Thought this was cool...until I realized...

A photo that I snapped of my buddy Mike Bell got used for his bio on the West 49 team page. Link:

http://west49.com/team.jsp?teamMemberId=3006

Original:



Not sure about the crop they used, but whatever.

I love the shadows and the framing between the two railings.

Bonus points for the pocketwizards shadow

Thanks

Haha, everyone comments on the PW shadow--it's a hit. I might make a point from now on to purposely include it in my shots. You can tell it was shot with my 1D too. The PC cable gives that away (stupid 1D hotshoe pooched out).

On a more serious note though...a question for those more experienced with this sort of thing:

A bit of back story here; I submitted a few (5ish?) photos on a CD to the media guy at West 49 a while back. The media-handling guy sent back a waiver/contract which basically described that if I signed, I lost any and all rights to the photo, and they had unlimited usage to the image in any way they saw fit, in any medium they saw fit. For free. Free.

I didn't really know what to do. I can't lie, I liked the idea of getting myself out there, but I didn't feel right about completely signing my work away--and for free, at that. I took some time to think about it, and couldn't make up my mind. I eventually decided against it, (and although maybe not the correct/nice thing to do) and didn't actually reply at all afterwards.

Just about a week ago one of my friends mentioned that he saw this on the site, so today I decided to take a look--and there it is.

Question being, is it right for them to just go ahead and use it? Should there be some sort of compensation? I figure since they sent a contract, there's some sort of legal structure to the whole thing, but it seems odd for them to go ahead with this without me giving the nod....or replying at all for that matter.

I guess I'll leave it at that and see what y'all have to say.

I'm posting quick but I'll be back -- damn dinner.

Anyway, West 49 = big company with money for marketing, promotion etc. You did the right thing in not signing as they were basically using you and your work for free. Trying to take advantage of a photographer they think they can.

I've seen your skate shots and they're great -- definitely worth something, anything. (I'll be back with some possible ideas)

Them now using your shot without consent -- they knew they needed it or else why would they send you a contract/waiver asking for it -- is against the law/copyright whatever you want to call it.

What sort of action you can take I'm not sure. You can ask for compensation or for them to remove the shot. You however don't know when/where else they'll end up using the work either. Giving duel use copyright (they can use the shot/you can use the shot) will be a lesser price then if you were to give away all your rights. They'll make money one way or another on a shot you can no longer do that with. Put a price tag on your work if they're eager to use it. Also another route to possibly take is offering them a limited time use fee for less -- say a 6 months term for $X where you still retain copyright. If they plan on using your work after that term, they need to pay up -- get contracts signed and agreed to, also ask for where they plan on using it and when they do to receive a copy. This way you can keep track of your work and how it's being used (even though you signed this away for that 6 month term). When the term is up see if it is still in use, if so, charge again.

Etc.

Like I said I'll be back with some more ideas etc. I'm pretty new to the whole "what you're worth" thing but I have strong feelings on it.

Thanks for the quick reply! The general consensus seems to be that I need to get something, or at least do something. I'm certain something needs to be done, but I suck at sticking up for myself for this sort of thing. It's a weird feeling...it's cool because my stuff is out there, and I don't want to ruin it by demanding money...but still.

Worse still, I work at West 49...so I feel like I owe it to them...or something...you know what I mean? But on the other hand, why not straight out pay me or hire me as a photographer for the skate team or something? So stuck, soooooo stuck.

I'm eager to hear more though.

OH, this just in:

My buddy from Kitchener who is a skate photographer as well heard my story and told me that he heard a guy from down there had the same thing happen to him recently as well.

My friend sent me an invoice that this guy made up, and it knocked my socks off!

I don't want to get into specifics, but the invoice reads (roughly) like this:

Date: 16 March, 2008
Company: West 49
Usage: One placement on west49.com as 1/4 page image not to exceed 500x333px in size for duration of 1 year.

