A copyright quandry

[Sezzy]

Hi guys,

I'm in a bit of a bind. I took some photographs for a mate of his house for a web advertisement and a billboard out the front of his house, (a little bit of freelance work for me, and a bit of cheap labour for him). Now the ad was posted today, and it would appear that the real estate agent has taken credit for my photographs. I took this up with said 'mate', whose response was they spent 4 1/2 hours editing so the copyright was probably valid. Now the photographs weren't worth $300 (which is why he didn't pay that much), but it appears that the real estate agent has decided because he's edited my photographs (a few slight colour changes and some cropping), that he can take credit for my work.

I've read through the copyright laws, and reminded said 'mate' that copyright doesn't quite work that way, but I'm wondering if anyone has some advice they may be able to give me for future endeavours - my uncle wants me to do some photo's for his camper trailer business and whilst I trust my family, I thought I could trust this 'friend' to appropriately attribute my name to my work...

Any help would be appreciated.

Cheers,

Sez

[kiwi]

Send the real estate agent an invoice ?

[ricktas]

Easy! Get a written contract with clients (and mates) that states clearly that you own and retain copyright.

[Sezzy]

I think I will in future Rick, but does them 'editing' my photo's take away my copyright? Or did I read correctly that they're mine and no one else can take credit for them?

And if I've been paid by my mate can I actually send an invoice to the real estate?

[ktoopi]

Hmmm just goes to show that you can't rely on anyone (mates included) to always do the right thing. In my photography course we have just covered copywright issues and we were encouraged to do exactly what Rictas has advised even for friends and family and that is to have a written contract stating that you retain copywright.

[kiwi]

I think I will in future Rick, but does them 'editing' my photo's take away my copyright? Or did I read correctly that they're mine and no one else can take credit for them?

And if I've been paid by my mate can I actually send an invoice to the real estate?


I'd say the answer to both those questions are yes

Send William longshot a pm, he will know for sure

[Kym]

Send the real estate agent an invoice ?

Yes! At say $500 / image. Then you chase that thru small claims court and you win!

[ricktas]

I think I will in future Rick, but does them 'editing' my photo's take away my copyright? Or did I read correctly that they're mine and no one else can take credit for them?

And if I've been paid by my mate can I actually send an invoice to the real estate?

They have breached your copyright, cause they edited your photos without your permission.

[MarkChap]

Devils Advocate - that's me

Due to the lack of a written agreement, (and a court can find in favour of a verbal agreement), what is your mates version/idea/understanding of the agreement you reached with him when you were commissioned to to do the work ?.

[Sezzy]

I saw the ad posted on realestate.com and questioned him about the copyright that the real estate had put on them, his response came back regarding editing - I knew he was going to crop some, apparently they had to be a certain dimension for their 'template' for online display...which he didn't know the measurements for and I was okay with, but from comparing my images to the ones they have posted there doesn't appear to be any colour variation to the images...so I don't know if the RE is just silly and doesn't know how to crop (or if my 'mate' is as pedantic as I have discovered). I was paid $100, I did roughly 5 hours work - I was saving him some cash and doing him a favour...something I won't be doing in future...

There's 16 photo's in total - @$500 a pop, I could buy a whole new set up!

[fillum]

I'm not sure it's a copyright issue. I would think that he isn't able to claim that the images are his work regardless of who owns copyright (unless he made substantial changes, which it sounds like he didn't). Edit: Just saw you last post - I thought you meant he was claiming to have shot the images, but he has actually claimed copyright, is that correct?

My understanding is that if it was a freelance shoot for commercial purposes (real estate advertising) then the copyright remains with the photographer if there was no contract stating otherwise.

Get some qualified advice if you want to pursue it.



Cheers.

[ricktas]

Agree with Fillum, the big issue here is the he has placed his copyright notice on the photos, when he doesn't own copyright. The hard bit is going to be sorting out exactly who caused this, the RE agent may have acted in good faith, if your mate told him 'here are they photos, they are yours to edit and do what you want with'. In which case your mate is the one that needs the invoice sent to him, as the RE agent, acted in accordance with the instructions from the client (your mate). Without knowing exactly what was said to who, we really do not know who decided to breach your copyright, and my guess is they will both cover their arses and you will never know the truth.

In the meantime, send the RE Agent a bill for $200.00 (making a total of $300,00 after the $100.00 you already got paid). $200,00 gives you a good bit of extra income, and is enough to concern the RE Agent, but not enough to make him think you are just trying to rip him off Stipulating that he placed his copyright notice on your photos (send an attached copy of the ads) and as you took the photos, copyright belongs to you automatically under the Copyright Act, and that at no time have you consented to giving the copyright away. Ask the RE agent to provide written evidence that you have signed a document to give copyright to someone else, or if the bill is not paid within 14 days, you will be lodging it with the small claims court.

