September 18, 2014, 02:09:41 AM

Author Topic: Surprise commercial use of one of my photos  (Read 2385 times)

Barrfly

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Re: Surprise commercial use of one of my photos
« Reply #15 on: July 27, 2014, 02:26:17 PM »
 Thanks for all the replies, in all honesty I was curious to see how a forum full of people who make a living thru photography would react to this situation.

 I'd imagine the next logical step is to make contact in a civil manner and see how it goes from there . Like I mentioned earlier I'm flattered they chose to use my work, just not happy about how they went about it.

 I'll update this thread for those interested as the matter progresses .   

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Re: Surprise commercial use of one of my photos
« Reply #15 on: July 27, 2014, 02:26:17 PM »

klickflip

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Re: Surprise commercial use of one of my photos
« Reply #16 on: July 27, 2014, 02:36:45 PM »
Congratulations first, it looks good ! just a a shame it wasn't a proper agreed paid assignment.

As others have said, 1 they have at very least taken the professional piss, as they have presumably paid a designer, ad space and probably a marketing / ad company to be involved in the production.. so they really should pay for the photography , and they will know this very well!

2 as Unfocused said work produced when working for your employer is property of the employer.. probably partly true but what clause in your contract says any photography or other work not electrical as specified in the job sheet that week/ month is their property? I doubt it , gut feeling says if you took this to court it would go in your favour.
As a note if you work as a staff photographer or designer then your contract will probably say that any images/work produced while on time / job / assigment are their copyright but everyone knows this beforehand. Seems to me your case is very different.

As you were doing a favour to the company, and all you were aware that they would be used in newsletters and in-house / union PR or maybe an exhibition and you say you are fine with that, most other people in a similar position would be too.
However and a big however, as this is now Advertising material, not just some pics to show the rest of company some ongoing work or best for an inhouse/ industry only union PR event. In my work internal company PR/ news  vs advertising are very different uses ( and fees)
PR and company news updates etc will often use a fellow employee  who is keen amature to take the pics. As they don't have much monetary commercial value then thats fine, and photog involved enjoys some low level limelight, and company enjoys his hobby and other skills which make them a bit more valuable or liked. 

This is much different, presumably they have paid for ad space, a designer and ad company to produce it - in which case your picture was used without consent for this use and normally they would have to pay somewhere from $400-$1000 to get a shot like this from professional photographer.

But I would first check if it was all produced in house by your company - was it designed by in house designer / marketing staff? and they they organised the ad space.
If it was a kinda off the cuff idea from some of the staff and they did it all theirself, especially if they don't normally do this type of thing but thought the pic was great so lets do this. Then it might be unintentional and innocent. which case you should still have a 'nice' chat with them and see if they would contribute to your equipment in future  ( state how much they have saved using your picture so say 50% of what they might have paid would be a good gesture.

But if it was made , organised or planned as part of an advertising drive then you really should be compensated paid for the usage of the image. BTW outdoor/ billboard / poster advertising normally attracts a 50%-100% fee on top of the photography shoot fee. SO use this to add validity to your case, at least you can say to help you pay for some new equipment to help take better pictures next time - but next time agree on the usage,  make sure its only for newsletter or website blog or maybe a union exhibition but not for advertising / marketing use.
Probably best write them a nice email stating how  and where any pictures you supply in future. just so you all understand, as for ad / marketing even PR to get as good shots as you can supply they would normally have to pay fairly decent money.

You may just have to take this one on the chin, if so I'd raise in email how you liked how they appreciated your picture enough to run it on an ad but aren't totally happy with this unsolicited use this time, and but will let it go for this one billboard.. however any more they would like to run it on they will have to come to some agreement about further usage and $.
In the future please do clarify the usage for anything else you do... hopefully they will appreciate your work and offer some $$ for you next time :)
Additionally you are in a very good position offer them really good photography, as you have the skills, plus inside knowledge about what & how should be shown in the images and be able to effortlessly get the best out of any staff you know. These things are as important or more than just good photo skills.

YuengLinger

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Re: Surprise commercial use of one of my photos
« Reply #17 on: July 27, 2014, 03:20:43 PM »
Don Haines had a good idea, get some credit in a practical way. 

