Should I sue or not?

by Armand Niculescu Email
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Young woman smiling, ©2006 Armand Niculescu

This is the photo used without permssion

I’ve just discovered I’ve been ripped off.

A while back I wrote a little post about Adobe Lightroom, which was in Beta 3 at the time. The post was accompanied by two photos, a girl and a street musician.

Imagine my surprise when today I saw the photo of the girl in a printed magazine. It was published without my consent, I didn’t even get an email!

I’m a little torn, on one hand, it’s no big deal, just a low-res photo, certainly not one of my best; on the other hand it wasn’t used in some personal homepage, but in a commercial venture (they sell the magazine for about 2 dollars.) It was on my blog, with my copyright set as image “alt” attribute. I have not just the RAW, but even the model release for it.

My lawyer neighbor is out of town for the weekend, so before I contact her, I’m thinking - is this matter worth pursuing? Do you have any experience with similar situations?

8 comments

Comment from: Ben Nadel [Visitor] · http://www.bennadel.com
That's a tough call. If it wasn't for commercial use, I would say don't waste your time. But, as you point out, it is for a magazine that actually costs money.

I think what you have to take into account is this:

1. Suing people costs you money/time/headache.
2. Suing people makes YOU enemies (even if you are in the right - which I think you are).

Are both those worth it? I just comes down to how much you care.
27 Apr 07 @ 18:29
Comment from: Brian Rinaldi [Visitor] Email · http://www.remotesynthesis.com/blog
Obviously I am no lawyer, but I would guess that step 1 wouldn't be to sue anyway. Probably it would be an official communication to them indicating that they have used copyrighted material without permission. One would hope that once this mistake is indicated to them they would work to resolve it without the need of a lawsuit.

I would pursue something if only because the principal is an important one.
27 Apr 07 @ 18:46
Comment from: Jim Priest [Visitor] Email · http://www.thecrumb.com
I'd email the magazine - explain what happened and ask if they can print a correction in the next issue with your name, URL, etc. Keep it positive.

As Ben says - suing anyone is going to be expensive...
27 Apr 07 @ 18:49
Comment from: Martin [Visitor] Email
I used to work for a large magazine house, and they're generally pretty up on the fact that they need to pay for images, mostly because they've been sued before. Most likely someone junior has dropped your image in thinking it will never matter. Send the editor an email or call the magazine direct, explain the situation, and you're likely to get a decent response.
27 Apr 07 @ 19:16
Comment from: Richard [Visitor] · http://bigroom.co.uk/

As the others have said, I wouldn't ignore it. On the other hand, I also wouldn't even mention the s word to begin with.

Just write a polite letter or email pointing out their error and offering them a way to make you go away - do you want them to print a correction crediting you with the image? Do you want to be paid? If so, what's a fair rate? Don't be greedy, at this stage you want them to choose to do what you ask because it's the easy option for them. Sueing should be a last resort because it's expensive for both of you.

If it all goes well, you may even get some future work from them - it's happened to me before.

27 Apr 07 @ 19:36
Comment from: Anonymous [Visitor] Email
I recently had a friend who unknowingly used a copywrited image for the header of a website he built for a client... Even though he only used a cropped portion of the image, he was still held liable for copywrite infringement and had legal action taken against him by the owner of the image. The process was quick and he settle out of court with the photographer for 15k (they originally were seeking 19k). I definitely think it is worth your time to pursue the issue further, the headache is handled by your lawyer (thats what you are paying them for) and the payout could far exceed the legal fees (even more so if they settle out of court).
27 Apr 07 @ 21:48
Comment from: Armand Niculescu [Member] Email · http://www.media-division.com
I just want to thank everyone for their replies.
I will update this page as things develop.
03 May 07 @ 17:45
Comment from: Wiliam Clarke [Visitor] Email
I'm a working press photog here in Canada. Although it's a great idea to play nice with someone who has stolen from you - it really doesn't work in the long run.
Publishers sell ads (and maybe subscriptions) to generate a profit for their companies, if they can get away with *free* content ("send in your photos and stories and we'll print them") then they'll do it. Of course, adequate compensation is not a credit/URL, but should include at the very least a licensing fee for their use of the photo.
Bottom line, if they can afford to go to press, and printing four-colour process isn't cheap, then they can afford to pay a licensing fee for your photo.
On a sidenote; Freelancers in Canada are faced with this every single day with the combining of entities under massive corporate umbrellas. We have to, literally, watch EVERY pub produced by a publisher to make certain they haven't used or re-used or "improperly used" a one-time use license. $1,500 for a magazine use sounds about right IMO.
05 Jun 07 @ 12:35

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This is the blog of the Media Division team. We're giving back to the community some of the things we have learned while building all sorts of apps. Concentrating on Flash/Actionscript, we'll also cover C#, MSSQL, ColdFusion/Oracle and areas like Photography and design. We're writing original articles only - no silly stuff to generate more traffic.

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