Extended usage not agreed.

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James9876
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Extended usage not agreed.

Post by James9876 » Sun Dec 03, 2017 12:33 pm

Hello,

I am a professional photographer and 3 years ago I was approached by a hotel company requesting to use some images from a wedding that I had shot at their venue the previous year. The request was made by email and they specifically asked if they could "feature" some of my images on their website in return for adding me to their recommended supplier list. I thought this was a fair exchange given the terms that were stated and sent the files that they had requested. In my reply, I added that I was happy for them to "feature my images" but I never issued a "licence of use" as I thought the terms were already set out clearly enough.

3 years on and I wondered why I had not had one single enquiry for this venue during this time. Prior to calling the venue to enquire if I was still (or ever had) been recommended as agreed, I looked at their website to see if they were still using my images. Before contacting the parent company (the hotel is owned by a company who owns multiple hotels and businesses) I performed a reverse image search on the selected images and discovered that the images had been uploaded to multiple hotel listing sites without my knowledge or consent and they had also been used in several social media posts, in each instance no credit was given to me.

I contacted the companies marketing manager and explained that I had not had one single enquiry for their venue and I considered their extended use of the images to be an infringement of my copyright as my consent had not been requested in advance and this usage was out-with our original agreement. After several emails back and forth I finally sent a demand for payment for the extended use, given the length of usage, the number of images involved, and the variety of media used, this was a relatively significant figure. They responded quoting my email "I would be delighted for you to feature some images" and said that this had given them an unconditional licence and my request for payment was a an "opportunistic attempt to extract undue and unjust compensation".

My argument is that I feel they should have contacted me regarding the extended usage to agree terms. Given that no credit to the images were given in this extended use, I do not consider this has benefited me or "provided a marketing and promotional opportunity for your photography" as they stated. In fact I consider the opposite could be said given the images are in such wide circulation through this extended use.

Can anyone confirm if I am correct in thinking that a valid breach has been made?

Thanks in advance, James

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AndyJ
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Re: Extended usage not agreed.

Post by AndyJ » Sun Dec 03, 2017 9:40 pm

Hi James,

I'm sorry to hear about your bad experience.

This sounds like a tricky dispute to resolve since, as you acknowledge no terms were formally set out in a detailed licence. I think there is little doubt that the hotel company have taken advantage of your generosity but as it seems they are relying on your words "I would be delighted for you to feature some images" then it is clear there is a licence of sorts in place. This means that you don't really have a valid claim for infringement of copyright, only a claim relating to a possible breach of contract. The problem is with the extent or scope of the implied licence, and of course their apparent failure to fulfil their side of the agreement, namely to promote you. If you still have their original email outlining their offer to add you to their recommended supplier list, then it would be reasonable to ask them for proof that they did indeed do so. However adding you to their list is not the same as agreeing to actively 'promote' you or indeed to acknowledge that you were the author of the images. Unfortunately under UK law you need to specifically assert your right to a credit, and a mere implication is not sufficient.

I don't know how much you decided to invoice them for, but it is unlikely to be enough to justify getting legal advice and possibly taking the matter to litigation, the cost of which is likely to run into several hundred pounds, with no certainty that a court will find in your favour. If you are determined to pursue the matter, I suggest there are two possible ways forward. One involves a carrot and stick, while the other is just stick. The first is to take a more conciliatory approach and see if you can negoiate a smaller fee for them to continue using your images (along with a proper credit henceforward), backed up by your absolute right to cancel the existing licence with immediate effect should they fail to respond positively, after which they will be infringing your copyright if they continue to use your images. And since primary infringement is a matter of strict liability, you are likely to get a judgment in your favour much more easily than with the previous alternative of a breach of contract. The second option is to cancel the licence in writing and use social media and the press to highlight their behaviour.

Only you can tell, based on your dealings with the company so far, which might be the more productive route, while also reflecting the extent of your personal appetite for a fight!

Hopefully you now issue comprehensive licences to all your clients and so will avoid something similar in the future.

On a slightly related matter, you should also be aware that wedding photographs usually fall into a special category which protects the privacy rights of the person who commissioned the photographs. Most wedding photographers are aware of this provision and ensure they get the necessary permission (preferably in writing) early in their dealings with a couple who are planning to marry.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

James9876
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Re: Extended usage not agreed.

Post by James9876 » Mon Dec 04, 2017 8:31 am

Hi Andy,

Thank you for your detailed response.

I guess not issuing a detailed licence was a grave error on my part. I do still find it hard to understand how my agreeing to their request to "Feature my images on their website" gives them unconditional licence for unlimited use for all their press, PR and advertising needs. When I supplied the images saying I was delighted for them to "feature" the images, this was referencing their initial request "Feature your images on our web site". I understood this to be the terms of our agreement and I feel it is them that are being "opportunistic" by assuming they can use the images however they like just because I failed to issue a detailed licence.

In my mind there are clearly two parts to this problem. The first part is with our agreed usage and contract, they requested images for their website in exchange for adding me to their recommends supplier list. The images were used on the website and no potential couples had contacted me during this period. I understand there are a number of possible reasons why no enquiries came through and although this is less than satisfactory, I do realise it is hard to prove that they weren't recommending me. I'm obviously disappointed but I understand there is little I can do.

