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Ask Slashdot: Should This Photographer Sue A Hotel For $2M? (google.com)
Unhappy Windows User writes: An Austrian photographer was contracted by the luxury [hotel] Sofitel in Vienna to photograph the bar with an amazing view over the skyline. He was paid for his time (4200 euros) and arranged a three-year internal usage contract for the photos. After the contract expired, he still found his photos being used -- on external sites too. He is now suing for 2 million euros, based on each individual usage.
My question is: Is this the real market value of his work...? It seems like the largest economic contribution to the work was from Sofitel, who allowed access to the property and closed it to customers. I don't have any issue in a photographer wanting to be paid fairly for his work, and asking for perhaps double or treble the original price for the breach of contract to match what an unlimited license would have cost. [But] with this money they could have employed a professional for a month and automatically obtained full rights to the work...it seems like this guy is trying to take advantage of an oversight by a large corporation, never to have to work again.
Here's the original article in German and an English translation, and it's one of those rare cases where the copyright belongs to an individual instead of a massive entertainment conglomeration. But do you think the photographer should be suing for 2 million euros over this copyright beach?
My question is: Is this the real market value of his work...? It seems like the largest economic contribution to the work was from Sofitel, who allowed access to the property and closed it to customers. I don't have any issue in a photographer wanting to be paid fairly for his work, and asking for perhaps double or treble the original price for the breach of contract to match what an unlimited license would have cost. [But] with this money they could have employed a professional for a month and automatically obtained full rights to the work...it seems like this guy is trying to take advantage of an oversight by a large corporation, never to have to work again.
Here's the original article in German and an English translation, and it's one of those rare cases where the copyright belongs to an individual instead of a massive entertainment conglomeration. But do you think the photographer should be suing for 2 million euros over this copyright beach?
Dont know. Ask a lawyer. Which he appears to have done.
Sounds like they are in breach of contract. But a German judge will have to work that out.
But it seems dubious to sell short-term licenses for photographs - I've never even heard of that as a thing, and have no idea why anyone would agree to that. It seems like "predatory licensing" knowing that they would likely be abused and therefore lead to a lawsuit.
and by doing so broken a written contract then yes, he should get some financial recompense. Whether its worth 2M is another matter but thats would be for a court to decide.
Considering corporations themselves wouldn't hesitate to sue you into ruin if you breach their precious copyright, why not?
But it seems dubious to sell short-term licenses for photographs - I've never even heard of that as a thing, and have no idea why anyone would agree to that.
But they did, and now they're in breach of the contract's terms. Decision: Photographer. Amount: Up to the court.
Presumably it was negotiated with the price. If they wanted more years, they should have paid more upfront.
It is also obvious, to anyone of functional mind, that lawsuits shouldn't be for some "fair" pricing of the disputed value. Anyone who does not understand why, can ask and will undoubtedly receive a thorough thrashing which i, personally, do not have the patience to provide. The whole premise (generously speaking) of this article is dog shit flamebait.
"They were pure niggers." – Noam Chomsky
Read the topic ^
An Austrian photographer was contracted by the luxury [hotel] Sofitel
[But] with this money
I wish the editors - I assume it's the editors - would stop highlighting every change - I assume that's what's being done - they make to a submission. It doesn't help with anything.
systemd is Roko's Basilisk.
If an an individual making a single copy of a work by a large company is $200k or so, why is a large company giving copies of a work by an individual to all comers (publishing it on the web) supposed to get a pass? Is it right? Obviously not. But this is the way the deep pockets want it, so that's the way it is.
He is only going by precedent set by the music industry for copyright infringement with charging for each instance of infringement instead of standard music rates which in the industry case would be the cost of a song or album. Why would a large corporation get away with large scale copyright infringement and simply settle for a standard contract amount after the fact.
Oversight does not reduce your legal responsibilities or penalties.
He has to "prove" the damage. There is no jury telling how much has to get.
Perhaps he can prove it, perhaps he is settling with the hotel.
Cost free eBook I read (by iBook/Kobo/Amazon/ObookO/Gutenberg etc.): "The Green Odyssey" by Philip Jose Farmer.
from one file downloadedI must he can say the same thing.
by TheSpoom (715771) Uncaring Linux user here. I have nothing to add to this but please continue. *munches popcorn*
Why not? Is there some stipulation that says only megacorps are allowed to sue for absurd amounts of money? If Sony can sue an individual for millions of dollars over a stupid song, then a photographer can sue a company for millions over a stupid photo.
What's good for the goose is good for the gander.
Considering the insane amounts that companies go after individuals for where the power dynamic is reversed, then hell yes he should go after them for as much as he can. Whenever individuals do something wrong, no matter how minor, companies go after them for huge amounts way out of line with actual damages. They have the lawyers and the time and the money, and they use it to abuse those with none of those things. If the situation was reversed I have no doubt the company would be going after him for as much or more. But when the dynamic changes, and companies use things from individuals, they tend to abuse the shit out of it again, 'forgetting' to take things down, using without attribution or permission, or just straight up stealing work and IP. And then again, they have the time, money, and lawyers to get off easy, because most individuals they screw over can't afford to go toe to toe with them for as long as it takes to get results. I don't think this is right, by any means, by either the individual or the company. But while the company can and does do it, then what does the individual get by not acting the same way? The moral high ground is great, but in cases like this it doesn't make you a living. You just end up poor with your hard work being ripped off left and right. Screw that.
