Freelancers' Questions: What if my photo was used without consent?

Freelancer's Question: I am a photographer for a student newspaper and take pictures of various university sports matches. I've just found out from a friend at another university that one of my images has been included on a flyer sent to all students of this university by the union. They have not asked my permission and it's quite annoying. I've been told to send them a bill, but I'm not sure how to go about this. Do I explain it all in a covering letter and
how do I spell out the legal issues/implications, assuming I have to?

Expert's Answer: As a photographer, you, or possibly the student newspaper depending on the agreement between you, will own the 'copyright' in the photographs you took.

By owning the copyright, others cannot legally copy or use the images without your permission. If they do so, this is known as 'infringement of copyright'.

It appears from what you say that the other university has infringed your copyright. You will be entitled to demand that they don't use your image again and destroy any flyers still in their possession.

You will also be entitled to compensation. This can be calculated either by the financial loss you have suffered by them using your image, or by the financial gain they have enjoyed from using your image, or a reasonable royalty for their use of your image. In situations like this, it is usually difficult to ascertain your financial loss or their gain so most people will demand a royalty.

Basically, you should consider what you would have charged them to use your image on their flyers had they asked your permission. You will be entitled to claim this.

Strictly speaking, this is not a matter of invoicing, but of claiming damages and so you should simply write to them explaining that you are the photographer and therefore own the copyright of this image, and that you have not given them permission to use it.

You should state that you are claiming a reasonable royalty for their use of these images based on what you would have charged them had they asked for your permission, and demand that they pay you this sum within, say, 7 days. If they do not pay, you have the right to take them to court and ask for orders that they don't use your image again, destroy any flyers still in their possession and pay you damages on top of this.

The expert was Gary Cousins, solicitor and co-founde of Cousins Business Law, a legal adviser to freelance businesses.

 

15th October 2010

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