Stolen Photograph

Joined
Oct 24, 2018
Messages
26
Location
Ottawa, Canada
So, this may be a familiar refrain to many of you. A bit new to me, though.

A painter has used a photograph of mine (taken from Flickr without my permission). The photo is of a polar bear in the wild in the High arctic.

He had sent an email requesting permission to create a painting from my photograph. I hadn't seen the email at the time. When I stumbled on it, I informed him that he did not have my permission. He said that, not having heard back from me, he went ahead and used it anyway. I told him that I found this to be unacceptable. He said, don't worry, I am offering the painting to a worthy cause and won't make money out of it. I said that's not really relevant, and is still unacceptable. He said that he thought I'd have been happy enough to know that he wasn't profiting. I told that I wouldn't have sold it, but given that he had already used it, it would cost him $500 now. He said that he had never paid more than $50 for use of a photo.

Then I found his website. He has the painting listed for sale at $3,250. My very unique polar bear is very recognizable.

Any advice? I won't take him to court, but am happy to give him a few sleepless nights thinking I might.....not very charitable of me, I know.

Thanks in advance,
Ronald
 
Joined
Apr 30, 2005
Messages
2,030
Location
Southern Cal
Cafe member Sandy "ToLady" had some vast experience with this.
Someone used her photos for paintings as well.
She is from Canada though.
You may want to reach out to her or do a search on the Cafe as well.
 
Joined
Jan 2, 2009
Messages
5,044
Location
Alaska
If he has it advertised on his website I'd make copies(e.g.screenprint). Plus you have the email where he requested and did not receive permission to use it. And the subsequent communication with you. Typically how much the photo is worth depends on how it is going to be used. If he's just selling the original painting as a one-off, then what he offered probably isn't out of line. But if he is making prints from the painting and selling them that is another story. I'd give him a chance to pay a fair price or go after him by whatever legal means you have available.
 
Joined
Apr 30, 2005
Messages
2,030
Location
Southern Cal
If he has it advertised on his website I'd make copies(e.g.screenprint). Plus you have the email where he requested and did not receive permission to use it. And the subsequent communication with you. Typically how much the photo is worth depends on how it is going to be used. If he's just selling the original painting as a one-off, then what he offered probably isn't out of line. But if he is making prints from the painting and selling them that is another story. I'd give him a chance to pay a fair price or go after him by whatever legal means you have available.
Looks like she hasn't been here in a while.
Let me know if you would like her email.
I'm pretty sure I still have it.
 
Joined
Apr 30, 2005
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Southern Cal
I searched my email with no luck.
Looks like she was on the Cafe in November.
If you search for messages she sent on the Cafe you can either PM her or reach her through her Pbase account. It is listed in her Cafe signature.
 
Joined
Apr 30, 2005
Messages
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Southern Cal
If I remember right I think Sandy was awarded the total amount that the person actually sold the paintings for. I remember it had a lot to do with Canadian law. In the US it might be different. RCMP was involved as well. This could be a major windfall for you.
 
Last edited:
Joined
Oct 24, 2018
Messages
26
Location
Ottawa, Canada
I've read Sandra's thread (thanks for pointing it out for me). My situation is a cross border one. The other party is in the US. I'm in Canada.

The guy has dug his feet in, calling me aggressive and saying he's having me investigated for extortion.

Thing is, 100% of our communication is in writing, so it's both clear and transparent. While I had no intention of paying lawyers to argue this. (I want $500. He reluctantly offered $50). There is another way to go.

I'll let you know how it goes.....

Ronald
 
Joined
Apr 30, 2005
Messages
2,030
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Southern Cal
I think that even makes it more interesting.
Since you are Canadian the law of your land should prevail.
That's where the photo originated and hopefully you registered it with the appropriate Canadian Copyright Agency.
If not, do it now.
I know in the US it doesn't matter when you register it, just that you did register it.
That makes it an international crime now.
I think you definitely need to talk to Sandy.
She is pretty much an expert on this type of thing.
 
Joined
Oct 24, 2018
Messages
26
Location
Ottawa, Canada
I think that even makes it more interesting.
Since you are Canadian the law of your land should prevail.
That's where the photo originated and hopefully you registered it with the appropriate Canadian Copyright Agency.
That makes it an international crime now.
I think you definitely need to talk to Sandy.
She is pretty much an expert on this type of thing.
I have sent her a message, but haven't heard back. I don't think she has posted here recently.
 
Joined
Sep 13, 2007
Messages
14,585
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Northern VA suburb of Washington, DC
I know in the US it doesn't matter when you register it, just that you did register it.
I don't remember the details but I do remember that it definitely does matter as to when you register it. The timing has to do with registering it prior to publication, filing the law suit or both and the consequences have to do with the amount of money you can collect if you have to go to court.

EDIT: "If you register your work prior to infringement (or within three months of first publication), you can ask for statutory damages and attorney fees if you win an infringement case." (Otherwise, you can't.)

https://blog.kenkaminesky.com/photography-copyright-and-the-law/
https://blog.kenkaminesky.com/photography-copyright-information/
 
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Joined
May 27, 2013
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3,026
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Cornpatch
I don't remember the details but I do remember that it definitely does matter as to when you register it. The timing has to do with registering it prior to publication, filing the law suit or both and the consequences have to do with the amount of money you can collect if you have to go to court.

If you register it before the infringement, you can sue for punative damages. If you register after infringement, you're limited to actual damages. And that's a number that would be hard to prove in court if the image has never been sold before.
 
Joined
Jan 13, 2006
Messages
4,311
Location
Columbia, Maryland
Real Name
Walter Rowe
I've read Sandra's thread (thanks for pointing it out for me). My situation is a cross border one. The other party is in the US. I'm in Canada.

The guy has dug his feet in, calling me aggressive and saying he's having me investigated for extortion.

Thing is, 100% of our communication is in writing, so it's both clear and transparent. While I had no intention of paying lawyers to argue this. (I want $500. He reluctantly offered $50). There is another way to go.

I'll let you know how it goes.....

Ronald
The word "extortion" is often used when someone knows they are in the wrong and is trying to bully and scare the author into quitting pursuit. Don't let it stop you. Also know that the Berne Convention is an international intellectual property treaty and I am 100% sure that Canada and the USA are co-signers so the fact that this is cross-boundary should not stop you. You might need a US copyright lawyer. Given that the person has acknowledged in writing that they DO require your permission and assumed a non-response to be yes (when it should be no in the USA - explicit written permission is required under US copyright law), they have admitted guilt.

Get those screenshots and make PDFs of all the email exchanges. A US copyright lawyer can help. In the US you would be entitled to all profits from sold copies of the painting. I also recommend you register the image in the US copyright office (www.copyright.gov).
 

NCV

Joined
Jan 31, 2019
Messages
175
Location
Italy
Real Name
Nigel
I have had photo's stolen many times. Sure its not very nice.

I was looking at a local guide book in a bookshop and realised the author had raided my blog to get a whole lot of pictures.

I wrote a letter to the publisher, who replied that they had published the book thinking that the author had taken the pictures. They also told me that they did not pay for photographs.

I just decided that it was a waste of time escalating the matter and moved on to something more productive.

The author cut a bad figure with his publisher at least.

I would advise you not to lose too much sleep over the matter and move on.
 
Joined
May 11, 2006
Messages
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CHARLOTTE
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Randy
ESPN stole one of mine. I harassed them for 2 months and got $500
You situation Is a little different because it’s a charity involved. The Shriners stole one of my picture several years ago and I called them and gave them a hard time but because they were the ShrinersI was gonna drop it
 
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