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A couple of legal issues (I'm new & clueless)

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Old 08-11-2011, 03:58 PM
Dagmar Dagmar is offline
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A couple of legal issues (I'm new & clueless)

I'm trying to post a message and can't find how to do please...I've looked all over and am very computer literate but obviously haven't found the magic button that allows me to post. Or maybe I just did?

I have three questions that relate to retouched photos. When and if you respond to this message, I have no idea how to find it--can just see myself searching all over for your response and getting nowhere--so to save time, could you please respond (a) in the proper place, wherever that is, so others may see the question; (b) tell me where to find it my post; and (c) to my email, so I can find it easily.
My questions are:
I have a precious historical photo I took some years ago of someone now deceased. It has been published and also used in a not-for-profit film. Now someone writes me and wants to use it in a for-profit book. They retouched it and asked me for permission to use it. I didn't like what they did so they retouched it again. The second time is okay, but I don't like the idea of them retouching my photo that I worked so hard on in the old days with real burning and dodging in a lab. I'm a Photoshop expert and I could do what they did just as easily digitally.
(1) I want to know if they gain any rights to the photo by doing the retouching themselves, especially if I give them permission to use the retouched photo in their book.
(2) Also, since it's a for-profit book, I want payment--how do I determine payment for use of my [retouched by them] photo in their book?
(3) If they pay me, and I presume I'd want it in advance from what I've seen about nonpayments on this forum, do I still retain my copyright?

Thanks very much in advance for your patience just reading through my message and hi to everyone on the board, presuming I've managed to post this to the board.
Cheers, Dagmar.
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Old 08-11-2011, 06:51 PM
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mistermonday mistermonday is offline
Join Date: Dec 2005
Posts: 3,028
Re: A couple of legal issues (I'm new & clueless)

Dagmar, welcome to RetouchPro. You did manage to find the correct forum and successfully initiated your 1st thread. Let me try to answer you questions.
1. Being the copyright owner you retain total control unless you relinquish it. You can license the rights for the author / publisher to use the original, or a derivative which they created, or a derivative that you created. If you want to take a safe route, you can create the derivative that the author wants, even if it means emultaing the derivative he/she created, and then license that derivative to him/her. The key thing is to do this with a proper signed legal contract executed through a lawyer.
2. How much to charge depends on a number of things. How important a role doe your image play in the book? Is your image being chosen out of convenience or can the author find anoth similar image doing his own research? The importance of that particular image will partly determine its value. Do you want a one time licensing fee or do you prefer a royalty which is proportional to the total number of copies of the book sold? I am not in the book publishing industry but there must be many precedents that have been established so perhaps you can have the publishing firm put you in contact with one of their legal people.
3. A proper legal contract should spell out the rights that you are providing the author / publisher for usage. The wording would always typically state that you retain you copyright. You can grant all types of usage rights in an agreement but you always maintain your copyright. So, for example you could grant rights to the publisher to print unlimited copies of the book, and that it can be reprinted for the next 10,000 years. However, if the author wants to include the image in an entirely different new book, then he needs to negotiate a license for that book as well.
There are standard agreements for this type of licensing. You really need to contact a lawyer.
Regards, Murray
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Old 08-11-2011, 09:23 PM
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John Wheeler John Wheeler is offline
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Re: A couple of legal issues (I'm new & clueless)

Hi Dagmar
Murry always has great advice.
A copyright attorney would no doubt cover all the bases yet here are some additional things to consider before you have that meeting.

- Ownership which is likely yours unless you took the image as part of your employment or work for hire where you did not retain ownership of the image
- Assuming your are the owner of the copyright then registering your copyright in a timely fashion. Your legal protections and ability to enforce your copyright are much greater if you do timely registration of your copyright (and very difficult if you do not)
- Importance of Copyright Notice on your work

All those topics and lots more are covered in the following resources (and no doubt other threads in the forums)

One resource I have found to be complete yet readable for non-legal people (like me) is "The Copyright Handbook" by Nolo: I have the 2008 10th edition and the 2011 11th version is coming out in a couple weeks.

