Author trying to do the 'copy' right, thing!

by Nick Gerrard
(Czech Rep)

I am an Independent Author. I have a self Published travel book out, first in e-book form and now in paperback.

I asked my friends, in a rock group, if I could use a photograph I saw of them on facebook, for the cover.
They granted me permission. I asked if they had the rights to the photograph and they said they did.

Anyway, the book has been out for some time in e-book form.
A guy who was their driver, saw that the book is now in paperback, and contacted me, ranting and raving that I stole his picture, demanding money and the threat of lawyers etc. he knew of the e-book but said nothing.

I explained the situation to him, that I didn't knowingly use his Picture without his permission.
He will not accept this, and wants money (he doesn't even care about being credited)
I did this whole thing myself, and explained to him that it is a small venture that has just got underway, and that I have received no payment in advance for the book from the publishers.

The group believe they had the rights to give me permission to use the photograph as the said person was employed as a driver by them.
I knew of no other person, that I should contact to ask for permission or about copyrights.

The gentleman in question is not a Professional photographer, and was asked to just take a snap on his phone.

Being an Independent artist, I would fully support the rights of a photographer and them having the rights to their work and believe that that person should get credited and indeed paid for their work.

In this case, it seems to be that he thinks I am a Stephan king level author, and smells money. I have sold a few copies and it has taken me an age to get the book out there and onto online stores whilst holding onto the rights to my work. I have received no payment as yet for any books that have been sold.

So my problem is this: I cannot afford to pay him any money. He has a copy of the picture he took on his camera, if I don't pay him he wants the book removed. This will mean I would have to re-submit the whole thing after months of work, with a new cover and at great financial cost to myself.

I am of course in favour of paying people for their work and crediting them. The band believe they acting in good faith, as do I. And if I had known about him before hand would have asked for his permission and credited him. Now I am not sure what to do? If I pay him one sum of money will he come knocking for more. Does he in fact own the copyright? I don't think he has copyrighted it and therefore who is to stop someone else doing the same thing in the future?
Any advice would be greatly appreciated.
Thank you for your time.
Yours
Nick Gerrard.

Answer:
Hello Nick,

I can understand your predicament and there are a few things to consider. My general recommendation is for you to contact a media lawyer in the Czech Republic as the copyright guidelines there may vary from English law. Generally, you don’t have to register a photo to own the copyright for it. If you have taken the photograph you own its copyright, except when :

1. the photograph is taken in the course of a work-for-hire assignment, where the client owns all rights to the photos you shoot
2. there is a contract under which the photo was taken that assigns the copyright to someone else i.e. to the client.

The point I am trying to make here is that even though the individual you are referring to was under the employment of the band , he was not hired specifically to photograph the band rather as their driver so my guess is that his contract does not have any clauses re photography and the above two points do not apply. Therefore, he owns the copyright of the image he has taken. However, he would not be able to sell the image for publishing unless he has model release of the band granting him the rights to do so. It sounds like he does not have such a release so this is something you can perhaps use for your negotiations with him to come to an agreement on the fee. You mention that you got the permission of the band yourself to use the photo for your book cover, you might want to get this in writing in case you have not done so already.

Below is a link from the National Union of Journalists which details that average fees charged for images used in Book publishing. They are based on a print run of 50,000 or fewer. Checking Category E for world rights in all languages ( the most expansive licence) and the average price for a Cover is £440:
Freelance Fees Guide

Perhaps you can use this information as well to come to some kind of more reasonable fee agreement with the individual in question.

I hope this helps and best regards,
Gianfranco
DPTips-Central.com

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