Take it as a learning experience and move on. Just next time put it in writing and have the client understand the usage.

wow, thanks for all the helpful advice!
I do believe I'll go the 'donation' type route and hope for future paid business from the Modeling agency, as some have recommended. I had a strongly-worded email at they ready, but the agency replied to my initial queries and said they'd c&d and that it was a misunderstanding between them and the original client, L**.

Oh yeah, Mike, it was a bit confusing as they both started with "L", but no, L** didn't send the flyer, they were the original client. Another entity, a Modeling Agency ("LM") sent out the flyer using an image from the original L** shoot that they "borrowed" without my permission/knowing/payment.

I'm no six-figure pro, so naturally I just hope to either be accredited or be taken a bit more seriously. I'm not going to burn a bridge in a town of 120 000 over one picture, of course.

Thanks again,
Nik

Hi,

Gelu88 and Studio have the right notion. You want to play nice, even be 'thankful' for the opportunity to show your efforts, but next time you want to be 'paid, either in cash or in kind credit'.

In-kind is something I think smaller concerns want to leave on the table as options, at least, while getting started. You'll find that it's so complicated, as will your customers, that cash is better for all in the end, but it keeps the doors open so you can talk.

Volunteering to shoot a new panel for the flier as an insert, to give you credit for your work, credit for the insert, and some in-kind credit or cash could go a long way to remedy what you have now.

My best,

Mike

While your contract might not help you, you could try simply sending a kindly worded letter asking that any further use of the photos be credited to you. This does not have to be onerous to them as the credit can be on another page, in the back, etc.

without more context i con't say how reasonable a suggestion this is, but it can't hurt to try.

1. I would consider this only as a learning experience.
2. The clause, " . . . shared rights: both customer and supplier have full rights to the supplied photographs for the purpose of future promotion, printing, and other reasonable uses" is very generally worded. Key phrases being, "full rights," and, "other reasonable uses." These terms are not specific, and are open to wide interpretation. The way to exclude the client's extention of rights to a third party is to specify limited rights to the client only--exclusive of any, "successors or assigns."
3. In lieu of payment for the model's services, the client offered the model/agency "assigned rights" for a "reasonable use" of the image in a "future promotion," a use, arguably within the original agreement's very general definition of shared rights.
4. It's also often wise to obtain a "buy-out" release from your talent (which may include additional stipulations); however these releases are typically only agreed to by talent when they're paid (e.g., not just working in exchange for prints).
5. The way to encourage publication with mandatory inclusion of your photo credit is to state this explicitly in the contract, e.g., "any images published in any digital (e.g., website, online store, mobile device, etc.), print, display, signage, electronic display or device, or any other media, must be accompanied by the words, 'photo by John Doe.'"

Although, it feels "wrong," personally, I would consider this a "reasonable use," within the agreed upon, and very generally worded, "shared rights" clause. Rather than pursue the agency for unpaid license fees (whose usage isn't clearly defined anyway), I would instead classify their use as a "goodwill expense" in exchange for the opportunity to solicit the agency either as a future client, as a client referral source, or for obtaining a discount (equal to the market-value license fee on said image) on future services.

I had a photo usage issue, similar to yours:

I was recently asked for high-resolution files for commercial use from an unpaid spec shoot. The end-user is a consumer-goods company (a brand you've heard of and would recognize); however, the original agreement with the talent was the "exchange for prints (files)" type. Since it was the talent's sponsor requesting the images, it was in talent's interest for them to publish the images on their website (free publicity). I willfully "gave away" the rights to the images as a consideration to the talent.

I promptly sent the product's brand manager several high-resolution files, with the explicit stipulation that a photo credit be displayed. No photo credit materialized. Since it's only on the company's Facebook page (not on their corporate site), I let it go, since the addition of a national brand to my "client list" still has merit, even without the credit. Also, I now have the name, e-mail, and phone number of the brand manager who I can try to hawk my services to in the future.

I know that spec shoots and client "goodwill" doesn't pay the bills, but a few freebies here and there may pave the way to more paying gigs in the future.

Carolyn Wright has an excellent web site, including forms for cease and desist letters. Check it out at http://www.photoattorney.com/

Wow. I don't have enough facts to form a legal opinion, so don't take this as one ... but on the surface it seems that you certainly need a better release/contract. You probably are the copyright holder. It appears that the use by the third party is unauthorized use, as you say you gave the model rights for personal use only for her portfolio.

Mike has some good points. What would you get, other than a large invoice for attorney fees, by suing at this point in time? You may want to send a certified letter to the company that made the mailer and advise them of the unauthorized use, and request that they pull the flyer from further distribution, and that they destroy any digital copies of the photograph.

Good luck.

Hi nfiorito,

Maybe I misread your sentences, but you say

'Told the model that she could use the images for her personal modeling portfolio, and
L** could use them for future advertising'.

Does that mean L is _not_ the sender of the flier? If you told L he/she could use the image in the future, that sort implies permission, doesn't it?

L** might be the wrong player, so forgive me if I'm misunderstanding...

As to who holds the copyright, it would be you. Canadian law and US law is similar. But, I'm not too sure as to what good it would do you to enforce it. By that I mean this.

What is the remedy you are looking for? What did the flier cost? How much would it have cost for your copyright royalties? Would they have paid your fees? Now that it is done, do you plan to sue to get your fees?

What you might do is put this in your lessons learned file and make sure your attorney is involved with a contract with your future shoots that have commercial value. Kindly remind any of your participants that you own the rights to the shots, but you'll happily rent them out cheaply. ;-)

If OTHO, someone simply stole your work, whether it is the model who took it upon herself to _assume_ that her portfolio, the images you put on _loan_ to her, was something she could _sell_ to the store, that's something else; or another party who knew that the image was not his/her image to use. You'll need to be clear who's to blame.

Again, you'll have to have a grip on what remedy you want. What will make this right. It has to be realistic. If it is a small market, you can't ask for the stars, and you really can't ask much in the way of damages, because I doubt that you've been damaged much. Heck, they've used your image. However mad you are, they like your work. ;-)

My best and good luck,

Mike

I searched the forum, but this situation seems a bit unique. I did not have a contract, but am wondering if common copyright law would help me out with this. The only legalese I had was on the invoice, which read: "Shared rights: both customer and supplier have full rights to the supplied photographs for the purpose of future promotion, printing, and other reasonable uses." I'll summarize the situation here quickly.

-Took pictures for a local dress shop, L** Boutique. Provided L** with digital files of the finished pictures, a photobook, and two large banners for tradeshows and advertising.
-The pictures were of a single model affiliated with L***head Modeling (LM)
-Told the model that she could use the images for her personal modeling portfolio, and
L** could use them for future advertising
-We never spoke or had any communication with LM
-About a year later, a flyer ad for LM appears in the weekly mailout in our mailbox, featuring one of those images, unaccredited
-Apparently L** gave LM the images to use in exchange for free use of the model
-We were not aware of this arrangement, as we only supplied photos to L** and the model herself
-We feel that by using the image in an ad intended to generate income for LM, without having ever spoken to us or paid us for use of that image, LM has infringed upon our copyright

We (my wife and I, the photog team) are not looking to get rich or anything off of this, but are just hoping to straighten things out, and protect ourselves in the future. We're a year and a half into this and would like to tighten things up with regard to situations like this that could arise. If anyone has a similar experience or knows of sources of copyright law, that'd be a great help!