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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?
Also, currently the hotel chain is only offering him 300 euros for having erased his name as the main copyright holder, claiming the copyright ownership themselves (which was not part of the original contract), and given permission to 170 architecture and travel publications (including the New York Times, the Telegraph, and the Financial Times) to have reprinted his photographs without attribution.
So is this worth 3 million euros? Probably not. But it certainly isn't worth 300 euros either.
Both parties behaving like assholes is standard negotiation practice. It doesn't mean that either party will get what they ask for. It just means that negotiation has just begun.
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Without a monopoly, art will dry up. The purpose of copyright is to protect the artist from exactly what just happened. If that protection is lost, or blatant violations are not prosecutable, artists will stop releasing their work.
Regardless whether you believe he wouldn't have had the incentive is immaterial. He created the work, not the hotel, and the hotel not only abused their usage limitations, they insulted him in the offer to compensate.
Whenever you use a piece of art, you need to know whether you have the rights to use it. That burden is on that party using the work. So, yes, you actually are liable for copyright infringement, whether or not you think it was legal or not. Otherwise, it would lead to leaks that were unprosecutable and everyone would just claim they didn't know. But if it's a creative work of any kind, you should know that it's copyrighted... because all works are copyrighted by treaty. Whenever you copy/use a piece of art from anywhere, the default is that you're probably pirating it unless you're certain you're not. Whenever I use artwork, I also save the license agreement somewhere including screenshots and addresses allowing use.
I doubt an art student would even have the gear to take equivalent pictures. I haven't seen the pictures but the investment for a basic setup could be close to $10k, then there is the post-shoot work, cleaning up the pictures in Photoshop, licenses for software that costs $10k+/year. Why do you think movies and commercial pictures look nothing like just snapping a picture of real life?
$4200 for an entire afternoon work and 3y full licensed usage is about par for the course, even a simple wedding photographer will charge $2k for a half day work and you don't even get a license to reprint.
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I believe the submission is asking, not from a legal perspective (which won't be decided here in any case), but from an ethical one.
/. seems to be against extortion when it's corporation against individual. This isn't any different, other than the parties being reversed. So, is the answer based on ethics/principles, or on "screw the big guy?"
It does seem to me that the photographer is trying to take advantage of the situation. If he accepted payment of X for 2 years of use, accepting the same or less (no more work involved) for an addition 2 years seems appropriate. OTOH, if the photo is so good that it the customer wants to continue using it, perhaps they should pay more. But my suspicion is that, if he wanted more, they'd be perfectly happy to have someone else take a new photo, and probably a "work for hire" so they could use in perpetuity.
Long story short, they owe him something which is closer to the original payment than to the extortionist amount he seeks. Individual against corporation shouldn't matter, sentiment around
"National Security is the chief cause of national insecurity." - Celine's First Law
The hotel manager was an idiot :D
The idiot is you
darn sure the contract says "work for hire"
That concept does not exist in the EU (and plenty of parts of the world).
and that the contractee has full rights to anything produced
The contractee has not, as the law explicitly says so.
Only in the USA copyright is completely retarded.
If the photographer doesn't agree to the terms, then find another photographer, which should take about five minutes.
The other one would just do, what is happening in this case. Performing the deed and then suing for not complying to the law. Pretty easy case to win.
Cost free eBook I read (by iBook/Kobo/Amazon/ObookO/Gutenberg etc.): "The Green Odyssey" by Philip Jose Farmer.
I believe the submission is asking, not from a legal perspective (which won't be decided here in any case), but from an ethical one. It does seem to me that the photographer is trying to take advantage of the situation. If he accepted payment of X for 2 years of use, accepting the same or less (no more work involved) for an addition 2 years seems appropriate. OTOH, if the photo is so good that it the customer wants to continue using it, perhaps they should pay more. But my suspicion is that, if he wanted more, they'd be perfectly happy to have someone else take a new photo, and probably a "work for hire" so they could use in perpetuity. Long story short, they owe him something which is closer to the original payment than to the extortionist amount he seeks. Individual against corporation shouldn't matter, sentiment around /. seems to be against extortion when it's corporation against individual. This isn't any different, other than the parties being reversed. So, is the answer based on ethics/principles, or on "screw the big guy?"
Did anybody actually read the original article (link to non-mobile version with images) in Der Standard? First, the photographer does not want 2 million from the hotel chain. The total estimated value of the copyright violation, including third parties, is 2 million. The current offer to settle is 1 million (plus legal fees, which are relatively reasonable in Austria) from Hovarth, and the hotel has already upped its offer to 400000. At stake is not simply that the hotel has used the photos for the intended purpose for longer than licensed, but rather that they have given out the high-resolution originals (claiming they own the copyright) to third parties for promotion - leading to one or the other of the photos to end up on 170 magazine covers and in newspapers like the New York Times, El Pais, and the The Telegraph.
Stephan