Copyright - Annoyed at my Employer - DET

[Scotty72]

Apologies to the mods if this is not the correct area.

BUT!

I was a little miffed at my school (my employer is the DET) and / or the photography co. they use for the formal school photos; why? Well, yesterday, the photos were distributed to the students in a portfolio / folder with a collage of pictures of school activities on the front.

Of about 10 photos, 5 are ones I have taken of the girls doing their various activities about the school (musicals, dancing, debates etc.). No-one asked me for permission, no $$$ was offered, they did not even hint they would be used nor was I given any credit - whatsoever.

To be honest, ordinarily, I don't care... I am not out to make money from this hobby... Although this sounds corny enough to make you vomit, it is enough for me that the girls get a real buzz out of seeing nice photos of themselves (not grainy iPhone photos) that have a decent level of quality. The school prints them in the school newsletters and I see faces light up when they see nice, clear close in shots that are in focus and well lit. I don't expect the school to pay me for it out of an already inadequate budget (unless they really want to).

However, I am rather pissed this time as my photos have been supplied to a professional photography co. (who ought to know not to do this) who are charging premium $$$ to the kids and presumably making a good deal of coin out of it. I bore the cost of my DSLRs, lenses, tripods and the three speedlights that light up a crappily lit school hall - now, some photographer is using my efforts for (admittedly a small part of) his profit.

= PISSED!

Another teacher who also occassionally brings his DSLR along had a similar thing happen a few years back when the school used one of his pics on a promotional item. As I recall, he did not want $$$, he just wanted his name credited under the pic (as you would see in the papers). He too thought, "this is not for the girls enjoyment, this is the school trying to spin money."

The response he told me he was given was that, "the pics were taken on school property, so the school can use them."

No-one particulary belives this but, out of not being bothered, the teacher dropped the matter.

So, over the weekend, I guess I need to decide whether to see the principal about this matter... (I guess the school is the responsible party as they gave over the pics). I have no intention to demand money, sue or demand a recall. I would settle for a 'sorry, Scott', followed by a promise to not repeat this.

It leaves a bitter taste in my mouth...:action:

Scotty

[kiwi]

Apologies to the mods if this is not the correct area.

BUT!

I was a little miffed at my school (my employer is the DET) and / or the photography co. they use for the formal school photos; why? Well, yesterday, the photos were distributed to the students in a portfolio / folder with a collage of pictures of school activities on the front.

Of about 10 photos, 5 are ones I have taken of the girls doing their various activities about the school (musicals, dancing, debates etc.). No-one asked me for permission, no $$$ was offered, they did not even hint they would be used nor was I given any credit - whatsoever.

To be honest, ordinarily, I don't care... I am not out to make money from this hobby... Although this sounds corny enough to make you vomit, it is enough for me that the girls get a real buzz out of seeing nice photos of themselves (not grainy iPhone photos) that have a decent level of quality. The school prints them in the school newsletters and I see faces light up when they see nice, clear close in shots that are in focus and well lit. I don't expect the school to pay me for it out of an already inadequate budget (unless they really want to).

However, I am rather pissed this time as my photos have been supplied to a professional photography co. (who ought to know not to do this) who are charging premium $$$ to the kids and presumably making a good deal of coin out of it. I bore the cost of my DSLRs, lenses, tripods and the three speedlights that light up a crappily lit school hall - now, some photographer is using my efforts for (admittedly a small part of) his profit.

= PISSED!

Another teacher who also occassionally brings his DSLR along had a similar thing happen a few years back when the school used one of his pics on a promotional item. As I recall, he did not want $$$, he just wanted his name credited under the pic (as you would see in the papers). He too thought, "this is not for the girls enjoyment, this is the school trying to spin money."

The response he told me he was given was that, "the pics were taken on school property, so the school can use them."

No-one particulary belives this but, out of not being bothered, the teacher dropped the matter.

So, over the weekend, I guess I need to decide whether to see the principal about this matter... (I guess the school is the responsible party as they gave over the pics). I have no intention to demand money, sue or demand a recall. I would settle for a 'sorry, Scott', followed by a promise to not repeat this.

It leaves a bitter taste in my mouth...:action:

Scotty

I'd call the photographer actually, hopefully he's in the aipp and so will understand the issue here.

[MarkChap]

It is hardly the photographers fault, if he was supplied the images by the school, he would have used them thinking that the school had the rights to use those images for that purpose.

I think you would be well served to approach the principle and state your case.