Price:
Fee: $XXXX.XX (1X 1/4 page photo for national company, 1 year)
Penalty: $XXXX.XX (2X the regular licensing fee for unauthorized usage)

Total Price: $XXXX.XX

Work Delivered: 13 March, 2008
Delivered to: XXXX XXXXX (The same guy I delivered my photographs to, funily enough)

And yes, the X's are 4 digit.

Guy asked for about 5k in total. I'm emailing the photographer to see what happened/what advice he might have. Suffice it to say, the photo in question is no longer on the West 49 site for the skaters profile (the photo was really nice but is now replaced with a low resolution video still).

That's really unfortunate Anthony. Knowing how good your work is, it's an even bigger shame that they are messing around with someone consistently producing work they would be interested in.
Maybe it will help you stand up for yourself if you think of this in a different way. Considering the fact that you work for them already, I'm sure you would be pissed if you worked a shift that they decided not to pay you for. It's exactly the same thing. As much fun as photographing is, it's work. If just anyone could do what you do, that guy would be out there shooting as many promo shots as they need.
If you'd like a good example of how much companies value promotional photography, Westside Studios got a 10 million dollar contract to photograph the dresses for the movie Marie anne Toinette. (or however that name is spelt.)
Billing wise, it's not even a matter of what they will pay for that photo. It has become common practice now to charge for usage. If Nike wants your photo and will publish it in 10 000 000 catalogues, post it online for 1billion people to see, the photographer is making a very small percent on each of these viewings. (Unfortunately, it may be this new billing scheme that has driven some companies to steal from non-pros)
As for your options: First off, even if you had signed the contract, you can always use your own shot for self promotion. No matter what they say.
That said, I am glad that you didn't sign that crap. It would basically help to ensure that you will never be able to be paid for your work. The other reason for not signing is that realistically, how many of the people that are going to see your shot are going to say to themselves... "Wow that guy is great, we should pay to fly him here and hire him to photograph us." Actually, now that I look at it again, not only did they use your image without permission, they didn't even give you credit. EXTRA VILLAINOUS!
You've got no choice but to do something. This is highway robbery. If not for you, than please do it for professionals like myself. These practices are killing this industry.
I love your friend's idea of sending a bill. I would start by taking a screen shot of their website for your own records. Maybe keep it to something a little more reasonable than the 5k your friend charged. That way you might actually get paid. I would also send the bill with an email explaining the situation. ie. sent you photos, didn't like the contract agreement, decided not to give you permission to use photo, meanwhile you decided to steal my photo... I would even write in the letter that you are aware that this is not the first time they have tried these illegal practices. It would probably be advisable to give them the ultimatum that, Either they pay you, remove the photo, or legal action will be pursued.
Maybe even try to find this individual's boss. You may find it more likely to get paid out.
As for limitation of usage, i'm not sure how many companies accept to the "Leasing" of a photo. That's why you make it worth your while on the first bill.
Unfortunately, Canadian photo laws are not the best to photographers. I had been explained that if someone pays you in anyway for a photograph, they own it. Again, you do still reserve the right to use the image for self promotion.

If you're not getting payed, it's volunteer work. Why would a big company need volunteers? It's not like west 49 is a retirement home.

Apparently this other guy who they 'used' sent the invoice and the media relations guy straight up told him it wasn't going to get paid. Andrew's been talking with accounting and marketing people all day and is getting nowhere.

Sounds like they took the photo off the site as soon as he mentioned anything, and said 'sorry, we didn't think we needed permission for a little photo we weren't going to make any money off of--you don't deserve to be paid for it either'.

He's forced to either accept their apology, or take legal action if they refuse to pay. Maybe even just whispering the 'L' word will be enough for them to just pay his invoice though?

I'm thinking I should really wait and see how this all pans out for Andrew before I make any moves. He actually mentioned it might be better if I were to wait and not say anything just yet--otherwise they will destroy my 'evidence' as well.

He's going to hop on the phone again in a few minutes he said, I guess I wait to get more info from him?

He also forwarded me a string of emails between the media guy and himself, and I can't believe how uptight this guy is--one might almost even say 'god complex'. He basically said 'too bad you're doing this, I could make or break your photography career in this industry'.

