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Picture "misused" (?) On A Magazine  
User currently offlineteopilot From Italy, joined Jul 2010, 548 posts, RR: 1
Posted (1 year 11 months 2 weeks 6 days 9 hours ago) and read 6163 times:

Hello everybody,

I would like to ask how to behave in the following case, since I have no experience of such odd situations nor I have any deep legal knowledge to say if I am right or not... I hope that someone could help me!  

Recently, a friend of mine told me about a picture taken by me published on a magazine... well, nice, you may say... But the odd thing is that nobody contacted me to ask permission to do that.
The picture mentioned above is this one:

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Click here for bigger photo!

Photo © Matteo Stella - Malpensa Spotters Group



As far as dimensions are concerned, it has been printed at about 1/2 A4 standard sheet format.
For what concerns the photo itself, I must admit that they have been "loyal" (well, if we can still call "loyalty" in this case...) since they have left the A.net watermark with my name: so, the picture appears like if seen on the site itself.

But what really upsets me is that the picture has been used on a magazine that is sold for money (around 7.50 € for a copy), without anyone notifying me nor anyone asking for permissions and all.
My sixth sense tells me that I could be in the "good side"...
What do you think?
Am I right to be "upset" or are they right to publish my picture without any notification apart from leaving the watermark banner?
In case, any suggestion or ideas on how to deal with them?

Thanks in advance,

Matteo

11 replies: All unread, jump to last
 
User currently offlinevikkyvik From United States of America, joined Jul 2003, 10104 posts, RR: 26
Reply 1, posted (1 year 11 months 2 weeks 6 days 6 hours ago) and read 6164 times:
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Quoting teopilot (Thread starter):
Am I right to be "upset"

Absolutely.

Quoting teopilot (Thread starter):
What do you think?

I think you should contact them and tell them you will be sending an invoice, and that if they refuse that you will pursue them legally.

Just because they credited you doesn't mean they have the right to use your photo without permission.



"Two and a Half Men" was filmed in front of a live ostrich.
User currently offlineNZ107 From New Zealand, joined Jul 2005, 6436 posts, RR: 38
Reply 2, posted (1 year 11 months 2 weeks 6 days 4 hours ago) and read 6164 times:

Quoting teopilot (Thread starter):
are they right to publish my picture without any notification apart from leaving the watermark banner

Nobody has the right to publish anything without the photographer's permission - it remains copyrighted by you. The watermark banner means nothing apart from the fact that you know where it has been stolen from.. And I assume by watermark, you mean the "Copyright Matteo Stella" remains on the image because of that! There you go, enough evidence there to say that they are not allowed to use the image without your permission. That's certainly no way to run a magazine.. Maybe they charge because their legal expenses are high 



It's all about the destination AND the journey.
User currently offlineteopilot From Italy, joined Jul 2010, 548 posts, RR: 1
Reply 3, posted (1 year 11 months 2 weeks 5 days 14 hours ago) and read 6164 times:

First of all, I would like to thank you very much for the replies... an opinion different from mine one (the "damaged part" is more than useful).

Then,

Quoting NZ107 (Reply 2):
I assume by watermark, you mean the "Copyright Matteo Stella" remains on the image

You have assumed right!  
Quoting vikkyvik (Reply 1):
Just because they credited you doesn't mean they have the right to use your photo without permission.
Quoting NZ107 (Reply 2):
Nobody has the right to publish anything without the photographer's permission - it remains copyrighted by you.

Bingo!
This is what I wanted to know... so, a credit does not make the copyright drop.  

I thought that by keeping the copyright or crediting the photographer it was "all legal". Moreover, I thought that no publisher would have risked a possible legal pursue for a picture... but, this said:

Quoting NZ107 (Reply 2):
That's certainly no way to run a magazine..

I can only agree with you!

Quoting vikkyvik (Reply 1):
I think you should contact them and tell them you will be sending an invoice, and that if they refuse that you will pursue them legally.

I think I will email them as soon as possible, hoping to get an answer. If they will not reply me back, I'll pass to "traditional post" and all.

But, at this stage, I think they could ask me a proof that I am the same person that uploaded the picture over here: just in case, would it be enough to send them the RAW, un processed file, correct?

thanks again!  


User currently offlinevikkyvik From United States of America, joined Jul 2003, 10104 posts, RR: 26
Reply 4, posted (1 year 11 months 2 weeks 5 days 13 hours ago) and read 6164 times:
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Quoting teopilot (Reply 3):
But, at this stage, I think they could ask me a proof that I am the same person that uploaded the picture over here: just in case, would it be enough to send them the RAW, un processed file, correct?

They already used your photo without permission. I would definitely not be sending them anything, especially a RAW file.

