Ask Slashdot: Should This Photographer Sue A Hotel For $2M? (google.com) 254
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 (Score:5, Insightful)
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 (Score:4, Funny)
Wow, it's been years since I saw a first post basically just say everything that needs to be said and end discussion. I don't know if I should be impressed, or if this "ask slashdot" is just that stupid. But I'm not going to try to get that answer. LOL thanks
Not quite so simple (Score:4, Interesting)
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.
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As I pointed out elsewhere, this isn't a US court - it lives somewhere closer to reality than that.
Re:Not quite so simple (Score:4, Funny)
this isn't a US court - it lives somewhere closer to reality than that.
Its Austria! Who do you think invented the term "Kangaroo Court"?
Re: Not quite so simple (Score:4, Funny)
Was it over when the Germans bombed Pearl Harbor? Hell No!
Don't stop him, he's on a roll...
Re:dont know (Score:4, Informative)
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
Re:dont know (Score:4, Interesting)
Long story short, they owe him something which is closer to the original payment than to the extortionist amount he seeks.
Unless this can be shown to be a willful breach of contract and infringement of the photog's copyright. That can trigger punitive and/or larger fines (at least in the US, I think--not sure about German law).
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Long story short, they owe him something which is closer to the original payment than to the extortionist amount he seeks.
The original deal was about using them "in doors".
Now they infringe by posting them all over on the internet.
That was even in the summary, no actual need to read the linked story.
So: using an IP on media you did not even contract to is by definition (read the law) an copyright infringement (german law obviously). Question is now the amount of damage.
Know (Score:5, Insightful)
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.
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THIS. They had every chance to negotiate an agreement to use the images for more than the three years and/or for other uses, and chose not to do so. The license expired and they chose to use the images outside the terms of the license anyway, so clearly copyright infringement has happened.
Therefore penalties and other costs should apply, not the least of which is a license for the use they actually did have. And perhaps punitive costs, court costs, damages, etc. It would have been smart for the hotel t
Re:dont know (Score:5, Informative)
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 [derstandard.at] (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.
Re:dont know (Score:5, Insightful)
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 (Score:5, Informative)
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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Under german law you can not remove the name of the 'copyright' holder, regardless of contract. ... as US calls 'copyright'.
And you can not claim 'authorship' anyway
An 'creator/author' can give up his right to be explicitly noted on each 'copy' but not to be never noted or forgotten. Someone claiming it is 'his work' or 'his copyright' is always wrong and most of the time illegally (regardless of contract).
Re:dont know (Score:5, Insightful)
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.
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Re:dont know (Score:4, Informative)
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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even a simple wedding photographer will charge $2k for a half day work and you don't even get a license to reprint
Half day? Shit. Last wedding I did, I was photographing from 9am to 11.30pm, post-processing took a sizeable chunk of the next day and I passed them the processed JPGs, the original JPGs, the original RAW files and a license that read, "It's your wedding, do what you like with the photos."
Maybe I should go into competition, clearly some wankers out there ripping off wedding parties.
Re: dont know (Score:2)
That's idiotic. Some loony from Newtek may be able to paint a Vermeer look-a-like with two years in a shed, but it's not a Vermeer.
They agreed to a contract, breached it, and seem to have done so knowingly and willfully. When that happens, parties pay through the nose. This reduces the chance of this happening in the future.
Otherwise, if it was really only 200â, they should have hire that fabled art student in the first place. Oh, they wanted a pro to compose, shoot, and process an expert shot, and
Re:dont know that it isn't 1938 (Score:2)
What? They aren't at it again, are they?
Re: (Score:2, Interesting)
Law != moral
We might not be able to pass judgement on whether the photographer WILL get the money, but we can very well pass judgement on whether he SHOULD get the money. After all, as voters, us citizens are responsible for making sure judges get to judge on laws that represent our moral values.
Regardless of what a judge might say, I think the price of 2 million euro per usage is way too much.
Standing up for your legal rights is one thing, trying to abuse them to get rich is quite another.
The only thing th
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The only thing this photographer is doing, is making sure nobody will ever hire him for anything ever again; too much of a legal risk.
