© infringement just discovered

[KevinStecyk]

Michael,

While not a lawyer, I have hunch, whatever that's worth, that copyright stuff can't be settled in small claims court. Moreover, I am not sure that homeowner fraudulently obtained the photos. Rather, he asked and received them. Nothing fraudulent about that?

My limited knowledge says that it is the publisher who is at risk. In other words, it is the publisher's responsibility to ensure that the proper releases have been obtained. Thus, it might be the realtor's responsibility. You might have to take action against the realtor. And then the realtor can take action against the homeowner, who presumably provided assurance that photos were free and clear. Messy, isn't it? Perhaps you have to take action against both of them simultaneously.

If I were you, I'd do the following:

1) Do some soul searching as to how much this act is worth to you.

2) If the worth is significant--defined any way you want--consult with a lawyer.

3) Have all your facts, contracts, and other related information ready for the lawyer.

4) After your consultation with the lawyer, decide if there is sufficient information to warrant legal action.

I don't know your situation well Michael, but you might put in your contract that if the photos are used for other than their intended purposes, then you are entitled to a minimum fee of $x dollars. Make that $x dollar fee something reasonable. And now you have something that can possibly go to small claims court. It is a matter of contract law. We have a contract that says if the photo is used for other purposes, I am entitled to at least $x dollars. I now want my $x dollars.

Again, this is way beyond my tiny circle of competence. This is merely food for thought, and perhaps something for you to discuss with your lawyer.

Not much help, I know. Perhaps others will chime in with how they protect their intellectual property.

Regards,
Kevin

[michaelnotar]

my invoices have the following on them

Upon receipt of payment in full, you are granted a non-exclusive, non-transferable license to
use the images produced on this assignment. You acknowledge that your use does not
transfer the ownership of the images to you. Your license is non-transferable, which means
that you are not allowed to sell, rent, give, sublicense, or otherwise transfer the images in any
medium or the right to use them to anyone else. The photographer retains the copyright of all
images produced and ownership of any photographic origional (such as, but not limited to
digital image files; film negatives or positives) of all images produced.


from what i hear, even though it goes to accounting not to be seen again, its a legal document which they can be held to.

my dad is friends with the second realtor, and he called him and told him about it. my dad played dumb. the agent chuckled that the seller did this. but because the first agent planned told him the photos are mine, he plans on calling me tomorrow. of course the photos have been up for some time now on his site.

i have researched with photoquote for the 10 photos on his site, priced as a regional ad, and calculated $1500 to be the going rate, i took off 35% for being in a small town, got to like $980 i think. i dont get usage here, for stock photos only if app, so i figure this is a good starting point for discussion. and i plan to keep it light and friendly. we've known him for a while.

if i can get $500+ out of it, i will be happy and not bother with it anymore.

thanks for the help.

[ChrisPerry]

The second realtor needs to tell the homeowner that the images belong to the first realtor and he can't use them. "Sorry, mr seller, but i just found out that Jackson Realty paid Joe to take these images, so Jackson Realty owns the images. I know they gave you a copy, but that was for your use. I can't legally use those images, sorry. We can reshoot or you can buy those images off of Joe. I'd suggest some fresh images to show the change of seasons or to give us another perspective, make it appear new to the buyers, etc"

Lets teh second realtor save face - and most likely he got the images like this "Hey Mr New Realtor, I have some nice images of my house, maybe you can use them to sell the house. I already have them on flyers" Unless the second realtor asked 'where did you get them' (which I bet he didn't) then he's assume the homeowner took them.

This is not a $50,000 house, but a $3M one. The homeowner is most likely knowledgeable enough to know better, but may just be a cheap bastard, or trying to save time getting the house relisted.

But going after anyone for money is not the right answer. Educate them, make them stop using the images, and perhaps reshoot (at your regular fee - it's not your mistake so don't discount a thing). If you don't get the Realtor community educated this will happen again. If you try and get money out of them most likely you won't (realtors have insurance for this-errors and omissions, but their companies have lawyers out the ass and will stonewall you for an eternity). In the mean time, you lose business however it turns out.

[James Haba]

I would really consider talking to the homeowner. You might say something like you really hate to bring legal action for this type of thing however, your copyrighted images are how you make a living and you have to protect that. If the guy with the 3 million dollar house is a businessman, he should understand that.

If you gained information from his desk about how his company did a proprietary process and gave it to one of his competors do you think he would have a problem with that? I bet he would!

[michaelnotar]

follow up:

the situation was handled extremely friendly, so not to loose a lifetime friend.
and i got paid in full, $350!

thanks for the help.

[Walter_Rowe]

For future reference, there are also "contributory infringement and vicarious infringement". You won't find it in the statutes anywhere, but there is very compelling case law precedent. Do a Google Search on it.

I'm glad you were able to resolve the situation amicable and retain a good client. That is always the best outcome.

[Mike Keller]

Just curious, what do you write on your CDs of images that you hand off to the realtor? Apparently it needs to have your name and some copyright and use info scribbled across it, if you're not printing on the discs already.

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