Request to Use Photo as Reference for Illustration

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Not sure if this was a missed opportunity or not. I just realized that Flicker had an internal email and I missed the email below, which was about a year ago. I checked the book and seems like it was already published so I'm just curious if any of you ever had an offer similar to this? They sent me a total of 3 emails so they seemed really interested. However, they were just requesting to use the picture as a reference to the illustrator not to be published in the book, which surprises me a little. Is this common?


Here is the email I received.

Hi. I am the author of "Goodnight Miami" a children's book about the city. The book features a number of attractions of Miami and is inspired by the children's book "Goodnight Moon." I am in the process of having the book designed and illustrated and we found your photo of Vizcaya Gardens on Flicker. I previously wrote to you seeking your permission to use the photo as a reference for our illustrator. The photo would be used as reference only and the actual photo file would not be part of the final illustration.

Please let me know at your earliest convenience. We are in design stages, and if I cannot get your permission to use the photographs as reference, I will need to seek other reference photos.

I would greatly appreciate hearing from you.
 
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OK - Now I'm little ticked off, even though, I was initially surprised that they would need permission to use my image for an illustration. I happen to find a copy of the book and to my surprise! there's an illustration which clearly appears to be my picture. I can't say they didn't try, but I was quite surprised they went ahead with the process w/out my permission. Not sure what to think considering it is an illustration and they may purposely changed a couple of things (i.e, added clouds, a few lights, positioning of some trees, etc..) However, I do think that there is a very strong argument that they used my picture. I haven't found any similar to this on Flicker. In addition, those who live in Miami know for a fact that it is a little difficult to shoot at Viscaya during sunset. This location is only open to the public a few times a year for moonlight tours. :mad:

Any thoughts?

Here is my pic:

5545981812_f953536f08_b.jpg
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Vizcaya Gardens - Main House HDR by Manny M.2010, on Flickr

8682653825_7881d84b0d_z.png
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Viscaya by Manny M.2010, on Flickr
 
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Walter Rowe
Disclaimer: I am not an attorney. This is solely based on my own experience pursuing copyright infringement which was settled out of court under a confidentiality agreement.

If you pursue this legally, their defense could either be (a) they tried to contact you, (b) that this is fair use, or (c) that this is modified enough from the original that is not a violation of US Copyright Law.

Unanswered attempts to contact you is not valid a defense.

It likely would not pass the smell tests for Fair Use.

They might be successful in declaring to be modified enough from the original so as to not devalue the original. That test is very subjective. A judge looks at the two images and determines either (a) the two are similar enough and enough of the original is present that the derivative does devalue your original and thus rule in your favor, or (b) the two are dissimilar enough that the derivative does not devalue the original and thus rule in favor of the defendant. Their attorney would point out every single little different between your original photograph and their book illustration: the clouds added to the sky and time of day depicted, the greenery added to the stone wall that separates the water wall from the patio, the people added to the patio, the light added to the water wall at the right edge, etc.

Another approach they might take is to search the internet for other photographs so similar to yours that you can't prove their illustration originated from your photograph. If I were their defense attorney, that certainly is what I would do. If they can even find three other pictures very similar to yours, that might defeat your case.

Copyright is a Federal law so you would have to pursue this in a Federal court in Florida. I would encourage you register your photo with the US Copyright Office ASAP, and then to contact an intellectual property attorney. They can look at the two and tell you whether a case could be effectively made.

You also could reach back out to the original requester and see if they are still interested in licensing the work. If they say they are not, then you can pursue the attorney route. It might be sufficient motivation by them receiving a notice from an attorney for them then to decide to pay you to make it go away. You will have to split the proceeds with your attorney if they take it on contingency, or you have to pay your attorney fees directly.
 
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I've dealt with this a number of times. So far, I have never used an attorney. Often all you need to do is contact the offending party, and tell them that they used your work without your permission, and see if you can reach a reasonable settlement. If that fails, you have to determine if the fee you might recover would be worth paying an attorney. By all means register your image with the copyright office.

They may tell you that they found a very similar image from someone else, and if so, and someone else does have a similar image, then you have no claim at all. This happened to me as well, and I did check it out, and found that someone else had taken an image that was virtually identical to mine. I had contacted what I thought was the offending party, and they directed me to the other person's image.
 
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They may tell you that they found a very similar image from someone else, and if so, and someone else does have a similar image, then you have no claim at all. This happened to me as well, and I did check it out, and found that someone else had taken an image that was virtually identical to mine. I had contacted what I thought was the offending party, and they directed me to the other person's image.

For public, very well-known scenes I imagine this happens all the time!
 
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Disclaimer: I am not an attorney. This is solely based on my own experience pursuing copyright infringement which was settled out of court under a confidentiality agreement.