There is no legal risk if you have half a brain. The hotel manager was an idiot to sign the original contract. If you hire someone to do any work that involves IP, you make darn sure the contract says "work for hire", and that the contractee has full rights to anything produced. If the photographer doesn't agree to the terms, then find another photographer, which should take about five minutes.
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There is no legal risk if you have half a brain. The hotel manager was an idiot to sign the original contract. If you hire someone to do any work that involves IP, you make darn sure the contract says "work for hire", and that the contractee has full rights to anything produced. If the photographer doesn't agree to the terms, then find another photographer, which should take about five minutes.
We're talking about European law here, though, under which workers have rights. If bad faith on top of IP theft can be shown, perhaps a payout like this might work in their system.
To get this kind of legal payday, we would have to find a puddle of pee at Walmart to slip and fall in.
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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. P
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If the photographer doesn't agree to the terms, then find another photographer, which should take about five minutes.
Being a good architectural photographer is a pretty rare skill. In most major markets there are usually only 2 or 3 who you would really trust to be able to produce photos of the calibre described. It's not just a matter of snapping a couple of shots and picking the best ones. It's a whole process of picking the exact right spot to take the picture, getting the lighting just right (either by modifying existing building lighting, adding additional lighting, etc...), ensuring the composition puts the space in
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2 million euro per usage
I think it's 2 million in total. The summary says "based on each individual usage", i.e. the sum is based on how many times the image was used.
However, the English translation is very difficult to understand, so I could be wrong.
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"Paid for your time" does not mean "work for hire" in the U.S. If someone is not an employee, then only certain types of works can be works for hire: "a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them
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You did notice that we are talking about Austria and Germany and not the retarded US laws?
But that's for US copyright, I haven't studied international law. ... my fault.
Ah, you noticed
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It is a contract, and I'm sure one way of interpreting it is that he is owed $2M for their over-use of his image.
German courts are usually pretty level headed about awards, I'm sure they'll acknowledge his math and award something much more reasonable. If e4200 paid for his time and a 3 year internal use license, you might compute something like e2200 was for his time, e2000 for the 3 year internal license - a license in perpetuity for internal and external use might be reasonably assumed to be worth 10x t
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You can't be in breach of a contract that has expired. Of course if the contract clearly stated that ownership and rights of the photos remained with the photographer, then they are using them without his permission and could be liable. On the other hand if this wasn't clear (or clear enough) in the contract, ownership of the photos could belong to the hotel as a "work for hire".
It's up to lawyers and courts to argue about. $2 million seems a bit steep and the guy seems a bit greedy. Usually greedy doesn'
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ownership of the photos could belong to the hotel as a "work for hire".
That concept does not exist in most parts of the world outside of the US.
Artwork always belongs to the artist and the license to use it is restricted for ever to the contract. Ok, forever means 90 ears after death of the creator.
Why would you become an artist if you have to make your living on "work for hire" and lose Your Art as soon as you have delivered it?
If they've used his photos without permission (Score:2)
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.
Please [stop] doing this, [silly people] (Score:2)
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.
Re: (Score:3, Informative)
You dislike knowning where an editor, or submitter, has modified the original text / quote?
The use of [ and ] characters allow the editors to modify material and make it clear what has been changed from the original.
They are, typically, used for the following reasons...
Clarification - Missing words, or additional [descriptive] words to add to the sentence, or item, being discussed.
Translation - Onkel [Translation: German, Uncle]
Indicating a change in capitalization - [W]e believe that there really are alien
Bed made, lay in it (Score:5, Insightful)
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? (Score:5, Interesting)
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.
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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.
While I agree with the rest of your post, you've got the wrong price here... The music industry doesn't go after people who simply download a single copy, where they could claim that the damages are just the cost of a single song or album - they go after people who upload or distribute the album or song to others. How much does it cost to distribute a song? Do you think Apple pays 99 cents to put a song up on iTunes that they then sell to several million people? Of course not.
It's tough to give an exact nu
Re: Whats the problem? (Score:5, Informative)
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? (Score:5, Insightful)
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
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Without a monopoly, art will dry up.
Bullshit. Art existed for tens of thousands of years before the idea of copyright was invented. Copyright was meant to encourage the distribution of art, but it is in no way needed for art to exist.
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but it is in no way needed for art to exist.
Yes it is
In modern time copying is so easy ... hence we have copyrights.