If you kind of, sort of said they could use it, take it as a lesson.  Whenever you use your camera and share the images, if you want credit, if your heading towards pro or semi-pro, have a plan in mind.

Consider visiting the Professional Photographers of America website--they have some good info for free.  Members get more detailed © protection discussions, plus access to decent templates for contracts and model releases.

At the very least, you've gotten something good for your portfolio.  While the shot itself is quite a nice one, having it used so prominently in this rolling ad boosts its usefulness as a feather in your cap for future jobs.

TeT

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Re: Surprise commercial use of one of my photos
« Reply #18 on: July 27, 2014, 03:41:45 PM »
They should have asked, should give credit. Probably would not have paid though.

Very likely a misunderstanding regarding who actually generated / owns the photo by somebody who did not do due diligence on the front end by somebody who saw it in the newsletter and assumed...

unfocused

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Re: Surprise commercial use of one of my photos
« Reply #19 on: July 27, 2014, 05:16:12 PM »
I've outlined the legal issue. Now, let me give you the marketing advice. If I were you, I'd go to the Local and tell them:

You were really excited to see they used your picture. You would have liked to get some credit, but that's water under the bridge. What you'd really like to do is get in a position to be the Local's primary photographer.

Because you are a union electrician, you understand the jobs better than any outside photographer can. That means that when you take pictures, you will notice things that a typical photographer won't. Which means less risk of an embarrassing mistake or having to do a re-shoot.

You are concerned about the compensation because, as a union guy, you 1) need the money you get paid on jobs and can't afford to take lots of time off from paying jobs to do the photography and 2) you are sensitive to the idea that workers shouldn't be undercutting one another by doing jobs "under the table" etc.

However, you are doing this with an eye toward the future and gaining experience, so you want to be reasonable and practical about what the union can afford – maybe suggest that they pay you at the same rate as you would be getting on a union electrical job.

Oh, and you've got some ideas that they might want to consider:

How about they pick out four or five of their best union contractors and you shoot portraits of the owners or top managers to go with quotes about why they use union labor. "Here at XYZ Construction, we place an emphasis on getting the job right the first time. We never cut corners and that's why we use 100% union labor."

Meet Joe Smith. He's a union electrician and here is what the means to you.

Do a profile of an African-American union electrician that the union can use in their literature to recruit minorities.

Similarly, do a profile of an Hispanic union electrician that can be used to recruit Hispanic apprentices.

Do a brochure on what homeowners should look for in their basements, etc., for signs of wiring that is improper or unsafe.

Anyway, you get the idea. Go to them with four or five ideas of how they can use you and why you are best person for the work. Don't dwell on this incident, but use it to open doors. Maybe you become the go-to photographer for all the Locals in the area.

pictures sharp. life not so much. www.unfocusedmg.com

Don Haines

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Re: Surprise commercial use of one of my photos
« Reply #20 on: July 27, 2014, 05:30:18 PM »
I've outlined the legal issue. Now, let me give you the marketing advice. If I were you, I'd go to the Local and tell them:

You were really excited to see they used your picture. You would have liked to get some credit, but that's water under the bridge. What you'd really like to do is get in a position to be the Local's primary photographer.

Because you are a union electrician, you understand the jobs better than any outside photographer can. That means that when you take pictures, you will notice things that a typical photographer won't. Which means less risk of an embarrassing mistake or having to do a re-shoot.

You are concerned about the compensation because, as a union guy, you 1) need the money you get paid on jobs and can't afford to take lots of time off from paying jobs to do the photography and 2) you are sensitive to the idea that workers shouldn't be undercutting one another by doing jobs "under the table" etc.

However, you are doing this with an eye toward the future and gaining experience, so you want to be reasonable and practical about what the union can afford – maybe suggest that they pay you at the same rate as you would be getting on a union electrical job.

Oh, and you've got some ideas that they might want to consider:

How about they pick out four or five of their best union contractors and you shoot portraits of the owners or top managers to go with quotes about why they use union labor. "Here at XYZ Construction, we place an emphasis on getting the job right the first time. We never cut corners and that's why we use 100% union labor."

Meet Joe Smith. He's a union electrician and here is what the means to you.

Do a profile of an African-American union electrician that the union can use in their literature to recruit minorities.