"Look boss, it's not that you used the images, it's that you used them without my permission, and you didn't give me credit"

[MarkChap]

You may get an answer from the principal similar to

"gee, sorry Scott, we thought you gave us the images so we could use them for this sort of thing"

Could just be an innocent case of a lack of clarity when you gave them the images

[OzzieTraveller]

G'day Scotty

Geez mate, I can understand your "attitude"
Whatever the solution, I feel that it needs to be written down and on record
If it were me .... the letters(s) would go to the Principal and the School Board at a minimum, and need to explain the issues you are concerned with. Facts not opinion not emotion

The facts are clear -
>> it's your hobby, the photos are your contribution to the welfare of students and the 'esprit de corps' of the school.
>> if they were taken commercially the school would have had to pay for the services of the pro photog at $/hour ... you are receiving a salary so this part of the equation doesn't carry "unless you are asked to do a special task and are to be paid accordingly" eg: come to the school's drama presentation night and take photos of the production and make prints for the students & parents etc etc

As a teacher, you are expected to do 'classroom activities' after hours [preparing for lessions, marking papers etc] ... you are not expected to undertake your private activities (hobby) free-of-charge for the school's benefit unless you volunteer to do so

What you do expect is the polite acknowledgement of authorship, and the permanent acknowledgement from the school that although the photos were taken by you for the use within the school, they were NOT taken for commercial distribution outside the school.
I would reiterate in the letter that 'the school is aware of basic copyright law regarding "copying 10% of a publication for educational or research purposes before submitting to a copyright payment to the author" etc etc ~ well you are the author in this case, and the school has just breached the "10% rule" ... so it is incumbent upon the school to either pay you or achnowledge you as author

The next issue here is the re-use of your images by the 'other' mob ... are they printing your images? ... if 'yes', how did they get the masters? ... if 'yes', are they retaining any profits? ... if 'yes', I feel that you need to write to them also and explain the situation. They are probably acting in good faith upon what has been verbally provided to them. I would be 99% sure that this is the case, so that after a note from you, I would expect the pair of you could reach a quick agreement as to ackowledgement ... you digitise up a 4x6" master [PDF] giving your details etc, for it to be printed by the pro photog and included in with the folder of prints for the parents to read

Hope this helps in some way :o
Regards, Phil

[ricktas]

Hey Scott,

I would go and have a read of the Copyright Act. The clause related to copyright whilst in the employment of others might stumble you up here, unless of course your photos were taken outside of your paid work times.

Excerpt from Australian Copyright Information sheet for Photographers, available HERE (http://www.copyright.org.au/publications/infosheets.htm) under P

Photographs taken in the course of employment - If an employee takes a photograph as part of his or her job, the first owner of copyright will be the employer, unless they have made an agreement to the contrary.

along with this clause under the same heading:

Photographs taken for the government; Unless there is an agreement to the contrary, a Commonwealth, State or Territory government is the first owner of copyright in material created, or first published, under its direction or control. Note that these provisions do not apply to local governments. For more information, see our information sheet Governments (Commonwealth,State and Territory).

[bigdazzler]

Ricks info is the first thing that came to my mind as well when I read the OP ...

[Debra Faulkner]

Yes, as Rick has stated, that is the way it happens. Numerous photos that I have taken at school are not mine as such and are loaded onto the server for all and sundry to use. Some have been used for commercial publications, others for advertising the school but most are for the students to use and are archived for future reference. I neither expect pay nor credit. So be it. I love recording the kids' activities for them to use or for the school to use as they see fit. That's just the way it is.

However, being asked to do a particular shoot and getting paid for it by the dept. is something different. This I have also done and this is when you also get credited for your work.

Scott, when the kids buy their pics, word of mouth is the best way to get yourself noted for the images you are talking about.

[Longshots]

Hey Scott,

I would go and have a read of the Copyright Act. The clause related to copyright whilst in the employment of others might stumble you up here, unless of course your photos were taken outside of your paid work times.

Excerpt from Australian Copyright Information sheet for Photographers, available HERE (http://www.copyright.org.au/publications/infosheets.htm) under P

Photographs taken in the course of employment - If an employee takes a photograph as part of his or her job, the first owner of copyright will be the employer, unless they have made an agreement to the contrary.

along with this clause under the same heading:

Photographs taken for the government; Unless there is an agreement to the contrary, a Commonwealth, State or Territory government is the first owner of copyright in material created, or first published, under its direction or control. Note that these provisions do not apply to local governments. For more information, see our information sheet Governments (Commonwealth,State and Territory).


I have to jump in.

Very quickly as I'm rushing off to a shoot

1) Sorry Rick, but to clarify and perhaps correct, as stated
If an employee takes a photograph as part of his or her job, thats the important part, as PART of his her job. So this clause is intended for use when photography is part of the employees services. It also will heavily depend on if the school provided the camera as (again) part of the employees contract of work.

Its often a misunderstood clause.

So, unless Scotty's responsibilities included taking pics, and was using school equipment, this wouldnt count.

2) The School cannot claim that they own the images because they were shot on school property. However, if they learn from this and produce an agreement that they then get people to sign if they want to shoot on school premises, with the specific term of insisting on a copy of all images for publication and promotion of the school, thats their prerogative.

3) not the photographers fault that copied the Scotty's pics ! Get real, of course it is! A professional should certainly know, and should have asked if all images were able to be copied. Having said that though, if the Headmaster thinks they have the right to all images, then maybe the photographer would have been given that same line. Might be a timely reminder for everyone to consider if you ever get into a situation where you have to use another photographers image.

4) This all could be averted if when supplying images to someone, that you do so with a very cleart understanding how they can be used. If I were giving something like this away, I would certainly do so with a visible watermark on the free images, and if they were paying a small fee, the watermark would be removed. I think a frank discussion with the school or person concerned, would help educate them for the future.

[Analog6]

If you had used their camera then the copyright is theirs, but as you used your equipment I think it rests with you and if you did not give them permission to on sell your images then ask them to stop.