The 2 million is a negotiating tactic. Its a big opener before settlement talks are mandated previous to any kind of trial. This really isn't a story, it happens quite a lot. Its not even unusual that its a single photographer suing a corporation, that happens all the time.
In this case he has a lot of leverage, had a contract for the use f the photo for a set time and in set ways. They'll definitely settle out of court, the hotel has no case.
I highly doubt we'll ever find out what the outcome of this is as settlement terms do not require disclosure usually.
Why not ... you can make the license period as long as you want.
However usually it is an unlimited untransferable license.
It seems like "predatory licensing" knowing that they would likely be abused and therefore lead to a lawsuit.
Well, the europeans hate rich guys, especially when the rich are dumb, tricking a rich guy into such a dumb thing is rather fun.
Cost free eBook I read (by iBook/Kobo/Amazon/ObookO/Gutenberg etc.): "The Green Odyssey" by Philip Jose Farmer.
Presumably he offered less for a three-year license than for a perpetual license and the hotel decided that they would want more up-to-date photos in a couple of years and so decided to save money. Two million is excessive, but given that copyright laws are horrendously broken I don't see why only big music or movie studios should be able to take advantage of the breakage. Hopefully a few more high-profile cases will start to provide the impetus for getting them fixed.
I am TheRaven on Soylent News
The hotel breached the contract and the copyright. In the US, that will result in treble damages of the value and use, plus potentially more due to the contract.
Whether it's worth $2M or not is debatable. But this absolutely isn't what the summary implied, that the "photographer is lazy" or something. No, he's quite serious about his work being appropriately compensated and not pirated. This is being pirated, and being used for marketing, and so on an so forth.
Most commercial contracts are written with a limited use. This photographer could not subsequently be selling this work of art, and if you look at the likes of Peter Lik (spell that correctly if you google it), the image sales alone could be worth more than $2M.
The summary implied that the hotel was inconvenienced in order for the photographer to make this image, yet he could've easily rented out the room. However, the hotel could not have easily made the shot themselves. That's insulting to professional photographers everywhere. They actually do more than just push a button.
It doesn't matter what the real value is. They will meet somewhere between 0 and what he's asking for and that'll be it.
By RIAA standards, this is entirely acceptable. If we base it around their income, the RIAA example would balloon out to about $20 Billion
...if more evidence were needed, that "intellectual property" is simply not a viable thought pattern to maintain, no matter how much money Disney makes from it.
Everyone shuld own one.
KKK
So the issue is that we have copyright in the first place. The photographer undoubtedly should only have done the work on contract entitling him to payment for said work. However there shouldn't be any concept of copyright infringement in the first place. The only party whom has a contract in this situation would be the hotel and the contracted worker (photographer). No other party other than the hotel should be liable if they violated the terms of the contract.
This is a standard commercial license, and you haven't heard of it because you are not a professional photographer or need their services. Most commercial photography does not include the copyright, rather a license to use that copyright for a period of time and specific uses. People violate it all the time, and usually this is simple enough (and inexpensive enough) to deal with.
But TFA implied the hotel didn't care they pirated his work and offered a trivial sum for the excessive violation. The moment they exceeded the usage limits, they were violating copyright.
Consider lending someone your car to drive 100 miles. They return the car with 10,000 miles on it. You complain, and they offer to pay you for another 100 miles. That's not what the agreement was, and they made an insulting offer to compensate for it.
Sorry- no- but 99.95% of people couldn't distinguish a carefully taken amateur’s photograph from the pros. While that may be insulting your not entitled to not be insulted.
Except that fair pricing of loss or damages is the fundamental basis for many justice systems. If this case was being heard in Australia, for example, the settlement would not exceed probable losses.
For a specific close to home example, DBC, the owners of Dallas Buyers Club, won a case to get the details of ISP subscribers who they believed had pirated the movie. But before they could go on their merry way demanding $1000s of dollars, the judge wanted to see their demand letters and advised the demands could not be more than actual losses. He estimated those losses to be no more than the full price of a DVD + legal costs. It worked out at around AU$60.
He did a job and provided them with photographs on given terms. They used the photographs beyond those terms. I'm sure there's some justification for the $2M figure based on a bunch of ridiculous assumptions, but it's not like he's actually going to get that.
If that was true the hotels wouldn't use professionals, they do and thus you're wrong.
Statutory damages need have no connection to any actual damages, and generally they don't.
As there should be also damages for people copying the copies and such...
I don't see a valid claim here because I don't see enough artistic content to make a copyright valid. It's just industrial work.
