Not too long ago in a galaxy quite close to home there was an organization of some size that decided “hey, let’s just casually grab these cosplay photos and use them for an online ad for our event”. Unfortunately for everyone involved the organization in question were too lazy to actually check with the photographers and models, so for the sake of dramaturgy I’m going to call them the “Sloth Empire”.
Now I’m not really going to go into the specifics of the actual story (because that would be unprofessional of me), but I will show you readers some of the most common objections and suppression techniques such organizations will use to justify their actions or avoid a payout. I believe the saying “everyone in life has a purpose, even if it’s to serve as a bad example” is quite fitting.
The legal jibberjabber in this post will be directed towards my Norwegian readers but there are most likely relevant paragraphs in your respective, local copyright laws if you live in a country that signed the Berne Convention or the TRIPS agreement – which includes pretty much every civilized country in the world including North Korea. It’s a fairly low bar.
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So one day you suddenly discover your picture on some site, ad, flyer, (whatever really), and you feel a pressing need to rain down righteous vengeance upon the filthy heathens that monetize your art or your face without even having the decency to ask first. Where do you go from there?
The first step towards setting things right whether you’re the photographer or the model in a photo, or if it’s any other type of artwork you’ve made, should always be to establish that the offending party is in fact in breach of your intellectual rights. My advice is to ask the Sloth Empire in a polite and respectful manner to clarify 1) how they obtained the rights to said picture(s) and 2) to detail how they have been using the picture(s) in question. Every now and then there will be a perfectly reasonable explanation as to why your face is plastered all over the internet. Most of the time however, the the answer will be “someone sent it to us”, or “we found it on google”.
Once it’s clear that they do not have the necessary rights, or if you dispute the rights they claim to have, it’s also common to state that the damage has already been done and to request that they stop using the picture until further notice. At this point you should ask them to suggest how you can resolve the situation amicably. In a perfect world The Sloth Empire would accept responsibility immediately and ask for your account information or an invoice so that they can pay your going rate for said photo. While this does happen, more often than not they’ll just give you the finger and It’s time for an epic battle of lightsabers (emails), force lightning (legal paragraphs) and wills.
To help explain how organizations like The Sloth Empire often react to fight a copyright claim I’m going to use an adapted Kübler-Ross model, also known as “the five stages of grief”. Just like with the Kübler-Ross model these stages will appear interchangeably and some may or may not appear at all. The whole model may in fact be deeply flawed but that’s a whole other debate.
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The first response you’ll get from your garden variety of The Sloth Empire is often some version of “we’ve done nothing wrong”. They might argue that you’ve signed some far fetched, deeply buried Terms of Service agreement, that the copyright claim should be directed at someone else entirely or pull off some sad story about that one time their dog ate their homework in fifth grade and how they’re not responsible for anything in their lives after that. I’ve heard some pretty bad excuses over the years.
At this point you’ll ideally be talking to an editor-in-chief (the guy in charge of publications) but if you’re not, make a request to talk to the guy in charge. Your answer to excuses like the ones above should be two words; “editorial responsibility” and then some more words saying (much like in a game of tag) “You’re it”.
Editorial responsibility is (a bit simply put) the idea that the publisher of a publication, Instagram account, webpage, newspaper or whatever really, have the final responsibility to make sure that any and all content published on their platform adheres to certain legal and ethical standards. It does not matter if it was their assistant’s cat who posted a photo which was approved by some latte-drinking, unicorn riding, glitter-bearded graphic designer from fucking Narnia – it’s still their responsibility. If they have any sense of decency they should pay the starving artist and then make a regress claim towards the responsible party if there’s actual grounds for that.
It’s also worth to notice that Norwegian Copyright Law is quite strict regarding the how and when and where pictures are used. While you might have agreed to having your photo shown on-screen as part of a competition that does not suddenly mean that the Sloth Empire can use the picture for any and all competitions, advertisement or edit and alter the photo in any way unless this was specifically agreed upon in contract. If you’re the photographer look up §2, §3, §39a, §39b and §43a. If you’re the model/cosplayer look up §45c.
