I took the above photo yesterday for our change of address cards. My D200 is finally back home.
This week Sweet Juniper registered a minor intarweb earthquake on the Flickr-scale when Dutch went public about copyrighted photos of his minor-child being stolen by a major corporation with a lot of "NERVE". I could "BABBLE" on and on trying to give you a hint about which company / online parenting magazine it is, but I'll just let you use your imaginations.
Some of you might remember I went through something very similar with a copyrighted minor-client photo of mine being stolen by a large online-corporation for their spin-off site's launch last winter. My photograph was repeatedly used as their "newborn" section icon throughout the website. It eventually resulted in a settlement months later after attorneys became involved.
Once my inbox started being flooded earlier this week, and soon-after I was contacted by Dutch, I realized the company with a lot of "NERVE" was one and the same. And almost a year later, another poor intern was being used as the scapegoat for image-theft and ignorance (or blatant disregard) of copyright law.
It takes a lot to bring out my "Seether", but I have to admit after doing a little Technorati-searching on Saturday night to get up to speed on just how far this whole broo-ha-ha has spread and then finding this I was ready to stick my fist right through a certain-someone's temporal lobe:
"...With regard to the 'settlement' described above, we had an agreement in place with a photographer to use an image, and she was surprised to see the small version of the image, which appears in the archives throughout the site, in more than one location. This is how our website (and most websites) work, but apparently this wasn't clearly enough explained in the agreement. As soon as she pointed it out, we took her photograph down. She had a friend of hers who was a lawyer send us threatening letters. We agreed to pay something like an extra $100 because she had a fair point -- the exact nature of the usage should have been agreed upon in advance..."
The quote above was published on 09.27.07 by the CEO of the company in question referencing me on their official forum. I can't even repeat the language that came out of my mouth after reading that bile-spew because I don't think most of it was in my native-tongue and I wouldn't even begin to know how to spell it.
For those playing along with the home game, let's get something crystal, shall we?
There was an agreement in place for me TO BE PAID for the use of my image. If you're really curious how much and won't be able to sleep tonight without seeing the dollar signs, it was originally negotiated at a crisp-fitty. I wasn't trying to get rich. I wasn't setting up a college fund for my sons. I was promised an author-credit and hyperlink and that was much more valuable to me than hearing "sorry - but we'll go ask someone else for their image" in return.
An image was requested (by them). A price was agreed on (by them). An official company e-mail asked me to invoice the company. An invoice was sent (by me). I was never paid (by them). The new site was launched (by them). My image appeared not once, but at least half a dozen times. In certain cases my image was flipped horizontally, which means they also created a derivative work.
My invoice was very clear. Some terms of the invoice sent included:
1. One-time non-exclusive use.
2. If the client wishes to make any additional uses, the client shall seek permission from the Photographer and pay an additional fee to be agreed upon.
3. No printed or electronic revisions are granted with this license.
4. Any additional usage, including said revisions, must be negotiated with the copyright owner.
5. Authorship credit in the name of the Photographer, including URL, shall accompany the photograph. If required authorship credit is omitted, the parties agree that liquidated damages for the omission shall be three times the invoiced amount.
Not "clearly enough explained in the agreement"? Are we reading the same English? What exactly do the words "one-time" mean to you? They "agreed to pay something like an extra $100 because [I] had a fair point"? How about you paid triple what you were invoiced because the legal document you requested I send to you CLEARLY STATED that amount was what was due for your blatant violation of said-agreement. Your violation of multiple clauses I might add.
Hell yes, my attorney sent threatening letters. My copyrighted work was stolen and used as an icon for a major corporation's site launch along with at least two other professional photographers on Flickr. We were ignored. Lied to. Talked down to. (And apparently that's not about to change...) They settled with me after months of not only side-stepping contact with me, but also with my attorney. I was literally a week away from green-lighting her to file suit in Tampa court. But she met with the company owner at SxSW, and a week later the documents were finally signed and a settlement check was mailed.
They can spin it all they want on their forums and in someone else's Flickr comments. But my site doesn't have public comments and I have copies of the entire paper-trail from start to finish that I would be more than happy to pass along to anyone else fighting this company but receiving the same old, tired lines. You see, I have a lot of "NERVE" myself.
This last little 'incident' wasn't about me. But my photographs are. And I'll be damned if I'm going to let some CEO act all generous and benevolent over stealing my work and then begrudgingly compensating me for it just days before he landed his ass, and his company, in court.
Seether is the center of it all.
P.S. Register your images if you're going to put them online kids. Don't be the 2006-me.
P.S.2. Also found this quote by the CEO in one of the parenting magazine's blog entry comments (entry dated 09.26.07, comment dated 09.27.07):
"...Much of the information posted elsewhere about a history of improper use of photos is just plain not accurate. We have only had two cases in 10 years of our publishing history in which photo rights issues have come up. The first was in February when a photographer who agreed to have her photo on Babble complained that a small thumbnail version of the image appeared in multiple pages. We agreed to pay her $100 to compensate her for the misunderstanding. The second was in 2001 related to the Nerve print magazine -- it turned out that one of our advertisers gave us a photo for which they did not have permission and we got sued..."
Please see above. And in addition to my photo being stolen last winter, there were also at least three other images (1, 2, 3) by two other professional photographers taken without permission or payment as well. All photographers in question, myself included, have screen-captures of our images appearing without permission on their site. One of the other photographers also made a monetary settlement shortly before I did. Not to mention, I got more than $100 at least get the amount of my pittance correct!
P.S.3. The official 2007 Boobie-Thon website has launched. Go. Look. Nominate a blogger charity. Volunteer for Mel the event kicks off on 10/1!