He probably shouldn't be allowed to sue for that much, but then large rightsholders shouldn't be allowed to sue for the ridiculous amounts they sue for either. No matter, whether he should be allowed to or not, the law says that's what he can sue for since they infringed on his copyrights. Those are the rules the big corporations and rightsholders made, I don't see any reason why this photographer shouldn't play by them.
Consider lending someone your car to drive 100 miles. They return the car with 10,000 miles on it. You complain, and they offer to pay you for another 100 miles. That's not what the agreement was, and they made an insulting offer to compensate for it.
... so obviously, the next logical step would be to demand $2M from the renter for the 10,000 miles driven.
What's good for the goose is good for the gander.
Still waiting on Serviscope_minor to wake up to fucking reality and realize that Jessica Price isn't going to fuck him.
Yes, and like the music industry, if a pirating corporation only has to pay a "fair" price when caught there would be no incentive NOT to rip off the artist. There must be a penalty way over and above what should have been paid in order to keep would-be pirating corporations honest.
Your logic is debatable -- and that last sentence should be taken out back and whipped behind the shed.
They had a contract, one side thinks the other has breached that contract.
Why do you care how how they determine the consequences?
"...never to have to work again"
You must be joking,
if you think it's possible to retire in Vienna with only 2 million euros
He is letting them off easy!
This article is a good example of the old rule on Slashdot and elsewhere, "when a title is a question, the answer is always ". And it is one of the very rare exceptions.
Lawsuits, and prosecutions, always start by default with the maximum possible penalty. It's similar to submitting a bid for contract work: you sibmit a bid for as much as the market will bear, to do the maximum possible amount of work with the least resources, and then negotiate. It's very rare for the dollar figure in a lawsuit to bear more than a passing resemblance to any damages awarded or any negotiated settlement.
As far as the law is concerned, this photographer has _excellent_ grounds for a very large lawsuit. The work was used in violation of the contract, it was used commercially, large scale abuse of the copyrighted material was involved, and the defendant has apparently admitted to some level of guilt. So of course the photographer should start with the maximum penalty in the lawsuit, so that they can reach a finding or a settlement that discourages similar abuses.
What? They aren't at it again, are they?
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
Of course _HIS_ lawyer said sue, that's how Lawyers make money. Sue for 20gigabazillion dollars probably gives the gig away, so "sue for 20million". _HIS_ lawyer will be taking a nice fat check regardless of outcome, but generally they also take a percentage of the settlement.
I'd be willing to bet that the companies attorney said "he can't win", because they get paid to defend the company.
Is there a moral limit on what he should get if the company broke contract? Absolutely, but morals don't get paid too much attention to any longer.
-The wise argue that there are few absolutes, the fool argues that there are no probabilities.
If you have never produced anything of value, any rights claim seems invalid.
If I accidentally bump your car in a parking lot and cause a dent, I have to pay for it to be repaired, and for your rental car while it's in the shop. I "make up for" the damage I caused.
If I get mad and go out to the parking lot with a baseball bat, and put dents in your car because I'm TRYING to cause damage, I would reasonably by liable for punitive damages - money paid as punishment.
In-between those extremes, I might be reckless, not caring whether I hit your car, or negligent, meaning I wasn't as careful as I should have been.
It's reasonable to distinguish between the cases, and many legal systems do. I can't say for certain about German copyright law in particular, but I would expect they probably have rules similar to most western countries.
Did the hotel have the images marked as "licensed for use", and some employee didn't know exactly what the license said? Were they unlabeled and the employee assumed it was okay? Did they know it was a violation of the license and send an email saying "fuck the photographer "?
Yes it is.
Long answer, when you breach a contract you become at the mercy of the person who's product you are stealing beyond the contract date. I am betting he also has a letter to them asking, "you want to extend the contract so you can keep using the photos?" and they replied, "go stuff it in your arse" which drove him to ask for a very large amount.
Plus requests are heavily adjusted by the judge, as well as lawyer fees. so after paying off the lawyer, and the taxes, he might just end up with 5000 to 10,000 when it's all over with and the Lawyer has a nice new vacation home.
Do not look at laser with remaining good eye.
What we really hate is fat cunts who make ignorant generalisations.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
Corporations have a higher standard of behavior than that of individuals. They also benefit in revenue from his work. Unlike individuals corporations can't be jailed, feel pain or feel sorry for what they have done. The only language corporations understand is financial loss. A severe financial loss should be the punishment. 2M is more than reasonable. Hell make it 10M. Their CEO probably uses more than 2M in jet fuel in 6 months.
needs to find for the photographer. As a future deterrent, he should be granted the deed to the actual hotel itself, half the assets of the hotels owners, and get jus primae noctis in regards to the hotel employee's daughters of whomever was involved in this scandal.
Why not,
A) their in breach of contract.
B) perhaps it will make them more careful in the future.
C) as a warning to other big firms to not breach contracts.
D) why not,I don't hear you whingeing about all the major firms that profiteer every single day from folk who work hard for their cash...