[MarkChap]

I have to jump in.

Very quickly as I'm rushing off to a shoot
Snip
3) not the photographers fault that copied the Scotty's pics ! Get real, of course it is! A professional should certainly know, and should have asked if all images were able to be copied. Having said that though, if the Headmaster thinks they have the right to all images, then maybe the photographer would have been given that same line. Might be a timely reminder for everyone to consider if you ever get into a situation where you have to use another photographers image.


That is what I was trying to say, only you said it better :)

[Gemini2261]

Hey Scott,

I would go and have a read of the Copyright Act. The clause related to copyright whilst in the employment of others might stumble you up here, unless of course your photos were taken outside of your paid work times.

Excerpt from Australian Copyright Information sheet for Photographers, available HERE (http://www.copyright.org.au/publications/infosheets.htm) under P

Photographs taken in the course of employment - If an employee takes a photograph as part of his or her job, the first owner of copyright will be the employer, unless they have made an agreement to the contrary.

along with this clause under the same heading:

Photographs taken for the government; Unless there is an agreement to the contrary, a Commonwealth, State or Territory government is the first owner of copyright in material created, or first published, under its direction or control. Note that these provisions do not apply to local governments. For more information, see our information sheet Governments (Commonwealth,State and Territory).

Yes, I am conducting photography sessions with my patients & in my paid capacity as a health care provider the DoH have rights over the images & can do whatever they please with them. I have had to get my patients to sign a consent which states that fact. The DoH don't have to recognise my work either as they are the owner of all the intellectual property that I produce in my paid capacity. Hopefully I can get hold of some donated cameras soon. :)

[Kym]

Its not about being taken while on school property, but if at the time the image was captured was the
'tog under their normal employment T&Cs - i.e. being paid at that time.

My understanding is that if it was captured out of normal school hours then Scotty owns the copy

Next time - watermark !! ;)

[in2fx]

I would also feel much the same without first being asked if they could be used in this way and an acknowledgement.
When I started work for my current employer, I created a database in my own time at home to make my job easier and set it up on one of my work computers to use.
I informed the boss of what I had done and said that although it was mine, anyone else was welcome to use it.
I discovered a couple of months later that he had found a blank copy of the database in my drawer and had given it to a mate of his running another company, needless to say I was not impressed so confronted him about it and he bought the database from me.
If he had just asked if he could give it to his mate then I would probably have just said yes because I had not set out to make money from the creation of the thing but to make my job easier.
I think that it is important to seek permission and to give credit.

[ricktas]

I have to jump in.

Very quickly as I'm rushing off to a shoot

1) Sorry Rick, but to clarify and perhaps correct, as stated , thats the important part, as PART of his her job. So this clause is intended for use when photography is part of the employees services. It also will heavily depend on if the school provided the camera as (again) part of the employees contract of work.

Its often a misunderstood clause.

So, unless Scotty's responsibilities included taking pics, and was using school equipment, this wouldnt count.

2) The School cannot claim that they own the images because they were shot on school property. However, if they learn from this and produce an agreement that they then get people to sign if they want to shoot on school premises, with the specific term of insisting on a copy of all images for publication and promotion of the school, thats their prerogative.

3) not the photographers fault that copied the Scotty's pics ! Get real, of course it is! A professional should certainly know, and should have asked if all images were able to be copied. Having said that though, if the Headmaster thinks they have the right to all images, then maybe the photographer would have been given that same line. Might be a timely reminder for everyone to consider if you ever get into a situation where you have to use another photographers image.

4) This all could be averted if when supplying images to someone, that you do so with a very cleart understanding how they can be used. If I were giving something like this away, I would certainly do so with a visible watermark on the free images, and if they were paying a small fee, the watermark would be removed. I think a frank discussion with the school or person concerned, would help educate them for the future.

Agree, however at present we have no information from Scott about what agreement, verbal or otherwise, is in place, regarding him taking his camera to school and photographing students and activities. We need more information from the OP before either of our statements can be deemed correct. After all, the Principal may have asked Scott to bring his camera along to get some photos, therefore this could be regarded as a contract where he was asked to take them for the school. It gets very murky! If no agreement was in place and Scott was taking photos during his paid employment time, the principal could argue that he is not performing his role as a teacher, if he is taking photos, whilst being paid as a teacher. Dangerous ground to tread!

[Gemini2261]

I would also feel much the same without first being asked if they could be used in this way and an acknowledgement.
When I started work for my current employer, I created a database in my own time at home to make my job easier and set it up on one of my work computers to use.
I informed the boss of what I had done and said that although it was mine, anyone else was welcome to use it.
I discovered a couple of months later that he had found a blank copy of the database in my drawer and had given it to a mate of his running another company, needless to say I was not impressed so confronted him about it and he bought the database from me.
If he had just asked if he could give it to his mate then I would probably have just said yes because I had not set out to make money from the creation of the thing but to make my job easier.
I think that it is important to seek permission and to give credit.

That was very cheeky of them to attempt to steal your intellectual property. You did the work in your own "unpaid" time, therefore it is yours to sell or do what YOU please.