UGH!

Your post makes me upset. It's basically repeating what Colin and I have stated with a big company trying to take advantage of people not knowing better.

This
"'sorry, we didn't think we needed permission for a little photo we weren't going to make any money off of--you don't deserve to be paid for it either'."

Is a petty excuse for theft. If I were to walk into West 49, put a pair of shoes on my feet, walk out of the store how far do you think I'll make before I'm jumped by security? Will they let me continue to my car if I were to say to them "Oh, I'm sorry I didn't think I needed to pay for these shoes, I wasn't going to use them in any professional sports, just to walk home and wear around the house, you know, I wouldn't be making/winning money with them. I didn't think they'd need to make money from them either"

As a photographer your photos are your product (so is your service of photography) so anyone using your product without compensation is theft. Considering you're using a 1D which is a pro series camera I'd like to think you think you're a professional or aspiring to be one anyway.

They aren't making "direct" money from a photo on their site but indirectly they are. I'm assuming these sponsored boarders get paid or receive goods -- why else are they sponsored -- people go to the site, seeing the photography, seeing the skate borders, seeing them use West 49 equipment and saying "hey if I use West 49 gear I'll be a great skater too" (that's the whole point of sponsorship right).

This guy is just big company trying to take advantage of smaller people.

Take a screen cap of the site as soon as possible for reference. Maybe even one every day so you know how long the picture is up for etc.

Like I said before they knew they needed permission or else why would they send the waiver/release. They're just hoping they don't get called on it. Also as I've stated -- these companies have money for things like this but the more they penny pinch the more they can "spend" on other things.

And if he can "make or break" your photography career (or your friend's) why doesn't he use photos from one of the photographers he "broke" into the industry -- because he'd have to pay them money -- if he knew who they were.

"evidence" wise, cujo is right. take a screen capture on a daily basis.
As for this media guy.... i'd go over his head. If his bosses found out that the company was getting a negative rep because of his actions, he would be in trouble.
As for "make or break" your career. that's a load and a half. This guy just sounds like their web site guy. Even if he is the guy that books photogs. If he feels he can get away with free photos, he will. Someone's got to stop him. I think the best way is to make it clear that word travels fast. Maybe threaten to go to the media. Doesn't mtv have phone in shows. There's the target demographic.

your friend may want you to wait, but pressure from multiple fronts, maybe both contacting this guy's boss will do better.

Yes, very much aspiring to become a professional. And money towards paying off my gear would be very good.

Cujo and crowell, you are both very right. I am 110% with both of you saying that it's wrong and something should be done about it. [(EDIT) I also do plan TO do something, I'm just currently trying to decide what route to go with them.]

Seeing as I am still currently employed by the company, would it be wise to try to contact someone internally? Would it make it easier for me to get 'to the top', or would it be easier for them to give me the run around and block me from communicating with someone important?

Do they know you work for the company? That will probably make a big difference.

I'm sure you've got this info available but here's their contact info.
(905)336-5454
WEST 49 INC.
Attention: Privacy Officer
1100 Burloak Drive, Suite #200

Burlington, ON L7L 6B2

I would call and ask for the manager of marketing. If they try and block you or ask what business you have, tell them it's a copyright infringement issue. They'll put you thru. I'm not sure whether it's best to go internally or not. Most companies seem to think less of their staff than they do of potential clients. The other issue is that you may not actually be an employee of west 49. Depending on how their franchising works. You may just be an employee of the owner of this store, which is licensed to sell as a west 49.

The reason that I am suggesting doing this at the same time as your friend is that it's a more serious issue if the company is getting a reputation of ripping of it's client base. Explain how you and ALL of your friends are dedicated clients of their stores. This marketing guy (as with many) only cares about his immediate task. Hopefully his manager will be able to see the bigger picture. The loss of thousands of dollars of business.
If you end up running into a brick wall with this manager (or only get to talk with the original moron) threaten legal action and media involvement.