The photographer charged Sofitel â4200 for the photos. He then discovered 170 magazine covers with unlicensed copies of his photos, and uses by 440 different parties.
His lawyer has sent letters to all 440 parties, probably asking them for â4,200 each, would would add up to about 2 million Euros or Dollar (amounts are roughly the same). Anyone paying him could then turn to Sofitel for damages.
And finally, Sofitel has offered â400,000 to make this go away.
First thing. You have to be able to afford the lawyer to take them to court. If you don't settle you have to go through with taking them to court. In three years you could win the case. Then you get another settlement offer. The company being sued files an appeal and the lawyer is instructed to draw out the process as much as possible in order to motivate you to settle. Lets say you win the appeal 5 or 6 years later. They appeal it again and then again and again as much as the legal system will allow. You may finally win the case 8 to 10 years after you decide to sue.
All that time your lawyer is adding hours to your bill. If you agreed to give the lawyer a percentage it's probably something like 60 to 70 percent. But first you have to pay taxes on 100% of the whole amount you either settled on or won before you pay your lawyer. If it was 2 million it will be highly taxed; 50 percent or more. Only then do you pay your lawyer his enormous cut. In the end after a decade you might only get 50,0000. People have actually found themselves in tax debt after winning a law suit after the lawyer takes his cut.
But lawyers rarely take the case the full distance. They want to get paid as soon as possible so they will actually insist you take a settlement offer much sooner.
The more you can possibly win the higher your settlement will be.
Unfortunately this is the legal system.
Typically, in a contract where you hire the photographer (pay his 4200 Euro expenses) to specifically take photos of certain things, it's a work for hire. You're paying for everything, including the photographer's expertise and labor, so even though the photographer took the photos, the copyright belongs to the person or company paying for it. This is the way most of the entertainment and advertising industry works - with copyright being held by the hiring company as a work for hire. Though the usual reason is so that creative differences don't sink the entire project, because e.g. a cameraman refuses to allow his video to be used unless you change the soundtrack, and the sound artist refuses to let you use his audio unless you use different video. The contracts in these cases very clearly state that the company (or some cases individual) doing the hiring will retain all copyright as a condition of employment.
If the photographer is acting as an independent (pays his own expenses, shoots on his own time), then he'll retain his copyright and the company simply buys rights to those copyrights. That sounds like what the photographer is claiming here (except for the 4200 Euro in expenses). It's up to the purchaser to buy the appropriate rights, whether it be a quarter page in an internal publication, or a full two-page spread in a national newspaper. The cost for a license to use the copyrighted work in publications depends on the size you're going to print the photo, B&W or color, approximately how many copies you're going to print or (in the case of static ads like billboards) approximately how many people will see it, type of use (internal reports, press publications, or public advertisements), and whether it's one-time use or will include rights for x number of reprints or for use in perpetuity.
If the company didn't specify these things in the contract and they violated the original publication agreement, then they are screwed. The law errs on the side of the copyright holder. You only have permission to reproduce a copyrighted work if the copyright holder explicitly gives you permission. Even if the copyright holder hasn't pressed charges against you for decades, he can suddenly change his mind and decide to sue you - unless you have a signed contract where he gives you rights to print his work. (The opposite is true for trademark - you have to actively defend your trademark against infringement or risk losing it.) Their only recourse would be to argue that the photos were shot as a work for hire, and they dismissed the photographer's notices of copyright licensing as insane ramblings by some guy who didn't read the contract he signed.
According to the article, when he made contact with them without attempting to sue, they offered EUR 750 to settle. Now that there's a lawsuit, they're offering EUR 400k to settle. I feel confident in believing that had the suit been for EUR 400k, they would have offered less. Assuming the attorneys take 25% and reading that Austria takes 50% on income above EUR 51k, I don't think he's going to retire on this.
the original work is not only continuing to be used in violation of the original contract, but beyond the scope of use the original contract allowed as well....
so internal use for three years (e.g. hanging a picture on the wall of the hotel lobby) vs external duplication by 100s of publications, millions of print copies and 100s of millions+ of page views? all while claiming ownership themselves instead of proper attribution..
hell ya, the amount of the lawsuit is more than justified... in the u.s. where lawsuit demands are sky high by comparison, it'd be more like $50m on initial filing.
I think this side of the transaction is completed, whether he wins the $2M or not.
Most commercial photography does not include the copyright..
Except news papers, journals, magazines, the 6 o'clock news.... Lots of places have now demanded *at least* full non exclusive copyright for some time now. And quite a few demand full exclusve copyright transfer, or they just tell you to fuck off. It is not like there is a shortage of photographers.
If information wants to be free, why does my internet connection cost so much?
So basically, its worth trying to get away with doing it without paying in the first instance, because the worst case is "actual cost plus a bit for legal costs" and the best case is "don't pay at all". No wonder many people take the risk, especially where legal costs are regulated...
The average photographer does typically not even license wedding photos or head shots to their customers. You have a number of digital versions and prints but not for publication or (the quality for) more prints.
Especially if you're going to be 'publishing' the pictures, the licenses are relatively short term or single use, that's really how photographers make a steady stream of money.