[bigdazzler]

If you had used their camera then the copyright is theirs, but as you used your equipment I think it rests with you and if you did not give them permission to on sell your images then ask them to stop.

I dont think what camera he used matters .. The copyright issue here lies with whether taking these pictures fell within the duties expected under his conditions of employment. If photographing the students is part of his conditions of employment, the © defaults to the school, if not the © remains with the photographer, regardless of what camera he used.

My understanding is that © ALWAYS belongs to the person that hit the shutter unless you are being commissioned to take the photographs, and have not retained your © in a written agreement, or have taken the images for your employer as part of your employment, which is obviously the issue here.

[Longshots]

Agree, however at present we have no information from Scott about what agreement, verbal or otherwise, is in place, regarding him taking his camera to school and photographing students and activities. We need more information from the OP before either of our statements can be deemed correct. After all, the Principal may have asked Scott to bring his camera along to get some photos, therefore this could be regarded as a contract where he was asked to take them for the school. It gets very murky! If no agreement was in place and Scott was taking photos during his paid employment time, the principal could argue that he is not performing his role as a teacher, if he is taking photos, whilst being paid as a teacher. Dangerous ground to tread!


I completely agree its murky. However Scotty has said on numerous occasions that he is a teacher. And he also stated that it was his equipment. And Big Dazzler, yes funnily enough the apparently minor perhaps pedantic difference between who suppllys the equipment is very important in the ATO's view. A subcontractor or employer would be very aware of that finer point. But, agreed far too murky. And the suggestion to discuss this with his employer would be wise indeed.

[Longshots]

I dont think what camera he used matters .. The copyright issue here lies with whether taking these pictures fell within the duties expected under his conditions of employment. If photographing the students is part of his conditions of employment, the © defaults to the school, if not the © remains with the photographer, regardless of what camera he used.

My understanding is that © ALWAYS belongs to the person that hit the shutter unless you are being commissioned to take the photographs, and have not retained your © in a written agreement, or have taken the images for your employer as part of your employment, which is obviously the issue here.


Sorry to repeat this but you do really need to read the link I've provided in the past to the Australian Copyright Council.

Because your understanding of the Australian Copyright Act is incorrect - specifically this part of your statement " © ALWAYS belongs to the person that hit the shutter unless you are being commissioned to take the photographs, and have not retained your © in a written agreement".

In this situation the images would be considered commercial and not personal/domestic, which is where there is a defining and very important difference.

[Boo53]

I can certainly see why Scotty is peeved. The School clearly knows who took the photos, and if nothing else common courtesy would dictate acknowledgement, particularly as they appear to have been presented as part of a commercial package & most people viewing them would assume they were taken by the company producing the brochure.

I would agree that the copyright would seem to lie with the School. Whilst it may not be in Scotty's job description to take them, the fact that he normally does, in school time, makes taking them part of his job, none-the-less.

However, the Principal, or any reasonable employer, should be aware that acknowledgement of his efforts is just common courtesy, let alone good employee relations. Whilst for the last 21years I have just run my own small business with only a couple of staff, before that I did have a very senior position in Local Govt and to not have acknowledged the input of a staff member would have been unthinkable

I think you should approach the Principal along the lines of wanting acknowledgement, as the way they are presented suggests they are the work of others. Don't involve the School Council/Board as going over the bosses head is never a good move.

[OzzieTraveller]

G'day Scottie et al

WOW!!! What an amazing mob we are to have put together so many opinions/responses/etc in such a short time ... poor ole Scotty > hope that you're not too confused

Many above comment upon 'employment' with the implied terms & conditions that go with that
My contract of employment with Canberra College over more than a decade was pretty slack when I look at this debate - and yet at the time, I thought that it covered pretty much everything. It went on & on about being paid for "this 'n that" and responsibilities on both sides for "this 'n that" -- but when it comes down to specifics, did not cover anything other than classroom & assoc teaching activities & performance etc

So that, if like Scotty I had brought my camera in & taken photos of something or another, then (it seems to me) there was no way it could have been deemed to have been school property (ie their copyright). Now while I was on an annual contract of employment, I guess that Scotty is 'permanent' [lucky blighter] but I would still suggest that the legal-eagles amongst us consider what -if any- contract of employment that he may be under

If the position he is being held against [and paid for] on the school's org. chart is defined as "teacher grade-n", then somewhere there will be a table / listing of the duties expected to be undertaken by all "teachers grade-n" and that they will be paid accordingly

I doubt that the duty statement will say anything about his photographic activities, so as I see it, it's wide open to Scotty's interpretation
I would also suggest that Scotty could ask the Q of the school ... "if a pro photographer was brought in to take 'my' pictures, how much would it cost the school ... thus in theory, that is what the school "should" pay me if they want to keep my photos..." - and as RIck & others have said, maybe next time, it needs to be fully negotiated before the event

Hope this helps - and Scotty .... I feel for you
Regards, Phil

[Scotty72]

Hi all, wow. I didn't check here 'til now 'cause I didn't fream I'd spark this.

OK, to clarify a few things.

