Copyright - Annoyed at my Employer - DET

[OzzieTraveller]

G'day Scottie et al

WOW!!! What an amazing mob we are to have put together so many opinions/responses/etc in such a short time ... poor ole Scotty > hope that you're not too confused

Many above comment upon 'employment' with the implied terms & conditions that go with that
My contract of employment with Canberra College over more than a decade was pretty slack when I look at this debate - and yet at the time, I thought that it covered pretty much everything. It went on & on about being paid for "this 'n that" and responsibilities on both sides for "this 'n that" -- but when it comes down to specifics, did not cover anything other than classroom & assoc teaching activities & performance etc

So that, if like Scotty I had brought my camera in & taken photos of something or another, then (it seems to me) there was no way it could have been deemed to have been school property (ie their copyright). Now while I was on an annual contract of employment, I guess that Scotty is 'permanent' [lucky blighter] but I would still suggest that the legal-eagles amongst us consider what -if any- contract of employment that he may be under

If the position he is being held against [and paid for] on the school's org. chart is defined as "teacher grade-n", then somewhere there will be a table / listing of the duties expected to be undertaken by all "teachers grade-n" and that they will be paid accordingly

I doubt that the duty statement will say anything about his photographic activities, so as I see it, it's wide open to Scotty's interpretation
I would also suggest that Scotty could ask the Q of the school ... "if a pro photographer was brought in to take 'my' pictures, how much would it cost the school ... thus in theory, that is what the school "should" pay me if they want to keep my photos..." - and as RIck & others have said, maybe next time, it needs to be fully negotiated before the event

Hope this helps - and Scotty .... I feel for you
Regards, Phil

[Scotty72]

Hi all, wow. I didn't check here 'til now 'cause I didn't fream I'd spark this.

OK, to clarify a few things.

1) Entirely my equipment
2) Entirely on my own time

Eg. the concerts are generally held at 7pm - teachers volunteer their time - there is NO overtime, allowances etc. (apart from sometimes a few packs of biscuits are layed out)

3) It is not the principal who asks, it is often the kids themselves or the teacher organising who will do the asking.
4) I place the pics on the school's server - we are all warned that photos should only be used within school and / or for educational purposes... Within the metadata, my name and a copyright message is placed allowing use within school and/or educational purposes. I really think that a commercial photographer making $$$ is outside of this...

I have never asked for $$$.

I have never been given money, time off in leiu etc. Except, there was one time when I was asked to take pics and I was given that period off (relieved by another). That I considered a form of payment (in kind) and acknowledged (in my mind) that they have a claim.

However, if I do it after school, in my own lunchtime (or other free time) etc. then, I believe this to be an entirely different matter.

I would very much doubt that photography (in my free time) could be considered a requirement of my normal duty (especially the requirement for me to supply my own camera).

There may well be the issue of releases from the girls pictured as well (again, I doubt the general waiver the parents sign about pictures at school should apply to a third party commercial enterprise).

Again, I don't expect payment... I just consider it rude; and if I am entitled to some $$$ from the photographer, I wouldn't mind if it went to the school library, a charity etc. Just not into a commercial photographer's pocket.

Scotty

[ricktas]

Thanks for the extra information Scott, helps us understand the entire situation you are going through.

[Scotty72]

As much as anything else, as anyone who has done any academic study would no-doubt recall, I have had the concept of plagiarism as a crime worse than death drummed into me.

The school, several times a year, is forced to punish - with a zero grade - students who are caught using unattributed material. We catch 'em then, (for the seniors) the child and her parents are dragged into the principal's office and many tears are shed. A few years back, we had one repeat offender, who was booted from school.

And now, I see some absolutely untennable hypocrisy.

Scotty

[Scotty72]

BTW Thanks for the general support guys

It really does feel like a bit of a violation of trust.

Scotty

[Kym]

1) Entirely my equipment
2) Entirely on my own time
4) I place the pics on the school's server - we are all warned that photos should only be used within school and / or for educational purposes... Within the metadata, my name and a copyright message is placed allowing use within school and/or educational purposes. I really think that a commercial photographer making $$$ is outside of this...

To me that's a no brainer, you own the © (IANAL)

[ameerat42]

Scotty. It is indeed a SORDID tale. I have nothing to add, but can only commiserate. I will pick you up on one point, though: you would not be a "little miffed", but VERY so, and it is a BIG "violation of trust" - no understatement needed - or of anything else that's 1/2 decent. That's all. Am. (Oh, I gotta go and spit now - think I also got some bad taste.)