Look, THEY are the ones who screwed up. Don't worry so much about what YOU have to prove.  



"Two and a Half Men" was filmed in front of a live ostrich.
User currently offlinemat1979 From France, joined Dec 2005, 90 posts, RR: 0
Reply 5, posted (1 year 11 months 2 weeks 5 days 12 hours ago) and read 6164 times:

Hi
To let you know, about two years ago, i got about 600€ from a french-italian-irish company who published a picture of mine without authorisation on their website.

Quoting vikkyvik (Reply 1):
I think you should contact them and tell them you will be sending an invoice, and that if they refuse that you will pursue them legally.

I would say, don't contact them and tell them you will be sending an invoice, just send an invoice!!!

Quoting teopilot (Reply 3):

I think I will email them as soon as possible, hoping to get an answer. If they will not reply me back, I'll pass to "traditional post" and all.

Don't email. Send an invoice by letter. In the letter let them know you are willing to go to justice. Don't "hope". You are right, they are wrong. They are "hoping" you will not say or do anything about their stealing your picture. Be strong and commited. If they agree to pay right away, good for them. If not, force them to pay through justice.

Quoting teopilot (Reply 3):

But, at this stage, I think they could ask me a proof that I am the same person that uploaded the picture over here: just in case, would it be enough to send them the RAW, un processed file, correct?

Don't do that. They know they STOLE your picture. Keep the raw file for the judge should you go to court. Sending them the raw file, then they can claim, look we got the raw file, somewhat he agreed to send the picture to us.

Just send an invoice.
Be prepared for no reply.
Send an invoice again after a few weeks.
If no reply go to court. It is easy. It is free. You go there, state your complain.
You will receive a letter from court saying come up to court at this date and time. They will too receive this letter. When they receive this letter they will jump on the phone to contact you and settle it with you (=pay) before having to go to court.
In any case if you go to court you win, so nothing to lose.


User currently offlineteopilot From Italy, joined Jul 2010, 548 posts, RR: 1
Reply 6, posted (1 year 11 months 2 weeks 5 days 10 hours ago) and read 6164 times:

Quoting vikkyvik (Reply 4):
They already used your photo without permission. I would definitely not be sending them anything, especially a RAW file.

Look, THEY are the ones who screwed up. Don't worry so much about what YOU have to prove.  
Quoting mat1979 (Reply 5):
Don't do that. They know they STOLE your picture. Keep the raw file for the judge should you go to court. Sending them the raw file, then they can claim, look we got the raw file, somewhat he agreed to send the picture to us.

And for this point, we are ok, I've understood the importance of keeping the original for me  

At this point I think I could send a letter via ordinary post, taking care of adding a return receipt option... so that I can proof they have received it.

Now, if we come to the invoice, how much I can ask for?
You can get an idea of the printing dimensions with this image
http://img545.imageshack.us/img545/9973/rivista.jpg
and I think the magazine doesn't have a strong printing run.

Quoting mat1979 (Reply 5):
It is free

No need for a lawyer or something?


User currently offlinemat1979 From France, joined Dec 2005, 90 posts, RR: 0
Reply 7, posted (1 year 11 months 2 weeks 5 days 9 hours ago) and read 6164 times:

Quoting teopilot (Reply 6):
Quoting teopilot (Reply 6):
and I think the magazine doesn't have a strong printing run.

Quoting mat1979 (Reply 5):
It is free

No need for a lawyer or something?

I sent you an email  


User currently offlineteopilot From Italy, joined Jul 2010, 548 posts, RR: 1
Reply 8, posted (1 year 11 months 2 weeks 5 days 9 hours ago) and read 6164 times:

Quoting mat1979 (Reply 7):

I sent you an email  

got it and replied back... thanks again!  


User currently offlinedendrobatid From United Kingdom, joined Nov 2004, 1671 posts, RR: 62
Reply 9, posted (1 year 11 months 2 weeks 4 days 22 hours ago) and read 6164 times:
AIRLINERS.NET CREW
HEAD SCREENER

I am assuming that it was printed in an Italian magazine which will make things easier for you.
I had one printed in a Swedish one without my permission and I sent them an invoice, by e-mail for the equivalent of £200 (about Eu250) and told them that they could have had it for half of that if they had asked.
They tried to get me to charge less but the conversation was very short and they paid quickly and in full. It would not have been easy for me to enforce it actually, but I would have tried
I would send them an invoice for what you think is reasonable (I have no idea of the size of the magazine) but also increase that substantially for their breach of your copyright, perhaps double.