1) Entirely my equipment
2) Entirely on my own time

Eg. the concerts are generally held at 7pm - teachers volunteer their time - there is NO overtime, allowances etc. (apart from sometimes a few packs of biscuits are layed out)
3) It is not the principal who asks, it is often the kids themselves or the teacher organising who will do the asking.
4) I place the pics on the school's server - we are all warned that photos should only be used within school and / or for educational purposes... Within the metadata, my name and a copyright message is placed allowing use within school and/or educational purposes. I really think that a commercial photographer making $$$ is outside of this...

I have never asked for $$$.

I have never been given money, time off in leiu etc. Except, there was one time when I was asked to take pics and I was given that period off (relieved by another). That I considered a form of payment (in kind) and acknowledged (in my mind) that they have a claim.

However, if I do it after school, in my own lunchtime (or other free time) etc. then, I believe this to be an entirely different matter.

I would very much doubt that photography (in my free time) could be considered a requirement of my normal duty (especially the requirement for me to supply my own camera).

There may well be the issue of releases from the girls pictured as well (again, I doubt the general waiver the parents sign about pictures at school should apply to a third party commercial enterprise).

Again, I don't expect payment... I just consider it rude; and if I am entitled to some $$$ from the photographer, I wouldn't mind if it went to the school library, a charity etc. Just not into a commercial photographer's pocket.

Scotty

[ricktas]

Thanks for the extra information Scott, helps us understand the entire situation you are going through.

[Scotty72]

As much as anything else, as anyone who has done any academic study would no-doubt recall, I have had the concept of plagiarism as a crime worse than death drummed into me.

The school, several times a year, is forced to punish - with a zero grade - students who are caught using unattributed material. We catch 'em then, (for the seniors) the child and her parents are dragged into the principal's office and many tears are shed. A few years back, we had one repeat offender, who was booted from school.

And now, I see some absolutely untennable hypocrisy.:Doh:

Scotty

[Scotty72]

BTW Thanks for the general support guys :th3:

It really does feel like a bit of a violation of trust.

Scotty

[Kym]

1) Entirely my equipment
2) Entirely on my own time
4) I place the pics on the school's server - we are all warned that photos should only be used within school and / or for educational purposes... Within the metadata, my name and a copyright message is placed allowing use within school and/or educational purposes. I really think that a commercial photographer making $$$ is outside of this...

To me that's a no brainer, you own the copy (IANAL)

[ameerat42]

Scotty. It is indeed a SORDID tale. I have nothing to add, but can only commiserate. I will pick you up on one point, though: you would not be a "little miffed", but VERY so, and it is a BIG "violation of trust" - no understatement needed - or of anything else that's 1/2 decent. That's all. Am. (Oh, I gotta go and spit now - think I also got some bad taste.)

[Kym]

http://www.artslaw.com.au/legalinformation/MoralRightsInfringementAndLetterofDemand.asp

Get some legal advice, but I'd be suing the photo company for breach of copyright.
Maybe $5,000 ?

[NikonNellie]

What I would like to know is did the Principal and/or photographer seek permisssion from the parents of the girls to have their photos plastered over the portfolios? At the school that I work at all parents are asked to sign a form granting permisssion for any photo that is taken of their child to be used in the school newsletter, flyer, etc. This I would think is a whole different matter as the photographer (being a 3rd party entity) should seek separate permission from the parents.
I can sympathise with you Scotty - I took some photos for our school music production and I would have been very annoyed if I hadn't been given some credit in the progamme but luckily I was.

[Scotty72]

What I would like to know is did the Principal and/or photographer seek permisssion from the parents of the girls to have their photos plastered over the portfolios? At the school that I work at all parents are asked to sign a form granting permisssion for any photo that is taken of their child to be used in the school newsletter, flyer, etc. This I would think is a whole different matter as the photographer (being a 3rd party entity) should seek separate permission from the parents.
I can sympathise with you Scotty - I took some photos for our school music production and I would have been very annoyed if I hadn't been given some credit in the progamme but luckily I was.


Thanks for the link Kym... I am really leaning towards bringing this up, for an apology at least.

I would also like to know about the parental permission. The parents are asked to sign forms that allow images to be taken within school and for educational purposes. It clearly states that they can't / will not be used on social networking site etc or commercially.

Perhaps they did go get permission for these pics. I don't know.

Grrr! :lol2:

Scotty

[Kym]

A major newspaper recently nicked an image from a web site. ( a few weeks ago)
It was discussed on WhirlPool (Photography Lounge) ... in the end the paper paid up using that letter.
The Guy's claim was based on Getty Images values and was around the $5k mark.

[Paul G]

That topic on Whirlpool was a good read Kym.

Scott, going on from the LOD in the Arts Law link Kym posted perhaps a phone call to them directly for a chat wouldn't go astray.

Arts Law Centre of Australia (02) 9356 2566

[mikew09]

Gezz Scotty, I think I would feel the same. Surprised the photo's did not have the normal little foot note "photographer "Name", that would have been enough I imagine.
I took quite a few photo's of John Chatterton (World reconised horse trainer) when he was doing a video take of training one of our horses.
It appears in one of his training DVD's. I supplied him with a load of photos from the session and he said that if he used them he was happy to foot note me as the photography. I would have thought that that would have been a very simple thing for the school to do also.

Tough call what to do mate - I will that to the more experienced photographers to comment on. But I feel for you mate - reconigtion would have been a nice reward for the usage.

