Images used without permission - Magazine cover - Best approach?

[benjicon]

Hi Guys,

My wife is the Professional photog in the house so I am writing on her behalf, today we discovered that a local magazine publication has used one of my wifes food photography photos for its cover of a new publcation, it is definitely her photo, its never been released to the public only to the client that the food was shot for.

Obviously we want to pursue reimbursement for the image use, whats the best approach in this situation ? Its a small community in Singapore, my wife has had a lot of success with her food photography of late and magazine publications are a lucritive avenue of income, so we dont want to create enemies.

Should we approach the magazine explaining their mistake ? Send them an invoice ? Speak to a lawyer ? Without naming the publication, they are very well known and are advertizing both pdf and hardcopy editions of the publication all of which are emblazoned with the same cover image.

Thoughts.

Thanks .. Ben.

 

[Agetan]

Hi Guys,

My wife is the Professional photog in the house so I am writing on her behalf, today we discovered that a local magazine publication has used one of my wifes food photography photos for its cover of a new publcation, it is definitely her photo, its never been released to the public only to the client that the food was shot for.

Obviously we want to pursue reimbursement for the image use, whats the best approach in this situation ? Its a small community in Singapore, my wife has had a lot of success with her food photography of late and magazine publications are a lucritive avenue of income, so we dont want to create enemies.

Should we approach the magazine explaining their mistake ? Send them an invoice ? Speak to a lawyer ? Without naming the publication, they are very well known and are advertizing both pdf and hardcopy editions of the publication all of which are emblazoned with the same cover image.

Thoughts.

Thanks .. Ben.

Ben,

You mentioned the image was created for a client. What kind of agreement as far as the copyright goes with the client?


Regards,

Hart

 

[benjicon]

You mentioned the image was created for a client. What kind of agreement as far as the copyright goes with the client?

Hi Hart,

I have just been speakign to my wife about this, the original shoot was for a restaurant to use for advertising and online and social media. We believe the restaurant owner passed the images to the magazine as part of a press kit. I have a feelign this may just boil down to a lesson hard learnt. We will have a look over the agreement tonight and see what the images were released for. I guess from the restaurnats perspective, weather its on the cover or inside illustrating an article, it is all considered advertising and promoting the restaurant.

Ben.

 

[kandinsky]

Ouch.

I guess from the restaurnats perspective, weather its on the cover or inside illustrating an article, it is all considered advertising and promoting the restaurant.

Unless your agreement specified limitations with regards to the type of media (e.g., only online/web advertising, no print), that would be the case from any reasonable person's perspective, not just the restaurant's. That said, if you didn't assign your copyright of the image to the client, perhaps you might still have a case even if the magazine did not wilfully commit the infringement. My impression is that copyright law prohibits both accidental and wilful copyright infringement. Do you have a feel of how much you 'lost' in terms of licensing fees? If it's significant enough, I'd consult a lawyer first. If not, I'd approach the magazine and negotiate.

(Disclaimer, no experience with this, just spitballing)

 

[shierwin]

If you had assigned to the "client" the image(s) with payment in full, you may have no more right to claims.
Lesson learnt...

 

[thoongeng]

From what I read here (please correct me if I'm wrong), generally in Singapore if a client pays you for a job, then they have the copyrights to the photos. Unless it is stated otherwise in the contract. Thus they can use it as they want

 

[benjicon]

Thanks for the responses. The images were given to the restaurant for use as marketing material to promote the restaurant. There were no restrictions on use, they could use them in print, and digital. Where this gets complicated, is that the magazine had chosen this image for the cover of their publication, which in our eyes is solely for the purpose of promoting the sales of the magazine. They did not consult with the restaurant before using the image. They selected it from the press kit and didn't advise the restaurant as to where and how they were going to use it.

I thought a reputable publication would take great lengths to make sure they had permission to print images.

 

[benjicon]

I actually worry that, if we pursue this, that the magazine may push the blame on to the restaurant owner. It's certainly complicated. :/

 

[saberlancer]

...in our eyes is solely for the purpose of promoting the sales of the magazine.

Surely having that photo on cover is More about promoting that rest. than the magazine..?

 

[benjicon]

[QUOTE saberlancer;8762674]...in our eyes is solely for the purpose of promoting the sales of the magazine.

Surely having that photo on cover is More about promoting that rest. than the magazine..?[/QUOTE]

Perhaps, but there is no mention of the restaurant on the cover.

 

[daredevil123]

To prevent this from happening, you should have let you client agree to the a set of T&C that is rock solid. Pay a lawyer a small fee to draft a T&C properly going forward.

 

[kandinsky]

Surely having that photo on cover is More about promoting that rest. than the magazine..?

Unless it's a photo of the shopfront, or profiles the owner/s, most food magazine cover photos I've seen are definitely primarily meant to attract eyeballs / increase sales / in the hopes of attracting more advertisers. Usually features great photos of mouth-watering food, and very careful to avoid showing favour to any brand/restaurant name as they don't want to upset their advertisers. Look at a typical magazine cover, the most prominent feature is its own masthead.

 

[saberlancer]

Unless it's a photo of the shopfront, or profiles the owner/s, most food magazine cover photos I've seen are definitely primarily meant to attract eyeballs / increase sales / in the hopes of attracting more advertisers. Usually features great photos of mouth-watering food, and very careful to avoid showing favour to any brand/restaurant name as they don't want to upset their advertisers. Look at a typical magazine cover, the most prominent feature is its own masthead.