Custom electronics and digital signage for your business: www.evcircuits.com
Don't need the car analogy here, you're spot on. The photographer is a PROFESSIONAL photographer, not just anybody with a camera. Pros retain the copyright and sell only the rights to use the image(s) for a specified purpose and duration. It's in the contract that the hotel obviously didn't take seriously. For that matter, the photographer can use (or resell) his image as much as he likes, as exclusive usage rights probably weren't assigned permanently to Sofitel.
Everything and its opposite is true. Get used to it.
We are at a point in time where it is not rare that copyright belongs to individuals. Not at all rare. We will soon be at the point where commercially-held copyright is in the minority in terms of sheer size (length of movies, number of photographs, maybe even number of words, if we are not already.
As stated, he appears to have a case. However, in my experience, the concept of a limited license time for a professional photography job is *extremely unusual*, Normally, if you do a job, the employer owns the results and can do with them what they want forever.
Yeah, because those billion-dollar companies are too poor and too busy to identify their own intellectual property, let alone someone else's. Double standard much?
Let's see, his pictures were used without his permission on the internet, and were then used by many others on the internet.
How much would the RIAA seek in damages if a song was shared on the internet by numerous people?
I would second that, but I don't discriminate... I hate all cunts who make ignorant generalisations equally, not only the fat ones.
Balance of power. His odds are winning before he dies of old age are minute, and the other point is "How much does it have to cost a corporation to be so painful that they won't do this again".
did the hotel chain not insist on owning the rights to the images? If you're hiring someone to produce something you will use to promote your business, would you not want to own it outright? No comprendo.
linquendum tondere
How exactly is this excessive? Did you even read the admittedly horrible engrish translation of what actually happened?
The hotel paid him for photos in 2011. The hotel was to be able to use these photos on their website, and internal printings no larger than A5, and for no more than 3 years.
In 2016 the hotel was caught still using the images. In 2016 the hotel was also finally noticed claiming copyrights that they do not own and licensing / selling "their" copyrights worldwide[1]. To add insult to injury, the hotel then offers him 750 euros, but said that if he took that money the hotel could use the photos for another two years.
So not only did the hotel violate his copyright, the hotel also violated the contract they had with him as well. The hotel absolutely should be slapped with a large enough judgement against them that they feel it. Not only because they violated several laws, but as an example ( and precedent ) to other large corporations that they are not above the law, and will be accountable for their actions.
[1] This directly harmed the photographer. He did neither got paid for this work, nor attribution so he could further his career. He very well may have gotten a large sum of money if all of these magazines / newspapers had licensed these images from him, as well as the future profits from name recognition.
To err is human; effective mayhem requires the root password!
The germans and austrians themselves often mix nationalities. Think of Hitler, born in Austria, considered a german. Or of Mozart. Born in Germany, considered an austrian. Or of Beethoven. Born in Germany, did the same stuff as Mozart (move to and live in Vienna), considered a German.
What would stop another photographer going to the same place, photographing the same angle, at the same time of day, with the same lighting conditions, etc etc?
Did you even read the admittedly horrible engrish translation of what actually happened?
Yeah, I did, and it really is horrible. I agree with pretty much everything you said, but if I understand this line correctly (?):
The Hotel Sofitel currently offers a comprehensive general settlement not 750 euros, but EUR 400,000.
then it looks like they've since offered him quite a bit more.
Only crack the nuts that crack. You don't put the ones that don't crack in the sack.
My question is: Is this the real market value of his work...?
I don't know how punitive damages works in Europe, but in the US actual values/damages are irrelevant. The whole point of suing for inflated amounts in cases like these are to put corporate scumbags on notice to ignore their contractual obligations at their own peril. Most corporate executives feel that they are rich and powerful and can thus walk all over people like photographers. These individuals need to be slapped down hard (and often).
> Take advantage of a large corporation
Who are you and what happened to the old Slashdot?
Mike
A better analogy is if you lent someone your car, which you need to get to work on Monday, so they could drive 100 miles over the weekend. They steal your car, which you need to do your job, and sell it to a dealer. The dealer paid them tons of money for your car, and when you start asking this person where your car is, they try to pay you off with a couple hundred bucks.
Wrong.
The lawsuit isn't for continued access to work; the entity that initially hired him and agreed to the terms had an opportunity to negotiate continued/expanded access either before the contract was executed or in the intervening three years. The lawsuit is because the entity elected to ignore the previously negotiated contract. Intentional or accidental is for a court to decide.
If the award for breach of contract was simply the fee that would have been due, then there would be no incentive to bother honoring contracts -- you could simply pretend it didn't exist, not pay until someone noticed, and then get off with the same cost as you would have paid had both parties been diligent. No, lawsuits relating to breaches of contract are for additional damages (and courts subsequently award said damages) to punish the offending party as a deterrent to those who would shirk the responsibilities of a contract in the first place.
