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I am looking for some help. A while back, I submitted a photograph of a mural to Alamy. The image was accepted and sold once.

 

I was contact by the attorney of the artist of the mural. He is threatening to take me to Federal Court over a copyright infringement. He claims that I sold the image illegally and infringed upon the artist's copyright rights.

 

It was my understanding that since I limited the sales to Editorial Only...that I was permitted to sell the photo.

 

Within minutes of being contacted by the attorney, I deleted the image for my Alamy portfolio. To my surprise, although the image no longer appears in search results--the original link to the page still provides the viewer with the ability to purchase the image. This is problematic.

 

I'm not sure how to deal with this. On one hand, I thought I should wait until a law suit is brought against me before acting on this. I am hesitant to hire an expensive copyright attorney to defend myself if this is just a ploy by the artist to get me to "settle". On the other hand, I've been informed that penalties could amount to $150,000 plus attorney and court costs.

 

Any advice would be highly appreciated!

 

Glenn

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I would think you should contact Alamy about this as soon as possible. I think they have a copyright team who could help and advise you, as well as deleting the image for you.

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Thank you. I contacted Alamy before posting this here. I could only interact via email. To my surprise, I received a reply within a short period of time. Apparently deleted images remain for sale for 180 days after the contributor deletes it.

 

Glenn

Edited by gnagel
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Despite what VB says, Alamy won't help you with legal advice. This forum can hardly help you with US copyright law and you are probably going to have to get specialist legal advice. Are there any "pro-bono" services you could access, or legal advice through an association you belong to?. You are undoubtedly being shaken down for a settlement and it will have to be handled carefully.

The figure mentioned is the maximum penalty for an image with registered US copyright. Don't let it frighten you.  But this probably won't go away in a legal system where suing is a participant sport, unfortunately. We don't know enough about the cirumstances even to hazard a guess as to what might happen, and I for one won't even try.

 

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Thanks spacecadet...I suspect you are correct. I am guessing this is a shakedown for a settlement.

 

I’ve reached out to some attorney friends, but so far they all tell me that intellectual property law is a very specialized field and that it will likely be an expensive venture for me to seek that counsel.

 

As a result, I am holding off on hiring an attorney until a law suit is actually filed—if one ever is filed. That might be a mistake on my part.

 

I am hoping that by limiting the sales to editorial only, removing the image for sale entirely within an hour of being notified by the artist of his concern and by showing that the total sales from this image were negligible—any damages might be limited. I certainly didn’t willfully infringe on the artist’s rights.

 

Scary stuff, though. 
 

Glenn

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Yes...the mural was the main subject of the image. This mural was on the outside wall of a brick building in downtown Buffalo, New York. It is a very popular spot for tourists to take selfies and so forth. It sold once through Alamy for a one time editorial usage in a magazine.

 

Glenn

Edited by gnagel
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Your lawyer (sorry, you will have one soon!) will know this, but whoever licensed the image is the primary infringer, not you. They're probably suing him as well if they can find him. You've only put it on a website. So your liability, if any, has to be much less.

Sorry, I said I wouldn't speculate and I have.

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Yes... my hope is that once the artist and his attorney realize that I won’t be offering a settlement that they may drop it.  They have asked twice for my insurance company to contact them, but my insurance agent rightly told me that my homeowners policy won’t cover such a claim anyway. Seems to me like the artist is seeking a bigger pocket entity to go after.

 

I plan to send a basic reply letter just so they can’t claim that I willingly ignored their concerns.

 

Glenn

Edited by gnagel
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A mural in a public place in a city centre that is very popular with tourists. 

 

Hard to see what is wrong with photographing that. 

 

If you copied it and created your own mural claiming the design to be your own I can see that they might have a case. But taking a photo? Not for me. 

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I think their concern is not that I took the photo...it’s that it was made available for sale. The copyright laws are complex, but my hope is that my liability is minimal if any as a result of prohibiting commercial usage of my photo.

 

Glenn

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5 hours ago, gnagel said:

I am looking for some help. A while back, I submitted a photograph of a mural to Alamy. The image was accepted and sold once.

 

 

 

Quick note, generally Alamy does not review content, so the fact they accepted it is not an indication of much beyond good photographic skills.  we all are responsible for what we upload. 

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2 minutes ago, meanderingemu said:

 

 

Quick note, generally Alamy does not review content, so the fact they accepted it is not an indication of much beyond good photographic skills.  we all are responsible for what we upload. 

Yes...that won't help my case. A few things in my favor include that fortunately I submitted it as an editorial image and that Alamy discloses below the image that I did not secure a property release from the artist. My hope is that it is the buyer who bears the responsibility as to the usage of the image since I disclosed the fact that there wasn't a property release associated with the photograph. The other thing is that the buyer indicated that the image was to be used one time in an editorial capacity in a magazine. Of course, I have no idea who purchased the image.

