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?

Comments

dont know

[Anonymous Coward]

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.

Re:dont know

[mykepredko]

I think that Horvath did ask a lawyer and this is what the lawyer told him to do after he advised Accor of the infringement and they offered small sum which Horvath felt was unacceptable.

I suspect that the strategy here is to ask big and wait for a settlement for a more reasonable settlement (plus legal costs). Asking big means that it gets picked up in the media and discussion boards (like /.) which makes the preferred course of action for Accor to settle before going to court (an apology isn't required as they have apparently already given one to Horvath) and make sure that there is a proviso stating that the photographer can't disclose the settlement.

While I understand the submitter's outrage, I suspect that this is really a non-story; through an oversight a photographer's work is used inappropriately, the infringer apologizes and offers a small sum to see if they can make this go away. The photographer feels he's owed more, so he gets a lawyer involved to shoot for the moon and wait for a better settlement offer.

All that's needed now is an announcement that the beef has been settled to both parties' satisfaction.

Re:dont know

[stephanruby]

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.

Re:dont know

[JoeMerchant]

If all the hotel wanted was a snapshot, they would have asked the desk clerk to use her cellphone to take it.

Promotional photographs are highly influential and arguably worth far more than 10,000 euros to "get it right" or at least as good as possible. If the photo positively influences even 0.5% more of its viewers to stay with Sofitel instead of the competition, there's a high positive payback for the chain. This involves many factors that are difficult to pick up without being a professional practicing in the field, which is why the big firms go ahead and pay the professionals with a proven track record of "getting it right" instead of buying a good camera themselves and letting 10 of their hack amateur photographers who do other things with most of their time "give it a shot" and use the best one out of that pile.

For every highly paid professional photographer who has "lived the life" and managed to build up a reputation for not wasting their client's time producing top rate images, there are probably a thousand who are technically just as good, but haven't invested as much of their life into building the reputation and career. The chain is (not yet) paying for that reputation which was built at a cost of years of professional development.

In the future, maybe they'll just put a sign in the lobby encouraging their customers to #sofitel when they tweet their images and pay a bunch of Mechanical Turks to sort out the good ones. This time they appear to have gone the old school route and then turned around and breached contract on their artist. I'm inclined to side with the artist on this one.

Re:dont know

[Stephan Schulz]

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.

Bed made, lay in it

[bhetrick]

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.

Whats the problem?

[Diac]

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.

Re: Whats the problem?

[bugnuts]

However I don't think the law should create monopolies in the first place.

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.

Re: Whats the problem?

[AthanasiusKircher]

Without a monopoly, art will dry up.

No, it won't.

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.

No, they won't.

What will happen is that art that actually requires skill or craft or long-term investment or training will become harder to find.

You can always find people to post their latest recording of their friends in a basement on Youtube, perhaps singing an original song (frequently awful). You can always depend on people to post random landscape photos of their vacation on social media. Just like you can always make reality TV shows and other cheap entertainment.

So no, art will NOT "dry up." What does happen without copyright protection is that fewer people would want to invest in QUALITY artworks. This was the original justification for copyright protection back when it started in Italy in the late 1400s. Basically, this was a pivotal moment of the Renaissance when ancient Greek texts were rediscovered and people started translating them into modern languages (first Latin, and then vernacular languages like Italian). The problem was the printing press -- you'd have an expert translator (few people knew Greek in Western Europe at that time) who'd spend a few months doing a superior translation, and a printer would invest in having typesetters do all the text arrangement by hand... and after they sold one copy, the print shop down the street could buy it and re-typeset it, and there'd be a bastardized edition on the streets within a week. And the new shop didn't have to pay the translator and figure out the original layout, etc., so they could sell it cheaper.

At this point, the local government was faced with a problem. If cheap knock-offs became standard, why would any translator invest months of his life producing a quality translation? Learned leaders in places like Florence and Venice thus decided that the best solution was to grant a copying privilege for a short time (usually 5-10 years), so the printers and the translators could get paid for producing a QUALITY work. This was to assist in the creation of quality knowledge and its transmission for the general public. Obviously copyright has been abused by Disney and others since then, as copyright terms have ballooned to ridiculous proportions.

On Slashdot, there's often an assertion that artists just have this "drive" to make art and will keep doing it no matter what. But some things require skill -- like producing a good translation. Why should someone invest years in acquiring that skill if they can't make money off of it due to piracy? Why should someone spend a few years of his/her life researching an investigative book or a quality research book if there's no possibility of getting paid back? Or, to bring this back to the present discussion, why bother learning how to take great photos (learning about lighting, angles for shots, staging and presentation for commercial photos, etc.) if there's no reward for it?

The answer heard on Slashdot is often two things -- (1) "Artists can find other ways to make money -- musicians can play live rather than make money off of recordings, etc." or (2) "Well, the good artists can just be paid as a work-for-hire, like anyone else." The first only works for some types of art, and even then we're essentially saying, "We want artists to make product X for free, but they have to subsidize it by doing Y too." In that case, less people will try to produce quality X.

And for (2), that's great for established people with reputations. But for new artists without established reputations, they often need to put out significant investment first. No publisher, for example, is going to pay an advance to write a book for someone who has never written a book before... and even if a draft looks great, they likely wo

The company would do the same or worse to him...

[blankinthefill]

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.

Re:The 'real market value of his work' is irreleva

[bugnuts]

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.

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.

Re:The 'real market value of his work' is irreleva

[Harlequin80]

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.

Know

[Reibisch]

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.