Mike

[Scotty72]

I spoke to the principal today.

She acknowledged her mistake and apologised. Aparently, the photographer asked her to supply some pics (this is a concern I discuss later in this post) - she did but did not stop to consider the implications of handing them over to a private, commercial enterprise. She asked me if it were still ok to use within school on newsletters, school magazine and promoting school events. I told her as long as private commerce is not involved - go for it.

I accepted this apology along with her word that it would not happen in future without first asking.

I then explained to her that I consider that the photographer actually has a case to answer because, as the publisher, the photographer bears some responsibity in ensuring it is publishing material that does not violate copyright (in the same way Rick is aware not to allow publication of infringing photographs on this site).

I asked her if the school would contact the photographer and invite them to make a suitable donation to one of the charities our school supports through fund raising in lieu of any payment to me. This the principal refused. She does not want to make waves (a default position it seems with state school principals) with the photographers as she said, "they give us a good deal and occasionally do banners etc. gratis so long as we provide them with our business."

Now, this is my dilemna; do I make waves by contacting them myself?

One the one hand:


They, according to the boss, do well by our school.
Were given the photos by the boss who did not make them aware of copyright.

One the other hand:


They ought to be in the business of making sure copyright is honoured.
Need to be brought to account for not making sure copyright is honoured.
Are they able to do the school good deals by cutting corners (such as payments for intellectual property)
Charity needs money that I feel I am entitled to more than they do.

(does anyone have any more points (on either side) that I may be forgetting?

To be honest, as I have said, I am not interested in the money. besides, from what I can work out - I'd probably be entitled to only somewhere between $50 - $150 per image anyway - money a charity could probably use better than I would (I'd only waste it on camera stuff :lol:)
However, I am very interested in the principle of the matter. I would, at very least, be very interested in their reason for deciding they did not have to check if they were entitled to use images given to them without so much as an acknowledgement of authorship.

Therefore, I think I am going to rock this boat because if they photographer is relying my principal to supply FREE images for their business - I strongly suggest he is doing it to many others. Clearly, trading off freebies from others is (IMHO) an unacceptable business practice.

Thanks to all for your support on this. It is not until this happens to you, that you realise how hard this pill is to swallow.

Scotty

[Scotty72]

And, for those interested if the principal had the parents' permission for the students featured in the photos... she had them bring in notes so, that part was 'by the book'.

[Scotty72]

Ok,

perhaps as a measure of my annoyance, I drafted the following (yes, at 1:30 am) letter of demand.

I have included notes within the [] that are not on the original letter - as explanation.

Please tell me if you think I am being unreasonable in this matter or an exceeding my rights in this demand.

Finally, parts of this letter are reproduced from the Artslaw website, I am assuming that they provide these letters are templates and allow them to be copied for the purposes outlined.


To Whom It May Concern,
I wish to draw your attention to the portfolio of images you have recently published and caused to be distributed to your paid clients at [name deleted] High School, NSW on or about the 29th July 2010.
In particular, I wish to draw your attention to the front cover of this portfolio. It is my contention that:
· At least three (3) of the images in the collage of twelve (12) are images for which, as the creator of that work (photographer), I retain both moral rights and copyright under Australian law. [another two I am pretty sure are mine but I can't find - as yet - the RAW files]
· I am able to establish that these three (3) images are my creation through the presentation of the original ‘CAMERA RAW’ files stamped with relevant metadata including the serial number of my camera, if required.
· You have violated my moral rights and copyright under Australian law, that being the reproduction of my work without proper permission, attribution and compensation.

To rectify this infringement of my rights, I require that you undertake to:
· Make payable to a charity of the above-named school’s choice, in consultation with myself, an amount not less than $75 per infringing photograph.
· That a copy of the receipt for the above (on the nominated charity’s stationery) be forwarded to me as confirmation of payment.
· You undertake, in writing, to not repeat such an infringement in future.


You can confirm your acceptance of these undertakings by signing and dating a copy of this letter and returning it to me within 21 days at which time, I will inform you of the nominated charity.


For my part, I undertake that, should the above terms be met in full, I will discharge you against further claim by me over this matter.


You are now on notice as to rights in respect of the Work. If I do not receive an adequate response within 21 days of this letter, I may take such action as I may be advised in order to protect my rights including, without limitation, legal action for injunctive relief or to recover damages without further notice to you.



I otherwise reserve all my rights.


Yours sincerely

[Yournotdoingitright]

Hey scotty
Thats a excellent worded letter makes me want to pay up and I didnt use your images :D
Good luck hope you get the result you what and deserve and your boss doesn't get to pissed with you for going against her wishes

[kiwi]

I'm feeling sorry for the photographer at this point

I truly believe that they have nit benefitted commercially at all by including these pictured that the school provided (I think he believed the school had appropriate ownership)

By including these pictures was his fee or his sales any more than it would have otherwise

I think that originally what's missing here us a written agreement between the op and the school or even a verbal agreement

As the publication is an internal school one, I don't really think it's against the original understanding

Meh, move on.