 

Glenn

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2 hours ago, gnagel said:

Thank you. I contacted Alamy before posting this here. I could only interact via email. To my surprise, I received a reply within a short period of time. Apparently deleted images remain for sale for 180 days after the contributor deletes it.

 

Glenn

 

 

this is standard, if you explain your reasons i'm sure they will remove it immediately.  

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10 minutes ago, meanderingemu said:

 

 

this is standard, if you explain your reasons i'm sure they will remove it immediately.  

I'm sure they would, but the 180 day period will hit in just a few days. I deleted the image about 175 days ago.

 

Glenn

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6 hours ago, gnagel said:

I am looking for some help. A while back, I submitted a photograph of a mural to Alamy. The image was accepted and sold once.

 

I was contact by the attorney of the artist of the mural. He is threatening to take me to Federal Court over a copyright infringement. He claims that I sold the image illegally and infringed upon the artist's copyright rights.

 

It was my understanding that since I limited the sales to Editorial Only...that I was permitted to sell the photo.

 

Within minutes of being contacted by the attorney, I deleted the image for my Alamy portfolio. To my surprise, although the image no longer appears in search results--the original link to the page still provides the viewer with the ability to purchase the image. This is problematic.

 

I'm not sure how to deal with this. On one hand, I thought I should wait until a law suit is brought against me before acting on this. I am hesitant to hire an expensive copyright attorney to defend myself if this is just a ploy by the artist to get me to "settle". On the other hand, I've been informed that penalties could amount to $150,000 plus attorney and court costs.

 

Any advice would be highly appreciated!

 

Glenn

Glenn,

 

I am not a lawyer and my advice if free, so it is really worth what you are paying for it.....

 

Since I assume that you are in the U.S. ? Are you or have you ever been a member of the American Society of Media Professionals (ASMP)

Membership includes legal assistance.

 

Keep in mind that I have never seen how you uploaded the Mural image, I.E. how you set up the information in Alamy Image Manager (AIM)

but in my own limited opinion, if you did have it listed as "Editorial Only" and the image was not licensed to sell a product or promote a private

company you should not have a problem and I do not think a U.S. Lawyer would have a case.  Also if you did have it listed as "Editorial Only" and it

was licensed and then used against the terms the you stated in AIM, it is not your fault.

 

There are many U.S. artist organizations the have legal support, do a search.

 

Chuck 

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It seems that this isn't the first time for him. 

 

I agree with your feeling that this is speculative. 

 

Is there any aspect of your image which is 'transformative' or would anybody taking a photo of this artwork come away with an almost identical image to yours? Have you created a new copyright? If yes then you can surely do what you want with that image and I can't see how an editorial use in a magazine is infringing the artist's rights in any way.

Edited by geogphotos
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2 minutes ago, Chuck Nacke said:

Glenn,

 

I am not a lawyer and my advice if free, so it is really worth what you are paying for it.....

 

Since I assume that you are in the U.S. ? Are you or have you ever been a member of the American Society of Media Professionals (ASMP)

Membership includes legal assistance.

 

Keep in mind that I have never seen how you uploaded the Mural image, I.E. how you set up the information in Alamy Image Manager (AIM)

but in my own limited opinion, if you did have it listed as "Editorial Only" and the image was not licensed to sell a product or promote a private

company you should not have a problem and I do not think a U.S. Lawyer would have a case.  Also if you did have it listed as "Editorial Only" and it

was licensed and then used against the terms the you stated in AIM, it is not your fault.

 

There are many U.S. artist organizations the have legal support, do a search.

 

Chuck 

Thanks Chuck...I am in the United States, but not a member in any such society or organization for artists. I confirmed that the photograph was submitted as editorial and that Alamy postponed it as such. I think the charge against me relates in part that Alamy’s editorial usage includes private usage for things like a print or card...even though that isn’t commercial usage.

 

Glenn

 

 

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5 minutes ago, geogphotos said:

It seems that this isn't the first time for him. 

 

I agree with your feeling that this is speculative. 

It seems to me that the most likely scenario is that the attorney scans the internet and stock agency websites in search of this (and maybe other) images. The artist might not even be actively involved in the suit...the attorney might tell him that he will work on a contingency basis and share any settlement dollars with the artist.

 

Should the case go to court, the attorney might figure that it is easy enough for him to appear in court since he is in Buffalo already. He has a background in copyright infringement law and could be counting on me not appearing or appearing and losing the case for a small dollar amount. He has reminded me that should I lose the case, he will be entitled to capture his legal fees and court costs from me as well. Could be looking at damages awarded of $200 plus $5,000 in legal fees or more—not counting my attorney!

 

Glenn

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2 hours ago, geogphotos said:

A mural in a public place in a city centre that is very popular with tourists. 

 

Hard to see what is wrong with photographing that. 

 

If you copied it and created your own mural claiming the design to be your own I can see that they might have a case. But taking a photo? Not for me. 