I reckon the RE agent will be in touch with you quite quickly. Either to pay up, or tell you he was told by his client (your mate) that he could do what he wanted with the photos, and assumed this also gave him copyright.

[ricstew]

Realstate dot com need images 800 on the long side otherwise the images get squished or stretched...............Rick has given you good advice here but dont expect your mate to thank you :(

[Sezzy]

Thanks for all your help guys, I might avoid billing him for it, because it's not really about the money, but the principle (and I'm big on principles). I would hope sending him a letter advising that the copyright is not his, and send a copy to my 'mate' as well, with the reference to the particular section of copyright law, and ask that they either attribute the photograph to the appropriate photographer or remove it from publication. It would seem that everytime there is a problem with a real estate doing something stupid or illegal, it always falls back to the same franchise of RE Agents...I'll draft up that contract though. :)

[William W]

I've read through the copyright laws, and reminded said 'mate' that copyright doesn't quite work that way, but I'm wondering if anyone has some advice they may be able to give me for future endeavours - my uncle wants me to do some photo's for his camper trailer business and whilst I trust my family, I thought I could trust this 'friend' to appropriately attribute my name to my work…

It occurs to me that whether or not the Real Estate fellow thinks or states he has copyright to the images is irrelevant to you other than the fact that it has annoyed you: i.e. your response is emotional and it didn’t have any bearing on the financial arrangement that you had with your mate: you got paid what you agreed upon, no?

Now, if the Real Estate Agent has charged your mate for the post production editing: then that’s your mate’s business. Also what is the real Estate Agent going to “do” with this “copyright” he perceives he has? It is unlikely that the images will entered and be award winning advertising (no offence intended – merely taking an extreme view to make a point) and the images don’t really have any other “value” than advertising your mate’s house for sale – after that the images are worthless, in a business sense.

The fact that any Real Estate Agent believed he held copyright would not deter me from using my images as part of my Portfolio, if I took made . . .

So other than having one’s feathers ruffled there is no “problem” as such.

Regarding your Uncle and future work, it is very likely that a similar situation will be present – the “value” of the images will be in the usefulness to your Uncle as an advertising vehicle for his business – if you get paid what you and your Uncle agree upon: then what would it matter if (for example) I posted the picture of your Uncle’s Camper Trailers on my website and claimed that I owned the Images – I would just be giving free advertising to your Uncle’s business and whilst I might be ruffling your feathers by claiming Copyright which is not mine – I am only ruffling your feathers if you allow your feathers to be ruffled (i.e. if YOU allow YOURSELF to be upset - yes I read thta it is a matter of "principle" to you: the strength of any "Principle" is not related to how annoyed one gets).

Further, let’s say the next week that Fred Nurk, your Uncle’s mate, who has a Caravan Business sees the camper trailer photos on MY website . . . and he thinks they are pretty good: sure he might ring me and I might get a job from it: but I would reckon that Fred is a wily old coot – most Uncles who have been in business a few years are – so Fred will also telephone your Uncle . . . mainly to find out what is the photographer’s “rate” and if your Uncle can get a cut rate for him . . . so your Uncle spills the beans to Fred . . . and my business is one step further up the creek and your business begins to flourish.

Don’t sweat the small stuff – pull the trump card that you own the copyright only if and when it really matters – and when it matters be prepared to take it all the way and win, using a QC and win for big money: that is my advice.


WW

[Sezzy]

Points duly noted, and taken on board...you're 100% right William. Thank you for your profound input, I hadn't really thought about it that way. :):th3:

[Longshots]

OK William has offered some excellent advice.


On the issue of the pedantics - and I like pedantics, the issue of who is the actual copyright owner - according to Australian Copyright law, you, the photographer created the image when you pressed the shutter button.

On the issue of the Real Estate company then, without your agreement, they are technically in breach of your copyright. Let alone, the seperate topic of them claiming the copyright. On that issue they are simply wrong, and if you think its worth the hassle, then by all means point that out to them. Sending them an invoice though, would not be worth the grief.

However, to play devils advocate, if they produced the overall billboard and subsequent marketing material, then as they created that part, you would expect them to be the holder of the copyright on that overall product.

I produce commercial images for clients all of the time and have been selling my images to commercial and personal clients for over 35 years. 20 of them in Australia, and since being here 90% of my clients are commercial (personal clients - ie portraits, the copyright law is slightly and importantly different). And when a client commissions me to produce images for them, its generally on the basis that they will reproduce them in marketing material. Sometimes they will not touch them, and the images are reproduced without any further post production. But then sometimes they will absolutely bastardise the originals, which will leave me frustrated, but thats the commercial reality of the industry I work in. I own the copyright, and I licence them (my commissioning client) to use them as agreed prior to the shoot. Now when the images are then used to produce lets say a montage of images, or a complete piece of artwork (lets consider thinking about the front cover of a magazine as a good example), then the client owns the copyright of the layout of the magazine cover, and I own the copyright of the image. Can I complain about a great deal of post production which I wasnt consulted about ? Well I could under whats called "moral rights" - under the issue of "rights of integrity". However in real life, its not going to win you a great deal of goodwill from clients if you hit them over the head with a well deserved legal hammer, because you dont like what the client done with your work.