[bigdazzler]

I'm feeling sorry for the photographer at this point

I truly believe that they have nit benefitted commercially at all by including these pictured that the school provided (I think he believed the school had appropriate ownership)


I tend to agree. I dont think it was a deliberate attempt to weasel out of paying for photos. I fully believe he assumed (his mistake which he is responsible for) that the photographs belonged to the school, and they were giving him permission to use them. Simple.

If anyones screwed up, its the school, and as you say youve accepted the apology from your boss so maybe its time to let it go ..... Dunno :confused013 Just my thoughts.

[ricktas]

I tend to agree. I dont think it was a deliberate attempt to weasel out of paying for photos. I fully believe he assumed (his mistake which he is responsible for) that the photographs belonged to the school, and they were giving him permission to use them. Simple.

If anyones screwed up, its the school, and as you say youve accepted the apology from your boss so maybe its time to let it go ..... Dunno :confused013 Just my thoughts.

I am going to disagree on this one.

Take away all the information about who did what and you have a private commercial photography business taking, editing and using other photographers works without at the very least checking who owns the photo(s) and making a profit from using those photos.

It could happen to any of us, and if it did, how would each of us deal with it? I reckon most of us would do the same thing Scott is doing if presented with a similar situation.

[kiwi]

Not really, I would look at myself and the fact that I gave the photos to the school with no strings attached and no agreement that restricted commercial or secondary use

If there is fault here it lies with all three parties and I'm still looking for and damage done or any monetary benefit that's accrued by any party

[bigdazzler]

fair enough too I suppose .... I would be more annoyed with the school though. After all, they gave away the photos. I suppose the lesson is to make sure you have your agreement sin place whenever you give your photos to someone.

[ricktas]

Not really, I would look at myself and the fact that I gave the photos to the school with no strings attached and no agreement that restricted commercial or secondary use

If there is fault here it lies with all three parties and I'm still looking for and damage done or any monetary benefit that's accrued by any party

Good point too!

[kiwi]

I'll add though that Scotty did say in his exif for within school use and I agree it's a stretch to say this is what the end result is but you could draw that bow

Not an easy one

[Boo53]

From experience, letters drafted in the early hours help to get things off your chest & let you get to sleep, but are best not being sent.

In the light of day perhaps you should re-draft the letter just pointing out that the images are yours and seeking their response. If they apologise, and claim that they were given the photos by the school and believed that the school had the ownership of them you have made your point, and it shouldn't happen again.

Going in with all guns blazing will no doubt get their back up, and if they think they are in the right it will just escalate the matter to a point where no-one will win.

The Principal is clearly the chief culprit & you've got his/her apology, which is what you originally said you were after

John R

[Scotty72]

I'll add though that Scotty did say in his exif for within school use and I agree it's a stretch to say this is what the end result is but you could draw that bow

Not an easy one

Yes the exif data should have set alarm bells off for the photographer. So should have common courtesy and a basic knowledge about copyright law (which they ought to have).

Don't feel too sorry for the photographer. All I am asking for is a small donation to a charity which they can make a tax deduction from.

A commercial enterprise should not be in the habbit of using stuff for free.

Turn this around. We staff get a free copy of our staff photo as consideration that it is we who are present to help supervise the kids for the photographer (therefore he makes money). If I were to take that photo, use that as a part of my commercial enterprise and sell that for $$$. If you were the photographer, would you simply accept that the school had given it to me therefore it is ok?

It is better they change their business practises now via a subtle warning than get into more trouble later.

Scotty

[Longshots]

Excellent letter Scotty

The school really was at fault and I'm glad that they've apologised.

OK two (sorry for the "pun") school of thoughts.

The photographer who did the dirty deed was wrong. He/she could argue that in all good faith he understood that by the school supplying your images, that they were all signed off, or had been commissioned by the school, etc, etc.

He/she could also argue that how were they to know that they were "copyrighted" and that there was no authority to use them ?

Personally I think the school is the main area of responsibility. They have agreed that they were at fault and apologised.

Would I be upset if they were my images ? Yes. Would I hand out images without a watermark though ? No

I think there is a great lesson learnt on your part. Its also a lesson learnt by your principal. Its a lesson that also needs to be learnt by the photographer.

But now put yourself in the position of the photographer who did this. You're handed a set of images from your client - you may or may not have asked if your client has the authority to use all of the images (and you did say earlier that your principal thought she had ?), and you go ahead and use them as clearly as has been organised with your principal (who has done everything else "by the book").

So I would personally probably contact the photographer in question. Speak to them and explain the situation. See what the reaction is. Is it understanding and remorseful ? Or is it a go and bother someone else. Sure you can tell them the contents of your letter. You can also explain your apparent legal basis. But they may also pass you back to your principal.

I'd be giving them the benefit of the doubt myself. Once you've enlightened them to the copyright situation in Australia, you may then find that they too would have learnt an important lesson. I think asking for a $325 contribution to a charity from what I am guessing is a small business to be too much. In my view, as one that has been on the receiving end of trying to contact a photographer who had no exif data on an image that I was given to "improve", and settled on the written acceptance of liability, and assurance that they had commissioned the image in Dubai from the supplying client (which you dont know if thats happened between the school and the photographer).


At the end of the day, people are not mind readers, and unfortunately many dont read the exif data (incorrect I know - but human) you should ensure that you have a visible watermark on images that you have not agreed on public or commercial distribution.