When confronted with a reminder of their own responsibility and the odd legal paragraph most professional editors will cave in and throw money at you to avoid further embarrassment. The Sloth Empire however, will not. They will accuse you of destroying the cooperative spirit between everyone involved, they will rave and thrash about making unfounded claims, portray you as a gold digger and threaten to make you suffer in the most insufferable ways. The most common of these vile attacks is to threaten to sue or make a regress claim towards the model, indirectly saying “do you really want the model to suffer for this?”. No one actually bills the model though.
Repeat the things you said about editorial responsibility and the relevant paragraphs from above. Tell them that if you are not able to come to an amicable agreement you’ll just send them an invoice. If they pull the whole “the model will suffer”-routine, question their humanity.
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Right about now the Sloth Empire will usually start saying they used the photo “in good faith”, which is an actual legal concept between two roughly equal business partners. The problem is that they’re an Evil Empire TM and you’re a simple moisture farmer, a hobbyist-to-semi-professional artist struggling to make ends meet. You’re not equal partners in business. Cite the editorial responsibility bit yet again and say something along the lines of “Negligence of legal responsibility does not equal good faith. What exactly has the Sloth Empire done to ensure they had the proper rights to publish this picture?” In most cases the answer will be something along the lines of “we didn’t even know this was a thing” – which is exactly why they’re not going to make the model pay the invoice.
It’s also quite likely that The Sloth Empire ask you to make a deal that does not involve an exchange of actual, real life money. Instead they’ll offer something universally known as exposure dollars or just ‘the e word’. If you know your basic, latin alphabet you’ll know that after e comes f, which will make it easy to remember that the right response to an offer for exposure is: “Fuck no”.
Don’t get me wrong, exposure can be very rewarding for everyone involved when done right (and in such cases you’ll rarely hear the actual e word used). Pretty much everyone in the community does tons of work for free, but that does not magically equate to businesses like the Sloth Empire being entitled to use your work for free and without asking. While they are making/saving an easy buck by exploiting your work, you’re not going to be able to buy food, new crafting materials or cover your travel expenses with exposure. Say no to exposure. It’s bad for you.
Right now you might be thinking “just exactly what is my picture worth anyway?” and the answer is that it’s probably worth something within the range of 1.000 – 5.000 NOK depending on the quality of the picture, what it’s been used for and how much douchebaggery the Sloth Empire pulls out of its seemingly endless orifices.
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Now that you’ve established that there’s an actual claim and that The Sloth Empire is not going to be able to worm their way out of the situation they’re quite likely to delve into some deep depression. Unlike the Kubler-Ross model where said depression is internalized resulting in apathy and self-loathing, The Sloth Empire is more likely to pin all of their woes on you.
“We’re good people, why are you doing this to us?”, “You only care about money”, “You’re such a terrible person”, “Go away!” Ad hominem attacks are not all that uncommon (but did not happen in the specific case this post is very loosely based upon).
This is your time to go on the offensive. Suggest that the whole situation can go away if they just agree to pay a reasonable invoice for your content. The invoice should be at twice the actual cost of buying a photo for the purpose your content has been misused for. This is a well established practice that most photographers (at least in Norway) adhere to. A picture for general web use usually costs about NOK 1.000 so a good place to start is NOK 2.000 per picture. If you demand some outlandish sum you’ll just be laughed at and lose in court.
Another approach could be to suggest something entirely different like free tickets, services rendered or anything else you deem appropriate that holds a reasonable cost for the offending party and equally reasonable value to you.
The fifth Kübler-Ross stage is “acceptance”. It represents the notion that “I can’t fight this” and the realization that death is in fact inevitable. There’s supposed to be some sort of relief in there, but Sloth Empires are powerful in the dark side and there’s often just hate, greed and anger. Don’t expect them to like you any time soon. They will however accept the invoice (or whatever solution you deem to be in your best interest). If you’re lucky they’ll also be a lot more predisposed towards actually asking the creative people behind their content the next time they need something. They might not like it, but they’ll do things the right way (or fuck up even worse, as more than one best-unnamed-organization ended up doing).
P.S. Always remember to be polite, respectful and understanding in your communication with people who have misused your art. Mistakes happen. What separates the good guys from the bad is what they do to remedy the situation. Money is not always the answer, what’s more important is that organizations learn to respect the creatives they rely upon. A good solution benefits everyone.