I undestand your point, but if you want to get an opinion on real life scenarios, then I would just make sure you get paid for your work. Make sure that you had an agreement PRIOR to the shoot on what was provided, for what, and on what basis the images can be used and "abused". All of that should - even in the case of working for mates - be agreed, by way of producing a quote, with your set of terms and conditions, which covers all of these issues BEFORE you start shooting.

If you did all of that before the shoot, then you should be comfortable that there is no argument about who owns the copyright. When you dont do this, then thats when there will be doubts and confusion.

To sum up - I wouldnt waste my time sending an invoice the Real Estate company - just make sure that they understand that YOU own the copyright, and make sure you're paid for your work. HTH.

[Sezzy]

:th3: Thanks longshots. I have drafted up a form of what will be present to future 'clients', so hopefully there will be no squiggly lines, just a nice straight one that says I will always own the copyright, regardless of what they think they should do to them.

Really appreciate the advice (I'm a fan of pedantics too...but I honestly didn't think I'd need it in this instance, apparently I was wrong).

Cheers all, I don't feel quite so, well, P'd off about it anymore, just a big learning curve for next time.

Thanks,

Sez

[William W]

On the issue of pedantics:

In the OP the Commissioning Agent was the "mate".
The "mate" on passed the images (or files) to a third party, the Real Estate Agent.
It was the Third Party who manipulated the images and etc.: not the Commissioning Agent.

The issue of licensing for use and etc., is between the Photographer and the Commissioning Agent.

That is not legal advice, simply an expression of how I understand it.

WW

[geoffsta]

My thought is...
If you gave the image to your "Mate" without fully explaining that you don't want the image tampered with.
Your "mate" gave the image to the realestate agent. Saying a mate took the image, and said do what you like with it.
I don't think the realestate is at fault.
In realality.. There is no mates in business. Verbal or written confirmation with mate/client should have been addressed from the start.
Again.. Thats not legal advice, just how I see it.

[Longshots]

On the issue of pedantics:

In the OP the Commissioning Agent was the "mate".
The "mate" on passed the images (or files) to a third party, the Real Estate Agent.
It was the Third Party who manipulated the images and etc.: not the Commissioning Agent.

The issue of licensing for use and etc., is between the Photographer and the Commissioning Agent.

That is not legal advice, simply an expression of how I understand it.

WW

You're assuming something I'm afraid.

And that is that the people out there actually understand the issue of licensing, or respect copyright.

My bet is that there would be a significant number of people (because statistics prove this - no offence to anyone) on this forum who have an illegally copied film/music/software. So why would you assume that everyone is a) eductated about copyright, or b) honest ? Sorry to be blunt.

And while there may be a confusion or lack of knowledge about usage, and licensing; I can assure you that there is even more confusion about copyright and moral rights.

I lose count of the number of people who expect me to hand them a copy of my images to them for nothing. Forget the "value" of the images, they're not even thinking about the value of the "time" it takes to email or burn and post. No they all want it for/ or expect it for, free.

Just because you own the copyright of an original image - unless you specifically state both in writing to your commissioning client that you dont accept any further work or manipulation - ie covered under moral rights, then you are pretty much opening yourself up to the incredibly grey area of who is stamping their copyright symbol on your work.

And for whats its worth, the RE who stamped the copyright symbol on the shots is in some small way doing the OP a small favour because the purpose for doing that is to stop other RE companies useing the same images, when the person who is selling the house/property loses faith in that RE mob ever selling the property and the images then just get nicked and used by a different RE mob.

Its a grey and tricky area, and I totally understand where the OP is coming from and support that viewpoint, but the RE company does have a right in a small way to put their copyright symbol on it in the abscence of anything in writing - OR AND THIS IS important, in the abscence of a visible watermark from the OP, or more discretely a copyright and usage agreement electronically imbedded within the image - ie within the Metadata - which begs the question to the OP - do you do that ? And if not - because I suspect you dont, as most people dont - then why not - takes literally seconds to accomplish :) !!

[Sezzy]

Thanks again Longshots - I have my name embedded in metadata (at least I think it's embedded - it's one of my automatic import settings in lightroom), which begs a question from me...how can I be sure that it can't be removed after the fact?

I have a visible watermark, but I didn't put them on these photo's - I'm kicking myself now that I didn't, and will make it an automatic addition in future when I export from lightroom. I think I'm going to start doing the faint watermark in the middle and then said 'customer' can pick photo's they want and i'll send them jpeg's with the 'no reproduction or manipulation' - for the most part I've never had to worry about anyone 'poaching' photographs as their own...I'm still trying to get back into the swing of photography after an 8 year 'rest'... :)