Similarly, do a profile of an Hispanic union electrician that can be used to recruit Hispanic apprentices.

Do a brochure on what homeowners should look for in their basements, etc., for signs of wiring that is improper or unsafe.

Anyway, you get the idea. Go to them with four or five ideas of how they can use you and why you are best person for the work. Don't dwell on this incident, but use it to open doors. Maybe you become the go-to photographer for all the Locals in the area.
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old-pr-pix

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Re: Surprise commercial use of one of my photos
« Reply #21 on: July 27, 2014, 05:52:50 PM »
Great photo... I can see why they used it.  Question of ownership is difficult to resolve.  You state you are paid well for electrical work, but a commercial photographer daily rate should be much higher, probably double.  When you took the shot were you selected for that job specifically to take photos as well as typical electrical work, or is this a shot you just happened to take on the job?  It's debatable whether the photo is property of the company that hired you (work for hire) or not?  However, it appears the photo was used by the union for advertising, not the company you were working for when the shot was taken.  How did the union (or its ad agency) get the photo?  Did they get all appropriate property and model releases?  Was this all "a good idea at the time" by folks who don't understand either the rules or conventions or did people who should know better just carve you out?  This is one for the courts to resolve if you wanted to push it (I assume you don't for obvious reasons like future work - electrical or otherwise).

+1 on unfocused's marketing insights.

If you want to continue doing the informal stuff for job documentation, newsletter, web use, etc. only provide jgp files of appropriate size, resolution for those purposes.  Keep any high resolution files yourself and let it be known they are available for a fee.  Unless you can reach agreement for special rate to reflect your added skills, I'd suggest you try to do all the shooting during your break or at lunch or somehow on your own time at the job site.
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Re: Surprise commercial use of one of my photos
« Reply #21 on: July 27, 2014, 05:52:50 PM »

Barrfly

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Re: Surprise commercial use of one of my photos
« Reply #22 on: July 27, 2014, 07:55:46 PM »
  I have to admit that I was sort of apprehensive about making the original post, thinking it might be viewed as an empty complaint .But there's lots of good advice and suggestions flowing thru this thread.
 I'll endeavor to keep the ideas in my head during my next contact with the hall .

dallasdave

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Re: Surprise commercial use of one of my photos
« Reply #23 on: August 13, 2014, 09:51:48 AM »
What about the folks in the picture? Did they sign a release?

AcutancePhotography

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Re: Surprise commercial use of one of my photos
« Reply #24 on: August 13, 2014, 11:45:07 AM »
In my opinion, your company owns the copyright to the photograph.

Your situtation is a gray area though and only the courts can really give a decision on this on a case by case basis.

Title 17 secton 201 addresses copyright when the artist is hired.

"(b) Works Made for Hire.— In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. "

Traditionally, this pertains to a company hiring a photographer, in this instance, to take pictures as an agent of the company.  This did not occur in your situtation.  But there are legal simularities.

If this goes to court, the court will be interested in:

1.  Would the contractor have asked you to take the picture if you were
a.  Not already on contract with the contractor
b.  Did not have access to take the pictures as a result of you being employed by your company

3.  Did your company authorize or approve of you taking these pictures?

4.  What was the rational for taking the pictures -- Was there a commercial benefit for any of the involved parties?  The key phrase from Title 17 is for whom the work was prepared.  You did not take these pictures just for your own amusement.  You took these pictures with the intent of benefiting either your company, the contractor, or both.

5.  Were you compensated for the pictures?  You were paid.  You agreed to take the picture with the offer compensation.

It is my opinion, that the court would interpret this as you were a compensated agent of the company, performing an action authorized by your company for the benefit of your company (and perhaps the contractor). While you were taking the pictures you were covered by your company's liability.

Absent of any agreement, verbal or otherwise, establishing copyright, I feel that a court would interpret this as the copyright is owned by the company.

I strongly agree with the previous posters in that you don't want to make a big deal out of this.  In  my opinon you would lose in court.  As the other posters wrote, turn this around to be a win-win resolution that will give you future opportunities.

Good luck with it.
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Re: Surprise commercial use of one of my photos
« Reply #24 on: August 13, 2014, 11:45:07 AM »