At stone masonry times everything was unique. To copy something you had to go to the place where it was and look at it.
Now you click ^C ^V to copy something or upload it with a click of the mouse and millions of people see it with a click of anouther mouse.
If you can not grasp that during times when copyright was invented even infringing costed money (make a new plate/typeset, have a printing
If media companies can say millions lost (Score:2)
from one file downloadedI must he can say the same thing.
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There is no difference. The "millions lost from one file" thing is applied to the uploader (who presumably bought a copy), not the downloaders. They do go after the downloaders too, but not for anywhere near as much (unless they were also uploading).
Why not? (Score:4, Insightful)
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.
The company would do the same or worse to him... (Score:5, Interesting)
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 amount is so high because this is a slam-dunk (Score:3)
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.
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Your logic is debatable -- and that last sentence should be taken out back and whipped behind the shed.
Why is this a story? (Score:2)
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.
statutory damages (Score:3)
Statutory damages need have no connection to any actual damages, and generally they don't.
Acoording to MPAA it should be more (Score:2)
As there should be also damages for people copying the copies and such...
Zero dollars (Score:3)
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.
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It's just industrial work.
You have absolutely no idea what you're talking about, and definitely no idea about what does into actual commercial photography.
That's what the law says (Score:2)
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.
Sue high, sue often (Score:2)
What's good for the goose is good for the gander.
Who cares? (Score:2)
They had a contract, one side thinks the other has breached that contract.
Why do you care how how they determine the consequences?
Violation of "question in title, answer no" rule (Score:4, Interesting)
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.
Betteridge's Law of Headlines (Score:2)
You're thinking of https://en.wikipedia.org/wiki/... [wikipedia.org]
Ehud
Projection (Score:3)
If you have never produced anything of value, any rights claim seems invalid.
Short answer.... (Score:2)
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 t
The judge (Score:3)
Facts from the German article (Score:3)
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.
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Inflation due to how the system works... (Score:2)
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 m
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He has apparently sent letters demanding payment to 440 different companies using his photos, asking each for a relatively small amount. If any of these cases goes to court, it will go through very quickly. And what a case: "I sold these pictures to Sofitel for 4,400 Euros. Which proves how much they are worth. This company uses them without paying me and mentioning my name, so I want the same payment fro
Depends on the contract (Score:2)
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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.
No, that's not typical at all. Work for hire has to be explicitly agreed upon in advance, or can happen when the photographer is (for example) an actual employee of the company receiving the work (say, you're a staff photographer for a newspaper, etc). Otherwise, certainly in the US, almost all commercial work is definitely NOT "work for hire," and the rights to use the images are negotiated in a license.
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.
No. The photographer retains the copyright because he created the images. Period. If he did so as part
Seems succeessful (Score:2)
Sure seems like it (Score:2)
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.
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However, in my experience, the concept of a limited license time for a professional photography job is *extremely unusual*
It's not only not unusual, it's very common. It's routine.
Normally, if you do a job, the employer owns the results and can do with them what they want forever.
But he wasn't an employee of the company. He was contracted as an outside professional service provider, and unless the contract took the very unusual step of explicitly stating that it was "work for hire," or there was contractual language that actually conveyed copyrights (not just licensed use), then no - the photographer retains the copyrights, and the conditions under which (and the period for which) the client can use the images is simply spe
Why (Score:2)
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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.
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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.
Re:The 'real market value of his work' is irreleva (Score:5, Insightful)
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.
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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...
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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.
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Depends on if malicious, honest mistake, or in-bet (Score:2)
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 car
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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.
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What we really hate is fat cunts who make ignorant generalisations.
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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,
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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.
Re:The 'real market value of his work' is irreleva (Score:5, Insightful)
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 (Score:4, Funny)
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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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.
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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.
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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?
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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 e
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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.
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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
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So does the hotel, that's why they're using his photos.
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So how do we know that he didn't do all the things people are suggesting, cease-and-desist letter, negotiating, etc.? It well could be that he tried to deal reasonably with them, hoping they'd hire him for more work, but they seem to have thumbed their noses at him. We might be reading about the final stage of dealing with a recalcitrant corporate culture, as far as we know. Anyone know more about what might have passed between his discovery of the rather extensive violation of the contract and this la