Mick Bajcar


User currently offlinesomething From United Kingdom, joined May 2011, 1633 posts, RR: 21
Reply 10, posted (1 year 11 months 2 weeks 1 day 10 hours ago) and read 6163 times:

Cia Matteo,

sorry I am reading your post only now. I was in a similar situation a while back and a Brazilian aviation magazine printed my photo of the first Avianca do Brasil A320 (right after the re-branding from OceanAir). I was too lazy to even bother contacting them as a.) I am not that greedy a person and b.) even if I were, the Brazilian justice system would just take ages to process that. Not worth it. Another time a picture of mine showed up on LH's facebook page. I emailed them, they were most apologetic, took the picture offline right away and asked me if I were okay with two free round trip tickets in Y in compensation. If you give the price of the magazine in Euro, I assume it's in a European magazine? If so, then your chances for a delicious compensation are good.

Now, I am no expert on Italian law (but in German) and the legal situation is as follows (and presumably similar in all EU countries):

First of all, every picture taken has an innate copyright after § 71 Abs. 1 UrhG, § 2 Abs. 2 UrhG, § 2 Abs. 1 Nr. 5 und § 72 Abs.1 UrhG. Luckily, you watermarked your picture because after § 10 Abs. 1 UrhG the copyright is assumed under the holder of the watermark unless the otherwise can be proven (ie, that they took the picture and the watermark you put it on it is fake). The copyright holder alone has authority over the publishing of the picture after § 12 UrhG. It could now be argued that the picture has already been published with your upload of it to airliners.net. In that case § 13 UrhG would become effective, which states that regardless of prior publishing, it is the copyright holder's discretion in what context (where, how, by whom, etc.) the picture can be (re-)published. In § 13 Abs. 2 UrhG it is stated that it is also the copyright holder's discretion whether or not he wants his name published along with the picture or not. By mentioning your name without your consent, they (the magazine) have actually broken another law. The commercial use of pictures is detailed in §§ 15 ff UrhG. § 16 UrhG for duplication, § 17 UrhG distribution, § 18 UrhG exposition.

Claiming compensation is a little more difficult because it depends a lot on the circumstances. An amateur photographer for example, has different rights than a professional photographer. How many issues of this magazine have been printed? Did you concede some of the copyright by publishing it on airliners.net (you didn't, those are just questions that determine the outcome of such a situation).

If I were you, I would either feel flattered that they used your photo or send them an email stating in certain terms that they have (demonstrably) printed your picture without your consent, that you are unhappy about it and that you ask them to get back at you on the subject. Don't say anything about ''legal recourse'', ''compensation'' or even a bill yet. That will, if you use the wrong words, only hurt your bargaining position later. In any event it will not help it. Let them respond to your email, if their proposal is accomodating you accept it. If they ignore you or try to BS you, go straight to a lawyer, have him draw up an injunction suit and send that, with a bill of your legal fees attached to it, to the magazine. Don't try to negotiate with them, don't say anything about money (don't even remotely mention it) and consult a lawyer.



..sick of it. -K. Pilkington.
User currently offlineteopilot From Italy, joined Jul 2010, 548 posts, RR: 1
Reply 11, posted (1 year 11 months 2 weeks 15 hours ago) and read 6163 times:

Quoting dendrobatid (Reply 9):

I am assuming that it was printed in an Italian magazine which will make things easier for you.
Quoting something (Reply 10):
If you give the price of the magazine in Euro, I assume it's in a European magazine? If so, then your chances for a delicious compensation are good.

It is an Italian magazine, so I think things will be easier than they could have been...

Well... I eventually sent them an email earlier today.
I took down some drafts in the past days and all of them looked me with "too much anger tone" (I think this would have brought more drawbacks than benefits).
Although busy with some duties, I have found also some time to check some copyright laws and they seem to be more or less the same posted by something.
So, I think that also here almost the same laws and rules should apply (of course, I think differences are of a minimum entity).
Just the last one, the "additional" broken law sounds new to me!  
(thanks for pointing that out, I'll check for it)

So, to sum all up:
I have just sent them a "brand new" email, this time a little writing in a more "polite and calm" tone: I stated the situation, basing my points on the concepts expressed by the laws above, even if I made the mistake of not quoting the exact law number, comma etc.
I will check again for them, so that I could include for references.
Of course, I have attached the scan of the incrimined page.

As far as money is concerned, I would wait until a reply to state a definite amount but, however, I have asked them also the print run of their magazine (a vital part to decide the price, for what I have understood)
Anyway, I have written that it is my firm intention to charge them basing on a proven printing run plus a percentage for the "misuse" (that I still have to decide); even if I don't know if this falls under my legal claims.

Now, let's wait and see what happens.
If they won't email me back, I am ready to go via "traditional means", hoping that they won't pull this annoying situation too much further.

Thanks again to everybody,

MAtteo


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