Ask an Agent is a regular monthly column that answers all your dilemmas about the business of photography – a sort of photography agony aunt. Whatever area of the industry you are in, if you have any questions you’d like to ask please send them to email@example.com.
This month Ask an Agent advises on the thorny issue of copyright infringement.
I’ve just noticed an image of mine of a kite in the sky is being used on the website of a hotel chain without my permission. If this isn’t bad enough it was commissioned recently by another client and the image is still licensed to them. What should I do?
A Photographer, Anonymous
There’s nothing more infuriating than spotting an image being used when no agreement has been made. Most of the time people aren’t even aware that what they are doing is wrong, a sad truth in this industry, but the more we can educate people the better.
Here’s what to do:
Step 1: Take a screen grab of the image in context.
You can use this as evidence.
Step 2: Double check they definitely are in breach of copyright.
By the sounds of it, if the image has been commissioned recently and your client is unhappy, they are. Sometimes when people commission photography they request that the images can be used by associated companies or subsidiaries for example so check your small print. By turn you should specify very clearly on your invoice ( and on your estimate) who you are licencing your images to.
Step 3: Contact the ‘infringer’. Point out what they have done and ask them to remove the image immediately.
Personally I like to keep things a little informal at this stage, threatening legal letters can come next if you need to get a bit more heavy handed.
Something along the lines of…
I have just noticed that my image (attached) is being used without permission on the xxx website. As the photographer I own the copyright to this image and as such am the only person who has the authority to grant reproduction rights. No reproduction rights have been granted to you to use this image in this instance, this is copyright infringement and against the law.
Not only are you in breach of copyright but you have caused upset between me and my client who a) commissioned this image recently and b) has a current agreement to exclusively use this image. (note: add this bit if this is the case, it is usual professional practice that only the photographer can use the image for self promotion whilst the original usage is in licence)
To avoid further action by either my client or my lawyer please remove the image with immediate effect. ‘’
(This is my idea of informal btw!) Hopefully that will be the end of it, if not…
Step 4: Get your lawyer to send a letter.
Two very good copyright lawyers are Swan Turton and Michael Simkins. For a flat fee they will send a copyright infringement letter.
Step 5: Take legal action.
And then the final, drastic step ( hope it doesn’t come to this) would be to take legal action and sue them for copyright infringement and potential damages as a result of compromising your relationship with your client.
In a different situation where an image could be available for use there is an alternative, and that is to grant them a usage licence so they can legally use the image once they have paid.
Ask the ‘infringer’ what specific usage they do require and if they fail to tell you or aren’t sure invoice for the usage you can see, e.g online usage for 3 months, and specify that any further usage above and beyond this needs to be negotiated. I suggest 3 or 4 times what you would usually charge given the circumstances and point out that the image still cannot be used until this is settled in full. Clarify though that these fees only apply if you do not have to take legal action, are simply your attempt to settle the situation and will have no affect on any further compensation the courts decide to impose.
Of course there is the whole can of worms that might be opened if there are people featured in the shots, model releases and model fees would also then need to be agreed and invoiced. I’m assuming there aren’t any in this case as you say the image is of a kite in the sky.
Good luck with that then!
Looking forward to answering more questions next month, so keep them coming to firstname.lastname@example.org
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This advice should be taken as a guide only. Lisa Pritchard and LPA take no responsibility for any omissions or errors. Please seek professional legal advice should you require it.