those photos. You don't own them, I do, and you were never given permission to use them commercially.

I never received any payment for those photos. I'm very particular about sharing my photos for commercial use, and would have never entered into a verbal agreement at the commercial level. You are using my property illegally. You need to remove them.
- Jason

You are extremely petty, I just went and checked to see exactly how many photos I even used and there are 3!!!! This is about 3 photos! The only reason you took those photos is because I allowed it so that I could use them otherwise why would I let you take pics and no one else? There was a verbal agreement if you don't agree than it's your bad memory. I'm not pulling any of them and how do you suppose you are going to force me to do that, take me to court, go ahead.

You are very particular with sharing photos, give me a break. Do what you got to do there not coming down, you should have tried asking politely and regardless of the permission I had in the beginning I would have taken them down as I can retake those shots in a matter of minutes it's not like a they are one in a million. Seriously get a life!

 

[jwedehase]

And no, I never received "discounted items." I also was not given "permission" to take the photos. He hounded me every time I went into his store to share photos with our local forum. In addition, his site has several photos from other photographers, so his statement "Why would I let you take pics and no one else?" has no merit.

So... to figure out what they're worth. I need to be fair and have no holes in the letter I send. Realistically, I spent about an hour in travel time to his location, about an hour or two at his location, and maybe about an hour in post process total. Do I need to value 4 hours, or can I also add advertising value of the photos, and how do I determine that value?

 

[Dino]

Have you notified the other photographers?

 

[maroun.c]

One other factor I would check before venturing in a legal process is wether or not you are allowed to take pictures in a private place?does he have a No photography sign in his shop? any other proof that you have to get permissionfor the photo?if so at least you had the courtesy of getting it while he did not have any ethics by posting the pics without asking. the way i understand it any pic you take in a public place becomes yours the moment you click the shutter however its different for pics taken in non public places. this can differ from country to country. It is very weird that this is happening with a person you know and you have had direct contact with. Usuallz somebody steels a pic you have on your website and you find out by chance but for somebody who knows that you do check on their site to do this is totally weird. I would try to drag him in the email conversation to admit he gave you no discounts and in no means did not pay for the pics as this is what his email implies.
Also considering that he did not even ask politely if he could keep the pictures for a small return or at least phtocredit on his site I would do the best I can to have him remove them. It is a shame but from now on i guess everyon posting a decent pic would need to watermark it which inturn takes of the beauty of the picture.
Good luck.

 

[juniormc8704]

you will want to be careful discussing legal matters if you plan to take to any court.

Judges love SLANDER cases, and throw out a lot of cases because of it.

I do think this is slander in anyway, but some people will twist anything.

Just wanted to give you a heads up, as you may want to keep the sites name anonymous.


I have also run into this, and its crappy on his part, but i think you will be lucky to get anything out of him.


I would just wait till you see him do an under the table deal with someone without paying uncle sam, and then call the IRS...

lol, sorry, I hate when people get that whole "I cheated you, what are you going to do about it punk" mentality.

 

[fatrip]

well now this creates a totally new perspective...lol...before i just thought you had pictures of your stuff or a friends not of the store it self. i would say contact a lawery to see if like maroun. c said it is legal or not in cali since it was a private place. also if nothing comes of it confront him at the store, if he is going to be a jerk about it , he may swing at you, remember lean into his punch, then you got his store if you have a good lawyer... or just use a dab of copper...lol...j/k of course i would go the legal route.

 

[Sk8r]

If you sell any of your photos' rights, and can produce receipts, or if you sell prints, and can produce receipts, have those in hand and take him to court. With those to prove the amount of damage, you are likely to win hands down. It is basically true that "ignorance of the law is no excuse" and any claim he makes not to know it was wrong is useless before the law. The fact is he took something the value of which you can demonstrate.


I'm no lawyer, but studied principles of law at least, and one of the biggies is the actual proof of damage and amount of damage. When people have given you money for your work, or for permission to use your work, and you can prove that, then this guy has taken something of value, and your case is proven. Plus your copyright is protected.

 

[drparker]

The fact that you took the photos at his store without a model /property release will probably effect your ability to profit commercially from the photos. However you still own the copyright on the original work of art or derivatives of and he may not use them commercially without your release. Get a lawyer as stated.

Also check-out the business forum on Photography On the Net. Photography as a Business Lots of pros frequent that site and share experiences and can help with valuations for your work.

Just in case you missed it Get a Lawyer.

Good luck!

 

[VoidRaven]

Actually, if I understand things correctly, the model/property release only applies if he tries to sell the photos. If he (the photographer) has them solely for personal use then he does not need one.

Since the store owner is using them for purpose of profit then he needs to have written permission to use the photos in said manner. Verbal agreements mean nothing. If it's not in writing it pretty much means nothing.

Oh, and should you have missed all the other subtle hints....consult a lawyer!

 

[drparker]

Right since he does not have the release he cannot use them commercially, not just sell, ie: he can't use them on a website to advertise his services or a on a website that sells anything even if it's completely unrelated to the photos, but could use them on a personal basis.

The photographer has a copyright to the art work he created so the store owner cannot even have a copy for personal use without the photographers permission.

 

[maroun.c]

does the website they were posted on promote any of your services or did he just copy them for an online photoalbum or a personal website you have? guess there are a lot of variables and this will be a very tough case to win. Iàm really interested in the outcome of it all.

 

["Umm fish?"]

This would be a good place to start: http://www.copyright.gov/title17/

Take a long look at "§ 512. Limitations on liability relating to material online" on this page: http://www.copyright.gov/title17/92chap5.html

Basically, if you ask his service provider to remove the images they will likely help you out. The reason that they will help you out is that if they do the will shield themselves from any lawsuits. If they don't they will leave themselves open to you suing them, too.

You usually have to send the service provider a letter that identifies the images in a way that helps them to find them on their computer, claim ownership of the images, ask them to remove the images, gives them your full contact information (a street address), and a signature. I have had luck sending these forms electronically with a scanned in signature.

Good luck!

 

[fatrip]

interesting idea. very good andy. that is very informative for every one. I do think you should put up a post on this matter and site what you just did. also ask beer guy if he could posisbly make it a sticky. i think it would be very helpfull to others who are having these types of problems.

 

[JeffReef]

I would just let this one go if I were you. Just make sure you protect your images before posting them online next time.

Valuation of a photo is very subjective. It would be very hard for you to convince anyone that your photos are worth $2500 each (unless you have sold similar photos for the same price).

In any case, best of luck to you on whatever route you choose.

 

[maroun.c]

Very good idea Andy.