I'm glad you are going to do something. As you are aspiring to do this as a career, allowing this company to get away with these practices guarantees that they will not be so willing to pay for the service in the future. Cutting yourself out of the job market before you start.

Hello there: this is a very interesting read - I just took a look at the West 49 site and a couple of things come up: 1) is it possible Mike Bell cropped this photo and sent it in as part of his Bio?? 2) did you read the "Privacy Policy and Terms of Use" at the bottom of the website?

West 49 seems very concerned about the privacy issues and they should be concerned about infringing on copyright as well. I know you would be happy to have your photos used by West 49 just for the publicity but since you want to do more professionally, you really need to "stick up for yourself". Remember that you put a lot of time and effort in taking top notch photos so don't sell yourself short.

I'm not sure whether having the other guy going through the same thing with West 49 right now is better for you or not, but I do think I would try that Privacy Officer that Crowell mentioned (it's on the privacy policy page). Be very careful about the "legal action" route, because I don't think you want to come across as "threatening". I do think I would try the "I am very dissapointed that the company would do that to me" routine first. Good Luck. Luv Nana

PS - for those of you who don't know us, I am AJ (Anthony)'s Nana

For what its worth, your original shot is much better than the cropped photo. They could have cropped a lot better. I think that you got a very nice angle and you hit the shutter at a very good time. The lighting is nice.

Just so you all don't think this is a family affair... I am of no relation to either of them

Wow!!! I have no advice (and no relation either! lol) but sure makes me want to think about entering contests and just sending in a couple shots to people. Hmmmm. Interesting lesson for sure!

One thing I would recommend for next time you submit something for consideration is to add a copyright symbol and your name right on the image, and also embed the copyright information in the metadata by going into file>file info in photoshop (assuming you're using that). If they deliberately crop out your copyright they can't plead ignorance.

Ken, good point. As Nana has been asking me, what I really think I need to find out first is whether or not he's using the photo I submitted on the CD, or if Mike (the skater) sent in that photo with his bio info. I'm asking him right now actually. If he used a photo Mike gave him, he would have had to crop the name at the bottom. If he used the one I sent without permission, he wouldn't have had to crop it because it was un-watermarked.

...Either way, it's still sketchy.

Anyways, Mike says:

"no i didnt send it in .. i guess he used the one on the cd or something .. is that a bad thing ?"

I said "No, I was just curious. It's cool that you're on the page though eh?".

I don't really want to involve him if I don't have to.

For future reference option-G is the copyright symbol on the Mac.

© Haha, thanks. I'm sure that'll come in handy in the near future

It's a nice gesture to not include your friend in the whole ordeal right now but I think after the dust has settled maybe filling him in on what went on with everything might be a good route to take. This way you're educating another person on our business which I think a lot of people are taking for granted now and not seeing the value in the work produced etc.

Even just a quick -- they sent me a release form on the shots and didn't want to reimburse me for their use. I refused to sign the contract yet they used them anyway. All I was looking for was acknowledgment for my work.

Or something like that. I'm sure most people will/should understand that much. I'm sure when you take shots of different skaters when you post them online you say "This is Jimmy X doing a twisty mcdoodle" (can you see I'm very far out of it on the skate terms) giving some credit to the person you're photographing even though you don't have to.

It's early in the morning and I forgot where I was heading with this now.

I got the jist of it though

Get this...

Andrew and I had a talk again last night and he updated me a bit:

andrew says: (10:59:27 PM) but west 49 called the skater

andrew says: (10:59:35 PM) told him that im trying to screw them all over

andrew says: (10:59:51 PM) and its making him look really bad

andrew says: (11:00:08 PM) and if they have to pay me.. some of its coming out of his pocket

---

And he said he's spoken with a lawyer and there's a letter in the works that he plans to send out at the end of the week if they keep screwing around.

Just about to have supper though, so I can't really elaborate any further. We're thinking though that it might be good for me to see what happens at the end of the week here and he may include me in his legal pursuit...or maybe not. Still just kinda playing it by ear. If this goes on until next week though I'll speak up for myself then.