[Kym]

http://www.artslaw.com.au/legalinfor...erofDemand.asp

Get some legal advice, but I'd be suing the photo company for breach of copyright.
Maybe $5,000 ?

[NikonNellie]

What I would like to know is did the Principal and/or photographer seek permisssion from the parents of the girls to have their photos plastered over the portfolios? At the school that I work at all parents are asked to sign a form granting permisssion for any photo that is taken of their child to be used in the school newsletter, flyer, etc. This I would think is a whole different matter as the photographer (being a 3rd party entity) should seek separate permission from the parents.
I can sympathise with you Scotty - I took some photos for our school music production and I would have been very annoyed if I hadn't been given some credit in the progamme but luckily I was.

[Scotty72]

What I would like to know is did the Principal and/or photographer seek permisssion from the parents of the girls to have their photos plastered over the portfolios? At the school that I work at all parents are asked to sign a form granting permisssion for any photo that is taken of their child to be used in the school newsletter, flyer, etc. This I would think is a whole different matter as the photographer (being a 3rd party entity) should seek separate permission from the parents.
I can sympathise with you Scotty - I took some photos for our school music production and I would have been very annoyed if I hadn't been given some credit in the progamme but luckily I was.

Thanks for the link Kym... I am really leaning towards bringing this up, for an apology at least.

I would also like to know about the parental permission. The parents are asked to sign forms that allow images to be taken within school and for educational purposes. It clearly states that they can't / will not be used on social networking site etc or commercially.

Perhaps they did go get permission for these pics. I don't know.

Grrr!

Scotty

[Kym]

A major newspaper recently nicked an image from a web site. ( a few weeks ago)
It was discussed on WhirlPool (Photography Lounge) ... in the end the paper paid up using that letter.
The Guy's claim was based on Getty Images values and was around the $5k mark.

[Paul G]

That topic on Whirlpool was a good read Kym.

Scott, going on from the LOD in the Arts Law link Kym posted perhaps a phone call to them directly for a chat wouldn't go astray.

Arts Law Centre of Australia (02) 9356 2566

[mikew09]

Gezz Scotty, I think I would feel the same. Surprised the photo's did not have the normal little foot note "photographer "Name", that would have been enough I imagine.
I took quite a few photo's of John Chatterton (World reconised horse trainer) when he was doing a video take of training one of our horses.
It appears in one of his training DVD's. I supplied him with a load of photos from the session and he said that if he used them he was happy to foot note me as the photography. I would have thought that that would have been a very simple thing for the school to do also.

Tough call what to do mate - I will that to the more experienced photographers to comment on. But I feel for you mate - reconigtion would have been a nice reward for the usage.

Mike

[Scotty72]

I spoke to the principal today.

She acknowledged her mistake and apologised. Aparently, the photographer asked her to supply some pics (this is a concern I discuss later in this post) - she did but did not stop to consider the implications of handing them over to a private, commercial enterprise. She asked me if it were still ok to use within school on newsletters, school magazine and promoting school events. I told her as long as private commerce is not involved - go for it.

I accepted this apology along with her word that it would not happen in future without first asking.

I then explained to her that I consider that the photographer actually has a case to answer because, as the publisher, the photographer bears some responsibity in ensuring it is publishing material that does not violate copyright (in the same way Rick is aware not to allow publication of infringing photographs on this site).

I asked her if the school would contact the photographer and invite them to make a suitable donation to one of the charities our school supports through fund raising in lieu of any payment to me. This the principal refused. She does not want to make waves (a default position it seems with state school principals) with the photographers as she said, "they give us a good deal and occasionally do banners etc. gratis so long as we provide them with our business."

Now, this is my dilemna; do I make waves by contacting them myself?

One the one hand:

• They, according to the boss, do well by our school.
• Were given the photos by the boss who did not make them aware of copyright.

One the other hand:

• They ought to be in the business of making sure copyright is honoured.
• Need to be brought to account for not making sure copyright is honoured.
• Are they able to do the school good deals by cutting corners (such as payments for intellectual property)
• Charity needs money that I feel I am entitled to more than they do.

(does anyone have any more points (on either side) that I may be forgetting?

To be honest, as I have said, I am not interested in the money. besides, from what I can work out - I'd probably be entitled to only somewhere between $50 - $150 per image anyway - money a charity could probably use better than I would (I'd only waste it on camera stuff )
However, I am very interested in the principle of the matter. I would, at very least, be very interested in their reason for deciding they did not have to check if they were entitled to use images given to them without so much as an acknowledgement of authorship.