But why? The photographs are valuable to the business, but not really to the photographer. It is not like he can lease them to a rival business. Only a single business owns that view, only one has a use for the photographs. Why in the world would the business want to pay for a photographers time, and then not even end up owning the pictures produced?
Troll is not a replacement for I disagree.
Consider lending someone your car to drive 100 miles. They return the car with 10,000 miles on it. You complain, and they offer to pay you for another 100 miles. That's not what the agreement was, and they made an insulting offer to compensate for it.
... so obviously, the next logical step would be to demand $2M from the renter for the 10,000 miles driven.
No, the next logical step is to demand the maximum legal compensation. This may be a ludicrous amount, but it's the right place to start your negotiations, since they started from a ludicrous place. You can always agree when they make you a reasonable offer.
Not only a short term license, but a short term license for internal use only... 4200 euros seems a bit much for some photos which you can't actually show anyone. It makes me wonder if that clause was hidden somewhere in the middle of what otherwise seemed like an innocuous contract, that got hastily signed so the afternoon of work could go ahead without spending another afternoon worth of lawyers fees on top reviewing the contract.
The difference between the DBC case in Australia & this case (other than the rather different justice systems) is that there was no signed contract between DBC & the pirates. This photographer has a signed contract with the people who pirated his work.
My pics.
You're thinking of https://en.wikipedia.org/wiki/...
Ehud
But why? The photographs are valuable to the business, but not really to the photographer.
Of course they are. It's how the person makes their living. They negotiated and BOTH AGREED to a usage license. The photos are still valuable to the photographer because he can once again license them for additional use, later. To the same customer, once the MUTUALLY AGREED UPON initial use dries up. The hotel decided to go and use them in a couple hundred additional ways - usage to which the photographer did not agree. If the photos are still valuable to the hotel AFTER the initially agreed upon use has ended, then they are definitely still valuable to the person who created them, as well.
Don't disappoint your bird dog. Go to the range.
Given that companies going after individuals who pirate a copyright work and demand exaggerated fees like $30k per song or some such, i'm more than content to let that sword cut both ways.
Well, they would likely low-ball, and they did, just offering a few hundred.
He has to high-ball, or he's at a disadvantage.
You don't start a negotiation with what it's worth, you start with beyond that, so when you meet in the middle, you've gotten value for both parties. The best deal is measured by one neither is completely happy with, but both want.
Ethically and morally it's also the correct starting point. If he figured his experience, years of training, equipment, talent, and costs were all worth X instead, suing for less than $2M, such that he finally gets compensated a fraction of X, indicates to companies who might seek to take advantage of the rights of others that they might get away with it, or be able to buy off others for lower values than they are worth. Part of setting such precedents is to dissuade future infractions. It would be unethical to sue for less, viewed in this manner, as it would be damaging to more people, with only the hotel financially benefiting, and other businesses taking advantage of the "little guys" in the future.
Doesn't change anything, unless there were penalty clauses specified in the contract for exceeding the license period.
If anything the contract will stand as a example of what the commercial worth of the photos are. I have no idea what legal system Austria uses however, as my original comment was targeting retchdog's comment that lawsuits shouldn't be for 'fair' pricing. Fair pricing is exactly the basis of many legal systems. It is the concept of making whole, rather than punishment.
see also "statutory damages" in US law. (I know it's a german case, but if we're into car analogies, it's close enough to be worth mentioning.)
No not really. If they had bought the rights in perpetuity then it might have cost them say double the original price. The price of the initial consultation with a lawyer would have exceeded that easily. Also you have absolutely no control over what costs the other side are accumulating, so you could easily be out of pocket several orders of magnitude.
I also know nothing about Austrian law, but it should be noted that in many jurisdictions there is a distinction between copyright infringement and plagiarism. Removing the artist's name and claiming it as your own is different from simply using it without permission.
tell that to the people in prison for sharing torrents
Yes that's exactly how it works. You lowball, I highball, omg the legal fees will be incredible, let's just settle somewhere in between.
It seems like "predatory licensing" knowing that they would likely be abused and therefore lead to a lawsuit.
This is pretty common in commercial photography. A good friend of mine is an architectural photographer, and on top of the fixed fees for showing up, and expenses, each image he produces is licensed to the client individually, or sometimes as a group (say if they're going for a building award). The terms of these licenses are highly variable, and depend on the needs/desires and budgets of the client. If the building developer just wants to hang a picture on their wall, they will typically just go for say a 3 year wall-use only license. That's relatively inexpensive, and soon enough they're going to want to replace the photo with their next project anyway. Conversely, fi they want to have it written up in a magazine or whatever, that's a significantly higher license cost, and again needs to be negotiated.
...si hoc legere nimium eruditionis habes...
It's interesting, because even with this mistake, it tells you something about the submitter. It tells you that they probably meant to type "triple", and heard the word in their head while typing it, but instead managed to type "treble". But substitutions like this don't just spontaneously appear. They appear if your fingers are more used to typing something. This submitter could likely be a musician, because they often type the word "treble". That makes the subject matter of the submission interesting to the submitter. I can imagine a musician might be interested in the outcome of a lawsuit from a photographer.
