Freelancers' Questions: How to handle unauthorised use of photos?
Freelancer’s Question: A couple of years ago I allowed some of my wildlife photographs to be used as decoration in one of our company site's restaurants. I submitted a couple of dozen of which they chose seven.
Last year the company re-designed their website and advertising brochures and there, on the website were 11 of my pictures; three of them appear in their brochures too.
I have never been approached or asked for permission to use these pictures and think I deserve to be paid for them as they are now online and being distributed in thousands of brochures. I asked about this and they offered me only £250. I rejected that sum, but stated that I would accept £1,200 for unlimited use of the pictures.
Since then, I have heard nothing and now wonder about my options. I am thinking of submitting an invoice for an amount informed by the "Freelance Fees Guide." But most importantly, do I have any legal footing? All the pictures were taken in my own time.
Expert’s Answer: As a keen photographer who has had some of my own images lifted without my permission, I really am sympathetic to your situation.
Put simply, if you take a photograph, shoot a video, or create a design or artistic work, you own the copyright. No one else may reproduce it, without your permission, by posting it on their website, or printing or copying it in any way. This applies unless you have signed your rights away.
In your case,a couple of dozen photos were submitted to a company. They used seven at the time. Several years later they have used another 11 on their website and three in their brochures.
Unless the company can prove that the photographer released his copyright or gave permission, they had no right to use the photos beyond the initial selection of sevenfor that specific purpose, namely for display in the company’s restaurant.
As I understand it, the company have not claimed that copyright was assigned or permission given for the use of the photographs beyond the initial use.
It follows that you, as the photographer, are entitled to seek compensation for breach of copyright. You can elect to recover either damages or the profit made by the company by the use of the photographs.
In most cases the most appropriate and easiest to recover is damages, and this normally equates to the going rate for such photographs. For example, how much would the company have had to pay to a stock image organisation such as Getty Images? £500 per photograph is commonly claimed by Getty when enforcing their copyright, but clearly that is based on their re-sale value.
If a photographer was negotiating with the company at the outset, what would his or her licence fee have been? £1,200 for the use of 11 photographs would seem a reasonable claim. I expect a compromise could be achieved between the £250 offered and the £1,200 claimed. In short, you should press for more money.
The expert was Nigel Musgrove, advising on behalf of Cousins Business Law.
Editor’s Note: Further Reading:
25th January 2012