If you pursue this legally, their defense could either be (a) they tried to contact you, (b) that this is fair use, or (c) that this is modified enough from the original that is not a violation of US Copyright Law.

Unanswered attempts to contact you is not valid a defense.

It likely would not pass the smell tests for Fair Use.

They might be successful in declaring to be modified enough from the original so as to not devalue the original. That test is very subjective. A judge looks at the two images and determines either (a) the two are similar enough and enough of the original is present that the derivative does devalue your original and thus rule in your favor, or (b) the two are dissimilar enough that the derivative does not devalue the original and thus rule in favor of the defendant. Their attorney would point out every single little different between your original photograph and their book illustration: the clouds added to the sky and time of day depicted, the greenery added to the stone wall that separates the water wall from the patio, the people added to the patio, the light added to the water wall at the right edge, etc.

Another approach they might take is to search the internet for other photographs so similar to yours that you can't prove their illustration originated from your photograph. If I were their defense attorney, that certainly is what I would do. If they can even find three other pictures very similar to yours, that might defeat your case.

Copyright is a Federal law so you would have to pursue this in a Federal court in Florida. I would encourage you register your photo with the US Copyright Office ASAP, and then to contact an intellectual property attorney. They can look at the two and tell you whether a case could be effectively made.

You also could reach back out to the original requester and see if they are still interested in licensing the work. If they say they are not, then you can pursue the attorney route. It might be sufficient motivation by them receiving a notice from an attorney for them then to decide to pay you to make it go away. You will have to split the proceeds with your attorney if they take it on contingency, or you have to pay your attorney fees directly.

Walter,

Thank you so much for such an informative response. It does put things into perspective. I think they certainly made an effort to "place" some of their differentiators in the illustration in order to possibly make an argument that this was not my image. I have done a fair amount of searching, and I still have not come up with something "as similar as" my picture. Also the fact that the author attempted to reach out to me numerous time is in my favor. I did check on the book and it seems that she did recognized the individuals who allowed her to use pictures for illustration. Of course, my name was not one of them.

Regardless, at the end of the day, it will come down to whether or not I would like to pursue this in court. I will certainly take your advice and register the photo. It does sting that they used the picture w/out my permission. I can only imagine the torment that you had to go through to take it all the way to court.

If you had to guess (and I know you are not an attorney plus it is very subjective) how much do you think I can possibly get paid in this instance?
 
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If you had to guess (and I know you are not an attorney plus it is very subjective) how much do you think I can possibly get paid in this instance?
Depends on whether or not the image was registered as I stated. Pretty sure if not, then you can only collect the fee that you would have charged for use. If it was registered, I believe the award is $250,000 per image.
 
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If the image wasn't registered with the copyright office before the infringement, your damages are severely limited.

This likely answers my question on the potential collection of damages. The image unfortunately was not registered.
 
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Depends on whether or not the image was registered as I stated. Pretty sure if not, then you can only collect the fee that you would have charged for use. If it was registered, I believe the award is $250,000 per image.

$250K per image? Wow, well this will serve me as a life lesson to register my images!! I never knew the potential pay for damages was so high.
 
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For public, very well-known scenes I imagine this happens all the time!

At a minimum, I think I will reach out to the author. I do think I have a good case and I don't think there are as many pictures out there at this time a day (i.e, sunset, long exposure, HDR, etc..). These gardens are open to the public regularly until 4:30 pm. The "moonlight" garden tours take place at exclusive times throughout the year. Had they depicted a "daylight" picture, I would had been totally w/out an argument. The book is also called "Good Night Miami", which feature pictures of Miami landmarks at night.
 
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5545981812_f953536f08_b.jpg
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The position of the circled components of the image suggests that the picture they copied was taken from a different/better position to the left of where you stood.
a8682653825_7881d84b0d_z_zps1caf6486.jpg
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Depends on whether or not the image was registered as I stated. Pretty sure if not, then you can only collect the fee that you would have charged for use. If it was registered, I believe the award is $250,000 per image.

I have had several cases with copyrighted images that were used without permission. The best I have received was $7500/image and the legal fees ate half of that. I didn't hire the lawyer, an agency of mine did.

And Manny, while the illustrated image does appear to be made from your image, it still could have come from another source. The image of mine I was refering to was a photograph of an erupting volcano, taken in 1986 from an uncommon vantage point, shot at sunset with a 600mm lens. The image which was virtually identical was shot by someone else, who obviously found the location I used, shot at sunset with a 600mm, of an eruption of the same volcano in 1993. Yet you could amost superimpose them on one another, the ash cloud was almost identical, and the time of day, the colors in the sky and reflection on the ocean were the same. It took me about a week to track down, and I was finally satisfied that they used the other persons image.
 
