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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.
But they did, and now they're in breach of the contract's terms. Decision: Photographer. Amount: Up to the court.
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.
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.
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.
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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.
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.
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.
Statutory damages need have no connection to any actual damages, and generally they don't.
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.
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.
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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.
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.
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.
What we really hate is fat cunts who make ignorant generalisations.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
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.
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.
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?
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.
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.
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