Ic..
I was thinking like any mag eg.natgeo or time, you expect to read about whats on the cover inside.. I guess maybe diff for these mag then..

 

[benjicon]

One of my wifes clients has a full time copy right lawyer working for them, we are going to have a chat to him and see what he thinks. I'll report back when we hear from him.

 

[yqt]

Thanks for the responses. The images were given to the restaurant for use as marketing material to promote the restaurant. There were no restrictions on use, they could use them in print, and digital. Where this gets complicated, is that the magazine had chosen this image for the cover of their publication, which in our eyes is solely for the purpose of promoting the sales of the magazine. They did not consult with the restaurant before using the image. They selected it from the press kit and didn't advise the restaurant as to where and how they were going to use it.

I thought a reputable publication would take great lengths to make sure they had permission to print images.

Is there any mention of the restaurant (especially a reproduction of the same image of the image) INSIDE the mag? if there is, than it would constitute as "marketing material to promote the restaurant" and you'll have no recourse.

Before you spend money to consult a lawyer, and i get the impression that you do not want to piss off anybody, you may want to ask yourself the following:

1) You need to first check with your client if they had given permission to the mag to use the image, if they had given the mag the permission to use the image than your case is with your client, are you prepared to pursue the matter with your client?

2) If your client did not grant permission to the mag, are you prepared to pursue the matter with the mag, in which case the mag may drag the client into the matter, are you prepared for this?

No point to spend money on lawyer without all the info ready (as in the above 2 point) and if you're not prepared to pursue the matter, might as well spend the money on getting a proper copy rights release letter for future jobs. You may also want to consider checking with your client on point 1 and if no permission was given, write a letter to the mag to inform them that they had infringe on your copyrights and see how they reply.

 

[benjicon]

Is there any mention of the restaurant (especially a reproduction of the same image of the image) INSIDE the mag? if there is, than it would constitute as "marketing material to promote the restaurant" and you'll have no recourse.

Before you spend money to consult a lawyer, and i get the impression that you do not want to piss off anybody, you may want to ask yourself the following:

1) You need to first check with your client if they had given permission to the mag to use the image, if they had given the mag the permission to use the image than your case is with your client, are you prepared to pursue the matter with your client?

2) If your client did not grant permission to the mag, are you prepared to pursue the matter with the mag, in which case the mag may drag the client into the matter, are you prepared for this?

No point to spend money on lawyer without all the info ready (as in the above 2 point) and if you're not prepared to pursue the matter, might as well spend the money on getting a proper copy rights release letter for future jobs. You may also want to consider checking with your client on point 1 and if no permission was given, write a letter to the mag to inform them that they had infringe on your copyrights and see how they reply.

These points ring true with our exact feelings, its certainly good publicity for my wifes photography. We definitely dont want the Restraunt owner dragged into it. Singapore being the small place it is, there is no advantage to aggressively pursuing the magazine for money and making it messy, then gaining a bad reputation. We may just approach them and ask to be credtied in their next issue.

Thanks again to everyone for your input.

 

[sjackal]

These points ring true with our exact feelings, its certainly good publicity for my wifes photography. We definitely dont want the Restraunt owner dragged into it. Singapore being the small place it is, there is no advantage to aggressively pursuing the magazine for money and making it messy, then gaining a bad reputation. We may just approach them and ask to be credtied in their next issue.

Thanks again to everyone for your input.

I did a fast read and the questions I have, which I believe many others have as well, is still; who owns the rights? If its your restaurant client owns the copyright, then its theirs to pursue. If you own the copyright, then its up to you to make a decision, because you license it out to the client, not the magazine, and you did not allow the client to re-license it without express permission either, unless you did.

I know the our local laws defaults copyright to the paying client/commissioner of the assignment, but as working professionals we should know better. In future, if it is a retail client (personal usage), always hold copyright in contract and sell personal usage license. If its a commercial client, always price higher and sell copyrights because if you sell a usage license you risk a chance of them abusing and the trouble and dilema of pursue a sue, if it s an editorial client, always spell out clearly the usage terms in terms of exclusive/non exclusive, first/embargo, regional, and duration, and upgrade fees for space rates.

 

[Agetan]

Hi Ben,

Sometimes, this is a small lesson to learn.

Since your wife still get paid for her work, you should just leave it at that. Smile and move on.

Just use the mag as your publicity if I were you and change the contract for the future.


Sometimes, you win a bit and sometimes you lose a bit.

Take it easy and good luck with your future endeavor.

Regards,

Hart

 

[shierwin]

Hi Ben,

Sometimes, this is a small lesson to learn.

Since your wife still get paid for her work, you should just leave it at that. Smile and move on.

Just use the mag as your publicity if I were you and change the contract for the future.


Sometimes, you win a bit and sometimes you lose a bit.

Take it easy and good luck with your future endeavor.

Regards,

Hart

Wise words, indeed....

 

[Agetan]

To prevent this from happening, you should have let you client agree to the a set of T&C that is rock solid. Pay a lawyer a small fee to draft a T&C properly going forward.

In commercial world, T&C is always negotiable. Too iron clad, you lose the assignment, too loose, you lose the opportunity. So try to find balance between healthy income and good protection.

Both sides win.