The second part is where I feel a breach has occurred. They have uploaded the images to third party websites and social media and I believe this extended use is clearly out-with our original agreement. I supplied images in response to their request to feature images on their website and I am struggling to understand how this can this can be misconstrued to extend to social media posts, printed brochures and multiple listing websites. I'm sure that they have also agreed to terms and conditions on the social media and listing sites saying that they are licenced to use any images they upload or post.

In reply to your point on my client’s privacy rights, model release terms and conditions are included in my contract with them.

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AndyJ
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Re: Extended usage not agreed.

Post by AndyJ » Mon Dec 04, 2017 12:13 pm

Hi again James,

My earlier reply was perhaps a little on the cautious side. There is no doubt that even if your words quoted earlier are taken at their widest meaning, that doesn't amount to an unconditional licence as the hotel chain appears to maintain. And supplying your images to third parties is, in my opinion, well outside any implied usage based on the words "you to feature some images". They have effectively authorised someone else to use your images, which would ordinarily not fall within an implied licence of the sort you have described*. I would also argue that the word 'feature' has something of a temporary connotation about it, suggesting the licence was not intended to be perpetual. 'Feature' implies something special or out of the ordinary, which after three years of use without any compensating benefit to you, demonstrates an inequitable state of affairs, which I don't think a reasonable person would believe you intended at the outset.

When it comes to sorting out implied terms in contracts the courts tend to rely much more on any contemporaneous documents rather than oral testimony of the parties, since memories are fallible, and also because they can be sub-consciously selective in their interpretation of past events. So the email exchanges at the time the deal was being set up will be key. You need to analyse them carefully with as much detachment as possible, to gain a picture of what they would tell someone who is outside the dispute. If you feel that, in their totality, they indicate a short term, or at least limited, arrangement which was beneficial to you solely in view of the hotel's offer to 'promote' your business, then it would be worth taking the matter forward on your original basis, where compensation is sought for past use outside the terms you feel were agreed. Clearly you would not be in a strong position to invoice them for using your images on their own website, since this appears to be exactly what you explicitly did agree to. The matter of the hotel being part of a group, and the group also exploiting your images, may only be worth raising if it was manifestly unlikely that you could have foreseen this eventuality at the time. If a reasonably well-informed person would have known that, say, the "Hilton Weston-Super-Mare" was part of the Hilton chain, then you may have to include the group usage within what was implied, unless of course the original exchange of emails gives a wholly different impression (eg references to 'this hotel' or 'our hotel' etc).

One thing in your favour is the fact that you describe yourself as a professional photographer. This means that a court would take into account that your principal motive in entering into an arrangement like this, without a monetary payment, would be to enhance your business, and not out of vanity as might be the case with an amateur photographer. This factor then puts more emphasis on the hotel's side of the bargain, namely to promote you. Their evident failure to do so could constitute a material breach, even if they are able to show they did put you on their list of suppliers but did nothing more, since the tenor of their offer seems to have been to actively promote you. This is perhaps best illustrated by the lack of any credit on the photographs to identify you as the photographer (even though as I mentioned, they were under no moral obligation to do so).


* Perhaps as pre-cursor to any negotiations you have with the hotel, you could use the copyright complaint procedures offered by the main social media and other third party sites to get your images taken down.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

Fatty
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Re: Extended usage not agreed.

Post by Fatty » Sun Dec 10, 2017 11:25 am

This is an interesting case. By and large I agree with what Andy J has said. The only bit where I disagree is that I see usage beyond the permissions granted as a Copyright Infringement and not a breach of contract. If they did not add you to their list of approved photographers, that is breach of contract, however if they printed your image in a printed brochure and your agreement was only for use on their website, then that extra use would be a copyright infringement and ideal for the Intellectual Property Enterprise Court small claims track.

As AndyJ has said, everything hinges on the wording of your emails between the parties. They may be informal but are certainly enforceable in court, so if a reasonable person would read those emails as the Hotel only being allowed to use the images on their own website then all other use is an infringement. If the website is not specified in the emails and it literally refers to their or "our website" then they may interpret their social media pages as "their website". Only a High Court judge could tell you for sure if the words "our website" include social media pages as well.

With regards to attribution ( a credit ) if you have asserted your moral rights ( Eg the bottom of your web pages or emails says something like " copyright you, all rights reserved, all moral rights asserted" ) then you are entitled to a credit pursuant section 77 CD&P Act88. I know of no UK case law where a photographer has issued proceedings for damages because of a lack of credit alone, however I believe such proceedings have taken place in Germany and the photographer has been successful. The level of damages would be up to the court. A number of photographers have claimed an extra 100% of the value of the images and this has been accepted. Your case would be even firmer if you specify this in your terms or even better if you actually sell licences for use without attribution at 2x your normal price.

If you have asserted your moral rights then it may well tip the balance and you may decide its worth a gamble and issue an IPEC SCT claim. If you loose, in the small claims track, you may be required to pay the other sides expenses, however these are very limited so as long as you think you are more likely to win than loose, you may be happy to take this risk.

Disclaimer: I am not a lawyer.

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