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Hello

 

I'm hoping somebody will be able to advise me with my little situation. Here's a summary.

  • I took a photo about 5 years ago of a commercial property, belonging to one of the companies on the "Subjects which should never be Royalty Free" list found on Alamy.
  • I uploaded a low-res version to Flickr (it's not on Alamy or any other stock site).
  • I recently found it had been used on a book cover (a fiction book if that makes any difference) where the trademarked logos on the property have been edited out, and the colour scheme of the commercial property (which is part of a brand identity) has been altered.
  • I asked the publishers of the book where they sourced ithe image, and they gave me a load of denial that it's my photo, but eventually agree to pay the fee I placed on it (once I had indicated that they're failure to pay would mean that I would pursue legal action)
  • They've asked me to provide confirmation of what they are paying for.

Okay. Under Alamy rules that photo wouldn't be available for commercial use, because it features a trademarked brand.

However, they've already used the image for commercial use, and I feel I am owed payment for that.

If I tell them that on receipt of payment they're able to continue to use it as they currently are – does that mean I have crossed a legal line?

 

I realise I'm not the best at explaining, so feel free to ask if there's anything I've missed.

 

Cheers awfully,

Russ

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I am not a lawyer but if you make no claim or promises you should be OK. I would just invoice for the use of they have made, and intend to make, of it: single use as book cover, number of years, territory. Make no claims about property releases etc. Keep it to the absolute minimum.

 

The fact that you are paid for the use of your copyright should not change their legal position (or yours) with regard to the subject when they were using it illegally if you give them no warranties. With the branding effectively removed it should be OK anyway I guess.

Edited by Martin P Wilson

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While fiction book covers are usually sourced from 'creative' collections, the usage is actually editorial, not commercial, just as a magazine cover is or the front page of a newspaper.  Buyers will usually ask for MRs, but a PR will not normally be required.

 

Bear in mind that this is high-end usage, and you may be entitled to a four figure sum. How well known is the author?  I checked with Corbis, and fiction is not a standard feature of the calculator.  You can guess why.

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What Alamy might require has nothing to do with this.

The liability, if any, is with the publisher, not you. You haven't misrepresented the status of the image because it was stolen from you, so you had no opportunity to clarify the terms of use.

However I personally wouldn't license a new edition. So your retrospective licence should only cover the lifetime of the current edition, in my opinion.

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Might be worth writing in a disclaimer into your eventual invoice as to your liability of their use of your image.

 

Andy

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Cheers all – really grateful for the responses.

 

"The liability, if any, is with the publisher, not you."

I think the above is something of a reassurance really. Not doubting anybody's word on here, but is there anything on the internet which I can reference to this effect if it comes to it? (by the way, I'm in the UK and we're talking about a UK customer).

 

I was thinking about putitng some kind of words which say 'in usual instances I would recommend caution with regards to using an image of commercial property, but since the image has already been used and this stage already been by-passed, this recommendation is effetively of no value.

 

Certainly I'll write something which indicates no personal liability should the company represented by the commercial property take umbridge of its use (but better worded obviously).

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Don't add anything. We're photographers, not lawyers. A lawyer could probably argue it out of existence anyway. Just word the licence as Martin suggests- 'to use on book cover z from x date to y date' y being the lifetime of the edition. If they want to use it again do a separate deal for that.

You don't want to get into giving quasi- legal advice. They nicked it, let them sort it out.

Edited by spacecadet

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Don't add anything. We're photographers, not lawyers. A lawyer could probably argue it out of existence anyway. Just word the licence as Martin suggests- 'to use on book cover z from x date to y date' y being the lifetime of the edition. If they want to use it again do a separate deal for that.

You don't want to get into giving quasi- legal advice. They nicked it, let them sort it out.

 

Will do.

 

You don't think add a disclaimer as Andy suggests?

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Personally I too would avoid the disclaimer. As soon as you give any sort of advice you are getting into dodgy territory. We are photographers, not lawyer, they used it, published it is at their own risk as you have made no claims or implied warranties especially as already said, they nicked it and altered it.

 

I too am UK based but I think the advice is pretty universal in mature legal systems.

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Definitely the purchasing companies liability I would have said. Don't know what happens if there's a problem after you receive a fee. Probably none for you. Have any lawyer friends you could ask?

 

As an aside, this is what hate about Flickr. I don't put anything  on there anymore because I have had them borrowed in the past.

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I wouldn't want to make a deal with a company that stole my image, I'd speak to a lawyer and take their advice.

 

Parm

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It's not about making a deal. It is about getting fees (hopefully at top end of pricing) for usage already made. In the UK we do not have the opportunity to seek punitive damages; at least that is my understanding.

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One can seek extra damages for flagrancy and moral prejudice, that's about it. Presumably the OP has factored that into his settlement, as it was a commercial infringement. Nothing like the US position of statutory damages though.

But there is now the  threat of the small claims track to focus the mind of the infringer.

Edited by spacecadet

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