Of course, the submitter might also just be a stereo repair man, so you can just forget everything I just said.
So that would be 440 * 4 200 = 1 848 000
There might be a lot of photographers in Vienna, but they made a contract with one of them. And they did not demand *at least* full non exclusive copyright, but license to use the photos in their own material for 3 years. http://www.diyphotography.net/photo-licensing-look-basics/
He should sue. If the roles we're reversed and the large corporation had a legal option to sue him for 2mil, they wouldn't give it any second thoughts.
Of course, copyright law is broken and needs to be fixed. That is the crux of the issue. But unless someone steps up, abuses it and hurts large corporation in the process, there will be no coorporate incentive to change it.
The moral high ground is great, but in cases like this it doesn't make you a living. You just end up poor with your hard work being ripped off left and right. Screw that.
He'd better make sure he wins enough money to retire on, because he sure won't be getting any more work as a photographer, or much else. That's what you get for overstepping your bounds as a lowly peasant.
Asking for such ridiculous amounts of money for a few photos, does little good for the reputation of the person doing so.
Hognoxious is right, for Germany and Austria to be considered the same, you would need to go back to the Nazi annexation of Austria.
I don't understand your argument - it seems to me Americans mix up Austrlans and Germans, but it is ludicrous to think the two countries mix themselves up. It is true that Europeans do relocate for work or political/social reasons, but this is not limited to Austria and Germany
Mozart was born in Salzburg, Austria (not Germany)
Beethoven was born in Germany, but lived most of his adult life in Austria (Vienna being the place to be for musicians at the time)
It's not just between Austria and Germany:
Maria Antonia was born in Austria, but is remembered as a French queen (Marie Antoinette)
Maria Skodowska was born in Poland, but is remembered as French, where she married Pierre Curie and spent most of her working life.
We don't therefore conclude that the Polish, Austrians and French mix themselves up.
Why stop at people moving within Europe? Quite a few people went from Germany to the USA. For example, there is a rather famous rocket engineer, Wernher von Braun. And then there was that scientist, what was his name? Albert something? We don't therefore conclude that Americans and Germans mix themselves up....
In most times, most places, by most people, liars are considered contemptible. - Ursula Le Guin
(Most) photographs are NOT work of art, but simply a craft. They should have never been copyrighted in the first place.
Know the terms, know what you are buying and what you'll pay. If you sign it, you must have understood the agreement, and if you run afoul of the matter because you did not understand, please re-read the first sentence.
He shoud sue them, based on the normal rate (which can be really high for good photos). As far as i understand it is not unusual that the best photos of professional photographers earn them more money than the rest of their work together.
OTOH, the court should not award him the full sum, since it is obvious that not all uses of the picture would have taken place if they had known cost. What the real, credible amount of damages is should be settled somewhere in between.
... so obviously, the next logical step would be to demand $2M from the renter for the 10,000 miles driven.
Except the car is a one of a kind custom exotic car, and they've been using it for a exclusive high rollers limo service and claiming the car as their own creation. He's demanding a cut of the fares for the unauthorized limo use.
i.e. Claiming is work as their own, and transferring it to 3rd parties for publication is not the same as simply using it longer. If this were music or a movie, nobody has a problem understanding that each copy is a infringement. Count each copy printed in every unauthorized publication and I bet their not asking nearly what the MPAA or RIAA would for each violation.
It doesn't matter whether it's "right" or not.
Sofitel did a mistake, and there is an opportunity to make money. It would be silly not to seize it.
"My question is: Is this the real market value of his work...?"
No, "intellectual property" is just a figment of a lobbyist's imagination, not a real thing.
Why can't the painter of the hotel not sue the photographer for 'copying' his artistic paint on the outside wall without his authorization? Or the carpenter, or the ...
This has to stop.
What you can recover in a lawsuit should be limited to actual damages, with possibly a proportional fine.
I agree to using the actual (proven - as much as possible) losses as basis for a judgement, but there should be a multiplication factor or it becomes too profitable for would-be infringers. With that I'm thinking of factors of maybe 5-100 times the actual losses - for cases ranging from a single copy given to a friend to full on commercial production & redistribution.
The case as described here - not just continuing the photo on the web site, but also redistributing it while even falsely claiming to own the copyright of the photo - should be on the high end of this factor.
thus he should not sue at all, and should instead thank the hotel chain for distributing his work for him. Information wants to be free, darlings!
Love,Legal.Troll
If the photos were owned by a corporation instead of an individual you can be sure they would be asking for 10 million or more and you wouldn't even be posting about it in Slashdot.
Time makes more converts than reason
It's the fault of hotel lawyers for not setting this up as a normal work for hire contract. If I paid you to take pictures of my property, as your job, then I own all the rights to those pictures.
If a particular photographer won't agree to those terms, it wouldn't take very many interviews to find one who will.
There are plenty of art school students who are getting started out who can do quite excellent creative work.
