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photograph being used on billboard without permission
Posted: Mon Feb 21, 2011 8:49 am
i have recently found out that on of my photographs is being used as the main and only image for an advertising billboard promoting a bar at an international hotel branch. (and it really is huge!) and has been since mid-december 2010.
the photo has leaked through someone who had the HQ file, but I have never given any right to anyone to use it for any commercial purpose.
i contacted the hotel management with a cease and desist letter immediately after i found out, which was about 2 weeks ago. they have not removed it yet. additional they are refusing to pay for usage, which is what i proposed in as effort to resolve this amicably.
has anyone dealt with such an issue before? i have all proof that the image is being used (photos of the billboard, as well as some screenshots of news coverage using the image promoting the bar with date, and the hotel management own statements admitting they are using it, but refusing to pay.
my only worry is that the hotel is in Vietnam, so i am not sure about the chances of suing for copyright in Vietnam.
thanks a lot for any advice!
Posted: Mon Feb 21, 2011 9:52 am
Vietnam is a signatory to the Berne Convention on copyright, so at least they recognise the existence of international copyright in their legal system, but I have no idea how much it is observed in practice. I suspect that to get anywhere you would need a lawyer in Vietnam to advise you. Whilst that might be cheaper than in the UK, it is still an expense you may not be able to recover.
However as the hotel is part of an international chain you may be able to pursue the matter with their head office if it is in a country where copyriight is taken more seriously.
Posted: Mon Feb 21, 2011 10:20 am
thanks for the reply, Andy.
their global headquarters are in the UK, and they also have regional a headquarter in Singapore. so i think my best bet is to try to have a word with a representative in the UK.
may try to contact a lawyer in Vietnam, but in fact i have never been to that country, so have no contacts there. will do my best in any case!
Posted: Thu Mar 03, 2011 11:51 am
the agent of the musician in question now contacted me to urge me not to pursue the matter, because it is damaging their reputation with the hotel who is their client. the agent threatened to sue me for defamation if i make any legal action against the hotel.
could they have a case here? i mean i am seeking to protect my own right, and am in communication with the hotel, not them. what is happening? i am really confused now.
thanks for any advice.
Posted: Fri Mar 04, 2011 9:34 am
I can't see any grounds for an action of defamation in what you have said so far. As you say you are merely pursuing your rights. However if you have made any written or verbal statements to a third party which might tend to damage the professional reputation of either the musician or the agent then that might be actionable (but expensive to pursue for the claimant).
As this is the first time you've mentioned the actual subject in the photograph, namely the musician, it may be worth looking at what you agreed with the musician and/or their agent about the use of the image.
Did you give them a written licence to use the image and if so, did it specify the types of use and territories in which the image could be used? If there is no formal agreement there may well be an implicit agreement either as a result of what you said at the time, or failed to say at the time!
For example, with most commisssioned work, it is implicit in the arrangement that the commissioner will have the right to use the image(s) in a reasonable way. So in the case of a performer it may be seen as reasonable that he can use the images for self-promotion or publicity, and this might include using the image to advertise his appearance in cabaret at a hotel or club. But commercially exploiting the image (ie directly selling the image to the public or obtaining fees from a publisher in exchange for publication rights) probably wouldn't be seen as fair or implied without convincing evidence to the contrary.
If it is the case that the agent gave permission to the hotel to use the image, you may have a better case against the agent under Section 16(2) of the Copyright Designs and Patents Act 1988 which says:
(2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.
but obviously you will have to be able to show that there was no actual or implied licence in place at the time.
Incidently, you may be aware that you have the moral right to be credited as the author of your work, but this right needs to be asserted - preferably in writing. This can be done at any time. So if you have not already done this, you can write to the agent using a form of words like " [Amanda Here] asserts her moral right to be credited as the author of the photographs of [The Musician] to which she holds copyright". By doing this at least you may benefit from any publicity usage of the photographs in the future. Having a credit printed beside your image will also provide other publishers etc keen to use your image with the opportunity to contact you about publication rights, and may help to protect the photograph becoming an 'orphan work' in the future.