Therefore, I think I am going to rock this boat because if they photographer is relying my principal to supply FREE images for their business - I strongly suggest he is doing it to many others. Clearly, trading off freebies from others is (IMHO) an unacceptable business practice.

Thanks to all for your support on this. It is not until this happens to you, that you realise how hard this pill is to swallow.

Scotty

[Scotty72]

And, for those interested if the principal had the parents' permission for the students featured in the photos... she had them bring in notes so, that part was 'by the book'.

[Scotty72]

Ok,

perhaps as a measure of my annoyance, I drafted the following (yes, at 1:30 am) letter of demand.

I have included notes within the [] that are not on the original letter - as explanation.

Please tell me if you think I am being unreasonable in this matter or an exceeding my rights in this demand.

Finally, parts of this letter are reproduced from the Artslaw website, I am assuming that they provide these letters are templates and allow them to be copied for the purposes outlined.


To Whom It May Concern,
I wish to draw your attention to the portfolio of images you have recently published and caused to be distributed to your paid clients at [name deleted] High School, NSW on or about the 29th July 2010.
In particular, I wish to draw your attention to the front cover of this portfolio. It is my contention that:
· At least three (3) of the images in the collage of twelve (12) are images for which, as the creator of that work (photographer), I retain both moral rights and copyright under Australian law. [another two I am pretty sure are mine but I can't find - as yet - the RAW files]
· I am able to establish that these three (3) images are my creation through the presentation of the original ‘CAMERA RAW’ files stamped with relevant metadata including the serial number of my camera, if required.
· You have violated my moral rights and copyright under Australian law, that being the reproduction of my work without proper permission, attribution and compensation.

To rectify this infringement of my rights, I require that you undertake to:
· Make payable to a charity of the above-named school’s choice, in consultation with myself, an amount not less than $75 per infringing photograph.
· That a copy of the receipt for the above (on the nominated charity’s stationery) be forwarded to me as confirmation of payment.
· You undertake, in writing, to not repeat such an infringement in future.


You can confirm your acceptance of these undertakings by signing and dating a copy of this letter and returning it to me within 21 days at which time, I will inform you of the nominated charity.


For my part, I undertake that, should the above terms be met in full, I will discharge you against further claim by me over this matter.


You are now on notice as to rights in respect of the Work. If I do not receive an adequate response within 21 days of this letter, I may take such action as I may be advised in order to protect my rights including, without limitation, legal action for injunctive relief or to recover damages without further notice to you.



I otherwise reserve all my rights.


Yours sincerely

[Yournotdoingitright]

Hey scotty
Thats a excellent worded letter makes me want to pay up and I didnt use your images
Good luck hope you get the result you what and deserve and your boss doesn't get to pissed with you for going against her wishes

[kiwi]

I'm feeling sorry for the photographer at this point

I truly believe that they have nit benefitted commercially at all by including these pictured that the school provided (I think he believed the school had appropriate ownership)

By including these pictures was his fee or his sales any more than it would have otherwise

I think that originally what's missing here us a written agreement between the op and the school or even a verbal agreement

As the publication is an internal school one, I don't really think it's against the original understanding

Meh, move on.

[bigdazzler]

I'm feeling sorry for the photographer at this point

I truly believe that they have nit benefitted commercially at all by including these pictured that the school provided (I think he believed the school had appropriate ownership)

I tend to agree. I dont think it was a deliberate attempt to weasel out of paying for photos. I fully believe he assumed (his mistake which he is responsible for) that the photographs belonged to the school, and they were giving him permission to use them. Simple.

If anyones screwed up, its the school, and as you say youve accepted the apology from your boss so maybe its time to let it go ..... Dunno Just my thoughts.

[ricktas]

I tend to agree. I dont think it was a deliberate attempt to weasel out of paying for photos. I fully believe he assumed (his mistake which he is responsible for) that the photographs belonged to the school, and they were giving him permission to use them. Simple.

If anyones screwed up, its the school, and as you say youve accepted the apology from your boss so maybe its time to let it go ..... Dunno Just my thoughts.

I am going to disagree on this one.

Take away all the information about who did what and you have a private commercial photography business taking, editing and using other photographers works without at the very least checking who owns the photo(s) and making a profit from using those photos.

It could happen to any of us, and if it did, how would each of us deal with it? I reckon most of us would do the same thing Scott is doing if presented with a similar situation.