Another overall resource is the government website: Their front page gives links to overview pamphlets to get started as well as links all the way down to the statutes (uggghhh).

If nothing else, these resources will make you much more productive working with a copyright attorney.

Hope the additional info is helpful.
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Old 08-11-2011, 11:34 PM
RobertAsh RobertAsh is offline
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Location: Oakland, CA area
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Re: A couple of legal issues (I'm new & clueless)

Good advice here, esp. the consulting an attorney.

You really should formally register your copyright ASAP with the US Copyright Office if you haven't already.

According to what I remember reading on their site (or maybe from a Cliff Ennico video, forgot which):
  • if you DON'T register your copyright you can only collect lost income. And you have to prove 1) that you lost income and 2) how much income you lost.
  • If you DO register your copyright then you can collect not only lost income, but punitive damages, which can be much greater than the lost income.
If you've had it on a website or otherwise published you'll need to register a published work.

If you want to get a quick opinion while you're registering and finding a lawyer, has a forum where you can ask questions.

You can also go to Cliff Ennico's website, he's the counsel for Small Business Television and for eBay, in his videos he says he can refer you to someone if he can't help you himself.
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Old 08-12-2011, 12:03 AM
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John Wheeler John Wheeler is offline
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Re: A couple of legal issues (I'm new & clueless)

To complement what Robert has already added (copied from my post on NAPP)

Here are a couple details.

- You own the copyright whether it is registered or not (unless it was under some contract or work for hire where you explicitly do not own it).
- You must register the copyright before suing for infringement and registering under expedited conditions requires expedite charges which run in the $700 range (probably higher now). That is to give incentive to the author/creator not to wait until infringement to register.
- Independent of when registered you can collect "actual" damages that sum up to your monetary damages (lost sales) and the profits of the infringer (no attorney fees)
- If you do timely registration (more below) then you can also collect attorney fees, court costs, and optionally what is called statutory damages. Statutory damages is really important because it can be really hard to prove how much an infringer profited. Statutory damages (instead of actual damages) can be given by the judge based on the situation including if the infinger did so deliberately and how harmful the infringement - if they were egregious, the judge can sock it to them and you get to benefit. And the top limit for for statutory fines is $150K as of 2008 (haven't checked more recently)

Timely Registration is:
- within 3 months of publication
- or before the date the copyright infringement began

A few more things that are important to understand.

A) What constitutes publication legally. This is important because if the work exists yet has not been published, your protections fall under what is called an "unpublished works"

B) Unpublished works fall into its own category and with slightly different rules if you register the unpublished work (Typically you must have registered before the infringement - no 3 month grace period)

All the above is covered in the Nolo book.

If you have not done timely registration, successfully suing is very problematic. Besides the expedited fees for registration your attorney costs will be in the range of $200 an hour that you will not be able to recover through any legal judgment nor receive any statutory judgment. Unless you have huge provable damages or huge provable profits made by the infringer, suing becomes quite impractical. High motivation to register and protect your works. FYI
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Old 08-12-2011, 07:32 AM
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Godmother Godmother is offline
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Re: A couple of legal issues (I'm new & clueless)

I think everyone is overlooking the fact he already (going by the OP) GAVE permission to use the image - and they have already worked on it for the book.

You think going back on your word NOW and asking for payment is ok?

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Old 08-12-2011, 03:21 PM
RobertAsh RobertAsh is offline
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Posts: 380
Re: A couple of legal issues (I'm new & clueless)

That's not completely clear. He was approached about it and they retouched his image. He didn't like the retouching, and he wants to be paid.

So it's not 100% certain (at least not to me) that he's given the for-profit book people final permission yet to use his image. Maybe the original poster can weigh in and clarify this point for us.
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