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http://farm6.staticflickr.com/5292/5545981812_f953536f08_b.jpg

The position of the circled components of the image suggests that the picture they copied was taken from a different/better position to the left of where you stood.
[URL]http://i107.photobucket.com/albums/m300/dvdowns/a8682653825_7881d84b0d_z_zps1caf6486.jpg[/URL]

That's a excellent observation Desmond; however, I don't think it would have been very easy. Although composition would not have required that much movement, immediately to left is the water. Of course, with the extended arm of the tripod it could potentially have been done, but no many people in the right mind would position their gear right above the water for a long exposure at that time of the day. In addition, that wooden 'log" would have been almost in the middle of the shot which would make not much sense when originally taking the picture.
 
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I have had several cases with copyrighted images that were used without permission. The best I have received was $7500/image and the legal fees ate half of that. I didn't hire the lawyer, an agency of mine did.

And Manny, while the illustrated image does appear to be made from your image, it still could have come from another source. The image of mine I was refering to was a photograph of an erupting volcano, taken in 1986 from an uncommon vantage point, shot at sunset with a 600mm lens. The image which was virtually identical was shot by someone else, who obviously found the location I used, shot at sunset with a 600mm, of an eruption of the same volcano in 1993. Yet you could amost superimpose them on one another, the ash cloud was almost identical, and the time of day, the colors in the sky and reflection on the ocean were the same. It took me about a week to track down, and I was finally satisfied that they used the other persons image.

Wow. The odds of that are incredible. You guys are convincing me little by little that this may potentially not be my picture. I must say that the fact that the author wrote me 3 times, certainly makes it seem that they were very set on this image. I guess I should look harder to see if anything else comes close. Obviously, it certainly does not help me that it was an illustration with some variations.
 
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That's a excellent observation Desmond; however, I don't think it would have been very easy. Although composition would not have required that much movement, immediately to left is the water. Of course, with the extended arm of the tripod it could potentially have been done, but no many people in the right mind would position their gear right above the water for a long exposure at that time of the day. In addition, that wooden 'log" would have been almost in the middle of the shot which would make not much sense when originally taking the picture.

Also remember that this is an illustration. The artist could have placed those poles incorrectly (a) on purpose, or (b) and just gotten it wrong compared to the original.

I would contact them directly and see what you can work out. They might still be willing to give you a "normal" license fee just to make sure they are in the clear. If the do, good for you and them both ... and no attorneys required.
 
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Also remember that this is an illustration. The artist could have placed those poles incorrectly (a) on purpose, or (b) and just gotten it wrong compared to the original.
Exactly! Which is what makes it close to impossible to say that an inaccurate copy of a much-photographed building originally belonged to anybody in particular.
I'm all for charging for the use of images and tracking down people who use images without permission, but this case seems to be a pointless exercise given the number of variables.
 
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There was a case in the UK last year relating to a red London bus with the Houses of Parliament in the background which caused some controversy due to the fact that the judge ruled infringement of copyright
His honour Judge Birss QC decided that a photograph of a red London bus against a black and white background of Big Ben and the Houses of Parliament, with a blank sky, was similar enough to another photograph of the same subject matter to infringe copyright.
http://www.amateurphotographer.co.u...hers-face-copyright-threat-after-shock-ruling

The images to me were so different that I could not believe the ruling. The similarity was really only down to the selective colour used on the bus
http://www.swanturton.com/multimedia/docs/Temple%20Island%20v%20New%20English%20photographs.pdf

While this case was between two companies I feel that from a photographers point of view this type of ruling is worrying. Say I visit some well known landscape and photograph from the best angle. It is highly likely that I will be in a similar position to 100's of others who have also taken very similar shots. Does this mean that I cannot publish and sell mine because some unknown photographer got there first?

Of course this is in the UK and the laws will probably differ from country to country.

How relevant this is to your situation I just do not know. If you were in the UK and it went to court you would probably have a strong case.

Caveat:
I have no legal or copyright knowledge/training so the opinions here are from a laymans POV.

I have seen this place on the net taken from a similar angle - seems there are quite a few.
http://news.travelhouseuk.co.uk/destinations/the-fairytale-like-places-of-earth.htm
https://www.google.co.uk/search?q=V...ista.org%2Fmiami-virtual-tour-sobe%2F;800;600
 
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My number was wrong, the max is 150k. And yes, it is still up to the judge. http://tudorlawfirm.com/will-courts...y-damages-for-willful-copyright-infringement/

The max is $30,000 for ordinary infringement, and $150,000 if the infringement is proven to be willful. However, the maximum awards are not common, and it is more likely that a judge will take other factors into consideration when determining a statutory award. I've been involved in cases where the judge only awarded a few thousand dollars for the infringement.

Without the registration prior to the commencement of infringement, you are not entitled to statutory damages or attorneys fees. At that point, you're stuck with the actual damages, which in most instances, will be the royalty or license fee that you would have obtained had you negotiated the license prior to the use.
 

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