Advice Needed - Client Used Property Without Permission

[dharvell]

I live in the state of Michigan and run a photography business. This business is my bread and butter... it's how I feed my family and keep the lights on.

To protect myself, I created a Terms and Conditions that all clients must read and sign before their photo session. The T&C covers that the copyright of photos belongs to me and the client may not print, copy, or archive the photos taken during the session. I do grant a license to use the low-res proofs that I send them for personal web sites, or to e-mail to family and friends.

It seems that one of my clients took it upon themselves to take the low res proofs to a printing company to make prints, as they found this printing company much cheaper than the prints that I offer of the full-size images. This is a direct and obvious violation of the T&C, as well as how I understand the copyright laws of the USA.

Am I correct in my thinking? What options do I have, if any, to recover lost income?

Any advice would be appreciated.

+dharvell

 

[Michael Wechsler]

I haven't seen the T&C that you've created but let us say they suffice and you are right. Your options seem best served by comon sense and good judgment than a legal remedy at this point. How did you find out about this violation? If it were me, I would probably send a written notice to the client reminding them of your clause and the small fee which you charge for the rights to print which helps you keep the lights on and is how you're able to provide the photos at such cheap rates and liberal basic web usage. If you've got a talking relationship with the client, that's probably better before sending a written letter. Settling is always preferable to litigating. Good luck.

 

[dharvell]

THELAWPROFESSOR - I absolutely agree with settling over litigating, anyday. How I discovered this was through e-mail, actually. They e-mailed me saying that they would probably take the proofs and take them to (name of printer here). They called me shortly after the e-mail and restated their intentions. I reminded them of the clause prohibiting them from printing the photos without my permission. They shrugged it off saying that it would be "easier for them" to do so.

The clause is: "The photographs may not be copied, reproduced, or transferred to any media - including print, digital storage, or any other media by any entity other than Agents of (my studio name) with the exception(s) stated in SECTION III - GRANT OF LICENSE (if any)."

Section III is: "Client may use digital versions of photos taken during Session so long as resolution is lower than 800x600 pixels for personal use limited to online blogs and personal web sites, and e-mail to share with friends and family."

I let them know that I do offer a "copyright transfer" option of $2.00 per full resolution image that transfers all rights to the client. However, they still wish to take the low-res proofs to the printer for "convenience".

Hope this clears up any questions.

Thanks for the reply!

 

[Michael Wechsler]

Perhaps you should write a letter, send it certified, reminding this person of your discussion and with a copy of the license. You may want to refer to this:

http://www.copyright.gov/title17/92chap5.html

Here is an excerpt:

§ 504. Remedies for infringement: Damages and profits

(a) In General. — Except as otherwise provided by this title, an infringer of copyright is liable for either —

(1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

(b) Actual Damages and Profits. — The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

(c) Statutory Damages. —

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

 

[dharvell]

THELAWPROFESSOR - Very good information. Thanks!