It happens regularly. He sues for either breach of contract or misuse of his photographic property and is awarded a sum, which will be calculated by an established standard.
These are photos of some hotel bar. The analogy does not correspond to any kind of "custom exotic car"; at best it's an off-lease Toyota Corolla.
Why would this be different from any other copyright infringement? Because it is an individual? Heh.
Of course the real market value is relevant! He got paid 4000 euros for 3 years, then wants 2 million for use after then? That's equivalent to a further 150 years use. The figure is ludicrous.
Without seeing the original agreement, it's impossible to say. For instance, perhaps there was a cost spelled out for unauthorized publication, continued use, international publication, etc. Also, aside from the unauthorized continued use and international publication, the failure to give copyright attribution needs to be considered. If any of these costs or penalties were enumerated, then it's possible that the 3 million euros reflects that... we just don't know. On the other hand, supposing that the agreement didn't address any of those things, how are we supposed to know whether or not it might be a reasonable amount of damages? Personally, it seems quite high... hard to imagine the photographer's losses and punitive damages amounting to that sum, but it's not out of the realm of possibilities. Without knowing these things, it boils down to just what each of us feels is reasonable and I think the punitive damages should be substantial in order to discourage this sort of abuse. I know nothing about the law in that jurisdiction, but I would think that if it only compensates actual losses, then it would be terribly unfair to the damaged party. Having sought an attorney, it's assumed that his counsel feels there is at least some basis for the amount sought, or they'd have no leverage for negotiation. And the hotel's offer is ridiculously low... as I'm sure their counsel realizes. No doubt, they'll meet somewhere in the middle. I'd guess something less than one million euros.
My guess is that the fuckers at the hotel forgot to renew the contract and were too fucking dumb to offer a good setlement. They deserve whats coming.
Capitalism at work. Does anyone reading these things have any idea when Americans will get their shit together?!
Self-importance and self-indulgence is the root of ALL evil.
No bass.
Probably should've sent a cease and desist first.
Instead of making stupid time limited contracts and then trying to rob the ppl thqt already paied and paied well for his work, he could try working honestly.
Why couldn't the hotel have easily made the shot themselves? Some architectural photography is hard, and requires lots of creativity and imagination to have the effect it should. But what's special about this photo, apart from the view? Any competent pro or experienced amateur with the right equipment and access to the room at the right time would have been able to take a similar photo.
But why? The photographs are valuable to the business, but not really to the photographer. It is not like he can lease them to a rival business. Only a single business owns that view, only one has a use for the photographs. Why in the world would the business want to pay for a photographers time, and then not even end up owning the pictures produced?
Did you miss that hundreds of publications and businesses HAVE used the photograph, getting permission to do so by the hotel that originally commissioned the photo? Maybe each use of the photo isn't a missed sale of 4200 euro like Big Media would have you believe, but clearly lots of different businesses have a use for the photograph and he retained the right of resale for a reason.
Ok the guy has some fancy camera and took a few photos and got paid $4300. Worst case if the contract says he always owns the photos for ever and EVVARR (in evil voice) then fine he should get a few grand, perhaps even just a buy out of a few extra k. But thats all, I can't stand these photographers who think a photo is so impossible to get again.. But anyway if he thinks his photos of THEIR OWN bar and building are worth anything like $2,000,000 that's fucked and the guy should be laughed at, possibly publicly flogged.
There is NO way a few photos are worth this and he is only going to make things worse because large companies will just demand ownership of photos, don't worry plenty of photo work out there, plenty of people with fancy cameras.
It seems like "predatory licensing" knowing that they would likely be abused and therefore lead to a lawsuit.
This is pretty common in commercial photography. A good friend of mine is an architectural photographer, and on top of the fixed fees for showing up, and expenses, each image he produces is licensed to the client individually, or sometimes as a group (say if they're going for a building award). The terms of these licenses are highly variable, and depend on the needs/desires and budgets of the client. If the building developer just wants to hang a picture on their wall, they will typically just go for say a 3 year wall-use only license. That's relatively inexpensive, and soon enough they're going to want to replace the photo with their next project anyway. Conversely, fi they want to have it written up in a magazine or whatever, that's a significantly higher license cost, and again needs to be negotiated.
I'm a professional cinematographer, and that sounds pretty dumb. I don't think I could ever book a job, if I put some contract in front of my clients saying that I got to keep the rights to the footage they hired me to create. They would just tell me to fuck the hell off, and get someone who follows industry norms of charging a day-rate, with the understanding that it is a work for hire, and thus, they own the photos/film/whatever. At best I might get a license to use some of the footage in my own demo reel.
Also, contrast to what people who aren't professional photographers/cinematographers might believe, a professional is just a guy/girl with a camera (and much more expensive gear, and lenses, and maybe a post studio) who takes pictures/movies in exchange for money. Anyone with a decent eye for detail and a brain can become a professional photographer, but it takes a fair bit of capital outlay for lights, lenses, cameras and so on. Still, it's getting harder and harder to do our trade because honestly, anyone can do it, and the capital requirements keep dropping.