Tabloid online site has used my photograph

If you are worried about infringement or your work has been copied and you want to take action.
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Carmichael
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Tabloid online site has used my photograph

Post by Carmichael »

I put a photo (of a delivery robot) that I had taken on a local Facebook group. It got a lot of likes. I was contacted by the BBC and the Telegraph asking if they could use my image. I agreed to both, as long as they credited me as my business name (I'm an artist) rather than my private Facebook.
A tabloid newspaper also asked, by Facebook message, but I refused. I replied that I did not give my permission for them to use my photo, not my words.
The same day, their online arm published my photo and my comments that I'd made to the BBC. They used the incorrect credit from my private Facebook. When I challenged them, they said they are not the same company as the newspaper (Their url is nameofthetabloid.co.uk)
Nonetheless, I hadn't given the online arm my permission either. I understand that it is illegal to publish a photo that was taken by someone else without the photographers permission. I complained to the picture editor desk, and sent an invoice for £450 for using my image without permission. I based this on their circulation, and what I usually charge for the use of one of my art images. I added something too for the annoyance.

They replied that they would normally only pay £40 for a photo, but as they had not obtained permission, they would increase that to £100. I replied that if they wanted to negotiate a price, they should have done it before using the photo. They increased their offer to £150, stating that my usual price was for an image of one of my paintings, not a photo. I replied that their valuation was not relevant to me. That was my fee, and I feel it is reasonable.

They have now replied that this was their final offer.
Do I have anywhere to go from here?

Thanks in advance!
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AndyJ
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Re: Tabloid online site has used my photograph

Post by AndyJ »

Hi carmichael,

Well, in theory you could sue them in the IPEC small claims court but unless you represented yourself, which is perfectly permissible, the legal costs of hiring your own lawyer to take the case forward would almost certainly cost more than the amount of your claim and even if you were successful in court you wouldn't be entitled to get your legal costs back from the news site. There is also the question of the delay. Bringing a claim in the court will take months even though it is a fairly straightforward procedure. The only way you might get any meaningful damages in addition to your basic claim for £450 is if you can prove that the news site were flagrant in taking and using the image after you had refused permission to their newsprint version. I think you can assume that if you wanted to claim additional damages due to flagrancy you would need a solicitor or barrister to argue your case as it gets complicated. What's more the news site are bound to field their own counsel to defend the claim.

Sadly their 'regulator' the Independent Press Standards Organisation (IPSO) doesn't deal with copyright issues.

You didn't mention if you charged the BBC and Telegraph a fee for using your image. If you did then that fee might be an appropriate yardstick for the fee you want to charge the infringing website. If you didn't charge the BBC and Telegraph, this may become a weakness which the defendant's counsel could work on to convince the court that your amount of £450 is disproportionate as you 'gave away' your licence to the other two outlets in exchange for a credit. Clearly the fact that you released the image on Facebook (for free) also plays against you.

On the other hand since, presumably, your photograph was newsworthy and therefore the normal rates, for instance those which might apply to stock images, aren't appropriate in this instance and the value of your image lies in its exclusivity (and possibly the short window in which the photograph remains newsworthy). If you were a professional freelance or paparazzo, and you knew you had a scoop (I'm not suggesting that this was a scoop), you would have no doubt held an auction for the first rights on the image, meaning that the marketplace would have determined the value of the image. Their unauthorised use of your image has damaged the future earning potential of the image which you had sought to protect by limiting the number of agreed licences to one print outlet and one TV news outlet.

Picture desks have a very long history of taking and asking for forgiveness afterwards in circumstances like this.
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
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