I'd say that the biggest win was the principals acceptance of responsibility and further apology.

[Athiril]

If you had used their camera then the copyright is theirs, but as you used your equipment I think it rests with you and if you did not give them permission to on sell your images then ask them to stop.

This is incorrect, who owns the property has no bearing on who owns the copyright, it just makes copyright ownership harder to prove.

IE: Someone else may own the camera, memory card or film negatives and electronic property, but this does not mean they own the copyright at all.

Property law and copyright law are two different things.


OP: This also violates your moral rights, on potentially more than one ground.

Not being accredited unless specified to remain anonymous is a breach of moral rights (on top of copyright infringement) - this also doesnt change even if they have copyright permission.

Moral rights can never be taken away, transferred, or signed away, or waivered.

Even though plenty of places and groups try to undemine this law - like news.com.au 's posting policy is that you waiver all moral rights - this is imposible, invalid and illegal thing for them to try and do.

[Scotty72]

Again, thanks for the feedback.

On reflection, in the cold light of day, with a calmer mind (insert more cliches) I have decided to tone my letter down to a letter that politely ask, 'what for?'

I will let the tone of their reply (or lack of) determine the tone of my next action.

I agree that the cause was probably the school but, I believe the photographer should acknowledge their part in it as well. Perhaps a polite 'mia culpa' is enough.

I will only escalate if they give me reasons... (for eg. they tell me to bugger off)

I have had an offer to help me draft the letter from amongst AP members - but I will not ID the person at this stage as I'm not sure if they want that . To that person, thanks

Scotty

[Fantasyphoto]

http://www.artslaw.com.au/legalinformation/MoralRightsInfringementAndLetterofDemand.asp

Get some legal advice, but I'd be suing the photo company for breach of copyright.
Maybe $5,000 ?

Just send the photo company a polite letter informing them of their error and breach of copyright together with your (reasonable) invoice and you should get a very quick response.

Would you be happy with a few $$$'s and a moral victory?

[jasevk]

I think your approach with the charity donation is fantastic, Scotty... very admirable I must say :) I don't think the school has acted as thoroughly as it reasonably could have... and IMO the principals response about taking this up with the photographer is piss weak.

I agree to an extent that the letter may be a bit much to the photographer... but like you Scotty, I tend to wonder whether he could've produced the work without poaching your images, THAT to me is the deal breaker. So yes, I'd send a much more mild letter... but I'd be pissed that my boss didn't have the nuts to do so.

[zollo]

some employers have workplace IT policies that more or less say computers belonging to them can only be used for work purposes or have documents/programs pertaining to work. Dont know the case here but, why were the images on the schools computer in a place accessible to the school/whoever accessed them? were they marked private or protected with a password? if not, it may be reasonable to assume that whoever handed the images over may have thought that these images were part of other photos that do belong to the school.

and as for the photographer, once again I dont know the circumstances well enough, but it may have been an assistant just picking up a cd/disk with images, and possibly even working on the project, and not all assistants would be intimately familiar with copyright. again just a scenario but leaves the situation open a bit

[Scotty72]

some employers have workplace IT policies that more or less say computers belonging to them can only be used for work purposes or have documents/programs pertaining to work. Dont know the case here but, why were the images on the schools computer in a place accessible to the school/whoever accessed them? were they marked private or protected with a password? if not, it may be reasonable to assume that whoever handed the images over may have thought that these images were part of other photos that do belong to the school.

and as for the photographer, once again I dont know the circumstances well enough, but it may have been an assistant just picking up a cd/disk with images, and possibly even working on the project, and not all assistants would be intimately familiar with copyright. again just a scenario but leaves the situation open a bit

Sometimes, the line between work and personal is very fuzzy with English teachers. The syllabus requires we engage with numerous social issues of the day, we need to find songs, videos, egs of advertising etc. to use in class. So, when we read the papers / youtube / forums etc. it may well be a combination of work / social.

As stated before: I, along with many teachers (I'm sure others on here will agree), generally don't mind my work being used in school newsletters etc. We do it for the kids who love nice clear pics of themselves and I get numerous practise opportunities. However, it is a completely different matter when a private company uses this for profit.

My import into Lightroom automatically places a (c) message about school / educational / not for profit / non-commercial use unless written permission etc. into the meta-data.

Anyway, the principal (the only one autorised to release to outsiders) now is crystal clear about the issue.

Also, there seems to be an acceptable outcome.

My principal passed on an apology from the photographer.

He accepts that even if the school passes on work, he must, in future, ensure he is entitled to use it.

I accept the potential gain (zero for me) from potential further action is probably not worth the aggro it may cause.

I got (and accept) my apology, they are on notice if they do it again. So it seems, ALL GOOD! :)

Thanks anyway.

Scotty

[kiwi]

Sounds like an all round good outcome mate, now hit the tog up for some work, lol

[Scotty72]

Sounds like an all round good outcome mate, now hit the tog up for some work, lol

Na! I haven't finished ripping off my own eye-lashes for fun yet.

Scotty

[Longshots]

Na! I haven't finished ripping off my own eye-lashes for fun yet.

Scotty



A good outcome - all parties end up more informed, and you've received a proper apology. Good work.