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Author Topic: Photograph copyright infringement  (Read 1181 times)

jerhutch

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Photograph copyright infringement
« on: 05-07-17 at 12:08 pm »

I am a photographer and took/produced a nice shot of a home next to a creek.   It was a night shot with reflections in the water of the house, stars, etc.    I showed the photo to the landowner and he wanted a copy of it and I emailed it to him.    Now I noticed  that his house if for sale and his flyers on the post in front of his house has one pic and it's my photo.    I looked on the real estate website and the first pic they  have is my photo.   I also noticed that they have a copyright on all of the photos including my photo.    Although I emailed the photo to them, I did not give them any specific rights to it.
My question is do I have any recourse?
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artchain

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Re: Photograph copyright infringement
« Reply #1 on: 05-07-17 at 02:39 pm »

Yes, you have recourse.

The first thing you should do is figure out what you want.  What would make this right for you?

Then contact the homeowner and see if you can work something out.  Often people simply don't understand that physical possession of a photo does not give them the right to reproduce it.

If the homeowner won't cooperate, the next step would be to hire a lawyer to send a cease-and-desist / demand letter.  Often getting a letter from an attorney is all it takes, but that will cost you a few hundred dollars.

The final step would be to file a lawsuit.  But unless you have registered the copyright on the photo, you will only be entitled to actual damages and profits attributable to use of the photo.  And you will need to spend thousands of dollars up front for the lawsuit.  So you really don't want to get to that step.

For more info, see:  https://www.copyright.gov/title17/92chap5.html#504

Oh, and by the way, you should save a copy of the real estate flyer, and take screenshots of the website where your photo is used. 

« Last Edit: 05-07-17 at 02:49 pm by artchain »
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Tobmapsatonmi

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Re: Photograph copyright infringement
« Reply #2 on: 05-10-17 at 11:38 am »


Then contact the homeowner and see if you can work something out.  Often people simply don't understand that physical possession of a photo does not give them the right to reproduce it.

Hi artchain, I like your answer but the part remaining above gave me an additional thought.  While I'd agree that most homeowners don't understand this aspect, I'm betting the real estate broker does.

So, why not contact the broker as well?  They likely think the homeowner is the photo's author and once they understand the situation may voluntarily cease using that photo on the website and paper flyers.
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CRfan

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Re: Photograph copyright infringement
« Reply #3 on: 05-27-17 at 07:49 pm »

This mistake (misunderstanding) is way too common among (amateur) photographers/artists when they share creative content with others; it continues to give them headaches.

I would first contact the alleged infringer and see if you can amicably resolve the matter.   

If discussions with the alleged infringer fail, you can file a DMCA take-down notice to get your photograph removed.  If the infringer files a counter notice, then you may have to file suit to exercise your rights. 

Otherwise, this is what you could have done:

1)  WATERMARK:  Before releasing, sharing, distributing, licensing/selling your digital photographs, affix them with a watermark and corresponding metadata that includes your copyright attribution and a way third-parties can contact you (via your web URL or social media handle) for rights licensing or photo reprint sales.

Parties who remove or cover a watermark, metadata, and other DMCA “Copyright Management Information” (CMI) to hide an infringement can be liable per 17 USC §§ 1202-1203 for statutory money damages from $2,500 to $25,000 plus potential recoupment of attorney fees and costs plus damages (all at the court’s discretion).  The good news is that this DMCA provision of the Copyright Act does not require photographers/artists and other rights owners to timely register their copyrights.  This is leverage to push infringers to settle out of court.

2)  SECURE YOUR AGREEMENTS IN WRITING:  Get everything in writing (an email could work) that informs the licensee (the person who’s receiving your digital photograph) what s/he can and can NOT do with your photograph (be specific!).  Get this agreement BEFORE releasing your photograph. 

3)  REGISTER YOUR COPYRIGHT:  Timely registering your copyright with the US Copyright Office prior to the infringement or within three-months of its first-publication would give you leverage to push the infringer to settle out of court.  If the matter doesn’t settle and proceeds to trial where you prevail, the infringer can now be liable for statutory money damages from $750 to $30,000 and up to $150,000 for willful infringement; you’re also eligible to recoup your attorney fees and costs (all at the court’s discretion). 

Doing anyone of the three things would have helped your position. 

Visiting with a copyright/intellectual property (litigator) attorney is a good move to discuss your legal options if you’re unable to settle with the infringer.
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MYK

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Re: Photograph copyright infringement
« Reply #4 on: 05-28-17 at 09:41 pm »

If discussions with the alleged infringer fail, you can file a DMCA take-down notice to get your photograph removed.  If the infringer files a counter notice, then you may have to file suit to exercise your rights. 
This is generally good advice, but the OP is talking about the sales flyers that Realtors(TM) print off on sheets of paper to hand out at open houses, and to put in little boxes that hang off the big "FOR SALE" signs they put in people's yards.
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"The life of a patent solicitor has always been a hard one."  Judge Giles Rich, Application of Ruschig, 379 F.2d 990.

Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.

Life+70Years

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Re: Photograph copyright infringement
« Reply #5 on: 07-10-17 at 02:23 pm »

10 July 2017

Member "Jerhutch" (the photographer) is the rightful owner of the copyright established in the photo which records the image of the house.  Procedure one, the copyright owner will need to assert his/her rights by sending a cease and desist letter to the party or parties who are infringing on the owner's rights, post haste..  That would be both the printer that created the real estate advertising piece / pieces; as well as, the real estate brokerage firm that is marketing the house and has used the copies to advertise the real estate to the general public.

Procedure two, if the copyright owner (Jerhutch) is interested in having her/his work be part of the real estate sales process, the cease desist correspondence would be the appropriate time and place to make that know to the infringers.  The fees for such use may be calculated as a one time flat fee plus X number of dollars per print of the copyrighted photo, or any other combination of earned income that the copyright owners believes in fair in the the matter.

Regards

Life+70Years
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