 

Agreed. I am reading this thread and, aside from feeling genuinely sorry the OP has gone through this, I am feeling mild anger that this is even an issue. It's downright petty. 

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18 minutes ago, Cal said:

 

Agreed. I am reading this thread and, aside from feeling genuinely sorry the OP has gone through this, I am feeling mild anger that this is even an issue. It's downright petty. 

Thanks...I've had a feeling of anger as well. When I was first contacted by the attorney back in June, I was super cooperative--told him that I had no intention of infringing upon the artist in any way and that I would remove the image from all of the stock agencies within the hour (which I did). At the time, he was focused on Dreamstime--and I told him that the image sold two times through that agency...one time I received 25 cents and the other time I received $2.00. He asked if I had proof of that, which I did, and I emailed him the life to date earnings report showing the $2.25 in earnings since inception for that image.

 

He then sent me the photo from the Alamy site and told me that it appeared that I was selling the image for "more than editorial usage". By then, I was getting tired of this since he linked the page on the Alamy website that clearly indicates it is an editorial image! He suggested once again that I forward the information to my insurance company.

 

I figured that was the end of it until I received another letter from him yesterday (six months after he last contacted me)--telling me that since he hasn't heard from my attorney or insurance company that his client is requesting that he take me to federal court. He wrote that he is giving me 30 days to reconsider (and I'm not sure what I am supposed to reconsider--offering him a settlement, I suppose), that will he file the law suit in federal court on January 3rd.

 

I wasn't sure if I should respond at all as I might just keep getting deeper into this thing and unwittingly provide him with more language he might be able to use against me. But, a couple of my lawyer friends suggested that I at least send a reply letter to him simply stating that the image was never sold for commercial usage. It was offered as an editorial image until he first contacted me, but since then the image has not been offered or sold at all. Finally, I certainly didn't willingly infringe on the artist's intellectual property rights--and in fact removed the image from all photo agencies immediately as a courtesy (despite it being limited to editorial licensing from the beginning).

 

Glenn

Edited by gnagel
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46 minutes ago, geogphotos said:

It seems that this isn't the first time for him. 

 

I agree with your feeling that this is speculative. 

 

Is there any aspect of your image which is 'transformative' or would anybody taking a photo of this artwork come away with an almost identical image to yours? Have you created a new copyright? If yes then you can surely do what you want with that image and I can't see how an editorial use in a magazine is infringing the artist's rights in any way.

Anyone taking of photo of this artwork would likely come away with a similar image. My photo was a straight shot of the mural--which filled the frame. I did not make any edits in post other than cropping and the usual white balance, contrast, saturation and sharpening adjustments.

 

I embedded my copyright information in the digital file--stamped by my camera. I did not file any copyright information with the government.

 

Glenn

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8 minutes ago, gnagel said:

Thanks...I've had a feeling of anger as well. When I was first contacted by the attorney back in June, I was super cooperative--told him that I had no intention of infringing upon the artist in any way and that I would remove the image from all of the stock agencies within the hour (which I did). At the time, he was focused on Dreamstime--and I told him that the image sold two times through that agency...one time I received 25 cents and the other time I received $2.00. He asked if I had proof of that, which I did, and I emailed him the life to date earnings report showing the $2.25 in earnings since inception for that image.

 

He then sent me the photo from the Alamy site and told me that it appeared that I was selling the image for "more than editorial usage". By then, I was getting tired of this since he linked the page on the Alamy website that clearly indicates it is an editorial image! He suggested once again that I forward the information to my insurance company.

 

I figured that was the end of it until I received another letter from him yesterday (six months after he last contacted me)--telling me that since he hasn't heard from my attorney or insurance company that his client is requesting that he take me to federal court. He wrote that he is giving me 30 days to reconsider (and I'm not sure what I am supposed to reconsider--offering him a settlement, I suppose), that will he file the law suit in federal court on January 3rd.

 

I wasn't sure if I should respond at all as I might just keep getting deeper into this thing and unwittingly provide him with more language he might be able to use against me. But, a couple of my lawyer friends suggested that I at least send a reply letter to him simply stating that the image was never sold for commercial usage. It was offered as an editorial image until he first contacted me, but since then the image has not been offered or sold at all. Finally, I certainly didn't willingly infringe on the artist's intellectual property rights--and in fact removed the image from all photo agencies immediately as a courtesy (despite it being limited to editorial licensing from the beginning).

 

Glenn

 

I'm sorry you've gone through it. It sounds like this person is a massive chancer. I wonder do they also intend to sue Google for the images the google car has no doubt captured of this mural. A service which, in combination with all of the other google services, come together to offer a product that people pay for. I really hate this kind of thing, and I have nothing to offer and no legal experience or knowledge. I'm probably wrong but I'd have thought in this case they would have to prove the existence of your photo for sale has caused them financial damage, which it has almost certainly not done.

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